author: YATES, Presiding Judge.

text:
    C.M. v. D.P.
    2001050.
    Court of Civil Appeals of Alabama.
    March 1, 2002.
    Certiorari Denied Oct. 18, 2002 Alabama Supreme Court 1011159.

      Connie Cooper, Phenix City, for appellant.
   YATES, Presiding Judge.

C.M., the father, petitioned to have his parental rights terminated. The trial court denied his petition, and C.M. appeals.

T.L. (“the child”) was born in October 1989. D.P. (“the mother”) was 18 years old at the time of his birth. C.M. was 19 years old. The mother did not name C.M. as the father on the child’s birth certificate. The mother and C.M. were never married. The mother married another man (“the husband”) in June 1992, when the child was two years old. Although the husband is not the biological father of the child, he has acted like the child’s father, and loves the child as his own. In fact, until the day that the child had to appear in court for a paternity test, the child believed the husband was his biological father.

In 1997, the mother contacted C.M. through her sister-in-law, who informed C.M. that the child was his son. She told him that the mother wanted him to voluntarily terminate his parental rights so that the husband could adopt the child. C.M. testified that he did not know that he had a child before the sister-in-law telephoned him. C.M. subsequently talked to the mother, and indicated that if the child was, in fact, his, he would not voluntarily terminate his parental rights. Initially, the mother and C.M. agreed to divide- the cost of paternity testing equally, but the mother retracted her offer upon learning the cost of the testing. Later, the mother and the husband decided not to pursue the husband’s adoption of the child.

The mother petitioned for adjudication of paternity and for child support. Testing was performed, which proved that C.M. was the biological parent of the child. The court ordered child support and set a visitation schedule. C.M. made some child-support payments, and the child visited with C.M. and his wife approximately five times after the paternity determination.

On November 9, 2000, C.M. petitioned to terminate his parental rights. On June 5, 2001, the trial court conducted a hearing on the petition and denied the petition in open court. On that same day, the trial court issued a final judgment, which formalized the denial of the petition, and set a visitation schedule for C.M. On June 25, 2001, C.M. moved for a new trial, which the court denied on June 29, 2001. C.M. appeals. The mother, as appellee, has not favored this court with a brief.

C.M. argues first that the trial court committed reversible error in denying his petition to terminate his parental rights, and second, that pursuant to § 26-17-6, Ala.Code 1975, the statute of limitations for determining paternity had run before the paternity test that determined that he was the child’s father was conducted.

Where ore tenus testimony is received in a termination-of-parental-rights case, the trial court’s judgment based on those findings will be presumed correct and will not be disturbed unless it is plainly and palpably wrong. J.L.B. v. State Dep’t of Human Res., 608 So.2d 1367 (Ala.Civ.App.1992). This presumption of correctness is based on the fact that the trial court is in the unique position of being able to observe the witnesses and to assess their demeanor and credibility. Hall v. Mazzone, 486 So.2d 408 (Ala.1986).

This case is unique in that C.M. is requesting that his parental rights be terminated, against the wishes of the mother. He argues that it would be in the best interests of the child for his rights to be terminated. He claims that it would be disruptive to the child if he were to assert himself as the child’s father, thereby intruding on the family relationship established between the child and the husband. C.M. stated that he had consulted “professionals,” who, he said, agreed with his assessment of the situation.

C.M. testified that his relationship with the child is not that of a father and son, but is, rather, that of friends or “buddies.” He stated that the husband had behaved as the child’s father and that he was the child’s father in every sense of the word. C.M. stated that he did not believe that it would be possible for him to have a father-son relationship with the child.

A parent’s parental rights cannot be terminated merely for the convenience of the parties. Ex parte Brooks, 513 So.2d 614, 617 (Ala.1987), reversed on other grounds by Ex parte Beasley, 564 So.2d 950 (Ala.1990). In Brooks, the mother and father jointly petitioned the court to have the father’s parental rights terminated. The father and mother were divorced, and the father, according to the mother, had “shown no interest in [the child], lack[ed] stability, [was] ill-tempered, and disapprove[d] of her raising [the child] as a Jew.” Id. at 616. The father stated that he had no interest in visiting with his son and agreed that it would be in the best interests of the child for his rights to be terminated. Id.

In Brooks, the supreme court agreed with this court that the father’s conduct toward his child could amount to abandonment under the Child Protection Act. The supreme court also noted that if the father’s parental rights were terminated, he might attempt to avoid any support obligation. The court stated that “the 1984 Child Protection Act was not intended as a means for a parent to avoid his obligation to support his child.” Id: at 616. The supreme court found that there was no clear and convincing evidence indicating that termination would be in the child’s best interests, because all future rights to support, parental affiliation, and inheritance would be severed, with the child receiving nothing in return. Id. at 617. In paternity proceedings, the child’s best interests are paramount; they take precedence over the interests of other parties. S.F. v. State ex rel. T.M., 695 So.2d 1186, 1188-89 (Ala.Civ.App.1996) (holding that the child’s best interests dictated that the father contribute to the support of his child, even though the child was conceived as a result of sexual assault by the mother).

Courts in many other states -have held that “parents may not voluntarily terminate their parental rights simply to avoid their responsibility to support their children.” In re Bruce R., 284 Conn. 194, 211, 662 A.2d 107, 116 (1995) (citations omitted (citing holdings in multiple states)). See also In re R.A.S., 826 S.W.2d 397, 401 (Mo.Ct.App.1992) (“[t]he termination of parental rights does not merely sever the rights of the parent to the child, but also severs the child’s right to the parent”); In re D.W.K., 365 N.W.2d 32, 35 (Iowa 1985) (holding that the father could not voluntarily terminate his parental rights, even though he testified that he had no regard for the child and intended to show no interest in the child).

It could be maintained that C.M. abandoned the child, as did the father in Brooks. Certainly, as was the case in Brooks, C.M. wants to have his parental rights terminated. However, as in Brooks, it is not in the child’s best interests to be alienated from any future right to financial support, parental affiliation, and inheritance. As the supreme court said, the Child Protection Act was not enacted to allow parents to terminate their rights and to avoid paying support for their child. Therefore, we find that there is substantial evidence to support the trial court’s decision and that the trial court did not commit reversible error in refusing to terminate C.M.’s parental rights.

C.M. next argues that the statute of limitations had run on the determination of paternity, and that he should not have been adjudicated the father of the child. He did not raise this argument before the trial court. As C.M. admits in his brief, this court may not consider arguments raised for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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

      . The mother testified, however, that she had told C.M. that he was the father on the day she learned she was pregnant. She testified that C.M. visited her in the hospital three days after the child was born, and that he visited with her and the child at least once when the child was three months old.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    CITY OF MONTGOMERY v. Marjorie CASPER.
    2000839.
    Court of Civil Appeals of Alabama.
    March 8, 2002.
    Rehearing Denied April 26, 2002.
    Certiorari Denied Oct. 18, 2002 Alabama Supreme Court 1011554.

      Bennett L. Pugh, Joseph H. Driver, and Khristi Doss Flood of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Jason J. Baird of Law Office of Susan G. James & Associates, Montgomery, for ap-pellee.
   PITTMAN, Judge.

Marjorie Casper (“the employee”) sued the City of Montgomery (“the City”) for workers’ compensation benefits; she alleged that she suffered an injury in the line and scope of her employment. She sought compensation for a permanent disability. Following the presentation of ore tenus evidence, the trial court found her to have a permanent total disability. The City appeals. The City argues that the trial court erred by: (1) awarding the employee compensation benefits for a period that she was still working; (2) finding that the worker had proved medical causation; and (3) finding that the worker had suffered a permanent total disability.

This court will not reverse the trial court’s judgment in a workers’ compensation case based on factual findings if those findings are supported by “substantial evidence.” Section 25-5-81(e)(2), Ala. Code 1975. Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). The trial court’s legal conclusions, however, are afforded no presumption of correctness, and this court reviews them de novo. Ex parte Cash, 624 So.2d 576 (Ala.1993).

The employee was employed as the curator of education for the Montgomery Zoo. Her job involved cleaning and training animals, managing volunteers, handling public relations, and preparing educational materials for the public. The employee testified that she was injured in March 1996 when she tried to prevent one of her volunteers from falling; she said that she fell herself and seriously injured her back.

The City first argues that the trial court erred by awarding benefits to the employee for a period during which she continued to work. The employee introduced into evidence a time sheet that indicated she worked one-half days or a four-hour day for five weeks and one day between May 31, 1996, and July 9, 1996. The trial court admitted the time sheet as an exhibit. The employee introduced the exhibit into evidence for the purpose of proving that the City had notice of her accident. Notice is not an issue on appeal.

