author: PER CURIAM. YATES, Presiding Judge, MURDOCK, Judge,

text:
    Scott McQUINN v. Staci McQUINN. Staci McQuinn Edwards v. Scott McQuinn.
    2010531.
    Court of Civil Appeals of Alabama.
    May 23, 2003.

      Dan Warnes, Guntersville, for appellant/eross-appellee Scott McQuinn.
    Carla M. Handy, Gadsden, for appel-lee/cross-appellant Staci McQuinn Edwards.
   PER CURIAM.

This is an appeal by Scott McQuinn (“the father”) from a trial court’s modification of a judgment modifying visitation and assessing a child-support arrearage. Staci McQuinn (“the mother”) cross-appeals and argues that the judgment is in error as it relates to visitation and to mediation.

The father and the mother married in December 1992. They were divorced in May 1999 in Tennessee. The divorce judgment incorporated a “parenting order” that set forth provisions regarding visitation and child support with respect to the children of the parties and the mother’s child by a previous marriage. The mother received physical custody of the children, and the father received visitation every other Saturday from 9 a.m. to 6 p.m. Although the divorce judgment allowed visitation with all three minor children, no overnight visitation was permitted. The judgment also allowed the father two weekly telephone conversations with the children and unimpeded correspondence with the children and provided that all pertinent medical and educational information was to be sent directly from schools or health-care providers to the father. The judgment ordered the father to pay $200 per week in child support. In February 2000, the father’s child-support obligation was reduced to a monthly payment of $515.

Following the divorce, the mother and the children moved to Marshall County, Alabama. The father petitioned for a modification of the judgment and for the entry of an order of contempt in September 2000. As part of the grounds supporting a claimed material change in circumstances, the father informed the court that he is now serving in the U.S. Navy as an in-flight aviation electronics technician on surveillance aircraft and that he is stationed at Island Center in the State of Washington. According to the father, the distance between Alabama and Washington makes the parties’ compliance with visitation provisions specified in the divorce judgment of one Saturday every other week (with no overnight visitation) difficult, if not impossible. In his petition for an order of contempt, the father alleged that the mother had frequently prevented or interfered with his attempts to telephone the children and to arrange visitation with the children.

The mother filed an answer and counterclaim on January 5, 2001. The mother asserted that the father’s visitation had been restricted at the time of the divorce judgment because of his emotional instability and excessive drinking and that visitation should not be altered by the trial court. In her counterclaim, she argued that the father should be held in contempt for failure to pay child support.

Following an ore tenus hearing held on July 11, 2001, the trial court entered a judgment on October 3, 2001, addressing the issues raised by the parties’ pleadings. In that judgment, the trial court reaffirmed that the father’s visitation privilege granted in the 1999 divorce judgment would still apply as to all three minor children. Because of the distances involved, however, the trial court ordered that the children be made available during visitation periods to the father or to certain specified members of the father’s family, including his current wife, his father and mother, his stepfather, and his brother. The trial court granted the father up to 10 weekends each year for visitation from Friday at 4 p.m. until Sunday at 6 p.m., with the specific arrangements to be made by the parents based upon two weeks’ notice by the father. The trial court granted the father visitation for one-half of the children’s Christmas vacation each year; the Thanksgiving holiday every other year; academic spring break every other year; and during summer school vacation from June 15 until July 31 every year. The father was also given one day of visitation on Father’s Day and on the father’s birthday each year.

The judgment requires the father to provide all transportation necessary for pickup and delivery of the children to exercise visitation. Additionally, the order allows the father to telephone the children no more than twice each week and to speak on each occasion with each child for no more than 15 minutes.

The judgment further states that educational, health-care, and religious decisions are joint decisions of the parents. However, each parent is to make all day-to-day decisions when the children are in his or her physical custody as well as emergency decisions regarding the health and safety of the children. Lastly, the trial court ordered that future disputes regarding visitation, education, nonemer-gency health care, and religious decisions were to be referred to mediation through a court-appointed mediator.

