author: MURDOCK, Judge.

text:
    Halee Denise ISLER v. James Paul ISLER.
    2010714.
    Court of Civil Appeals of Alabama.
    July 25, 2003.
    W. Terry Bullard of Bullard & Bullard, Dothan, for appellant.
    Paul W. Brunson, Jr., of Robertson, Brunson & New, LLC, Clayton, for appel-lee.
   MURDOCK, Judge.

Halee Denise Isler, the wife, appeals from a judgment of the Henry Circuit Court divorcing her from James Paul Is-ler, the husband.

The parties were married in January 2000 and they had one child, who was born in May 2001. In December 2001, the husband left the wife. On January 18, 2002, the husband filed a complaint for a divorce in the Henry Circuit Court, alleging incompatibility and an “irrevocable” breakdown of the parties’ marriage. In his complaint, the husband did not request that he be awarded any property and he did not request custody of the parties’ child. On February 1, 2002, the wife was served with the husband’s complaint. On February 5, 2002, the wife filed three motions: (1) a motion for a temporary restraining order, (2) a motion for a protective order, and (3) a motion for temporary custody of the parties’ child. On February 7, 2002, two days after the wife filed her preliminary motions, the trial court made a notation on the case action summary sheet, stating “[t]his case is set for hearing on March 1, 2002 at 8:30 AM.”

On February 12, 2002, the wife filed an answer to the husband’s complaint and a counterclaim. In her counterclaim, the wife requested that the trial court award the parties joint legal custody of their child, that it award her primary physical custody of the child, that it award the husband liberal visitation rights, and that it award her child support. She also requested that the trial court award her alimony and attorney fees and that the trial court equitably divide the marital property and the marital debts. The husband filed an answer to the wife’s counterclaim, contesting the wife’s requests regarding custody, attorney fees, and alimony, and admitting that there should be a division of the marital property and the marital debts.

At the hearing on March 1, 2002, the following discussion occurred:

“[WIFE’S COUNSEL]: Judge, my understanding today is that the only issue that we are here for today is on the motions that I have filed. We—
“THE COURT: Well, we’ll just do everything in one big sweep.
“[WIFE’S COUNSEL]: One big sweep.
“[HUSBAND’S COUNSEL]: Well, I think we’ve pretty much got it settled. We don’t have any real big issues left. It will probably take us a couple of minutes, don’t you think, to talk to our clients or—
“[WIFE’S COUNSEL]: Judge, my only concern right now, is he submitted an income affidavit. He is also self-employed. I wanted to sit down with my client and propose a settlement agreement and submit it to opposing counsel. And I would respectfully request, Judge, if we could just have a temporary custody and temporary support, pending the outcome of this, I think it’s—
“[HUSBAND’S COUNSEL]: Well, she’s got custody, and my client hasn’t tried to take the child away from her, is not going to take the child away from her.' He has been giving her money. I mean, he’s been doing all the right things. I told him what he needed to do. And my understanding is, today, we are here either to settle it or to have a trial.
“THE COURT: Why don’t y’all take a few moments and see if you can settle it? Because if not, we will end up probably trying it twice. Custody is always the main thing.
“[WIFE’S COUNSEL]: Yes, sir. And they have consented to agree to custody.
“[HUSBAND’S COUNSEL]: Yeah. We have already done that. And there is almost no property. And we have given them everything, the house, the furniture and everything else.
“THE COURT: So, I guess a child support computation.
“[HUSBAND’S COUNSEL]: Rule 32 — I mean—
“THE COURT: Why don’t y’all see if you can^ — have you gotten it down to the point, you think, all but the child support?
“[WIFE’S COUNSEL]: The only issue right now, from my understanding, that may be a problem, is the issue of what is maybe his true income, if he’s self-employed. And the only other issue, Judge, is there is a house that is deeded in both of the names. He has been willing to give her the house, but it’s her ability to maintain that house payment.
“[HUSBAND’S COUNSEL]: And my comment to that is, we are giving her the house, we are giving her everything in the house, the furniture. And if she can’t afford it, she can sell the house. Or in lieu of that, she can refinance the house and get a lower payment. I mean, I don’t know what else we can do, Judge. Either one side gets the house, or the other side gets the house. Do y’all not want the house or — ■
“[WIFE’S COUNSEL]: Judge, I think it’& — my client would be willing to go ahead and sell the house. It’s just her ability to maintain that house payment pending the sale. How much is the house payment?
“[WIFE]: It’s five hundred and sixty dollars a month.
“THE COURT: If y’all would like to, we can take testimony on those issues, we can get in the record and take testimony on those issues, unless y’all think there might be something that would be agreed to differently. A lot of times, there is just no good way to — just something has to be done.
“[WIFE’S COUNSEL]: Can we have five minutes?
“THE COURT: Yeah. Y’all take a few minutes.
“[HUSBAND’S COUNSEL]: And I will be right here.
“THE COURT: Because my judgment may not be as y’all’s collective judgment, is what I’m saying.
“[WIFE’S COUNSEL]: Yes, sir.
“[HUSBAND’S COUNSEL]: Your judgment is always good, Judge, but it’s not maybe what the clients want.
“THE COURT: It may not fix everything.
“[WIFE’S COUNSEL]: Yes, sir. Thank you, Judge.”

Upon returning to the courtroom from a recess, the parties’ attorneys briefly discussed the amount of the parties’ utility and house payments, after which the transcript of the hearing reflects the following:

“[HUSBAND’S COUNSEL]: I guess we need to just put it on the record, Judge. Let me ask opposing counsel if there are any witnesses in here besides the parties?
“[WIFE’S COUNSEL]: Yes, there are.
“[HUSBAND’S COUNSEL]: Your Honor, we would invoke the rule at this time.
“THE COURT: All right. Any persons who are testifying, if you can step out in the hall. And I believe, [husband’s counsel], y’all are the movants, so, you may proceed. And if we can, let’s try to stay with the disputed areas if at all possible.
“[HUSBAND’S COUNSEL]: All right, sir. We’ll call Halee Denise Isler.
“THE COURT: Ms. Isler, if you can take the stand right up here.
“[WIFE’S COUNSEL]: And, Judge, again, for the record, it is my understanding that the only reason that I was here today — my understanding was to litigate the motion for protective order and motion for temporary custody and support. And I would respectfully request that you continue it, to allow me time to adequately prepare for trial. I am here today to litigate those two issues alone and am not prepared to go forward on the trial.
“THE COURT: The setting order says this case is set for hearing for March 1, 2002 at 8:30. It doesn’t say just motions or — like I said, all we’ll do, is we’ll try the same case twice if we do it that way. I just try cases one time and set them immediately the next term that is up, so we can get them done and get on to the next case. There are just too many of them.
“And this is a great day to try this case, because we don’t have as many. I say a great morning, because it shouldn’t be a great day. Next time, y’all would have to sit all day waiting on all these other cases, and it’s — [the husband’s counsel] is here from time to time, and it’s usually a little busier than — today is just like a day off.
“[HUSBAND’S COUNSEL]: And I have sat here all day, Judge, until dark thirty, and we had to continue it — ran out of time.
“THE COURT: Yeah. That can happen. So, it’s better to start while the time is available.”

The trial court proceeded to conduct the trial of the case. A few days after the trial, the trial court entered a judgment divorcing the parties; awarding primary custody of the parties’ child to the wife and awarding the husband visitation; awarding the wife the parties’ home and furnishings; and ordering the husband to pay the wife $100 per month to assist with the house payment. The trial court also determined that the husband’s gross monthly income was “$1,485 regular salary and $200 per month from Southeastern Taekwondo Academy.” The trial court ordered the husband to pay the wife $290 per month as child support. The wife appealed.

The wife argues that the trial court abused its discretion by conducting a trial on the merits on March 1, 2002, and that it abused its discretion by ordering overnight child visitation.

One of the disputed issues that the wife was concerned about, and on which she based her request that the trial court continue the trial, was the husband’s self-employment income. On his CS^l form (“Child Support Obligation Income Statement/Affidavit”), which was unverified, the husband did not reflect any income from self-employment. The husband testified that he was employed by the Abbeville Police Department and that he operated Southeastern Taekwondo Academy. The husband testified that he had monthly gross income of $1,485 from the police department. He stated that he did not receive a salary from the Taekwondo Academy and that the funds paid by students at the Academy were used to buy more equipment for the Academy. The husband stated, “I don’t make no profit off the school. I do it because I love to teach.” However, the husband later admitted that he had some income from the Academy, that he used money from the Academy’s bank account for entertainment purposes, and that he had paid the wife some funds from the Academy’s bank account for child support. He also stated that, in addition to using funds from the Academy’s account to pay for personal expenses, he took “business” friends out for lunch as many as “ten times a month to zero [time] a month” and that he paid $20 to $25 for each lunch, using funds from the Academy’s account to pay for those meals. He also admitted that he had used funds from the account to purchase jewelry for a friend.

The husband testified that he could not determine the average monthly expenses for personal items that he paid from the Academy’s bank account, but he stated that the amount of those expenses could be determined from his records. The wife testified that the husband spent at least $50 per week from the Academy’s account on personal items. The wife also introduced bank statements from the Academy reflecting monthly deposits of $4,033 in December 2001 and $1,619 in January 2002. The December statement reflected a balance of $2,794 in the Academy’s bank account, but the husband attributed that balance to a loan from his father.