On appeal the City argues that the trial court erred by not offsetting, pursuant to § 25-5-57(c)(3), Ala.Code 1975, the benefits it owes the employee by the salary the employee received during the five-week-and-one-day period. The employee contends that the City did not raise this issue at trial; the employee contends that the City is therefore precluded from arguing this issue on appeal.

We disagree. We conclude that the City correctly raised this issue on appeal. Rule 52(b), Ala. R. Civ. P., states:

“When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial.”

We conclude that the amount of benefits to which the employee is entitled is a question of the sufficiency of the evidence, i.e., did the evidence support the trial court’s calculation of the benefits. Therefore, we will address the merits of the City’s argument.

Section 25-5-57(c)(3), Ala.Code 1975, provides that if an employee receives salary “during the benefit period ..., the employer shall be aEowed a setoff in weeks against the compensation owed under this article.” As stated above, the record contains evidence, introduced by the employee, that the employee worked half-days for five weeks and one day and that the trial court awarded workers’ compensation benefits during that period the employee was working half days. The trial court’s calculation of the benefits is incorrect. We reverse that portion of the trial court’s judgment and remand the cause for the trial court to aEow the employer a setoff for the salary the employee received during that five-week-and-one-day period.

The City next argues that the trial court erred by finding that the employee’s injury was work-related; specificaEy, the City argues that the employee failed to prove medical causation. Jeffrey Downs, the City’s risk manager and a witness for the City at the trial, stated that the City did owe the employee some amount of workers’ compensation benefits for some degree of permanent disabflity. We conclude that Downs’s testimony is in effect a stipulation that the employee did suffer a work-related injury; therefore, we wül not address the City’s argument regarding medical causation.

The City last argues that the trial court erred by finding the worker to have suffered a permanent total disability. Michael McClanahan, the employee’s vocational-rehabihtation expert witness, testified that the employee has suffered a 100% loss of earning capacity. The employee testified that she cannot sit for more than 20 minutes and that she cannot stand for more than 30 minutes. The employee further testified that she is in constant pain and that she cannot do any significant Efting. The employee testified that her inabüity to stand or sit for prolonged periods prevents her from performing clerical work. Therefore, we conclude that the trial court’s judgment finding that the employee suffered a permanent total disability is supported by substantial evidence.

The trial court’s judgment is affirmed except as to its calculation of the benefits owed to the employee.

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

CRAWLEY and THOMPSON, JJ., concur.

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


author: CRAWLEY, Judge.

text:
    Robert L. MOORE v. Annie Lou Williams MOORE.
    2010457.
    Court of Civil Appeals of Alabama.
    Oct. 18, 2002.

      Richard R. Williams, Mobile, for appellant.
    Thomas P. Ollinger, Jr., Mobile, for ap-pellee.
   CRAWLEY, Judge.

Robert L. Moore (“the husband”) and Annie Lou Williams Moore (“the wife”) were divorced by judgment dated March 2, 2000. The trial court ordered an appraisal of the parties’ major assets — the marital residence, an adjoining vacant lot, and a day-care center owned by both parties and operated by the wife — and ordered the equity split equally between the parties. Neither party appealed from the judgment, and the wife, pursuant to a provision in the judgment, purchased the husband’s equity in the day-care property.

On February 2, 2001, the wife filed what she styled as “Petition to Relieve [Wife] from Judgment in Part and/or Set Aside Portions Thereof Based Upon Fraud Upon the Court.” In that petition, the wife alleged that the husband had, during the marriage, “maintained a separate and distinct secret family unit” with another woman (“the girlfriend”) and her three children, whom, the wife alleged, he had fathered. The wife requested that the trial court reconsider the division of the marital assets and that it award compensatory and punitive damages. In her motion, the wife admitted that relief under Rule 60(b)(2) or (3), Ala. R. Civ. P., was not available to her because more than four months had elapsed since the entry of the divorce judgment.

At a hearing on the motion, the wife testified that she had discovered that the husband had fathered three illegithnate children -with his girlfriend during the parties’ marriage. She also presented evidence indicating that the husband had purchased three parcels of real property solely in his name during the parties’ marriage, which he allegedly failed to disclose during discovery concerning the parties’ assets. The husband invoked the Fifth Amendment when questioned about the paternity of his girlfriend’s three children and when questioned about the property he acquired solely in his name during the marriage. After considering the testimony, the trial court granted the wife’s petition, modifying the property division in the original judgment by awarding the wife all of the equity in the marital residence. After his postjudgment motion was denied, the husband appealed to this court.

The husband argues that the wife’s motion was a Rule 60(b) motion for relief from judgment based on subsection (2) and subsection (3). Rule 60(b) reads, in part, as follows:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;.... The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.... This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to reheve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Thus, the husband argues that the wife’s motion was untimely because it was not brought within four months of the entry of the judgment of divorce. See Rule 60(b). The wife argues that her “motion” was in fact an independent proceeding to set aside the judgment based on fraud on the court, which may be brought no later than three years after the entry of judgment. Id.

Although the husband is correct that a Rule 60(b)(2) or (b)(3) motion requesting a trial court to grant relief from a judgment must be filed within four months of the entry that judgment, the wife is also correct that a trial court may entertain an independent action to set aside a judgment for “fraud upon the court” within three years of the entry of the judgment. Byrd v. Southeast Enters., Inc., 812 So.2d 266, 269 (Ala.2001); Brown v. Kingsberry Mortgage Co., 349 So.2d 564, 568 (Ala.1977); Ex parte Brice, 340 So.2d 792, 794-95 (Ala.1976); Denton v. Sanford, 383 So.2d 847, 848 (Ala.Civ.App.1980). Based on the fact that the wife paid a filing fee and that the case was assigned a new number (albeit a .01 as if it were a modification), we conclude that the wife filed an independent action requesting the trial court to set aside portions of the divorce judgment for “fraud upon the court.” However, even if the wife had filed a Rule 60(b) motion, the comments to Rule 60 indicate that “courts have consistently treated a proceeding in form an independent action as if it were a motion, and vice versa, where one but not the other was technically appropriate, and any procedural difference between them was immaterial in the case.” “Committee Comments on 1973 Adoption,” Rule 60, Ala. R. Civ. P.

Because the wife filed her independent action well within three years of the entry of the divorce judgment, her action was timely. Ex parte Brice, 340 So.2d 792, 794-95 (Ala.1976); Hill v. Hill, 523 So.2d 425, 428 (Ala.Civ.App.1987). The husband’s argument that the trial court lacked jurisdiction to grant the wife’s “motion” because the motion was filed more than four months after the entry of the divorce judgment must fail. Because the husband made no argument concerning the merits of the wife’s petition, we cannot, and will not, address whether the allegations she made, if proven, were sufficient to amount to a “fraud upon the court.”

AFFIRMED.

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


author: THOMPSON, Judge.

text:
    Rose Marie PATE v. Robert E. PATE. Robert E. Pate v. Rose Marie Pate.
    2010617.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.

      Ian F. Gaston of Gaston & Gaston, Mobile, for appellant/cross-appellee Rose Marie Pate.
    Robert E. Gibney, Mobile, for appel-lee/cross-appellant Robert E. Pate.
   On Applications for Rehearing

THOMPSON, Judge.

The opinion of September 13, 2002, is withdrawn and the following is substituted therefor.

Robert E. Pate (“the husband”) filed a complaint seeking a divorce from Rose Marie Pate (“the wife”). No children were born of the parties’ marriage. The trial court conducted an ore tenus hearing. On November 16, 2001, the trial court entered a judgment in which it, among other things, divorced the parties, divided the marital property, and awarded the wife alimony. Both parties filed postjudgment motions. On February 20, 2002, the trial court entered a postjudgment order in which it modified the alimony provision of the November 16, 2001, divorce judgment. The wife appealed.

After the wife appealed, the husband filed a “motion to clarify” the trial court’s February 20, 2002, postjudgment ord,er. The husband then filed a cross-appeal in this court. On May 1, 2002, the trial court purported to enter an order in response to the husband’s motion to clarify; on May-13, 2002, the trial court clarified its intentions -with regard to the May 1, 2002, order. The May 1, 2002, and May 13, 2002, orders are hereinafter collectively referred to ás the “May 2002 orders.” The wife amended her notice of appeal to include a challenge of the May 2002 orders. The husband purported to amend his notice of appeal, but he raised no new issue in his “amended notice of cross appeal.”

The record indicates that the parties were married for 13 years and that their marriage was tumultuous. Both parties have children from previous marriages.

The wife was 53 years old at the time of the hearing in this matter. She receives $550 per month in Social Security disability income. The wife testified that she has a heart condition that prevents her from lifting and working and that she has a “cervical spine disease” and carpal tunnel syndrome. The wife testified that she was, at the time of the hearing, living with her son. She testified that she intended to establish her own residence and that she expected her monthly expenses to total approximately $2,490.