The mother filed a motion for a new trial, or, in the alternative, a motion to alter, amend, or vacate the trial court’s judgment on October 25, 2001, and amended that motion on November 2, 2001. In her motion, as amended, the mother argued that the trial court erred (1) in granting visitation with the stepson; (2) in purportedly granting “rights of visitation” to the father’s extended family; (3) in requiring the parties to submit to mediation in the future; and (4) in failing to find the father in arrears in his child-support payments.

On January 16, 2002, the trial court issued an order amending the original judgment in the following manner: all persons listed as having access to the children were deleted except for the father; the paternal grandfather was permitted to pick up the children on behalf of the father in order for the father to exercise visitation; the father was adjudged to be $5,021 in arrears in his child support plus due to pay interest of $1,266.14; and the father was held in contempt of court, but punishment was suspended on the condition that he pay an additional $100 each month to reduce the arrearage.

The father appeals, alleging that the trial court erred (1) in amending the October 2001 judgment so as to prevent the father from designating family members to effectuate his visitation with the children, and (2) in determining that the father had a child-support arrearage of $5,021 plus interest. The mother cross-appeals, arguing that the trial court erred (1) in ordering visitation with the father’s stepchild, and (2) in mandating mediation regarding visitation in the future.

Under the ore tenus standard, and given the attendant presumption of correctness that attaches to the trial court’s ruling on evidence received at an ore tenus proceeding, we will not reverse the trial court’s judgment unless it is unsupported by the evidence. See Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998); Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996). Visitation is a matter that rests within the sound discretion of the trial court; however, this discretion is guided by what will protect the best interests of the child. See Hall v. Hall, 717 So.2d 416 (Ala.Civ.App.1998).

I. Visitation Issues

A. Visitation with the Father’s Natural Children

The trial court originally granted the father’s request for modification of visitation in its October 3, 2001, judgment. In that judgment, the trial court ordered that the minor children be made available to the father or to the father’s family and listed specific individuals that would be recognized as the father’s “designees.” These “designees” included the father’s wife, his parents, his stepfather, and his brother. When the mother, citing Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), objected on the grounds that the trial court was granting visitation to persons other than a parent, the trial court modified the order to exclude everyone except the father, but allowed the paternal grandfather to assist the father in exercising visitation with the children.

We note that although the mother, not he father, is the primary physical custodian of the children, the father’s fundamental right to direct the care, control, and association of his children is no less fundamental and protected than the right of the mother to do the same. See Troxel v. Granville, 530 U.S. at 66, 120 S.Ct. 2054. The decision in Troxel does not differentiate between custodial and noncustodial parents as to their fundamental rights to determine the care, control, and association of their children.

The mother incorrectly labels this a “grandparent-visitation” case, and claims that the trial court improperly attempted in its original judgment to grant “de facto” visitation with the father’s parents and family members. The father correctly argues that the instant case does not involve grandparent-visitation rights pursuant to any Alabama statute; rather, this lawsuit results from the mother’s decision to prevent the children from visiting their father or from developing and maintaining any continuing association with members of the father’s family.

The mother appears to argue that the father, during the periods in which he is entitled to direct the care, custody, and control of his children, does not have the right to allow his parents or siblings or other suitable family members to visit with the children in his stead, while asserting that she does have such rights during the periods in which she has custody of the children. In previous visitation cases, this court has reversed trial-court judgments providing for visitation, either directly or by implication, to the noncustodial parent at the sole discretion of the custodial parent. See K.L.U. v. M.C., 809 So.2d 837 (Ala.Civ.App.2001), and Bryant v. Bryant, 739 So.2d 53 (Ala.Civ.App.1999). The record reveals that this case is more analogous to those visitation cases than to a grandparent-visitation case.

The record reveals that the children live with their mother and her husband in Gun-tersville, Alabama. The father is on active duty with the U.S. Navy and is stationed out of state; he is therefore subject to circumstances that may impair his ability to personally accompany the children during all visitation periods. According to testimony at trial, the paternal grandfather lives in Dunedin, Florida, a town located approximately 16 hours from Gun-tersville by automobile. It is unclear from the record where the paternal grandmother lives. The mother offered nothing more than her personal disapproval to indicate that contact with the father’s family would be harmful to the children.