“It is well-settled law in this state that litigants, once in court, must keep track of their case, know its status and ascertain for themselves when their case will be tried.” Robinson v. Walker Builders, Inc., 491 So.2d 966, 967 (Ala.Civ.App.1986). However, in this case, the trial court’s order setting the case for a hearing was entered only three weeks after the husband had filed his complaint, only one week after the wife had been served with the complaint, before the wife had filed her answer and counterclaim, before time had expired for the wife to file an answer, and almost immediately after the wife had filed three motions for interim relief. The hearing was set for a date only three weeks after the date of the notice. In Champion v. Champion, 693 So.2d 510 (AIa.Civ.App.1997), this court noted:

“Our supreme court stated the following in Opinion of the Justices, No. 288, 345 So.2d 1354, 1355 (Ala.1977):
“ ‘Due process of law means notice, a hearing on the merits of the controversy in accord with that notice, and a judgment entered in accord with that notice and hearing.’ ”

693 So.2d at 511. As our Supreme Court further stated in Ex parte Fountain, 842 So.2d 726 (Ala.2001):

“ ‘[Procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one’s life, liberty, or property interest are about to be affected by governmental action.’ Brown’s Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala.1992).
“ ‘Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.’ ”

842 So.2d at 729 (quoting Ex parte Weeks, 611 So.2d 259, 261 (Ala.1992) (emphasis omitted)).

Rule 40(a), Ala. R. Civ. P., provides, in pertinent part, that “[t]he trial of actions shall be set by entry on a trial docket or by written order at least sixty (60) days before the date set for trial, subject to the following exceptions: ... (4) where a shorter period of time serves the ends of justice in domestic relations cases.” (Emphasis added.) Although the Alabama Supreme Court expressly allowed a shortening of Rule 40(a)’s 60-day notice requirement in Ex parte Medical Assurance Co., 862 So.2d 645 (Ala.2003), a case involving a declaratory judgment, we find the principles articulated by the Supreme Court in that case to be equally applicable in the present case. As our Supreme Court explained:

“While Rule 40 vests considerable discretion in the trial court concerning the setting of cases for trial, see Rule 40(a), Committee Comments on 1973 Adoption, the rule sets 60 days as the mandatory minimum time within which parties to an action must have notice of a trial setting. As shown above, however, the 60-day requirement is subject to certain exceptions. Rule 40(a)(7) provides that the 60-day limit is not applicable ‘where a shorter period of time is otherwise provided by law or these rules or agreed to by all the parties.’
“In fact, the Alabama Rules of Civil Procedure do provide for a shorter period in a declaratory-judgment action. Rule 57, Ala. R. Civ. P., states, in part: ‘The court may order a speedy hearing of an action for declaratory judgment and may advance it on the calendar.’ This rule clearly fits within the Rule 40(a)(7) exception to the 60-day notice requirement. The trial court, therefore, is not constricted to the 60-day notice requirement in a declaratory-judgment action. Yet even in a declaratory-judgment action, the trial court’s discretion is not absolute. While there may be no mandatory minimum number of days provided for notice of a trial setting in a declaratory-judgment action, due process demands that the parties still have a fair chance to prepare for trial, to conduct discovery, to submit pretrial motions, and to conduct other necessary pretrial activities.”

862 So.2d at 649.

We conclude that the trial court abused its discretion in shortening the time for notice of the trial setting; under the particular facts of this case, the notice shortening the time for trial did not sufficiently inform the wife that the trial court had shortened the time for trial and that it intended to conduct a trial on the merits on March 1, 2002. Because the trial court’s judgment is due to be reversed regarding its decision to proceed with a trial on the merits, we do not need to address the wife’s argument regarding overnight visitation.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.

REVERSED AND REMANDED.

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

PITTMAN, J., dissents.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Jimmy K. BAGGETT v. Patricia R. BAGGETT.
    2011256.
    Court of Civil Appeals of Alabama.
    July 25, 2003.

      James D. Hamlett, Montgomery, for appellant.
    Robert J. Russell, Jr., of Parnell & Crum, P.A., Montgomery, for appellee.
   CRAWLEY, Judge.

After a 35-year marriage, the parties were divorced in 1992. The divorce judgment required Jimmy K. Baggett (“the husband”) to pay Patricia R. Baggett (“the wife”) periodic alimony in the amount of $3,000 per month. The judgment also provided:

“As security for the husband’s alimony obligation, he is directed to maintain the two American General Life Insurance Policies in the amounts of $50,000 and $100,000; and [to] name the wife as beneficiary thereon, until his obligation to pay alimony to the wife ceases.”

In 1998, the husband filed a petition to modify the judgment, seeking a termination of his obligation to pay alimony and his obligation to maintain the two life-insurance policies with the wife as beneficiary. The husband alleged that he had recently suffered a severe stroke, that he was unable to work, and that he had no reasonable expectation of being able to work in the future. After a hearing, the trial court declined to terminate the husband’s alimony obligation because, it found, the husband had “over $400,000 of income from a mortgage” during the preceding year. The trial court did, however, reduce the husband’s monthly alimony obligation from $3,000 to $2,750, to take into account the amount of a monthly Social Security disability benefit the wife received as a consequence of the husband’s being disabled. The husband appealed the judgment to this court; the judgment was affirmed by this court, without an opinion. See Baggett v. Baggett (No. 2980301, April 30, 1999), 777 So.2d 332 (Ala.Civ.App.1999) (table).

In 2002, the husband filed another petition to modify the divorce judgment, again alleging that he was disabled and unable to work, but also alleging that his savings and income-producing assets had been depleted. The wife filed a counterpetition, alleging that the husband was in contempt of the court’s prior orders to pay her alimony. The court conducted a hearing on June 24, 2002.

The husband testified that he made all of his periodic alimony payments until February 2002, when, he said, he ran out of money. When he was questioned about the $400,000 that he had earned from a mortgage on real estate, he said that the money was gone. He testified that his current income consisted of Social Security disability benefits in the amount of $850 per month and an annuity that paid him approximately $6,000 per year. He submitted his federal income-tax return for 2001 showing a gross income of $11,291.

Keith Baggett, one of the parties’ two adult sons, testified that the husband had deteriorated mentally as well as physically after the stroke. He said that the husband suffered from “impaired reasoning” and “severe depression.” He testified that, after the stroke, the husband had become very gullible and had been “scammed” on several occasions by “flimflam artists.” Keith testified to the details of several “scams” in which the husband had invested and lost large sums of money. One investment “scam” involved an $80,000 purchase of automatic-teller machines.

Keith stated that, as a consequence of the husband’s poor judgment in financial matters, he had convinced the husband to convey the residence the husband was awarded in the divorce judgment to him in exchange for his promise to take care of the husband for life. Keith testified that the residence was worth $85,000. Keith also testified that, after the husband conveyed the residence to him, Keith conveyed the residence to a corporation wholly owned by him.

When questioned about why he conveyed the residence to his corporation, Keith responded that he was having marital problems at the time and he did not want the same thing that happened to his father to happen to him in the event that he and his wife divorced. Keith said that he had mortgaged the residence for $50,000 in order to have the funds to operate his business. Keith acknowledged that, before the husband conveyed the residence, the husband had paid off the existing mortgage on the residence. Keith conceded that the husband had spent “about $10,000” on Keith’s tuition when Keith had decided to pursue his studies in a different field. Keith also testified that the husband had transferred an $87,000 annuity to him, but, he said, he has been giving the husband the income from the annuity. He has also been allowing the husband to live in the residence.

The wife testified that she too was awarded a residence in the divorce judgment. That residence had been recently appraised at $275,000. The wife stated that the residence was not mortgaged at the time of the divorce, but since then she had mortgaged it. The parties’ other adult son, Lex, lives with the wife and pays no rent. The wife testified that she has a variety of medical problems that render her unable to work.

Following a hearing, the trial court determined that, in the real-estate and annuity transactions between the husband and Keith, the husband had defrauded the wife, and Keith had defrauded the husband. The court specifically found:

“While it is not questionable that the former husband made several bad investments with people who took advantage of him, the evidence further disclosed that the son got the former husband to convey the former husband’s home to the son for no consideration and the son then placed the home in a corporation for which the son was the sole stockholder. He testified that he did this because he, the son, was having family problems at the time.”

The court “nullified as fraudulent” the husband’s transfer of his residence and his annuity to Keith. The trial court entered a judgment that reduced the husband’s monthly alimony obligation to $1,500; ordered the husband to “turn over to the wife” the insurance policies on his life and to continue to pay the premiums on those policies; ordered the husband to pay the wife $11,928.25, representing past-due periodic-alimony and insurance-premium payments, at the rate of $300 per month; and awarded the wife an attorney fee of $3,500.

The husband filed a postjudgment motion, alleging that the trial court had no authority to nullity the transfer and, in effect, to order Keith or his wholly owned corporation to reconvey property to the husband because, the husband argued, neither Keith nor the corporation had been a party to the modification and contempt action. After a hearing, the trial court agreed and entered an amended judgment that states, in pertinent part:

“The Court does find that the adult son, Keith Baggett, and the corporation which the son owns 100% of the stock in at this time, were not parties to the action and therefore, this Court’s Order ordering them to reconvey items which the Former Husband had conveyed to them is hereby deleted.
“The Court leaves it up to counsel for the Former Husband as to whether or not he desires to bring an action in behalf of the Former Husband against the adult son and the corporation.
“The conveyances elected by the Former Husband which, in essence, conveyed the family home to the son, who then takes out a loan of $50,000 on the home which went to the son’s benefit and then, the Former Husband having transferred his annuity worth $87,000 to the son clearly was an effort to defraud the Former Wife of any support and to rule otherwise would amount to the Court saying, ‘well done.’
“The Court elects not to do so and especially in light of the fact that the alimony award was reduced by this court’s latest Order, it moves the Former Husband to file whatever actions he deems as necessary to obtain the return of his property and to continue to support the Former Wife pursuant to this Court’s last Order.”