The husband, who was 73 years old at the time of the hearing, has had three strokes and three heart attacks, and he has undergone open heart surgery. In addition, the husband has diabetes. Both parties take a number of medications each day for their health conditions.

The parties each accused the other of physical abuse and drinking to excess during the course of the marriage. Though the wife accused the husband of various acts of abuse, the husband denied ever injuring the wife. The wife admitted to separate incidents in which she threw objects at the husband, discharged a firearm during an argument with the husband, and ran over the husband in her vehicle, breaking his leg. A detailed recitation of each parties’ versions of those incidents and other violent encounters between them would serve no useful purpose.

During their separation, the parties divided most of the major marital assets. The parties had purchased the marital home, free of indebtedness, after the husband sold various assets of the business he owned before he retired. The parties each testified that they had agreed to divide the proceeds from the sale of the marital home equally, but that the wife initially refused to agree to sell the home for less than $229,900, the price at which the home was listed on the market. The parties received an offer somewhat lower than $229,900, and they agreed to accept that offer on the condition that the husband “take the loss” on the sale of the home. The husband received $99,680 in proceeds from the sale of the home, and the wife received $110,000. The husband also paid for the repairs necessary to effect the sale of the home.

The parties also equally divided a $70,000 certificate of deposit. The wife had possession of a 2000 Mercury Villager van; she paid the $435 payment each month on the indebtedness secured by that vehicle. The husband had possession of his 1991 truck; the record does not indicate if that vehicle was subject to indebtedness. At the time of the trial, the wife had all of the parties’ furniture and appliances; the husband had his personal belongings and his clothes. The husband valued the parties’ furniture at $26,800. The wife declined to give her opinion of the value of the furniture.

The husband receives $1,250 in monthly income from Social Security. He also receives $1,500 per month in rental income from some property he owns, for a total monthly income of $2,750. The husband presented evidence indicating that his monthly living expenses total $2,059.

The wife contends that the taxes and insurance for that rental property were paid from the parties’ joint accounts. However, the husband testified that he paid the insurance and taxes on that property from his own personal account. It appears, however, that the rental income from that property was used for the common benefit of the marriage. See § 30-2-51, Ala.Code 1975. The husband testified that he believed the rental property was worth between $150,000 and $200,000.

On appeal, the wife argues that the trial court was without authority to enter its May 2002 orders. We agree. In its November 16, 2001, judgment, the trial court awarded each party the property already in his or her possession, and it awarded the wife $250 per month in periodic alimony. In its February 20, 2002, postjudgment order, the trial court modified the alimony provision to provide that “[the wife] shall be awarded a judgment in the amount of $30,000 payable at $250 per month.” Thus, that provision was in the nature of a property division or alimony in gross. See Paulson v. Paulson, 682 So.2d 1060 (Ala.Civ.App.1996) (discussing the difference between periodic alimony and alimony in gross). The wife filed a notice of appeal. The husband then filed, pursuant to Rule 60(a), Ala. R. Civ. P., his “motion to clarify” the February 20, 2002, post-judgment order; in that motion, the husband asked the trial court to correct the judgment to reflect whether interest was to accrue on the $30,000 judgment in favor of the wife. In May 2002, the trial court purported to enter two orders in response to the husband’s motion to clarify. In its May 2002 orders, the trial court purported to once again change the alimony provision to award the wife periodic alimony for 10 years; the trial court stated that the May 2002 orders constituted a “clarification” of the earlier judgments.

However, once a party files a notice of appeal from a judgment of a trial court, “the trial court loses jurisdiction to act except-in matters entirely collateral to the appeal.” Cosper v. Holloway, 571 So.2d 302, 303 (Ala.Civ.App.1990) (citing Ward v. Ullery, 412 So.2d 796 (Ala.Civ. App.1982)). See also Logman v. Federal Deposit Ins. Corp., 789 So.2d 230 (Ala.2000); Etheredge v. Genie Indus., Inc., 632 So.2d 1324 (Ala.1994). A trial court retains the authority to interpret, clarify, and enforce its judgments. State Pers. Bd. v. Akers, 797 So.2d 422 (Ala.2000). However, a motion to correct a judgment pursuant to Rule 60(a), Ala. R. Civ. P., such as the one filed by the husband in this case, “should never be used as a method to revise or extend a judgment so that the judgment would state something which the court did not pronounce, even though such amendment included matters that should have been pronounced.” Pierce v. Grant, 652 So.2d 284, 286 (Ala.Civ.App.1994). A Rule 60(a) motion is designed to correct mechanical mistakes in a judgment; a more substantial error must be corrected through a motion made pursuant to either Rule 59(e), Ala. R. Civ. P., or Rule 60(b), Ala. R. Civ. P. Id.

In this case, the trial court entered the May 2002 orders after the wife had filed her notice of appeal; therefore, under the foregoing authority, those orders were limited to addressing only clerical or mechanical mistakes and matters entirely collateral to the matters addressed in the judgment from which the appeal was taken. See Pierce v. Grant, supra; Cosper v. Holloway, supra. However, the trial court’s May 2002 orders changed the nature of the property division or the alimony-in-gross award set forth in the February 20, 2002, postjudgment order to one awarding periodic alimony. Therefore, the May 2002 orders did more than merely clarify the trial court’s previous order; those orders contained modifications that were more substantial in nature than the correction of a mere mechanical mistake and that were not collateral to the issues to be addressed in the wife’s appeal. See Pierce v. Grant, supra; Cosper v. Holloway, supra. Therefore, we must conclude that the trial court was without jurisdiction to enter its May 2002 orders.

Given the foregoing, we address the wife’s remaining argument and the argument raised by the husband in his cross-appeal as pertaining only to the trial court’s November 16, 2001, divorce judgment and the February 20, 2002, order entered before the wife filed her notice of appeal to this court. On appeal, the wife argues that the trial court erred in its property division and alimony award. In his cross-appeal, the husband contends that the trial court erred in awarding the wife “alimony.” We will address these arguments together.

A trial court’s determination regarding a property division and an award of alimony is entitled to a presumption of correctness. Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). That presumption of correctness is based upon the trial court’s unique position of being able to observe the witnesses and evaluate their demeanor and credibility. Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). The issues of property division and alimony are interrelated, and they must be considered together. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996). A property division is not required to be equal, but it must be equitable. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996). In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages and health; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, supra; Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or, as here, where the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ. App.1998); Lutz v. Lutz, supra.

Pursuant to the trial court’s judgment, each party was awarded the property already in his or her possession. The parties had, before the hearing, divided the proceeds from the sale of the marital home and divided the funds in the certificate of deposit. Thus, the husband had $134,680 in his possession, and the wife had $145,000 in her possession. In addition, the trial court awarded the wife the parties’ furniture, valued at $26,800, and $30,000, payable in $250 monthly installments. The trial court awarded the husband the rental property worth approximately $150,000 to $200,000. Thus, in its judgment, the trial court awarded the husband approximately 60% of the marital estate, and it awarded the wife approximately 40% of the marital estate.

The wife was 58 years old at the time of the hearing, and the husband was 73 years old; the parties had been married for 13 years. Each spouse testified that he or she is currently unable to obtain employment because of his or her health problems. The vast majority of the testimony at the hearing in this matter centered on the parties’ allegations of misconduct against each other.

The wife contends that the husband should be required to pay an amount of alimony equal to meet her support needs. The husband argues that given the wife’s conduct, he should not be required to pay any alimony. It is well-settled that where a trial court does not make specific factual findings, the appellate courts must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Farm, 810 So.2d 631 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996). The property divisions would appear to favor the husband slightly. However, fault in causing the breakdown of the marriage is a factor the trial court may consider in fashioning its property division and alimony award. Ex parte Drummond, supra. Although the evidence on the issue of the parties’ conduct leading up to their separation was by no means undisputed, that evidence would support a conclusion that the wife’s conduct contributed to the breakdown of the marriage more significantly than did that of the husband. The trial court is in the best position to observe the parties’ demeanor and to make determinations regarding their credibility. Robinson v. Robinson, supra. Given the facts of this case and the factors discussed above, we cannot say that either party has demonstrated that the trial court’s property division and alimony award were plainly or palpably wrong. See Ex parte Drum-mond, supra.

The trial court was without jurisdiction to enter its May 2002 orders; therefore, those orders are void and will not support the wife’s appeal. However, in her purported appeal from those orders she raises the same issues she raises in her appeal from the valid November 16, 2001, judgment and the February 20, 2002, post-judgment order. Because the issues raised on her appeal from the invalid May 2002 orders are identical to those raised on her appeal from the valid November 16, 2001, judgment and the February 20, 2002, postjudgment order, we see no reason to dismiss that portion of her appeal taken from the void judgment. We affirm the trial court’s November 16, 2001, judgment and its February 20, 2002, postjudgment order.