In most cases, a trial court should not include in its visitation provision a specification of precisely which persons may be permitted to transport children to and from visitation. When the judgment does not indicate who may aid the custodial and/or the noncustodial parent in transportation to and from visitation, the noncustodial parent is not prevented from making use of suitable family members for that purpose. However, in extreme cases where the parents have demonstrated an inability to be flexible and to compromise, as seems apparent in the present case, a trial court’s specifically naming persons who are authorized to aid the noncustodial parent by providing transportation may prove helpful and may prevent future visitation disputes and further litigation over visitation issues.

The present judgment, however, limits the father to utilizing the aid of only the paternal grandfather to transport the children during visitation. Such a restrictive limitation, based on the specific facts of this case, is an abuse of the trial court’s discretion because of the father’s employment and the considerable distances involved, both between the father’s home and the children’s home and between the other family members’ homes and the father’s and the children’s homes.

Furthermore, it is the consensus of this court that the father did not forfeit any of his fundamental parental rights when he divorced, or when he joined the armed services. Because no such forfeiture occurred, the father retains the right to allow other suitable family members to visit with his children during his visitation periods even when he is unable to be present.

The mother argues that the trial court’s list of “designees” who may exercise the father’s visitation in his absence violates Alabama’s grandparent-visitation statute, § 30 — 3—4.1, Ala.Code 1975, in part because it permits the grandparents visitation without requiring that they meet the evi-dentiary burdens placed upon them by the statute. What the mother misunderstands is that this case does not involve whether grandparents or third parties have a right to visitation, but instead involves the father’s right, during his visitation periods, to determine with whom his children may visit. Properly viewed, the father’s right does not, as the mother characterizes it, allow third-party visitation through a “back door.” Nor does the recognition of the father’s right to determine the care, control, and association of his children during his visitation periods amount to what the mother describes as “routinely forc[ing] the children to visit with third parties.” Instead, the mother’s contentions concern whether one parent can veto the other parent’s choices concerning with whom the children visit without, from what we can perceive in the record, any particular reason.

As the father points out, the mother is free to leave the children in day care during her working hours, with babysitters when she has social engagements, and apparently (based upon the statement of her counsel at trial) with her sister (or other family members) in Tennessee for what her counsel described as extended “regular visitation periods,” all without his approval or even his knowledge. Essentially, the mother argues that the father, as the noncustodial parent, has been stripped of the rights of a parent and that she, and only she, may exercise those parental rights. She is mistaken. The judgment properly permits the father to “take the children to such reasonable activities as [he] .may determine.”

Because the trial court’s judgment, as modified, requires the physical presence of either the father or the paternal grandfather at the start of each visitation period, despite the overwhelming evidence that such a requirement would unduly burden the father, we must reverse the trial court’s judgment with respect to visitation. Upon remand, the trial court’s judgment need not expressly grant the father the right to allow the grandparents, an uncle, or another suitable family member to visit with the children during the father’s visitation periods. If the mother wishes to object to the children’s visitation with a specific family member, she must state a legitimate objection to visitation with that person, at which time the trial court, after considering the evidence in support of and in opposition to such an objection, may properly restrict the children’s exposure to that particular person. In the absence of any evidence of unsuitability of the paternal grandparents or of the father’s wife or siblings, however, we conclude that the scope of the father’s fundamental parental rights is broad enough to allow him to permit his children to visit with any member of his extended family, even if the judgment is silent with respect to that specific right.

B. Visitation with the Stepson

The mother’s cross-appeal alleges that the trial court erred when it allowed continued visitation with the minor stepson. The original divorce judgment entered by the Tennessee court in June 1999 awarded the father visitation with the minor stepson. The record does not indicate any successful appeal by the mother from that award of visitation. On September 28, 2000, the father sought to modify visitation with regard to only the two children born of the marriage. His petition does not include a request to modify his visitation with regard to the stepson. At trial, the father referred to both of his natural children during his testimony, but did not mention the stepson. The Alabama court merely modified the dates of visitation, without attempting to change the substance of the original judgment.