I.

The husband argues that the trial court erred in finding that he fraudulently transferred assets to his son Keith.

“Two types of fraudulent transfers, actual and constructive, are within the scope of the Alabama Fraudulent Transfer Act, Ala.Code 1975, § 8-9A-1 et seq. See McPherson Oil Co. v. Massey, 643 So.2d 595 (Ala.1994). An actual fraudulent transfer is one made by a debtor who transfers assets ‘with actual intent to hinder, delay, or defraud any creditor of the debtor.’ Ala.Code 1975, § 8-9A-4(a). The trial court considers several factors in determining whether the debt- or possessed the requisite intent, including to whom the transfer was made, the amount of assets transferred, and the financial condition of the debtor before and after the transfer. Ala.Code 1975, § 8-9A-4(b); McPherson Oil, supra. A constructive fraudulent transfer occurs when a debtor transfers assets to another without consideration, and the debtor was, or became, insolvent at the time of the transfer. Ala.Code 1975, § 8-9A-5(a); McPherson Oil, supra.”

Varner v. Varner, 662 So.2d 273, 276 (Ala.Civ.App.1994).

The husband argues that he was not guilty of actual fraud because, he says, as a consequence of his stroke, he was incapable of forming the intent to defraud. The husband did not make this incapacity argument to the trial court. The husband argues that he was not guilty of constructive fraud because, he claims, the transfers to his son Keith were supported by consideration, i.e., Keith’s promise to take care of the husband for the rest of his life. We need not address the husband’s argument concerning constructive fraud and consideration because we hold that the evidence was sufficient to support the trial court’s conclusion that the husband and Keith were engaged in actual fraud.

Although the husband’s testimony was hazy on many details concerning his financial transactions with others, his testimony demonstrates that he was fully cognizant of his financial obligations to his former wife. When asked whether he knew that he was to “be responsible for [$2,750] a month alimony,” he responded, “I know that. I’d see that it come out of the bank account every month.” The record also demonstrates that the husband was concerned about, and was not totally unfamiliar with the ways of, protecting his investments. He testified that, when he had his investment account at “NBC Securities in Birmingham,” he had lost money because of fluctuations in the stock market. He testified that he could not keep a close watch on the stock market, so he decided to change his accounts to “Morgan Keegan at Regions Bank in Montgomery” because, he stated, “they could keep that account fed. They did it automatically.” The record contains evidence from which the trial court could infer that the husband, who was not unaware of financial matters, believed that he had been supporting the wife long enough and that it was time for him to plan, with his son Keith, to “look[ ] out for number one.” On cross-examination of the husband by the wife’s counsel, the following occurred:

“Q. Mr. Baggett, you would have had the money to continue paying your wife had you not spent $80,000 or $90,000 or whatever you spent on all those [automatic-teller] machines for somebody else, wouldn’t you?
“A. I had to make a living for myself. So I invested that money to make a living for myself to get Keith — to get him out of school so he could make a living for me, too. I have done all that looking out for number one. Nobody else is going to look out for me. I have been paying [the wife] $2700 — $3000 a month for a long time for eight or nine years.
“Q.. And now it was time somebody paid for you?
“A. I think [the wife] could move out— I think she could sell that house. She doesn’t need a big house. She doesn’t need it at all. But I can’t tell her what to do with it. I don’t expect her to tell me what to do with my money either.
“Q. Knowing that you owed [the wife] a sum certain every month, ... you transferred that annuity that brought you almost $6000 a year the last couple of years to a corporation, didn’t you?
“A. I did that so Keith would have money to make me a living.”

We have reviewed the evidence, and we conclude that the trial court was authorized to find that, although the husband may have been “gullible” in some financial matters and may have been the victim of “scams” by others, he was capable of understanding that, if he transferred certain assets to his son Keith, he would be able to reduce or eliminate his periodic-alimony obligation to his former wife.

“ ‘In Alabama a transfer of ... property made to defeat a spouse’s marital right is voidable. Pattillo v. Pattillo, 414 So.2d 915 (Ala.1982). Whether a specific transfer is done to defeat the spouse’s rights is a question for the trier of facts, i.e. the trial court in this case. Pattillo:

Capps v. Capps, 699 So.2d 183, 185 (Ala.Civ.App.1997) (quoting Prestwood v. Prestwood, 523 So .2d 1071, 1073-74 (Ala.Civ.App.1988)).

We hold that the evidence was sufficient to support the trial court’s finding that the husband defrauded the wife by transferring assets to Keith. Consequently, we find no error in the trial court’s declining to terminate the husband’s alimony obligation.

II.

The husband contends that the trial court erred by ordering him to transfer to the wife the life-insurance policies insuring his life. He argues that the order constituted an invalid modification of a property-division provision in the parties’ divorce judgment. We agree.

By the terms of the divorce judgment, the insurance policies were assets belonging to the husband. The judgment, however, required the husband to maintain the policies for the benefit of the wife and to make the premium payments thereon as “security for [his] alimony obligation.” Compare Hayter v. Hayter, 15 Or.App. 90, 92-93, 514 P.2d 1350, 1351-52 (1973) (holding that when a husband was awarded “ ‘all policies of insurance on his life,’ ” and ordered to pay the premiums on three of the policies and, as to those three policies, to “ ‘transfer all incidents of ownership to the wife,’ ” the wife “was given basically a security interest designed to assure the husband’s performance of his obligations under the support and maintenance provisions” of the divorce judgment).

In the present case, the requirement that the husband maintain the policies and pay the premiums thereon was modifiable because the trial court specifically termed the requirement a “security for the husband’s alimony obligation,” thereby making the husband’s obligation terminable upon the wife’s remarriage or death. See Strong v. Strong, 709 So.2d 1259, 1261 (Ala.Civ.App.1998), in which this court explained:

“A provision in a divorce agreement obligating the spouse to maintain a life insurance policy for the benefit of his dependent former spouse, once incorporated into a divorce judgment, is not modifiable if the provision is treated as a part of a property division or as alimony in gross. Kahn [v. Kahn, 682 So.2d 1377] at 1380 [(Ala.Civ.App.1996)]. However, if the provision is contingent in nature, that is, if the obligation terminates upon the dependent former spouse’s remarriage or death, then the provision is modifiable.”

The ownership of the policy itself, however, was not modifiable because the divorce judgment recognized the policy as an asset belonging to the husband (subject to the limitations outlined in the judgment). The property-division provisions of a divorce judgment become final 30 days after the judgment is entered and are not subject to modification thereafter. McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995). Because the trial court had no jurisdiction to order the husband to transfer ownership of the life-insurance policies to the wife, we must reverse that portion of the trial court’s judgment.

III.

The husband maintains that the trial court erred by awarding the wife an attorney fee. Section 30-2-54, Ala.Code 1975, gives the trial court discretion to award an attorney fee in an action alleging contempt for failure to pay alimony:

“In all actions for divorce or for the recovery of alimony, maintenance or support in which a judgment of divorce has been issued or is pending and a contempt of court citation has been made by the court against either party, the court may, of its discretion, upon application therefor, award a reasonable sum as fees or compensation of the attorney or attorneys representing both parties.”

After considering “the results of the litigation, the nature of the conduct of the parties, the financial circumstances of the parties, and the earning capacities of the parties,” Campbell v. Tolbert, 656 So.2d 828, 830 (Ala.Civ.App.1994), we conclude that the trial court did not abuse its discretion in awarding the wife an attorney fee of $3,500.

The judgment of the trial court is affirmed insofar as it found the husband in contempt and modified his alimony obligation; the judgment is reversed insofar as it ordered the husband to transfer his life-insurance policies to the wife.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., dissents.


text:
    Ex parte CITY OF BIRMINGHAM. (In re Gary Erwin v. City of Birmingham).
    2020098.
    Court of Civil Appeals of Alabama.
    July 25, 2003.
    James D. Love, city atty., City of Birmingham Legal Department, for petitioner.
    Stephen C. Wallace and William M. Dawson, Birmingham, for respondent.
   CRAWLEY, Judge.

The City of Birmingham (“the City”) has petitioned this court for a writ of certiora-ri, see Ex parte Smith, 394 So.2d 45 (Ala.Civ.App.1981), seeking review of a three-judge panel’s reversal of its personnel board’s decisions to suspend the employment of Gary Erwin, a police officer, for 30 and 45 days, based upon two separate instances of alleged misconduct. We affirm in part, reverse in part, and remand.

After an initial determination hearing, Erwin was suspended for 30 days by his department head on the following charges:

“In that, on Friday, May 5, 2000, at approximately 11:05 a.m., [Erwin] approached Ms. Marie Ricker and placed [his] handcuffs on her and told her if she felt like getting in trouble to call [him]. Furthermore, [Erwin] failed [his] polygraph test concerning the allegations.”