OPINION OF SEPTEMBER 13, 2002, WITHDRAWN; OPINION SUBSTITUTED; APPLICATIONS OVERRULED; APPEAL — AFFIRMED; CROSS-APPEAL — AFFIRMED.

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

      . The husband also briefly asserted in his "motion to clarify" that the judgment could be corrected under Rule 60(b), Ala. R. Civ. P. However, an appellate court "will treat a motion (or other pleading) and its assigned grounds according to its substance.” King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So.2d 714, 718 (Ala.1987). We conclude that the trial court correctly declined to interpret the "motion to clarify” as one made pursuant to Rule 60(b), Ala. R. Civ. P.

      . In making this argument, the husband incorrectly characterizes the award of $30,000 to the wife, which is payable in monthly installments of $250, as "periodic alimony.”


text:
    James A. CARTER et al. v. LIBERTY NATIONAL LIFE INSURANCE COMPANY.
    2010938.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.

      Roderick Walls of Walls & Cooper, L.L.C., Birmingham, for appellants.
    Elizabeth W. McElroy of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellee.
   THOMPSON, Judge.

On March 19, 2001, Sarah Carter, as the administrator of the estate of City Carter, and James A. Carter filed a complaint against Liberty National Life Insurance Company (“Liberty National”). In that complaint, the plaintiffs asserted claims of fraud. On Liberty National’s motion, the trial court dismissed the complaint, because in it, the plaintiffs had faded to plead the alleged fraud with sufficient specificity, as required by Rule 9(b), Ala. R. Civ. P. On July 16, 2001, the plaintiffs filed an amended complaint that contained essentially the same allegations as those set forth in the plaintiffs’ March 19, 2001, complaint. Liberty National filed a motion to dismiss the amended complaint, arguing that the complaint failed to sufficiently apprise Liberty National of the plaintiffs’ claims against it. The trial court entered an order dismissing the July 16, 2001, amended complaint.

On January 22, 2002, the plaintiffs filed a second amended complaint in which they again asserted various fraud claims and asserted for the first time claims of wanton or negligent supervision and breach of contract. Liberty National moved to dismiss that complaint; it submitted evidence in support of its motion to dismiss. The plaintiffs opposed the motion to dismiss and argued that Liberty National’s motion should be treated as a motion for a summary judgment. The trial court agreed that Liberty National’s motion to dismiss had been converted, pursuant to Rule 12(c), Ala. R. Civ. P., to a motion for a summary judgment. On May 8, 2002, the trial court entered a summary judgment in favor of Liberty National on all of the plaintiffs’ claims. The plaintiffs appealed to the Supreme Court of Alabama, which transferred the case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

A summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). After the moving party makes its prima facie showing that there is no genuine issue of material fact, the burden then shifts to the nonmoving party to demonstrate the existence of a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). To carry that burden, the nonmoving party is required to present substantial evidence, i.e., “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must view the evidence in a light most favorable to the nonmoving party, and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact in favor of the nonmovant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).

The facts relevant to the issue presented in this appeal are as follows: City Carter was the mother of James A. Carter and Sarah Carter. The record indicates that the members of the Carter family had a number of insurance policies with Liberty National. In 1999, the plaintiffs sought to obtain from Liberty National a list of all insurance policies it had issued to members of the Carter family. On May 10, 1999, Liberty National sent a letter to the plaintiffs in which it listed the various policies it had issued to various members of the Carter family. In the trial court, the plaintiffs alleged, among other things, that Liberty National had wrongfully failed to pay benefits due under the insurance contracts owned by James Carter or City Carter. In opposition to that claim, Liberty National presented evidence indicating that almost all of the insurance policies owned by members of the Carter family had been paid according to the terms of the policies, had lapsed, or had been converted for the cash-surrender values of the insurance policies.

Much of the dispute in the trial court centered around James Carter’s fraud claims related to a whole-life insurance policy in his name. The plaintiffs have not argued in their brief on appeal that the trial court erred with regard to its judgment in favor of Liberty National on those claims. Therefore, we do not set forth the facts pertinent to those claims.

City Carter died of natural causes on March 18, 1995. Following City Carter’s death, Liberty National paid death benefits pursuant to four insurance policies City Carter had obtained from Liberty National. The trial court found that those policies were “cemetery, vault, and burial policies.” Liberty National apparently had a bank-draft arrangement with James Carter, and after City Carter’s death, continued to remove from James Carter’s bank account amounts for premiums for policies in James Carter’s name. Until 1997, Liberty National also withdrew $.49 per month from James Carter’s bank account for the premium due on policy number 12485788, which was an accidental-death-and-dismemberment policy on which City Carter was the insured. In March 2002, Liberty National refunded to James Carter a total of $19.89, representing the premiums it had collected on policy number 12485788 after City Carter’s death, plus interest.

In their first two complaints, both of which the trial court dismissed, the plaintiffs made no allegations with regard to policy number 12485788 or Liberty National’s withdrawing from James Carter’s accounts after City Carter’s death amounts for premiums for that policy insuring City Carter. In their second amended complaint, filed on January 22, 2002, the plaintiffs alleged that Liberty National, by continuing to withdraw payment for the premiums on policy number 12485788 after the death of City Carter, had committed a breach of contract. In that January 22, 2002, second amended complaint, the plaintiffs did not allege any fraud claim with regard to policy number 12485788.

In its motion for a summary judgment, Liberty National argued, among other things, that the claims asserted in the plaintiffs’ January 22, 2002, second amended complaint were barred by the applicable statutes of limitations or the rule of repose because the policies had been issued in the 1970’s. See § 6-2-38(Z), Ala. Code 1975 (setting forth a two-year statute of limitations for actions such as those asserting fraud claims), and Boshell v. Keith, 418 So.2d 89 (Ala.1982) (the rule of repose bars claims that have not been asserted for 20 years). Also, Liberty National submitted the affidavit of Thomas E. Hamby, a vice president of Liberty National, in which Hamby testified regarding the disposition of the insurance policies City Carter had with Liberty National. Hamby also testified that Liberty National had paid benefits pursuant to four insurance policies in the name of City Carter, but that no claim had been filed under policy number 12485788, the accidental-death-and-dismemberment policy on City Carter.

The plaintiffs opposed the motion for a summary judgment by arguing that their fraud claims were not barred by the two-year statute of limitations. In the portion of their argument pertinent to the issue raised in this appeal, the plaintiffs claimed that they were unaware of the existence of policy number 12485788 until May 10, 1999, when they received Liberty National’s letter listing the various insurance policies owned by the Carter family. The plaintiffs asserted that there was no method by which they could have learned before May 10, 1999, of the existence of policy number 12485788 or of Liberty National’s monthly withdrawal from James Carter’s account of premium payments for that policy. The plaintiffs contended that May 10, 1999, was the date the statute of limitations began to run on their fraud claim related to policy number 12485788. In opposition to Liberty National’s motion for a summary judgment, the plaintiffs submitted the affidavit of Sarah Carter, in which she stated, in pertinent part, only that “a claim was made to Liberty National Life Insurance Company for all benefits that City Carter was entitled to under all insurance policies that were in her name.”

On appeal, the plaintiffs argue only that the trial court erred in entering a summary judgment on their fraud claim related to policy number 12485788; they make no argument on appeal with regard to the breach-of-contract claim they asserted with regard to policy number 12485788 or the negligence or wantonness claims they asserted in the trial court. The elements of a fraud claim are: “(1) a misrepresentation of a material fact, (2) made willfully to deceive, recklessly, without knowledge, or mistakenly, (3) that was reasonably relied on by the plaintiff under the circumstances, and (4) that caused damage as a proximate consequence.” Brushwitz v. Ezell, 757 So.2d 423, 429 (Ala.2000) (citing Foremost Ins. Co. v. Parham, 693 So.2d 409, 422 (Ala.1997)). We note that the plaintiffs made no argument to the trial court, and they make no argument to this court, that tends to explain how the facts related to policy number 12485788 amount to fraud. This court will not endeavor to fashion from the facts of this case a theory upon which a fraud claim might be based with regard to policy number 12485788. It is not the function or duty of this court to create legal arguments for an appellant. Gonzalez v. Blue Cross/Blue Shield of Alabama, 760 So.2d 878 (Ala.Civ.App.2000).