The proper method by which the mother could have attacked the validity of the initial adjudication was by a direct appeal from the Tennessee judgment. The mother did not appeal from the Tennessee judgment; therefore, except as it may be subject to modification upon a change in circumstances, the right of the father to visitation with the stepson became the law of the case. See generally G.P. v. A.A.K., 841 So.2d 1252 (Ala.Civ.App.2002) (mother petitioned Aabama trial court to terminate grandparent-visitation rights awarded in Kentucky judgment, arguing that statute was unconstitutional; trial court did not have authority to redetermine, ab initio, whether the grandparents should have been granted visitation, but did have authority to modify that visitation based on the best interests of the child).

The Tennessee court originally determined that the best interests of the stepson would be served by his having visitation with his stepfather. The mother’s failure to appeal the original judgment that granted the father visitation with his stepson precludes her from attempting to place error on the Aabama court in' a collateral attack. See, e.g., Smith v. Wiley Sanders Trucking Co., 581 So.2d 1124 (Aa.Civ.App.1991); Greenhill v. Bear Creek Dev. Auth., 519 So.2d 938 (Aa.1988). Neither party in this case requested a modification of the Tennessee judgment’s provisions relating to visitation with the stepson. Once custody or visitation is established by a valid judgment, the party who is entitled to such custody or visitation (in this case the father) is under no obligation to present evidence that such visitation continues to be in the best interests of the child in the absence of proof that such visitation is no longer warranted because of a material change of circumstances.

The trial court correctly gave full faith and credit to the Tennessee judgment’s provisions relating to visitation that were not implicated by the father’s request for modification of visitation regarding his natural children. See U.S. Const., art. TV, § 1; G.P. v. A.A.K., supra; Menendez v. COLSA, Inc., 852 So.2d 768 (Ala.Civ.App.2002). We find no error on the part of the trial court as to the father’s visitation with the stepson, and its judgment is due to be affirmed as to that issue.

II.Child-Support Arrearage

The father’s second argument on appeal relates to the calculation of his child-support arrearage. Specifically, he contends that the trial court erred in failing to apply certain “overpayments” that the father claims were made during the first three months following the parties’ divorce. The mother disputed the payments and offered a chart of payments received. “The award or denial of a credit against an arrearage is within the sound discretion of the trial court and will not be reversed absent a showing of plain and palpable abuse.” Phillippi v. State ex rel. Burke, 589 So.2d 1303, 1304 (Ala.Civ.App.1991). We conclude that the trial court was presented substantial evidence from which it could determine that the father was over $5,000 in arrears in his child-support payments. The trial court’s judgment is due to be affirmed as to that issue.

III.Mediation

The mother argues that that portion of the trial court’s judgment requiring the father and the mother to submit to mediation for all future disputes except those concerning financial support is erroneous. She cites no cases to support this argument, but alleges that the trial court’s mandate is in violation of the Alabama Civil Court Mediation Rules. The mother’s argument is not well-taken.

The provisions in the trial court’s judgment relating to mediation closely parallel the provisions of the Tennessee judgment relating to resolution of domestic disputes that might arise between the parties in the future. Neither party challenged those provisions by appeal; therefore, they became the law of the case. See G.P. v. A.A.K., supra. This court will affirm a trial court’s judgment on any valid legal ground. See Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). We conclude that the trial court acted within its discretion by continuing the Tennessee judgment’s provisions ordering the parties to mediate disputes over future visitation, health-care issues, and educational matters, rather than seeking judicial intervention by filing another modification petition.

IV.Summer Visitation

The mother’s final argument on appeal is that the trial court erred in granting the father six weeks of summer visitation every year during the month in which two of the minor children celebrate their birthdays. We find the mother’s argument to be disingenuous in light of the fact that her behavior in not allowing the father visitation is the primary reason the father filed the petition to modify visitation and is what precipitated the trial court’s entry of such a specific visitation order. We note, however, that in his reply brief, the father has indicated that he would be willing to alternate six weeks of summer visitation in order to allow the mother to have physical custody of the children during their birthdays every other year. Because the judgment of the trial court regarding visitation is due to be reversed in part, we note that on remand the trial court may, in its discretion, properly alter its visitation award in the manner proposed by the father in his reply brief.