Erwin was subsequently suspended for an additional 45 days on the following charges:

“In that, on Saturday, July 28, 2001, at approximately 2330 hours, [Erwin was] involved in a physical domestic altercation with [his] wife, Mrs. Kimberly Erwin. During this altercation, Mrs. Erwin received a black eye and bruises to her arms. Furthermore, [Erwin] failed to notify [his] immediate supervisor of this incident and [he was] arrested for Attempted Rape 1st Degree and Domestic Assault.”

Erwin appealed his suspensions to the City’s personnel board.

Although Erwin filed separate appeals, his appeals were consolidated and heard by a hearing officer appointed by the personnel board. The hearing officer entered a recommendation regarding the suspension based on Erwin’s allegedly handcuffing Ricker that stated, in pertinent part:

“Findings of Fact
“This Hearing Officer finds sufficient facts to sustain the charges made against [Erwin] and to support a conclusion that the disciplinary action of suspension of thirty (30) days taken by [the City] was appropriate in light of the entire record before this Hearing Officer.
“[Erwin] did not deny that he came into contact with Ms. Ricker on May 5, 2000. [Erwin] only asserts that Ms. Ricker made up a story. However, [Erwin] at no time told the IAD [Internal Affairs Division] that he did not have a handcuff key or that he only gave Ms. Ricker a business card.[]
“In the judgment of this Hearing Officer the testimony of Ms. Ricker is [credible] and believable. This Hearing Officer finds that the [credibility] and believability of Ms. Ricker’s testimony is bolstered by her clear remembrance of [Erwin’s] badge number and name.
“The results of subsequent polygraph examinations given both to [Erwin] and Ms. Ricker support the conclusion that Ms. Ricker is to be believed in her testimony and that [Erwin] is not to be believed with respect to the incident with Ms. Ricker. No evidence exist[s] that [Erwin] ever objected to taking a polygraph examination at the time it was given.
“Findings of Law
“This Hearing Officer finds that while the performance of [Erwin] on the polygraph test might not be legal evidence, this Hearing Officer is not bound by the technical rules of evidence. See Ex parte Morris, 263 Ala. 664[, 83 So.2d 717 (1955)]. In addition, [the City’s] Rules and Regulations required [Erwin] to submit to a polygraph exam and [Erwin] submitted to the polygraph examination without objection being noted in the record before this Hearing Officer. When an employee challenges his discipline he ‘opens the door’ to proof of ‘negative’ polygraph results that have properly been considered by [the City] under the Rules and Regulations of employment. It is not disputed that the terms of [Erwin’s] employment with [the City] provided that the results of a polygraph test could be considered by [the City] in connection with employer/employee matters. See Ex parte Bostick ..., 642 So.2d 472 ([Ala.] 1994).
“Recommendation
“It is the recommendation of this Hearing Officer that the Board find that the disciplinary action of suspension for thirty (30) days for violation of the rules and regulations of both the Board and [the City] is supported by the facts and findings of this Hearing Officer.”

The hearing officer also entered a recommendation on the suspension based on Erwin’s allegedly committing an act of domestic violence and his subsequent arrest as a result of that incident that stated, in pertinent part:

“Findings of Fact
“The Hearing Officer finds sufficient facts to sustain the charges made against [Erwin] and to support a conclusion that the disciplinary action of suspension of forty-five (45) days taken by [the City] was appropriate in light of the entire record before this Hearing Officer.
“While it is noted that [Erwin’s] wife ... did not testify before this Hearing Officer, [her] statements made prior to dismissal of the charges, including her signed statement given to the Fulton-dale Police Department during the early morning of July 29, 2001; her taped testimony given to IAD [Internal Affairs Division] on August 2, 2001; and the unsigned transcript of those tapes, are all in evidence as statements made by her contemporaneously with the incident. This Hearing Officer has reviewed this evidence and finds it to be in direct conflict with the evidence offered by [Erwin] at the [h]earing with respect to the events occurring the late evening of July 28, 2001.
“It should also be noted, that while [Erwin’s wife] dropped all charges against [him], she has never withdrawn or retracted her statements made regarding the incident. Mrs. Erwin’s decision to dismiss the charges- does not serve to retract her statements that [Erwin] physically abused her or attempted to have sex with her against her will. Absent testimony from [Erwin’s wife] that her statements made at the time were incorrect or false, this Hearing Officer must conclude that those statements represent [her] account of the events of July 28, 2001.
“In addition, the photographs of [Erwin’s wife] taken subsequent to the incident support [her] allegation that she was physically abused. At the time of the incident, she stated in her signed statement that her husband ... had abused her and attempted to rape her. In addition, Officer Marquard, who observed [Erwin’s wife’s] injuries and interviewed her within two days of the incident, testified that [she] told him that [Erwin] caused those injuries. This evidence provides additional credibility to the allegations of physical abuse and sexual misconduct made by [Erwin’s wife].
“[Erwin’s] testimony places him at his wife’s house at the time of the occurrence complained of by his wife. [Erwin] denies that he abused or sexually assaulted his wife, but he did not tell IAD during either of his interviews that his wife was lying or that the allegations were false. The evidence that [Erwin] received two calls from [his wife] after he had left her house is inconclusive to support [Erwin’s] version of the events of the early morning of July 29, 2001. One call came at 12:10 a.m., one minute prior to [his wife] calling the Fultondale Police Department (which occurred at 12:11 a.m.) the second call came at 12:12 a.m., one minute after [she] reported the incident, but before the police arrived at 12:14 a.m. However, [Erwin] testified that nothing was said during either conversation.
“Additionally, [Erwin] did not know of the allegations made by his wife because he was attending a DARE convention in Los Angeles. [Erwin] only found out about the charges when he was arrested upon his arrival at the Birmingham Airport. His immediate supervisor was present at the time. Therefore, [Erwin] could no have known that charges were being brought against him, so that he could notify his superiors. [Erwin] testified that nothing occurred during the evening of July 28, 2001[,] which would require that he notify his superiors.
“Findings of Law
“This Hearing Officer made no findings of law with respect to this case.
“Recommendation
“It is the recommendation of this Hearing Officer that the Board find that the disciplinary action of suspension of forty-five (45) days for violation of the rules and regulations of both the Board and [the .City] is supported by the facts before this Hearing Officer.”

The City’s personnel board accepted the hearing officer’s recommendations and upheld both suspensions.

Erwin filed a notice of appeal to the trial court for review by a three-judge panel pursuant to the personnel board’s enabling act. The three-judge panel conducted a hearing on the appeal and issued an order reversing the personnel board’s decision and setting aside Erwin’s suspensions; its order stated, in pertinent part:

“In [regard to the alleged handcuffing incident,] there was no complaint by Ms. Ricker, rather an investigation was instigated by her father, an employee of councilman Jimmy Blake. This suspension was not based on a failure to take a polygraph test, rather it was based on a subjective assessment of the comparative reliability of two separate tests. This panel finds the inherent unreliability of the polygraph test make[s] this punishment, in this context, and on this evidence to be unsupported by substantial and legal evidence.
“In [regard to the alleged domestic-violence incident,] [OJfficer Erwin’s wife did not appear, nor did she prosecute. Rather, the hearing officer’s decision was based on hearsay statements which also clearly and without waiver violate the spousal privilege. There was no other evidence which could be categorized as ‘substantial’ or ‘legal.’ ”

The City filed a petition for the writ of certiorari with this court.

On appeal, the City argues that the trial court erred by setting aside Erwin’s suspensions because, it says, (1) the technical rules of evidence do not apply to the personnel board in an appeal of a disciplinary action; (2) in the employment context in which Erwin’s employer, the Birmingham Police Department, subjected Erwin to a polygraph test, the trial court improperly discounted the results of that test as evidence; and (3) there was substantial evidence to support the personnel board’s decision to uphold Erwin’s suspensions.

This court has set out the applicable standard of review as follows:

“At the outset, we note that the Board’s decision must be affirmed if substantial evidence supports it. City of Birmingham v. Personnel Board of Jefferson County, 464 So.2d 100 (Ala.Civ.App.1984). Both the trial panel and this court are bound by the same substantial evidence standard of review. City of Birmingham, supra. Substantial evidence is relevant evidence that a reasonable mind would view as sufficient to support the determination. Ex parte Morris, 263 Ala. 664, 83 So.2d 717 (1955).”

Ex parte Personnel Bd. of Jefferson County, 648 So.2d 593, 594 (Ala.Civ.App.1994) (“Personnel Board II”). Further, this court has noted:

“The determination of the weight and credibility of the evidence presented is solely within the province of the Board; the review here is limited to the proper application of the relevant law and whether the Board’s ruling is supported by any legal evidence.”

Ex parte Personnel Bd. of Jefferson County, 440 So.2d 1106, 1109 (Ala.Civ.App.1983) (“Personnel Board I ”).