For the purposes of this appeal, we will assume, without deciding, that the plaintiffs did state a cognizable claim of fraud on the part of Liberty National related to policy number 12485788. The plaintiffs had two years in which to bring a fraud action with regard to that policy. § 6-2-38(i), Ala.Code 1975. The plaintiffs maintained before the trial court and continue to argue to this court that the statute of limitations on their fraud claim did not begin to run until May 10, 1999, the date they received the letter from Liberty National allegedly informing them of the existence of policy number 12485788. We do not necessarily agree with the plaintiffs that, given the facts of this case, they could not have discovered before May 10, 1999, the existence of policy number 12485788 or that Liberty National had, from 1995 to 1997, continued to withdraw from James Carter’s account the premium payments for that policy. However, we need not decide the issue of when the plaintiffs knew or should have known of those facts because, even using May 10, 1999, as the date the plaintiffs first gained notice or knowledge of those facts, we conclude that the plaintiffs’ claims with regard to policy number 12485788 are barred by the applicable two-year statute of limitations set forth in § 6 — 2—38(Z), Ala. Code 1975.

On January 22, 2002, the plaintiffs filed their second amended complaint. In that January 22, 2002, second amended complaint, the plaintiffs alleged, for the first time, a claim related to Liberty National’s collecting premiums on policy number 12485788 after City Carter’s death. We note that in that second amended complaint, the plaintiffs asserted a breach-of-contract, rather than a fraud, claim with regard to those facts; however, it appears that the plaintiffs argued the fraud claim in their opposition to Liberty National’s motion to dismiss that was converted to a motion for a summary judgment. We must view the facts in a light most favorable to the nonmovant, see Planners v. Balfour Guthrie, Inc., supra. Therefore, for the purposes of this appeal, we will assume that May 10, 1999, was the date upon which the plaintiffs first had notice or knowledge of the facts giving rise to the alleged fraud pertaining to policy number 12485788. Even so, the January 22, 2002, filing of the second amended complaint containing the claim related to policy number 12458788 was well in excess of the applicable two-year statute of limitations.

The plaintiffs assert that they timely filed their action on March 19, 2001, within two years of May 10, 1999. However, the trial court dismissed the plaintiffs’ March 19, 2001, original complaint for failure to plead fraud with the specificity required by Rule 9(b), Ala. R. Civ. P. Further, the plaintiffs’ March 19, 2001, complaint did not contain any allegations that can be said to pertain to policy number 12485788 or to Liberty National’s withdrawal of funds from James Carter’s account to pay the premiums on that policy. The plaintiffs have not argued that their claim with regard to policy number 12485788, as it was framed in their January 22, 2002, complaint, relates back, pursuant to Rule 15(c), Ala. R. Civ. P., to the date of the filing of their original, March 19, 2001, complaint. Even assuming that Rule 15(c), Ala. R. Civ. P., allows an amended pleading to relate back to the date of the filing of a dismissed pleading, the facts of this case would not support a conclusion that the plaintiffs’ claim with regard to policy number 12485788 should relate back to the date of the plaintiffs’ original March 19, 2001, complaint.

“This Court has held that when an amendment merely changes the legal theory of a case or merely adds an additional theory, and the new theory is based upon the same facts as the original one and those facts have been brought to the attention of the defendant, the amendment does not prejudice the defendant; we have held that such an amendment is to be taken as merely a more definite statement of the original cause of action and that it relates back to the date of the original complaint. See McCollough v. Warfield, 523 So.2d 374 (Ala.1988), and the cases quoted therein. However, this Court has also held that where the plaintiff, in an amendment filed beyond the statutory limitations period, alleges facts that were not alleged in the original complaint or attempts to state a cause of action that was not stated in the original complaint, the amendment is time-barred. See McCollough and the cases quoted therein. In McCollough, this Court noted that the claims asserted in the amendment arose out of the same events serving as the basis for the original complaint; that because the additional theory asserted in the amendment was based on facts that had been brought to the defendant’s attention in the original complaint and would not produce any undue delay, the amendment would not work to prejudice the defendant; and that the plaintiffs had not delayed in filing the amendment. In that case, we held that the amended complaint related back to the date of the filing of the original complaint.”

ConAgra, Inc. v. Adams, 638 So.2d 752, 753-54 (Ala.1994) (emphasis added).

In this case, the plaintiffs’ original March 19, 2001, complaint contained no allegations that can be said to pertain to the “conduct, transaction, or occurrence” that forms the basis of the claim related to policy number 12485788 contained in their January 22, 2002, second amended complaint. Georgia Cas. & Surety Co. v. White, 582 So.2d 487, 492 (Ala.1991) (holding that because the attempted amendment related to a transaction or oecur-rence separate from that addressed in the original pleading, the amendment did not relate back and the claim was untimely). See also Gulf States Steel, Inc. v. White, 742 So.2d 1264 (Ala.Civ.App.1999) (holding a claim set forth in an amended complaint was time-barred because it arose from a different fact situation than did the claim contained in the original complaint and because it introduced a new cause of action); ConAgra, Inc. v. Adams, supra (holding that the retaliatory-discharge claim in the plaintiffs amended complaint did not relate back because that claim did not arise out of the same events that formed the basis for the workers’ compensation claim set forth in the plaintiffs original complaint).

The claim related to policy number 12485788, contained in the plaintiffs’ January 22, 2002, second amended complaint, is based on facts and occurrences that were not pleaded or alleged in the plaintiffs’ original March 19, 2001, complaint, and it “attempts to state a cause of action that was not stated in the [plaintiffs’] original complaint.” ConAgra, Inc. v. Adams, 638 So.2d at 754. Given the foregoing authority, we must conclude that the plaintiffs’ claim related to policy number 12485788 contained in the plaintiffs’ January 22, 2002, second amended complaint does not relate back to the filing of their original complaint. Therefore, that claim is barred by the applicable two-year statute of limitations. The trial court’s summary judgment in favor of Liberty National as to this issue is due to be affirmed.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . The "reasonable reliance” standard set forth in Foremost Ins. Co. v. Parham, supra, applies in this case, which was filed after March 14, 1997, the date on which Foremost was decided.

      . The plaintiffs filed their second complaint, titled "amended complaint,” on July 16, 2001, in excess of two years from May 10, 1999. Therefore, we need not address whether the plaintiffs' January 22, 2002, second amended complaint would relate back to the July 16, 2001, amended complaint.


author: SHAW, Judge.

text:
    K.D.H. v. STATE of Alabama.
    CR-00-2081.
    Court of Criminal Appeals of Alabama.
    June 28, 2002.
    Rehearing Denied Aug. 9, 2002.

      L.D. Holt, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   SHAW, Judge.

The appellant, K.D.H., was adjudicated delinquent on the underlying charges of rape in the first degree, a violation of § 13A-6-61, Ala.Code 1975, and sodomy in the first degree, a violation of § 13A-6-63, Ala.Code 1975. He was committed to the custody of the Alabama Department of Youth Services.

The appellant presents nine issues on appeal, all of which challenge the juvenile court’s ruling that evidence of out-of-court statements made by the victim, who was three years old at the time of trial and two years old at the time of the offenses, was admissible.

Before the adjudication hearing, the State submitted notice of its intent to introduce evidence of two out-of-court statements made by the victim — one to Selena Bentley, a social worker with the Department of Human Resources and one to her mother, S.B., in the presence of Anita Sellers, an officer with the City of Prichard Police Department — pursuant to the Child Physical and Sexual Abuse Victim Protection Act, §§ 15-25-30 through -40, Ala. Code 1975. The appellant filed a motion to exclude any evidence regarding the victim’s out-of-court statements on the grounds that the statements were inadmissible hearsay and were not admissible “under any statutory exception” and that “[a]ny admission of the out of court statements would violate [his] 4th, 5th, and 6th amendment rights.” (C. 26.) The juvenile court held a brief hearing on the motions. At the hearing, the State argued that the statutory requirements for allowing such statements into evidence were met in this case as evidenced by a report submitted by Dr. Larry Faison, a child psychologist who had evaluated the victim; the appellant argued that the requirements had not been met. The juvenile court ruled that the statements were admissible. However, after that ruling, the appellant presented several more arguments to the trial court as to why the statements should not be admitted into evidence. After hearing these arguments, the juvenile court stated: “I’m going to have to rule as you come forward with each of the witnesses.” (R. 6.)

The State then presented its evidence against the appellant, which indicated the following. On August 30, 2000, S.B. left the victim alone with the appellant at the appellant’s mother’s house for no more than 30 minutes. When S.B. returned, the victim, who had been asleep on the couch when S.B. left, was standing in the bathroom holding her underwear in her hands and crying. A physical examination the following day revealed injuries to the victim’s vaginal area and anus, which Dr. John F. Shriner, a pediatrician, described as “non-accidental” injuries caused by penetration of the vagina and anus with an object. (R. 17.) The State also presented evidence during its case-in-chief of the out-of-court statements made by the victim. S.B. testified that while at the hospital, the victim told her that “[the appellant] hurt my pee and my butt.” (R. 24.) Officer Sellers testified that, while at the hospital, she heard the victim state that “her tee and her butt hurt and [that the appellant] hurt my butt.” (R. 55.) Finally, Selena Bentley testified that when she interviewed the victim on August 31, 2000, the victim told her that “[the appellant] hurt my pee.” (R. 53.) When she asked the victim what her “pee” was, Bentley said, the victim put her hands between her legs and cupped her vaginal area.