Based on the foregoing facts and authorities, we reverse the trial court’s judgment as to visitation with the children born of the parties’ marriage. We affirm the trial court’s judgment as to all other issues raised by the parties. The cause is remanded for the entry of a visitation judgment consistent with this opinion.

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

CRAWLEY and PITTMAN, JJ., concur.

THOMPSON, J., concurs in the result.

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

YATES, Presiding Judge,

concurring in part, concurring in the result in part, and dissenting in part.

I agree with the main opinion on the issues of child-support arrearage, requiring mediation, and allowing the mother to have the children every other year on their birthdays.

Next, I concur in the result reached by the main opinion regarding visitation. The original judgment, modifying visitation, provided:

“The children will be made available to [the father] or [the father’s] family during his visitation periods. For the purposes of this document, [the father] shall mean [the father] or [the father’s] family designees. Family designees of [the father] are as follows:
“a. Holly McQuinn ([the father’s] wife).
“b. Larry McQuinn ([the father’s] father).
“c. Nancy Sola ([the father’s] mother).
“d. Frank Sola ([the father’s] stepfather).
“e. Shawn McQuinn ([the father’s] brother).”

The mother filed a Rule 59, Ala. R. Civ. P., motion, arguing, among other things, that the trial court’s order impermissibly granted visitation rights to the grandparents and to other family members. In response, the father argued that this case did not involve grandparent visitation, but instead involved his fundamental right to determine with whom his children associated. He also stated:

“In the event that the court finds that its present order is too specific in naming [the fatherj’s relatives who are named as having alternate rights to visit, the [father] requests the court to address the issue of whether [the father] can inform [the mother] as to third parties who will pick up and deliver the children during visitation periods and supervise the children during those visitation periods. Without this instruction [the father] will have no choice but to file the appropriate pleadings to litigate this matter unless the court specifically addresses this issue.”

Subsequently, the trial court modified its visitation order, in pertinent part, as follows:

“All persons listed as being able to exercise visitation with the minor children are deleted except for the [father,] Scott McQuinn. The paternal grandfather may be allowed to pick the child up for [the father] in order for [the father] to exercise visitation.”

“Among those interests lying at the core of parents’ rights to raise and care for their own children is the right to control their children’s companions and associations.” R.S.C. v. J.B.C., 812 So.2d 361, 368 (Ala.Civ.App.2001). The trial court correctly modified its original judgment to eliminate the list of designees for visitation; that list could have been considered to have ordered visitation by nonparents. However, the issue before this court is the trial court’s modified judgment allowing the grandfather to transport the children to assist the father in exercising visitation. I agree with the result reached by the main opinion that the judgment, with regard to visitation, should be modified on remand to allow the father flexibility in exercising his visitation. The father is already required by the trial court’s judgment to “coordinate” visitation with the mother upon two weeks’ notice by the father, and, in my opinion, this inherently includes identifying the person, if any, who will be assisting the father in his visitation.

Last, I dissent on the issue of stepparent visitation. The father sought to modify visitation with his two natural children because of their geographical distance, but did not request the same modification as to his stepson and did not mention his stepson at trial. No evidence was presented that the father desired to continue his relationship with the stepson, or that it would be in the stepson’s best interest that he do so. “To force a former stepparent’s (legally a mere ‘non-parent’) visitation upon a natural parent or the former stepchild, over either’s objection, would appear to be a detriment to the best interests of the child.” Shoemaker v. Shoemaker, 563 So.2d 1032, 1034 (Ala.Civ.App.1990).

The parties divorced in Tennessee in May 1999 after almost seven years of marriage, where, at that time, they agreed that the father could have visitation with the stepson. I recognize that the Marshall Circuit Court had jurisdiction over the father’s modification petition and had the authority to modify the original visitation incorporated into the judgment of the Tennessee court, § 30-3B-203(2), Ala.Code 1975; however, I believe that the trial court abused its discretion when the father did not request a change in visitation or present some evidence that it was in the stepson’s best interests.

MURDOCK, Judge,

concurring in part; concurring in the result in part; and dissenting in part.