The City first contends that the trial court erred by reversing the personnel board’s decision because, it says, the personnel board was not bound by the technical rules of evidence in making its decision, citing Ex parte Morris, 263 Ala. 664, 83 So.2d 717 (1955). In Morris, our supreme court stated:

“Petitioner next contends that his rights have been substantially and materially prejudiced by the Board taking testimony of an alleged expert concerning his findings from [p]olygraph tests performed on petitioner. We think the circuit court adequately answered this argument when it found that while the testimony might not be legal evidence, its admission was not reversible error because the Board is not bound by technical rules of evidence. In the absence of statutory provisions, the Board has seen fit to adopt its own rules, one of which specifically applies to evidence, viz., Rule No. X, subsec. 10.5:
“ ‘. The Board shall not be bound by the technical rules of evidence but shall seek diligently all of the information and evidence bearing on the case.’[]
“The adoption of such rules was within the prerogative of the Board. 42 Am.Jur., § 129, p. 460.
“Moreover, since the Board is not composed of those learned in the law, we are unwilling to reverse because of indiscretion in admitting some illegal evidence. This view conforms to our holding as to a somewhat similar quasi-judicial body, the Public Service Commission, in North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 188 [(1943)].”

263 Ala. at 667, 83 So.2d at 719-20.

Accordingly, we agree with the City’s contention that the personnel board was not bound by the technical rules of evidence. However, our supreme court has recognized an exception to this general rule that will have application to the resolution of this appeal. In North Alabama Motor Express, Inc. v. Rookis, 244 Ala. 137, 12 So.2d 183 (1943), cited in Morris, our supreme court further noted:

“ ‘There must be some evidence which is competent and legal, as treated by the usual rules for the producing evidence in any legal proceeding to sustain the finding. If founded only on hearsay or other improper evidence, the decision will not be sustained.’ 42 Am.Jur. 652 et seq., Section 128; see, also, p. 468, Section 122.”

244 Ala. at 140, 12 So.2d at 186 (emphasis added). Mindful of these principles of law, we can summarily address whether the trial court properly reversed the personnel board’s decisions.

The hearing officer’s findings concerning the alleged handcuffing incident were based not only on the results of the polygraph tests performed on Erwin and Rick-er, but also on their live testimony and the testimony of other witnesses. The hearing officer found that Ricker’s testimony was more credible and believable than that of Erwin; that finding was further supported by the polygraph test results. This credibility determination and the weight to be accorded the testimony presented was solely within the province of the hearing officer. Personnel Board I, supra. Thus, we conclude that the hearing officer’s findings and his recommendation to suspend Erwin for the handcuffing incident were supported by substantial evidence and that the trial court’s judgment is due to be reversed as to this issue. Personnel Board II, supra.

As to the alleged domestic-violence incident, our review of the evidence relied upon by the hearing officer leads us to the same conclusion reached by the trial court — that the evidence relied upon by the hearing officer was primarily hearsay, as defined by Rule 801, Ala. R. Evid.; such evidence cannot sustain the hearing officer’s findings and recommendation. North Alabama Motor Express, supra. Therefore, the trial court’s reversal of Erwin’s suspension for this alleged incident is due to be affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The hearing officer's recommendation stated, in pertinent part, that Erwin testified as follows:
      "[Erwin] stated that he was not carrying a handcuff key on May 5, 2000. [Erwin had testified that he no longer carried a key after he had a complaint filed against him by an individual he had handcuffed.] [Erwin] further testified that prior to May, 2000[,] he had previously been to Barrett Elementary School on several occasions and that children always asked to see the equipment which he carried on his belt, including his handcuffs. [Erwin] testified that he and his partner ... would generally handcuff someone in class and that [his partner] would always remove the handcuffs with his key because [he] did not carry a key.
      "[Erwin] testified that he remembered May 5, 2000[,] veiy well.... [Erwin] testified that as he drove past the [s]chool he saw [Ricker], who he had never seen before, in her car pulling away from the [s]chool with her window down. [Erwin] approached her and asked if they were having Career Day at the [s]chool because he had not seen any cars around back. [Erwin] testified that [Ricker] said 'yes’ they were ...; that she worked with children; and that Career Day was being held in the gym. [Erwin] testified that he discussed with [Ricker] what he did to work with children and that he handed her his business card in case she wanted [him] to help out with her children....”

      . This is now Rule 12.6(d) of the personnel board’s rules; Rule 12.6(d) states that ”[n]either the Board, nor any Hearing Officer acting on its behalf, shall be bound to technical rules of evidence but shall diligently seek all of the information and evidence bearing on the merits of the case.”


text:
    Michael S. BROOKS and Carole B. Brooks v. Lonnie HALE and Sharon D. Hale.
    2010725.
    Court of Civil Appeals of Alabama.
    July 25, 2003.
    Patricia C. Kellett of Kellett & Kellett, P.A., Fort Payne, for appellants.
    W.N. Watson of Watson, Gillis & Carver, P.C., Fort Payne, for appellees.
   MURDOCK, Judge.

Michael S. Brooks and Carole B. Brooks appeal from a judgment of the DeKalb Circuit Court declaring that they owned a nonexclusive easement for the construction and maintenance of a driveway and utilities across a 15-foot-wide strip of land (hereinafter referred to as “the easement parcel”) and that the easement parcel was owned in fee simple by Lonnie Hale and Sharon D. Hale. The Brookses claimed that they owned the easement parcel in fee simple and that the Hales owned no interest in the easement parcel.

This appeal arises out of the construction of several deeds and, in particular, the construction of a deed from Bennon Spill-man and Wanda Spillman, the Hales’ predecessors in title, to Lane Killian and Joanna Killian, the Brookses’ predecessors in title (hereinafter referred to as “the October 1984 deed”). The Brookses argue that the October 1984 deed conveyed to the Killians fee simple title to the easement parcel and that the Killians subsequently conveyed fee simple title to them. The Hales argue that the October 1984 deed conveyed to the Killians an easement for the construction and maintenance of a driveway and utilities on the easement parcel and that the Spillmans subsequently conveyed fee simple title to the easement parcel to them, subject to an easement in favor of the Brookses.

In September 2000, the Hales filed a complaint in the DeKalb Circuit Court, alleging that they were the owners of a 6.5-acre parcel of land that included the easement parcel. The Hales alleged that the Brookses owned a 2.5-acre parcel of land adjoining their property on one corner and that the Brookses owned only an easement over the easement parcel “for the purpose of the construction and maintenance of a driveway and utilities.” The Hales alleged that they had attempted to use the easement parcel in a manner that did not interfere with the Brookses use of the parcel for utilities or a driveway, that Mr. Brooks had interfered with their use of the easement parcel, that Mr. Brooks had claimed to own the easement parcel, and that Mr. Brooks had threatened physical violence against them. The Hales requested that the trial court enter an order enjoining the Brookses from interfering with their use of the easement parcel; from “threatening, harassing, or intimidating [the Hales] in the use of their property”; and from destroying shrubbery that the Hales had planted along the easement parcel. The Hales also requested that the trial court award them reasonable attorney fees.

The Brookses filed an answer to the Hales’ complaint, admitting that they owned an easement over the easement parcel but denying that “the property described in said easement is owned by [the Hales].” The Brookses subsequently filed an amended answer, alleging that they owned the easement parcel in fee simple and denying that the Hales were entitled to any of the relief that they had requested in their complaint.

The Brookses filed a motion for a summary judgment and argued that, based on the terms of the October 1984 deed and other deeds submitted with their motion, the trial court should enter a summary judgment finding that they owned the easement parcel in fee simple. The Hales also filed a motion for a summary judgment, arguing that, based on the submitted deeds, the trial court should enter a summary judgment finding that they owned the easement parcel in fee simple.

Based on the parties’ submissions, the trial court entered an order in January 2002, holding that the October 1984 deed was ambiguous. The trial court stated:

“Giving consideration to the language of the [October 1984 deed] and also the subsequent acts of the Spillmans and Killians which show the construction that they placed on the language of [the October 1984 deed], the court finds and adjudges that the interest of the [Brookses] in the [easement parcel] is limited to that of a non-exclusive easement for the construction and maintenance of a driveway and utilities, with the [Hales] holding a fee simple interest therein subject to the easement.
“The [Hales’] claim for injunctive relief and attorney fees shall await further action by the court.”

The Brookses filed a motion requesting that the trial court alter, amend, or vacate its January 2002 order, or, in the alternative, that it' certify the order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The trial court denied the Brooks-es’ motion to alter, amend, or vacate the January 2002 order. However, it purported to certify the January 2002 order as a final judgment pursuant to Rule 54(b), stating that a “final judgment is hereby entered as to the issues addressed in the [January 2002 order], there being no just reason for delay.” The Brookses appealed to the Alabama Supreme Court. The case was transferred to this court pursuant to Ala.Code .1975, § 12-2-7(6).

The Brookses argue that the trial court erred by determining that the October 1984 deed was ambiguous and that it erred by determining, based on its construction of the various deeds, that they did not own fee simple title to the easement parcel. However, we cannot address the merits of the Brookses’ appeal because we conclude that the trial court’s Rule 54(b) certification was erroneous and that the Brookses’ appeal must be dismissed for want of jurisdiction.

Rule 54(b), Ala. R. Civ. P., provides, in pertinent part:

“When more than one claim for relief is presented in an action, ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

In James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala.1997), the Alabama Supreme Court stated:

“Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala.1993) (Rule 54(b) ‘confers appellate jurisdiction over an order of judgment only where the trial court “has completely disposed of one of a number of claims, or one of multiple parties” ’ (emphasis in Tanner)).”

James, 713 So.2d at 941.