After the State rested its case, the appellant moved for a judgment of acquittal, and the juvenile court then stated:

‘We did have a hearing on the motion to exclude and I denied the motion. What the Court is going to do now is have marked into evidence the psychological evaluation of Dr. Larry Faison as Court’s exhibit. Because the Court considered this to be done. Here is Court’s exhibit one having marked into evidence. The Court psychologist, Dr. Larry Fai-son, testified as to [the victim’s] development and in my opinion, meets the legal requirements showing that she is not available to provide testimony from memory due to the conditions described by the psychologist. The Court does, therefore, deny the motion for a judgment of acquittal.”

(R. 62.)

The appellant then called several witnesses to testify in his defense, including Dr. Faison, who, contrary to the juvenile court’s statement, had not yet testified. Dr. Faison testified that the victim’s communication skills were very limited; that she spoke in very short, abbreviated sentences; that she was unable to identify basic body parts; that she was unable to identify any traumatic event; and that she was immature for her age.

Before addressing the issues presented by the appellant, we quote those portions of the Child Physical and Sexual Abuse Victim Protection Act that are relevant to this case. Section 15-26-31, Ala.Code 1975, provides:

“An out-of-court statement made by a child under 12 years of age at the time of the proceeding concerning an act that is a material element of any crime involving child physical offense, sexual offense, and exploitation, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met.”

Section 15-25-32, Ala.Code 1975, provides, in pertinent part:

“An out-of-court statement may be admitted as provided in Section 15-25-31, if:
“(2)a. The child is found by the court to be unavailable to testify on any of these grounds:
“3. The child’s total failure of memory;
“5. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason;
“b. The child’s out-of-court statement is shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness.”

Section 15-25-33, Ala.Code 1975, provides that “[a] finding of unavailability under Section 15-25-32(2)a.l., 3., 4., 5. and 6. must be supported by expert testimony.” Section 15-25-34, Ala.Code 1975, provides that “[b]efore a statement may be admitted pursuant to this article on the grounds that the child declarant is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.” Section 15-25-37, Ala.Code 1975, provides:

“In determining whether a statement possesses particularized guarantees of trustworthiness under Section 15-25-32(2)b, the court shall consider any one, but is not limited to, the following factors:
“(1) The child’s personal knowledge of the event;
“(2) The age and maturity of the child;
“(3) Certainty that the statement was made, including the credibility of the person testifying about the statement;
“(4) Any apparent motive the child may have to falsify or distort the event, including bias, corruption, or coercion;
“(5) The timing of the child’s statement;
“(6) Whether more than one person heard the statement;
“(7) Whether the child was suffering from pain or distress when making the statement;
“(8) The nature and duration of any alleged abuse;
“(9) Whether the child’s young age makes it unlikely that the child fabricated a statement that represents a graphic, detailed account beyond the child’s knowledge and experience;
“(10) Whether the statement has a ‘ring of verity,’ has an internal consistency or coherence, and uses terminology appropriate to the child’s age;
“(11) Whether the statement is spontaneous or directly responsive to questions;
“(12) Whether the statement is suggestive due to improperly leading questions;
“(13) Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act complained of in the child’s statement.”

Finally, § 15-25-38, Ala.Code 1975, provides that “[t]he court shall support with findings and record any rulings pertaining to the child’s unavailability and the trustworthiness of the out-of-court statement.”

I.

The appellant contends that the juvenile court erred in admitting evidence of the victim’s out-of-court statements because, he says, (1) the court never made a determination, on the record and supported by specific findings, that the victim was unavailable to testify under § 15-25-32(2)a. as required by § 15-25-38, and (2) if the court did determine that the victim was unavailable, that determination was not supported by expert testimony, as required by § 15-25-33. (Issues I, II, and V in the appellant’s brief.)

The appellant’s claim that the juvenile court never determined that the victim was unavailable to testify is refuted by the record. Although we agree that the juvenile court did not specifically state during the pretrial hearing that it had determined that the victim was unavailable to testify (it merely stated that it was ruling that evidence of the out-of-court statements was admissible), at the conclusion of the State’s case, when the appellant moved for a judgment of acquittal, the court stated that it had found, based on Dr. Faison’s report “that [the victim] is not available to provide testimony from memory due to the conditions described by the psychologist.” (R. 62.) The juvenile court clearly determined that the victim was unavailable to testify, and it specifically put its ruling to that effect on the record. Although the determination was not put on the record when the juvenile court initially ruled during the pretrial hearing that the evidence of the out-of-court statements was admissible, by putting the determination on the record at the conclusion of the State’s case, the juvenile court complied with § 15-25-38. See, e.g., Smith v. State, 745 So.2d 284, 290 (Ala.Crim.App.1998) (holding that the trial court’s putting its findings on the record at the conclusion of the State’s case was sufficient to satisfy § 15-25-38 because that section does not “specifically limit the time within which the court must state the findings”).

Moreover, the court specifically stated that it was basing its determination of unavailability on the “conditions described by the psychologist” in his report, which the court admitted into evidence as a court exhibit. (R. 62.) In his report, Dr. Faison stated that the victim had “limited verbal comprehension and limited cognitive skills”; that she was not “remotely capable of separating fantasy and concrete details”; that “her recall of events is very limited in proximity to the time of the event”; that because of her age, “she cannot recall events in sequence” and “her long-term memory was vague and confused”; and that “[i]n a court testimony situation, it would be impossible for her to provide any concrete information that would be reliable.” (C. 108.) The court’s reference to the psychologist’s findings coupled with the admission of those findings into evidence was sufficient to satisfy the requirement in § 15-25-38 that the court “support with findings ... any rulings pertaining to the child’s unavailability.”

As to the appellant’s alternative claim that the juvenile court’s determination that the victim was unavailable was not supported by expert testimony, the appellant maintains that no expert testimony was offered to support the court’s determination of unavailability before that determination. As noted above, § 15-25-33 provides that a determination of unavailability “must be supported by expert testimony.” “Testimony” is defined as “[e]vidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.” Black’s Law Dictionary, 1485 (7th ed.1999). The juvenile court based its determination of unavailability on the written report submitted by Dr. Faison. That report does not fall within the definition of “testimony” and, therefore, there was a technical violation of § 15-25-33. However, that violation was harmless in light of the fact that Dr. Fai-son presented “testimony” at the adjudication hearing when he testified on the appellant’s behalf. Dr. Faison’s testimony was substantially the same as his report, and both his report and his testimony fully support the juvenile court’s determination that the victim was unavailable to testify because of her failure of memory.

Moreover, we find the appellant’s contention that “expert testimony as to the availability of the alleged victim to testify was expressly barred” by the juvenile court to be meritless. (Appellant’s brief at p. 20.) The record shows that the following occurred at the beginning of direct examination of Dr. Faison:

“[Prosecutor]: We’ll stipulate to Dr. Faison being an expert in the field.
“THE COURT: Dr. Faison has testified in this Court for more than 20 years, thousands of cases. He is accepted as an expert witness in the field of child psychology.
“[Appellant’s counsel]: Thank you, Your Honor.
“[Appellant’s counsel]: Dr. Faison, did you have a — For your information, sir, let me inform you that the Court has introduced, on its own motion, your report into the Court records.
“[Dr. Faison]: Okay.
“[Appellant’s counsel]: In your work for the County, have you had occasion to test [the victim]?
“[Dr. Faison]: I did not test her. I did an interview with her mother and her present.
“[Appellant’s counsel]: With both she and her mother?
“[Dr. Faison]: Yes, I did. But no formal testing procedure.
“[Prosecutor]: Before they begin, I’m going to object to any line of questioning that is going to be appealing Your Honor’s ruling — a prior ruling on a motion that has already been ruled on.
“THE COURT: I still allow examination of the witness, even though the threshold decision was made as to the inability of the alleged victim to testify, being her age and ability to recall. You may proceed, but I will be ready for objections, if they are appropriate.
“[Appellant’s counsel]: We concede, Your Honor, that the out-of-court statements by others have been accepted as admissible and go forward with that.”

(R. 71-72) (emphasis added). The juvenile court did not bar the appellant from questioning Dr. Faison regarding the victim’s unavailability. In fact, following the above-quoted exchange, the appellant’s counsel questioned Dr. Faison with respect to his interview with the victim and her mother (which formed the basis for Dr. Faison’s report), especially regarding certain conclusions that Dr. Faison had reached in his report concerning the victim’s communication skills and the possibility that the victim may have been “coached” into making certain statements. Under these circumstances, any error in the juvenile court determining the victim to be unavailable to testify based on Dr. Faison’s report before Dr. Faison actually “testified” was harmless.