I concur in the main opinion as it relates to the issue of the father’s child-support arrearage. My conclusions as to the remainder of the issues presented in this appeal are as follows.

I. The Father’s Visitation Rights

A. The Father’s Visitation with His Own Children

I agree with the main opinion when it states that “the father’s fundamental right to direct the care, control, and association of his children is no less fundamental and protected than the right of the mother to do the same. See Troxel v. Granville, 530 U.S. [57] at 66, 120 S.Ct. 2054 [2000)].” 866 So.2d at 573. To paraphrase the sentence that then follows this statement in the main opinion, “[t]he decision in Troxel does not differentiate between” the parent with the right to the primary physical custody of a child and the parent with the secondary right to that custody, i.e., visitation. 866 So.2d at 573.

The main opinion notes:

“The mother appears to argue that the father, during the periods in which he is entitled to direct the care, custody, and control of his children, does not have the right to allow his parents or siblings or other suitable family members to visit with the children in his stead, while asserting that she does have such rights during the periods in which she has custody of the children.”

866 So.2d at 573. I agree with the main opinion that this argument must be rejected.

“Among those interests lying at the core of parents’ rights to raise and care for their own children is the right to control their children’s companions and associations.” R.S.C. v. J.B.C., 812 So.2d 361, 368 (Ala.Civ.App.2001). As noted in J.S. v. D.W., 835 So.2d 174, 182 (Ala.Civ.App.2001), reversed on other grounds, 835 So.2d 186 (Ala.2002), “[t]he common law recognized the right of parents to determine with whom their child would associate.” See also M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (“[c]hoices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ ... rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect”); Hoff v. Berg, 595 N.W.2d 285 (N.D.1999) (holding North Dakota’s grandparent-visitation statute unconstitutional on the ground that it burdened the parents’ fundamental right to control their children’s associations). As I stated in L.B.S. v. L.M.S., 826 So.2d 178, 192 (Ala.Civ.App.2002) (Murdock, J., concurring in the judgment of reversal only), in the context of a grandparent-visitation case, a court may not constitutionally substitute its decision for that of a fit, custodial parent as to what, if any, visitation with a third party is in a child’s overall best interest, unless it is shown by clear and convincing evidence that “the net effect of the court’s substituting its decision for that of the parents will be to prevent substantial harm to the child.” See Williams v. Carros, 576 F.Supp. 545, 547 (W.D.Pa.1983) (recognizing that the right to “regular and appropriate visits between [a mother] and her children .... [is a] fundamental liberty interest!] protected by the Constitution”); Mason v. Mason, (Ms. E2001-02208-COA-R3-CV, June 7, 2002) (Tenn.Ct.App.2002) (not published in S.W.2d) (holding that a noncustodial parent has a fundamental right to visitation with his children, and that, while this right is not absolute, the courts may only “restrict, suspend, or terminate visitation rights upon the presentation of clear and definite evidence that permitting continued visitation will jeopardize the child physically or emotionally”).

It is important to note that this case is not a contest between two fit parents over who should have what custodial time with their children. The issue before us is not whether' the father’s visitation rights should be modified or reduced so as to shift more custodial time to the mother in light of the manner in which the father proposes to exercise his time with the child. ■ If it were, we might have a different case, for it may be questioned whether a fit parent’s rights as to the custody of his or her children is protected by the Constitution as a fundamental right, as against the other fit parent’s right to such custody, in the same manner it is protected as such by the Constitution as against nonparents. As stated in J.S.:

“Although the ‘best-interests’ standard applies in custody and visitation statutes involving parents, those cases involve competing parental rights. In other words, in those cases the rights of both the mother and the father are involved and neither parent’s rights outweigh the other’s.”

J.S., 835 So.2d at 184. See also In re Marriage of Hruby, 304 Or. 500, 510, 748 P.2d 57, 62-63 (1987) (“[I]n custody disputes between natural parents ..., the interests of the children are more nearly the exclusive determinants of the custody decision. This is because the competing custodial rights tend to cancel each other, leaving only the interests of the children as relevant considerations.”).