Our Supreme Court has also stated:
“Neither federal nor state courts have been able to settle on a single test to determine when claims are separate or exactly what constitutes a claim. See, Tolson [v. United States], 732 F.2d [998,] at 1001 [(D.C.Cir.1984)]; Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). However, authorities have stated that ‘when plaintiff is suing to vindicate one legal right and alleges several elements of damage, only one claim is presented and subdivision (b) [of rule 54] does not apply.’ 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d, § 2657, at 69-71 (1983); Landry v. G.B.A., 762 F.2d 462, 464 (5th Cir.1985).”

Precision American Corp. v. Leasing Serv. Corp., 505 So.2d 380, 381 (Ala.1987).

The Hales’ complaint alleged that the Brookses had wrongfully interfered with the Hales’ legal rights in the easement parcel. ' Based on that claim, the Hales requested that the trial court enter an order granting them several types of in-junctive relief to prevent the Brookses from interfering with their ownership rights. The trial court’s entry of a summary judgment finding that the Hales owned the easement parcel and that the Brookses had a nonexclusive easement across the easement parcel did not adjudicate the Hales’ claims for relief. To the contrary, the trial court expressly reserved any ruling on the injunctive and other relief requested by the Hales.

As this court stated in Moss v. Williams, 747 So.2d 905 (Ala.Civ.App.1999), a case that is similar to the present case:

“ ‘Rule 54(b) certifications should be made only in exceptional cases and should not be entered routinely.’ Parrish v. Blazer Financial Services, Inc., 682 So.2d 1383[, 1385] (Ala.Civ.App.1996). This case does not present a set of exceptional facts that would justify a Rule 54(b) certification of the partial summary judgments. The trial court has determined that the Coakers and Williams are the rightful owners of the disputed portions of property and that the Mosses unlawfully possessed the disputed pieces of property. Both the Coakers and Williams have asserted claims for damages against the Mosses for the Mosses’ alleged interference with their property rights. The trial court’s judgment does not adequately demonstrate a reason that this court should review the partial summary judgments before the adjudication of the remaining claims for damages in the two actions .... [Cjourts do not favor appellate review in a piecemeal fashion.”

747 So.2d at 907.

We conclude that the trial court’s Rule 54(b) certification was erroneous. The Brookses’ appeal is premature and must be dismissed for want of jurisdiction.

APPEAL DISMISSED.

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


author: THOMPSON, Judge.

text:
    K.P. and C.P. v. G.C. and J.C.
    2020381.
    Court of Civil Appeals of Alabama.
    July 25, 2003.

      M. Calvin Milford, Jr., LaFayette, for appellants.
    Faye Edmondson, Dadeville, for appel-lees.
   THOMPSON, Judge.

This appeal involves an adoption contest between two sets of foster parents. On September 23, 2002, G.C. and J.C. filed in the Probate Court of Randolph County (“the probate court”) a petition seeking to adopt B.C.T. and C.A.T. (hereinafter together referred to as “the children”), who had been in G.C. and J.C.’s care as foster children between May 2000 and November 2001. At the time G.C. and J.C. filed that adoption petition, an action to terminate the mother’s parental rights was pending in the Circuit Court of Randolph County (that court was acting as a juvenile court and is hereinafter referred to as “the juvenile court”). The children were living with K.P. and C.P., another set of foster parents, at the time G.C. and J.C. filed their petition for adoption; the children had been in the home of K.P. and C.P. since November 2001.

Along with their petition to adopt the children, G.C. and J.C. filed a consent to the adoption executed by the children’s mother, B.A.T. (“the mother”); that consent document was dated September 20, 2002. On October 1, 2002, the juvenile court entered a judgment terminating the mother’s parental rights. Although she had executed the consent-to-adoption document, the mother appealed the judgment terminating her parental rights.

On October 2, 2002, the Department of Human Resources (“DHR”) filed an objection to the petition for adoption filed by G.C. and J.C. In that objection, DHR contended that because it had custody of the children, its consent to an adoption was required under § 26-10A-7(a)(4), AJa.Code 1975. The probate court continued its consideration of the petition for adoption until the resolution of the mother’s appeal of the judgment that terminated her parental rights. The probate court later transferred the adoption proceeding pending before it to the juvenile court.

Thereafter, the mother dismissed her appeal of the judgment terminating her parental rights. On December 19, 2002, the juvenile court entered an order remanding the adoption proceeding to the probate court. On that same date, K.P. and C.P. filed petitions in the probate court seeking to adopt the children. Also on December 19, 2002, K.P. and C.P. filed in the probate court a separate motion contesting the adoption of the children by G.C. and J.C. In their motion contesting the adoption of the children and in their petitions to adopt the children, K.P. and C.P. alleged that DHR had consented to their petitions to adopt the children. The record contains a document indicating that on December 20, 2002, DHR consented to K.P. and C.P.’s adopting the children.

The probate court conducted an ore ten-us hearing on January 9, 2003. On January 13, 2003, the probate court entered several judgments pertaining to this matter. In one January 13, 2003, judgment, the probate court made certain factual findings and concluded, among other things, that G.C. and J.C. were entitled to adopt the children. The probate court based that finding in large part upon its determinations that DHR had unreasonably withheld its consent to G.C. and J.C.’s adopting the children and that that adoption would serve the children’s best interests. See § 26-10A-7(a)(4), Ala.Code 1975. The probate court also entered a judgment entitled “Final [Judgment] of Adoption” in which it determined that there was no need to conduct a dispositional hearing as provided for in § 26-10A-25, Ala.Code 1975; that January 13, 2003, judgment contained findings made in compliance with § 26-10A-25(b), Ala.Code 1975. Also on January 13, 2003, the probate court entered two separate judgments commending K.P. and C.P. for their service as foster parents for the children, but denying their petitions to adopt the children.

In the materials they filed with this court, G.C. and J.C. contend that the probate court’s judgments denying K.P.’s and C.P.’s petitions to adopt the children were entered in a separate action, which was assigned a different case number than was their action. However, the judgments in the record on appeal that apparently pertain only to the adoption petitions filed by K.P. and C.P. do not contain any probate court case numbers. Also, in an April 15, 2003, order, the probate court entered a ruling on a request by DHR to supplement the record on appeal to include certain filings and evidence pertaining to KP.’s and C.P.’s petitions to adopt the children. In that order, the probate court stated that the “petitions [filed by K.P. and C.P.] were heard at the same time as the petition filed by ... G.C. and J.C., and that [K.P. and C.P.] properly and timely filed an appeal from this court to the Alabama Court of Civil Appeals [and] raised as one of [their] issues the [allegedly] improper denial by this court of their petitions.” (Emphasis added.)

DHR filed a timely notice of appeal of the probate court’s January 13, 2003, judgments, and G.C. and J.C. cross-appealed. K.P. and C.P. also timely appealed the probate court’s judgments; G.C. and J.C. did not cross-appeal as to KP. and C.P.’s appeal. This court consolidated the two appeals and the cross-appeal. While the matter was pending in this court, on the motion of DHR and G.C. and J.C., this court dismissed DHR’s appeal and the cross-appeal. Therefore, only the appeal filed by K.P. and C.P. is currently before this court.

After this court dismissed DHR’s appeal and G.C. and J.C.’s cross-appeal, G.C. and J.C. filed a motion in this court seeking to dismiss the appeal filed by KP. and C.P. In that motion to dismiss, G.C. and J.C. contended that K.P. and C.P. did not have standing to appeal because, G.C. and J.C. maintain, the probate court entered its judgments under two different case action numbers; they contend that K.P. and C.P. have standing to appeal only those two judgments that purportedly ruled on their separate adoption action. However, as stated earlier, the copies of the judgments to which G.C. and J.C. refer do not contain case numbers indicating that the probate court was ruling in a separate action, and the April 15, 2003, order indicates that the probate court considered the two actions together. Therefore, given the orders and judgments contained in the record on appeal, we cannot say that G.C. and J.C. have established that KP. and C.P. lacked standing to appeal the judgments in favor of G.C. and J.C. The motion to dismiss KP. and C.P.’s appeal is therefore denied.

The evidence presented at the ore tenus proceeding indicates that the children were removed from the mother’s custody in 1999; they have remained in DHR’s custody since that time. The children have a third sibling who has remained in the foster home in which she and the children were first placed. The record indicates that the children were removed from that first foster home because of their behavioral problems.

The children were placed in the home of G.C. and J.C. in May 2000. G.C. and J.C. testified that they both loved the children and that they wanted to adopt both children. Shay Bradford, a DHR social worker, testified, however, that J.C. had repeatedly stated that the couple wanted to adopt only one of the children, C.A.T., the girl. G.C. and J.C. testified that they noticed behavioral problems in the other child, B.C.T., a boy. G.C. and J.C. had raised two sons. One of their sons had attention deficit hyperactivity disorder (“ADHD”), and the couple suspected that B.C.T. also had ADHD. G.C. and J.C. testified, however, that when they asked for help with B.C.T.’s behavioral problems, DHR was not responsive. However, Bradford testified that she was not informed of the problems until June 2001 and that J.C. reported to her that she waited to report the problems with B.C.T. because she was worried DHR would remove C.A.T., as well as B.C.T., from the home.

Bradford testified that the first appointment she could obtain to have B.C.T. tested was in January 2002. However, in November 2001, G.C. and J.C. became frustrated with DHR’s handling of the case and requested that the children be removed from their home. J.C. testified at the trial that that request was a “bad decision.”

After their removal from the home of G.C. and J.C., the children were placed in the home of K.P. and C.P. The children progressed well in that placement. In addition, B.C.T. was tested and placed on medication for ADHD. Both children were doing well academically and behaviorally at the time of the trial in this matter.