II.

The appellant also contends that the juvenile court erred in admitting evidence of the victim’s out-of-court statements because, he says, there was no “corroborative evidence” of the crimes as required by § 15-25-34. (Issue III in the appellant’s brief.) We disagree.

“Corroborative evidence need not be strong, and need not be sufficient in and of itself to support a conviction; it need not directly connect the accused with the crime, but only tend to do so.” Goodwin v. State, 644 So.2d 1269, 1275 (Ala.Crim.App.1993), quoted with approval in Ex parte Hardley, 766 So.2d 154, 157 (Ala.1999). As the Alabama Supreme Court has noted: “ ‘The probative value of the evidence need only legitimately tend to connect the accused with the crime and need not directly do so.’ ” Ex parte Hunt, 744 So.2d 851, 858 (Ala.1999), quoting Mills v. State, 408 So.2d 187, 191 (Ala.Crim.App.1981). Moreover, circumstantial evidence is sufficient to show corroboration. See Goodwin, 644 So.2d at 1275.

As noted above, the evidence indicated that the victim was left alone with the appellant for approximately 30 minutes. When the victim’s mother returned to check on the victim, who had been asleep on the couch when her mother left, the victim was standing in the bathroom holding her underwear in her hands and crying. A physical examination revealed penetration injuries to the victim’s vagina and anus. We agree with the appellant that Dr. Shriner’s testimony regarding the victim’s injuries was the only evidence offered of her physical condition and, alone, did not tend to connect the appellant to the crimes. However, the evidence of the victim’s injuries coupled with S.B.’s testimony that when she found the victim, after leaving the victim alone with the appellant, she was standing in the bathroom holding her underwear in her hands and crying, was sufficient to connect the appellant to the crimes and thus to corroborate the victim’s out-of-court statements.

III.

The appellant next contends that the juvenile court erred in admitting evidence of the victim’s out-of-court statements because, he says (1) the statements did not possess particularized guarantees of trustworthiness, see §§ 15-25-32(2)b and 15-25-37, and (2) the court did not make a determination, on the record and supported by specific findings, that the statements possessed particularized guarantees of trustworthiness as required by § 15-25-38. (Issues IV and VI in the appellant’s brief.)

We agree that the juvenile court did not “support with findings” nor make a determination on the record that the victim’s out-of-court statements possessed particularized guarantees of trustworthiness. However, we conclude that this technical noncompliance with § 15-25-38 was harmless because, based on our review of the evidence and of the statutory factors regarding the trustworthiness of an out-of-court statement of a child victim, as set out in § 15-25-37, we conclude that the out-of-court statements were sufficiently trustworthy to warrant their admission. Three individuals — including a social worker and a police officer, neither of whom had a motive for falsifying testimony — heard the victim’s statements. See § 15-25-37(3) and (6). The language used by the victim in her statements was appropriate for a two-year-old, and the victim’s two statements were consistent. See § 15-25-37(10). Moreover, the evidence at the adjudication hearing indicated that the appellant had the opportunity to commit the acts referred to in the victim’s statements. See § 15-25-37(13). Therefore, the out-of-court statements had particularized guarantees of trustworthiness as required by § 15-25-32(2)b.

IV.

Finally, the appellant contends that the admission of the victim’s out-of-court statements denied him his constitutional rights to confront the witnesses against him, to due process of law, and to equal protection of the law.

The appellant’s confrontation and due-process arguments are nothing more than a reiteration of his previous arguments that the victim was not unavailable to testify, that the victim’s out-of-court statements were not corroborated, and that the victim’s out-of-court statements did not possess particularized guarantees of trustworthiness. Because we have already determined that the juvenile court properly determined that the victim was unavailable to testify, that the victim’s out-of-court statements were sufficiently corroborated, and that the victim’s out-of-court statements possessed particularized guarantees of trustworthiness, the appellant’s confrontation and due-process arguments are mer-itless. See, e.g., Richerson v. State, 668 So.2d 130, 134-135 (Ala.Crim.App.1995), and Fortner v. State, 582 So.2d 581 (Ala.Crim.App.1990).

As to his equal-protection argument, we find that this argument was not preserved for review because it was never presented to the juvenile court. “Even constitutional claims may be waived on appeal if not specifically presented to the trial court.” Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997).

Based on the foregoing, the judgment of the juvenile court is affirmed.

AFFIRMED.

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

      . Contrary to the appellant's contention, merely because Dr. Faison did not state in his report nor testify at the adjudication hearing to the exact language used in the statute, i.e., he did not specifically state that the victim had a "total failure of memory," does not mean the evidence was not sufficient to support the juvenile court's finding of unavailability. As noted above, Dr. Faison stated in his report that, if the victim were called to testify, "it would be impossible for [the victim] to provide any concrete information that would be reliable" and that the victim's memory was vague and confused. (C. 108.) He also stated in his report, and testified at the adjudication hearing, that the victim's communication skills were poor and that she was unable to identify basic body parts. Dr. Fai-son’s conclusions, both in his report and in his testimony, support the juvenile court’s determination that the victim was unavailable to testify because of her total failure of memory.


author: HOUSTON, Justice. JOHNSTONE, Justice

text:
    Ex parte K.L.H. (In re K.D.H. v. State of Alabama).
    1012175.
    Supreme Court of Alabama.
    Nov. 1, 2002.

      L.D. Holt, Mobile, for petitioner.

       The defendant filed his petition under the name "K.L.H.” The case in the Court of Criminal Appeals carried the initials 'K.D.H."

   HOUSTON, Justice.

WRIT DENIED.

MOORE, C.J., and SEE, LYONS, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., dissents.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent from the denial of the petition for a writ of certiorari. The basis of our certiorari jurisdiction over this case is Rule 39(a)(1)(D), Ala. R.App. P., conflict. The conflict is that the opinion of the Court of Criminal Appeals, K.D.H. v. State, 849 So.2d 983 (Ala.Crim.App.2002), which rationalizes outright violations by the trial court of § 15-25-32, § 15-25-33, § 15-25-34, § 15-25-37, and § 15-25-38, Ala.Code 1975, conflicts with Wal-Mart Stores, Inc. v. Patterson, 816 So.2d 1, 6 (Ala.2001), and Omni Insurance Co. v. Foreman, 802 So.2d 195, 199 (Ala.2001), which hold that courts cannot rewrite statutes and must honor the plain meaning of the statutes. In the instant case, in a trial of rape and sodomy charges, the trial court admitted, over the defendant’s apt objections, the hearsay declarations of the two-year-old alleged victim without the proof required by § 15-25-32 and § 15-25-33 that she was unavailable to testify and without the findings required by § 15-25-34, § 15-25-37, and § 15-25-38 that the child’s hearsay declarations “possesse[d] particularized guarantees of trustworthiness under Section 15-25-32(2)b[, Ala. Code 1975],” § 15-25-37.

The Court of Criminal Appeals acknowledges:

“The juvenile court based its determination of unavailability on the written report submitted by Dr. Faison. That report does not fall within the definition of ‘testimony’ and, therefore, there was a technical violation of § 15-25-33.”

849 So.2d at 989. The Court of Criminal Appeals, however, holds this “technical violation” to be harmless because, after the trial court had admitted the hearsay over the defendant’s objections, and the State had rested its case-in-chief, and the defendant had moved for a judgment of acquittal, and the trial court had denied the motion for judgment of acquittal, and the defendant had called Dr. Faison as a defense witness, then (for the first time) Dr. Faison supplied testimony that the Court of Criminal Appeals deems sufficient to prove the child was unavailable.

The fallacy of this holding by the Court of Criminal Appeals is that the defendant’s motion for judgment of acquittal at the close of the case-in-chief by the State tested the sufficiency of the evidence as it then existed, before the defendant called his first witness. Goff v. State, 572 So.2d 1283, 1284 (Ala.Crim.App.1990) (“When a trial judge rules on a motion for a judgment of acquittal, his decision, and ultimately our review of that decision, must be based on the evidence before him at the time.”) (emphasis added). At that stage of the trial, the hearsay declarations of the child were unsupported by Dr. Faison’s testimony and therefore were erroneously admitted and not properly considered in the denial of the defendant’s motion for judgment of acquittal. Without the child’s hearsay declarations, the record lacked evidence that the defendant had committed the crimes charged. Therefore, the trial court erred in denying the motion for judgment of acquittal. The erroneous admission of the child’s hearsay declarations and the consequent erroneous denial of the defendant’s motion for judgment of acquittal can hardly be deemed harmless, since, had the trial court ruled correctly, the trial would have ended in a judgment of acquittal without any opportunity for the State to supply tardily the requisite predicate for the child’s hearsay declarations.