In the present case, however, the transfer of some of the father’s custodial time to the mother is not what the trial court’s judgment is about. Instead, that judgment is one in which the State seeks to restrict the manner in which the father may exercise his fundamental rights as to the care and control of his children during the periods that he has been awarded custody of the children. It infringes on those rights without a clear and convincing showing that the net effect of the court’s substituting its decision for that of the father will be to prevent substantial harm to the children. That judgment therefore violates the father’s fundamental rights under the Fourteenth Amendment and must be reversed. While I therefore agree in large measure with the analysis in the main opinion, I believe that the main opinion somewhat understates matters when it states that a trial court “should not” include in its visitation judgment a provision prescribing which persons a father may or may not select to transport a child to and from visitation. 866 So.2d at 574. My conclusion that the father maintains his fundamental parental rights during his custodial time with his children leads me to conclude that the State may not substitute its decision as to this matter for the decision of a fit parent, absent a compelling state interest in doing so — i.e., where the net effect of failing to do so would be substantial harm to the children.

I also note the main opinion’s statement that “where the parents have demonstrated an inability to be flexible and to compromise, as seems apparent in the present case, a trial court’s specifically naming persons who are authorized to aid the noncustodial parent by providing transportation may prove helpful and may prevent future visitation disputes and further litigation over visitation issues.” 866 So.2d at 574. While the State’s designation of persons who may assist a parent in exercising his or her visitation rights may, indeed, be “helpful” and “prevent future visitation disputes,” the desire to achieve such objectives would not override a parent’s fundamental constitutional right to make decisions for the care of his children in his custody, absent the requisite showing of harm.

Finally, I note that the main opinion concludes by stating that if, on remand, the mother can prove a “legitimate objection” to the children’s association with a particular person, the trial court “may properly restrict” the children’s contact with that person. 866 So.2d at 575. Because the father in this case retains the fundamental parental right “to direct the care, custody, and control of his children,” 866 So.2d at 573, during those periods when their custody has been entrusted to him, it follows that the contemplated “basis” for the State to substitute its judgment for that of the father must be the constitutionally requisite showing of harm to the children absent such substitution— i.e., there must be clear and convincing evidence that the net effect of the State not substituting its decision will be substantial harm to the child.

B. The Father’s Visitation with His Stepson

The original divorce judgment entered by the Tennessee court in June 1999 awarded the father visitation with the stepson. The mother did not appeal from that decision and, therefore, I agree with the main opinion: Except as it may be subject to modification based upon a change in circumstances, the right of the father to visitation with the stepson became the law of this case. See generally G.P. v. A.A.K., 841 So.2d 1252 (Ala.Civ.App.2002).

The father’s petition in this case sought to modify visitation only with respect to the two children born of his marriage to the mother. His petition did not include a request to modify his visitation with his stepson. Further, at trial, the evidence introduced in support of the father’s petition referred to the father’s natural children, not to the stepson. Thus, no issue as to the visitation of the father with the stepson was either pleaded by the parties or tried by their implied consent.

The father was under no obligation to ask for or to present evidence to support the continuation of the Tennessee judgment, in the absence of any challenge to that judgment by the wife. Once custody or visitation is established by a valid judgment, the party who is entitled to such custody or visitation is under no obligation to thereafter present evidence that such visitation continues to be in the best interests of the child, in the absence of some challenge to that visitation by another party based on a material change of circumstances.

Because there was no pleading nor any proof requesting or justifying a change in visitation between the father and the stepson, that portion of the trial court’s judgment changing visitation as between the father and the stepson must be reversed. I would instruct the trial court on remand to reinstate the visitation arrangement relating to the stepson as established in the Tennessee judgment.

C. An Additional Note Regarding the Father’s Visitation With His Oim Children

Having said the foregoing, and given the sibling relationship of all three children involved, the nature, timing, and duration of visitation to be exercised by the father as to the stepson becomes a factor that the trial court may appropriately consider on remand in deciding what visitation would be in the best interests of the father’s natural children.

II. Mediation

To the extent the trial court’s judgment requires the parties to submit to mediation future disputes that would otherwise be addressed by the filing of new lawsuits, I note that parties generally have the right to seek judicial relief as to disputes that arise between them. Rule 2 of the Alabama Civil Court Mediation Rules does not purport to abrogate that right generally. It merely provides that a court “may enter an order directing the parties to a pending action to proceed with mediation of one or more disputes in the lawsuit” (Emphasis added.)