K.P. and C.P. testified that they loved the children and wanted to adopt them. They stated that DHR had instructed them to wait to file a petition to adopt the children until after the resolution of the mother’s appeal of the termination of her parental rights and that, when the mother dismissed her appeal in that matter, they immediately filed their adoption petitions.

K.P.’s income declined shortly before the children were placed in his and C.P.’s home. As a result of that decrease in income, K.P. and C.P. eventually filed for bankruptcy protection. At the time of the trial of this matter, C.P.’s son and his three children, in addition to the children at issue in this case, were living with K.P. and C.P. in a four-bedroom, two-bath house. K.P. and C.P. were assisting with paying the grandchildren’s expenses.

During the time that the children were placed in K.P. and C.P.’s home, G.C. and J.C. befriended the mother and allowed her to live in their home for approximately six months. There was also evidence that G.C. and J.C. promised the mother that they would construct a house on their land for her use, but J.C. insisted that that offer was made in the event the mother’s parental rights were not terminated and the children were returned to her. At the trial, G.C. and J.C. did not rule out the possibility that they would continue to allow the mother to visit the children if they were allowed to adopt the children.

Also during the time the children were in the home of K.P. and C.P., C.A.T. made allegations that she had been improperly touched by one of G.C. and J.C.’s sons. DHR’s investigation of those allegations concluded that that report was “not indicated.” However, Bradford testified that those allegations, because they came from the child, were part of the reason for DHR’s decision to refuse to consent to G.C. and J.C.’s adoption of the children.

In the first part of their brief on appeal, K.P. and C.P. argue that the probate court erred in finding that DHR had unreasonably withheld its consent to the adoption of the children by G.C. and J.C. Section 26-10A-7(a)(4), Ala.Code 1975, provides that a court may grant a petition for adoption without DHR’s consent to the adoption if the court finds that DHR’s refusal to consent to the adoption is unreasonable and not in the child’s or children’s best interests.

G.C. and J.C. filed in this court a motion to strike that portion of K.P. and C.P.’s brief on appeal that addresses whether DHR’s consent to G.C. and J.C.’s adoption of the children was unreasonable. In that motion, G.C. and J.C. contend that K.P. and C.P. are not the proper parties to raise that issue and that only DHR could argue that issue. K.P. and C.P. did not respond to that motion.

To be a proper party, “a person must have an interest in the right to be protected.” Eagerton v. Williams, 433 So.2d 436, 447 (Ala.1983). Also, “[a]s a general rule, ‘a litigant may not claim standing to assert the rights of a third party.’ ” Ex parte Izundu, 568 So.2d 771, 772 (Ala.1990) (quoting Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 144, 417 A.2d 1003, 1006 (1980)). In this case, K.P. and C.P. contend that the probate court erred in concluding that DHR improperly withheld its consent to G.C. and J.C.’s adoption of the children. That factual finding, however, pertains solely to DHR’s rights in the present action. Although it might be argued that that finding resulted in the denial of the petitions for adoption filed by K.P. and C.P., the record does not necessarily support that conclusion. The probate court could have determined that DHR unreasonably withheld its consent to the adoption by G.C. and J.C., and it could have still faced the determination of which of the two sets of foster parents should be the adoptive parents. The probate court, in spite of its finding that DHR unreasonably withheld its consent, could still have denied G.C. and J.C.’s petition for adoption. We conclude that the finding that DHR unreasonably withheld its consent to the adoption of the children by G.C. and J.C. does not create in K.P. and C.P. a right that they have an interest in protecting such as would entitle them to advance an argument on behalf of DHR. Therefore, we do not consider the issue whether the evidence supported the probate court’s determination that DHR had unreasonably withheld its consent to the adoption of the children by G.C. and J.C. Although we reach this conclusion, we deny G.C. and J.C.’s motion to strike the portion of K.P. and C.P.’s brief that asserted this argument, and we construe both of the arguments in K.P. and C.P.’s appeal as asserting that the probate court should have entered judgments allowing them to adopt the children. Pursuant to § 26-10A-25(b), Ala.Code 1975:

“the court shall grant a final [judgment] of adoption if it finds on clear and convincing evidence that:
“(1) The adoptee has been in the actual physical custody of the petitioners for a period of 60 days, unless for good cause shown, this requirement is waived by the court;
“(2) All necessary consents, relin-quishments, terminations or waivers have been obtained and, if appropriate, have been filed with the court;
“(3) Service of the notice of pendency of the adoption proceeding has been made or dispensed with as to all persons entitled to receive notice under Section 26-10A-17;
“(4) All contests brought under Section 26-10A-24 have been resolved in favor of the petitioner;
“(5) That each petitioner is a suitable adopting parent and desires to establish a parent and child relationship between himself or herself and the adoptee;
“(6) That the best interests of the adoptee are served by the adoption; and
“(7) All other requirements of this chapter have been met.”

In its judgments, the probate court found that, for good cause shown, the requirement that the children be in the custody of G.C. and J.C., see § 26-10A-25(b)(1), has been waived; that all consents had been obtained, see § 26-10A-25(b)(2); that the required notices had been sent, see § 26-10A-25(b)(3); that the contest had been resolved in favor of G.C. and J.C., see § 26-10A-25(b)(4); that G.C. and J.C. were suitable adoptive parents and that it was in the children’s best interests for the probate court to allow G.C. and J.C. to adopt the children, see § 26-10A-25(b)(5) and (6). In their brief on appeal, K.P. and C.P. do not raise any issue pertaining to the procedural history of the case or the probate court’s conclusions pertaining to subsections (1) through (4) of § 26-10A-25(b), Ala.Code 1975. K.P. and C.P.’s arguments on appeal pertain to the suitability of G.C. and J.C. to serve as adoptive parents and whether G.C. and J.C.’s adoption of the children is in the children’s best interests.

In support of their argument that G.C. and J.C. are not suitable adoptive parents for the children, K.P. and C.P. cite the request by G.C. and J.C. that the children be removed from their home; their alleged desire to adopt only one of the children; and the allegations C.A.T. made against one of J.C.’s sons. In support of their argument that they are more suitable adoptive parents, K.P. and C.P. cite the improvements and progress the children have made while in their home, and they contend that there is nothing in the record that could justify the denial of their petitions to adopt the children.

Where a probate court hears ore tenus evidence on a petition for adoption, its findings and conclusions based on that evidence are presumed to be correct. C.C.K. v. M.R.K., 579 So.2d 1368 (Ala.Civ.App.1991). In such a case, the probate court’s judgment will not be set aside absent a showing that it was palpably wrong and amounted to an abuse of the court’s discretion. Samek v. Sanders, 788 So.2d 872 (Ala.2000); C.C.K v. M.R.K., supra. In this case, the children were fortunate to have two sets of prospective adoptive parents who love and want them. However, the probate court had to make a choice between the two sets of petitioners. The facts emphasized by K.P. and C.P. in their brief are not favorable to G.C. and J.C.’s adoption of the children. However, the testimony in the record on appeal may be construed in a manner that would allow the probate court to view as plausible G.C. and J.C.’s explanations of some of the evidence that might be said to be detrimental to their case. Also, the evidence indicates that, in addition to their financial difficulties, K.P. and C.P. were providing a home and some level of support to C.P.’s son and his three children, and that they expected to continue to do so until the son found employment. That evidence tends to support a conclusion that, as between the two sets of petitioners, the home of G.C. and J.C. was, at the time of the proposed adoptions, more suitable for the children. Given the evidence in the record, this court might not have reached the same result as did the probate court. However, given the applicable standard of review, we cannot say that the probate court’s judgments allowing G.C. and J.C. to adopt the children amounted to an abuse of discretion. C.C.K. v. M.R.K., supra.

We note that K.P. and C.P. briefly maintained in their brief on appeal that the probate court improperly admitted two pieces of documentary evidence: a letter from DHR indicating that the accusation by C.A.T. against one of G.C. and J.C.’s sons was “not indicated,” and a personal recommendation by a friend of G.C. and J.C.’s. As to the arguments pertaining to the admission of that evidence, K.P. and C.P. cite to no supporting authority, in contravention of Rule 28, Ala. R.App. P. Also, the record fails to demonstrate that K.P. and C.P. objected to the admission or consideration of that evidence. Therefore, we cannot say that they have demonstrated error with regard to those brief arguments.

AFFIRMED.

CRAWLEY and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

MURDOCK, J., dissents.

      . The parties have raised no issues with regard to any procedural errors, such as not conducting a dispositional hearing; therefore, we do not reach any such issues in this opinion.


author: COBB, Judge.

text:
    Robert Leonard PRITCHETT v. STATE of Alabama.
    CR-02-0155.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Opinion on Return to Remand May 30, 2003.
    Rehearing Denied Aug. 15, 2003.

      Robert L. Pritchett, pro se.
    William H. Pryor, Jr., atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   COBB, Judge.

On September 29, 1985, after having been indicted for two counts of first-degree robbery, Robert Leonard Pritchett pleaded guilty to two counts of second-degree robbery. The trial court sentenced him to life in prison on one count and to 20 years in prison on the other. Pritchett apparently did not appeal his convictions and sentences, but has filed several postconviction motions.