The Court of Criminal Appeals further states:

“We agree that the juvenile court did not ‘support with findings’ nor make a determination on the record that the victim’s out-of-court statements possessed particularized guarantees of trustworthiness.”

849 So.2d at 991. The Court of Criminal Appeals itself, however, then proceeds to supply the fact-findings that were the province and the duty of the trial court in order to cure the error committed by the trial court:

“However, we conclude that this technical non-compliance with § 15-25-38 was harmless because, based on our review of the evidence and of the statutory factors regarding the trustworthiness of an out-of-court statement of a child victim, as set out in § 15-25-37, we conclude that the out-of-court statements were sufficiently trustworthy to warrant their admission.”

849 So.2d at 991. The fallacy of this rationale by the Court of Criminal Appeals is that the child’s hearsay declarations were not, and are not, admissible unless they were “shown to the reasonable satisfaction of the [trial] court to possess particularized guarantees of trustworthiness.” § 15-25-32(2)b. The Court of Criminal Appeals is not the trial court. The Court of Criminal Appeals cannot legally supply findings due from the trial court by reasoning, in effect, that, had the trial court known it needed to find certain facts, it would have found the ones the Court of Criminal Appeals deems necessary to its conclusion.

The opinion by the Court of Criminal Appeals rationalizes these errors by the trial court as “a technical violation,” 849 So.2d at 989, and “technical noncompliance,” 849 So.2d at 991. When a court dismisses a violation of a statute as merely “technical,” the court effectively dismisses the statute itself. Such a ruling violates the separation of powers guaranteed by Article III, § 43, Alabama Constitution of 1901, and defies the mandates of Wal-Mart, supra, and Omni, supra, that courts follow statutes as written and that courts honor the plain meaning of the statutes. See also Ex parte Washington, 818 So.2d 424, 427-30 (Ala.2001) (Johnstone, J., dissenting).


author: WISE, Judge.

text:
    Roger LANIER v. STATE of Alabama.
    CR-01-0958.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2002.
    Angela Hames Sahurie, Decatur, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Roger Lanier, appeals from the circuit court’s revocation of his probation. The record reveals that on August 3, 2001, Lanier pleaded guilty to one count of first-degree criminal mischief, a violation of § 13A-7-21, Ala.Code 1975, and one count of illegal possession of a credit card, a violation of § 13A-9-14, Ala. Code 1975. Lanier was sentenced as a habitual offender to concurrent terms of 15 years’ imprisonment; those sentences were split, and he was sentenced to time served, with the balance suspended, and he was placed on supervised probation for five years. Lanier was also ordered to pay a total of $1174.37 in restitution to the victim and her insurance company. Finally, Lanier was ordered to pay $50 to the Crime Victims Compensation Fund.

On August 31, 2001, Lanier was arrested on charges of third-degree assault, third-degree theft, and second-degree possession of marijuana. Lanier’s probation officer filed a delinquency report on September 4, 2001. In that report the officer alleged that Lanier had been charged with three new criminal charges, and he recommended that Lanier’s probation be revoked. On December 4, 2001, the State filed a motion seeking to revoke Lanier’s probation.

A probation-revocation hearing was held on January 10, 2002. At the hearing, appointed counsel asked to be allowed to withdraw as Lanier’s counsel, stating that the differences between them prevented him from effectively representing Lanier. Counsel also requested that Lanier’s revocation hearing be continued. The circuit court granted counsel’s request to withdraw, but stated that it intended to proceed with Lanier’s revocation hearing. Expressing some confusion about the proceedings, Lanier asked the court, “Can I ask you and you just tell me what my legal rights are?” (R. 25.) In response to Lanier’s request, the Court advised:

‘You’re here for a probation revocation proceeding. A probation report has been filed. You have gotten a copy of the allegations against you.
“And that is what we are here for. And the State has to prove that. We will proceed with the evidence as to these allegations. The allegations add two new offenses of assault third degree and possession of marijuana in the second degree.[] And if those cases have been disposed of, they will have certified copies of convictions. If they are still pending, then they will probably have testimony as to what the underlying facts are that support the allegations or that you committed those two offenses.
“That is all I know.
‘You have a right to cross-examine their witnesses that they put on, and you have a right to present your own evidence in your defense. You have the right to remain silent.
“If those criminal cases are pending, you certainly have the right to remain silent and you cannot be forced to testify against yourself.
“And if you lose, you have the right to appeal. And if you win, you either remain on probation or there could be some modification in your probationary conditions.”

(R. 25-27.)

Following this exchange, the trial court began the evidentiary hearing, and Lanier proceeded pro se. At the conclusion of the hearing, the circuit court revoked Lanier’s probation and entered a written revocation order setting out the reasons for revoking his probation and the evidence it relied upon, in accordance with Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). The order stated, in pertinent part:

“Defendant and defendant’s counsel appear in open court for probation revocation hearing. State’s prosecutor is present. Defendant’s attorney, Michael Congiardo, makes an oral motion to withdraw from this case. GRANTED. Defendant proceeds pro se. Testimony is taken. The Court is reasonably satisfied from the evidence presented that a violation of the conditions of defendant’s probation has occurred in that there is probable cause to believe defendant was in possession of marijuana for personal use while on probation. Upon defendant’s arrest on two outstanding warrants, a custodial inventory search was made and marijuana was found on defendant’s person. Defendant will not appreciate the seriousness of this violation unless his probation is revoked. Accordingly, defendant’s probation is REVOKED. Sentence imposed. Defendant is entitled to credit for time served on this offense.”

(C. 19.)

On January 14, 2002, Lanier filed a motion to reopen his probation-revocation hearing. As grounds for his motion, Lanier alleged that his rights had been violated because, he said, his request for counsel was denied and he was forced to represent himself at the revocation hearing. The circuit court denied Lanier’s motion on January 15, 2002. This appeal followed.

Lanier argues that his Sixth Amendment right to counsel was violated because, he says, he was entitled to appointed counsel at his probation-revocation hearing, and he did not waive his right to counsel. The State concedes that the record does not establish that Lanier was advised of his right to be represented by counsel at his revocation hearing, or that he affirmatively waived his right to counsel. Citing Law v. State, 778 So.2d 249 (Ala.Crim.App.2000), the State asks us to remand this case for the circuit court to make a determination whether Lanier would have been entitled to counsel.

Although the general rules of preservation apply to probation-revocation hearings, see, e.g., Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998), we have recognized that a defendant can allege for the first time on appeal a claim that the circuit court erred in failing to advise him of his right to request an attorney to represent him during probation-revocation proceedings. Law v. State, 778 So.2d at 250.

Rule 27.6(b), Ala.R.Crim.P., addresses the circumstances under which a probationer is entitled to be represented by counsel. That rule provides, in pertinent part:

“Counsel will be appointed to represent an indigent probationer upon request:
“(1) If the probationer makes a color-able claim that the probationer has not committed the alleged violation of the conditions or regulations of probation or the instructions issued by the probation officer; or
“(2) Even when the violation is a matter of public record or is uncontested, if there are substantial reasons that justify or mitigate the violation and that may make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present.”

Although the record before us establishes that Lanier was apprised of a number of his rights, there is no indication that he was apprised of his right to be represented by counsel or that the court made an initial determination whether La-nier was entitled to counsel, based on the guidelines provided in Rule 27.6(b). Moreover, Lanier did not admit that he had committed any new offenses. Therefore, just as in Law, we cannot say that the court’s omission was harmless, given that Lanier argued that he was innocent of the new charges. See Law v. State, 778 So.2d at 252.

Lanier’s claim may be colorable, or substantial reasons may exist that require the assistance of counsel. However, because the record does not indicate that the trial court made an initial determination as to whether Lanier would have been entitled to counsel, we remand this case for the circuit court to make such a determination. If the court determines that counsel was not necessary in these proceedings, it should set forth its findings in a written order. However, if the circuit court should determine that Lanier raised a col-orable claim or that substantial reasons exist to appoint counsel, in accordance with Rule 27.6(b), we order the trial court to conduct a new probation-revocation proceeding, first informing Lanier of his right to request counsel and in accordance with the requirements set forth in Gagnon v. Scarpelli, 411 U.S. 778, 98 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Armstrong v. State, supra.

The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this remand order at the earliest possible time and no later than 56 days from the date of this opinion.

REMANDED WITH DIRECTIONS.

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

      . As previously stated, the delinquency report contained charges of three, not two, new offenses.

       Note from the reporter of decisions: On November 15, 2002, on return to remand, the Court of Criminal Appeals affirmed, without opinion.