On January 2, 2002, Pritchett filed a Rule 32, Ala. R.Crim. P., petition. On April 30, 2002, Pritchett moved to amend his petition; the circuit court granted the motion. After the State had responded to the amended petition, the circuit court summarily denied the petition on August 28, 2002. This appeal followed.

Pritchett’s main contention in his petition and on appeal concerns the trial court’s jurisdiction to accept his guilty pleas in the two cases in question. Specifically, he claims that the indictments against him failed to set forth facts sufficient to charge that he was aided in the robbery by another participant — an essential element of second-degree robbery. Because we agree, we remand this cause to the circuit court for further proceedings.

“[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001).

In his amended petition, Pritchett stated what he alleged was the text of the two indictments in these cases. According to Pritchett, the indictments read as follows:

“[Pritchett] did, in the course of committing a theft of Four Hundred Sixty-Three Dollars and Twenty-Two Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Paul Shrove, use force against the person of Paul Shrove, or against the person of another present, with intent to overcome his physical resistance or physical power of resistance, while the said [Pritchett] was armed with a deadly weapon or dangerous instrument, to wit: a shotgun, in violation of Section 13A-8-41 of the Alabama Criminal Code.”
“[Pritchett] did, in the course of committing a theft of Four Hundred Sixty-Three Dollars and Twenty-Two Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Paul Shrove, use force against the person of Paul Shrove, or against the person of another present, with intent to overcome his physical resistance or physical power of resistance, while the said [Pritchett] was aimed with a deadly weapon or dangerous instrument, to wit: a shotgun, in violation of Section 13A-8-41 of the Alabama Criminal Code.”

(C. 102-03.)

Neither the State nor the circuit court takes issue with Pritchett’s rendition of the indictments against him, although, apparently, he has inadvertently used the text of one as the text of both. However, we must accept his assertions as true. See Bates v. State, 620 So.2d 745, 746 (Ala.Crim.App.1992) (“ “When the State does not respond to a petitioner’s allegations, the unrefuted statement of facts must be taken as true.’ ”) (quoting Smith v. State, 581 So.2d 1283, 1284 (Ala.Crim.App.1991)). See also Goetzman v. State, 844 So.2d 1289 (Ala.Crim.App.2002).

“If at these guilty-plea proceedings, the indictment was ‘amended,’ the State was required to comply with Rules 13.5(a) and 13.2(c)[, Ala. R.Crim. P.,] and to confine its ‘amendment’ to lesser offenses necessarily included within the offense of first-degree robbery. In this respect, a defendant charged with first-degree robbery by an indictment that describes the defendant’s conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is ‘aided by another person actually present.’ § 13A-8-42, Ala.Code 1975....

“... When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant' to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment.”

Ex parte Cole, 842 So.2d 605, 608-09 (Ala.2002). See also Boykin v. State, 853 So.2d 1031 (Ala.Crim.App.2002); Goetzman v. State, 844 So.2d 1289 (Ala.Crim.App.2002); and Byrd v. State, 763 So.2d 987 (Ala.Crim.App.2000).

As in Cole, both of the first-degree robbery indictments in this case apparently “fail[ ] to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery....” Cole, 842 So.2d at 609.

Therefore, we remand this cause to the circuit court in order for it to take evidence, if necessary, and to examine the indictments against Pritchett and determine whether Pritchett’s pleas to second-degree robbery involving the indictments quoted above are valid.

If the circuit court finds that the indictments returned against Pritchett did not indeed contain facts sufficient to allege second-degree robbery, the pleas are not valid, and it shall vacate the pleas. However, Pritchett’s original indictments for first-degree robbery remain valid. Cole, supra. The State may try Pritchett on these charges or may reindict Pritchett for the proper offenses. See Cole, 842 So.2d at 609 (“A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.”).

Due return shall be made within 56 days of the release of this decision. We request that, along with the written order on return to remand, the circuit court attach copies of the two indictments in question.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and SHAW and WISE, JJ., concur. BASCHAB, J„ concurs in the result.

On Return to Remand

COBB, Judge.

On January 31, 2003, this Court remanded this cause for the circuit court to take evidence, if necessary, and to examine the indictments against Robert Leonard Pritchett and determine whether Pritch-ett’s 1984 guilty pleas to second-degree robbery were valid. As far as this Court could tell, Pritchett had been indicted for two counts of first-degree robbery, but the indictments did not contain sufficient factual allegations to support his two guilty pleas to second-degree robbery. That is, according to Pritchett and the record before us, the indictments did not allege that he was “aided by another person actually present.” § 13A-8-42(a), Ala.Code 1975. Therefore, he argued, he had pleaded guilty to charges not included in the indictments.

On return to remand, the circuit court has attached copies of the two indictments. The two indictments read as follows:

“[Pritchett] did, in the course of committing a theft of Four Hundred Sixty-Three Dollars and Twenty-Two Cents of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Paul Shrove, use force against the person of Paul Shrove, or against the person of another present, with intent to overcome his physical resistance or physical power of resistance, while the said [Pritchett] was armed with a deadly weapon or dangerous instrument, to wit: a shotgun, in violation of Section 13A-8-41 of the Alabama Criminal Code.”
“[Pritchett] did, in the course of committing a theft of Four Hundred Fifty-One Dollars of the lawful currency of the United States of America, a more particular description and denomination of which is to the grand jury otherwise unknown, the property of Robert Woods, threaten the imminent use of force against the person of Robert Woods, with the intent to compel acquiescence to the taking of or escaping with the property, while the said [Pritchett] was armed with a deadly weapon or dangerous instrument, to wit: a sawed-off shotgun, in violation of Section 13A-8-41 of the Alabama Criminal Code.”

Thus, the indictments do not contain any factual allegations that Pritchett was aided in the commission of the robbery by another person actually present. The circuit court has also attached copies of grand jury testimony indicating that Pritchett was aided during the robbery by another person actually present, an affidavit from the district attorney attesting to the fact that the copies of the grand jury testimony are true and accurate copies, and a copy of the guilty plea agreement. The circuit court found, in pertinent part:

“[Although the State did not formally amend the ... indictments prior to the entry of the said guilty pleas, Petitioner, essentially, consented to amend the said indictments when he entered his plea of guilty to Robbery in the Second Degree. Furthermore, at the time Petitioner entered his plea of guilty, the State would have made a statement of facts mirroring the information contained in EXHIBITS ‘B-T through ‘B-5’ [the grand jury testimony].
“In consideration of the foregoing the undersigned finds that facts exist, before the Court, sufficient to support Petitioner’s pleas of guilty to Second Degree Robbery. The Court further finds that the Order [denying the Rule 32 petition], issued by the undersigned on August 28, 2002, is not due to be vacated, and should remain in full force and effect.”
(Order on return to remand.)

While we sympathize with the circuit court and its reluctance to vacate convictions nearly 20 years old when the defendant clearly knew of the charges against him and pleaded guilty in his best interest to a lesser charge, it, and we, cannot circumvent clear Alabama Supreme Court precedent. As we pointed out in our original opinion, the Alabama Supreme Court decided this issue in Ex parte Cole, 842 So.2d 605 (Ala.Crim.App.2002):

“If at these guilty-plea proceedings, the indictment was ‘amended,’ the State was required to comply with Rules 13.5(a) and 13.2(c) and to confine its ‘amendment’ to lesser offenses necessarily included within the offense of first-degree robbery. In this respect, a defendant charged with first-degree robbery by an indictment that describes the defendant’s conduct as occurring in the presence of another aiding him could plead guilty to second-degree robbery as a lesser-included offense, because robbery in the second degree requires the use of force or the threatened use of force while the defendant is ‘aided by another person actually present.’ § 13A-8-42, Ala.Code 1975....
“When, as here, an indictment for first-degree robbery fails to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery — the insufficiency of the factual basis for a guilty plea to second-degree robbery may be subsequently attacked on the basis that the trial court lacked subject-matter jurisdiction to accept the plea. Had the trial court obtained Cole’s consent to amend the indictment charging first-degree robbery by adding the fact that another participant was present, no new offense would have been charged because first-degree robbery is broad enough to include such an element. An indictment so amended, permitting a defendant to plead guilty to second-degree robbery, would not run afoul of Rule 13.5(a). That, however, did not occur here. To treat the proceedings in this case as if the original indictment included that additional fact just because Cole pleaded guilty would disregard the settled principle that one cannot consent to an improper amendment to an indictment.”

842 So.2d at 608-09 (emphasis added). See also Boykin v. State, 853 So.2d 1031 (Ala.Crim.App.2002); Goetzman v. State, 844 So.2d 1289 (Ala.Crim.App.2002); and Byrd v. State, 763 So.2d 987 (Ala.Crim.App.2000).

As in Cole, both of the first-degree robbery indictments in this case “fail[ ] to set forth facts from which one might conclude that the defendant was aided in the robbery by another participant — an essential element of the offense of second-degree robbery-” Cole, 842 So.2d at 609.

Therefore, we remand this cause for the circuit court to vacate its order of August 28, 2002, and grant the petitioner relief. The pleas are not valid, and it shall vacate the pleas. However, Pritchett’s original indictments for first-degree robbery remain valid. Cole, supra. The State may try Pritchett on these charges or may reindict Pritchett for the proper offenses. See Cole, 842 So.2d at 609 (“A reindictment after a conviction that has been held to be void does not constitute double jeopardy because, if a court is without jurisdiction, there can be no valid conviction; hence there is no jeopardy.”).

REVERSED AND REMANDED.

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