Nonetheless, I agree that this court should affirm those provisions in the trial court’s judgment relating to mediation. Those provisions track almost verbatim the provisions of the Tennessee judgment relating to resolution of disputes that might arise in the future as to certain matters. Neither party to the Tennessee judgment successfully challenged those provisions in an appeal and they therefore became the law of this case. Cf. G.P., 841 So.2d at 1257. This court will affirm a judgment of a trial court on any valid legal ground. Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988).

III. Summer Visitation

Finally, I find more merit than does the main opinion in the mother’s argument that the trial court abused its discretion by awarding summer visitation with the father that will prevent the mother from ever celebrating the children’s birthdays with them. Indeed, in his reply brief, the father “accedes to changing” this portion of the trial court’s judgment. Unlike the main opinion, therefore, I would instruct the trial court on remand that it must modify that portion of its judgment pertaining to summer visitation so as to allow the mother to have physical custody of the children on their birthdays every other year.


source: Caselaw Access Project

author: PITTMAN, Judge. MURDOCK, Judge, YATES, Presiding Judge, THOMPSON, Judge,

license: Public Domain

text:
    J.N.F. v. A.S., C.S., and L.C.S.
    2011009.
    Court of Civil Appeals of Alabama.
    May 23, 2003.
    Dani V. Bone, Gadsden, for appellant.
    Leon Garmon, Gasden, for appellees.
   PITTMAN, Judge.

This appeal arises from a judgment of the Etowah Probate Court permitting the adoption of C.L.S. (“the child”), born in June 2001 to L.C.S. (“the mother”), by C.S. and A.S., the mother’s parents (“the petitioners”).

In March 2002, the petitioners filed their petition in the Etowah Probate Court, seeking to adopt the child; the petitioners identified the mother as being the only known person “from whom consents and relinquishments to th[e] adoption are required by law” and they alleged that the child had resided in their home since her birth. The mother gave written consent to the adoption of the child by the petitioners, and the probate court entered an order on March 26, 2002, awarding pendente lite custody of the child to the petitioners and setting a “dispositional hearing” for June 19, 2002. The probate court further directed that notice of the proceedings be served in the manner prescribed by § 26-10A-17, Ala.Code 1975, which provided, at the time of the probate court’s order, that “notice of pendency of [an] adoption proceeding shall be served by the petitioner on,” among other persons, “[t]he father and putative father of the adoptee if made known by the mother or otherwise known by the court.” Section 26-10A-17(a)(10). Section 26-10A-17(c) provides for service “by publication, by posting, or by any other substituted service” upon a putative father “[i]f the identity or whereabouts of the parent is unknown, or if the one parent fails or refuses to disclose the identity or whereabouts of the other parent.”

On April 10, 2002, the probate court directed that notice to “the unknown or undisclosed parent of [the child]” of the June 19, 2002, adoption proceedings be published at the expense of the petitioners. The notice of adoption was published for four consecutive weeks in a newspaper of general circulation in Etowah County; it was last published on May 8, 2002. On June 4, 2002, within 30 days of the final publication date of the notice of adoption, an attorney filed in the probate court a notice of his appearance on behalf of a man claiming to be the child’s father, J.N.F. (“the putative father”); the putative father also filed an “objection” to the adoption, averring that hé was a “fit and proper person” to have custody of the child and that DNA testing should be ordered to ascertain the child’s paternity.

The record does not reflect what transpired at the June 19, 2002, hearing on the adoption petition; however, the parties in the briefs to this court contend that the probate court gave them permission to file exhibits. On June 20, 2002, the putative father filed a number of documents in the probate court, including a calendar that, the putative father alleged, reflected the number of days the child had spent in the putative father’s home, a pediatric-clinic record signed by the mother identifying the putative father as the child’s father, and documents indicating expenditures by the putative father’s family on behalf of the child for day care and medical care. On June 21, 2002, the petitioners filed copies of papers that, they alleged, concerned the circumstances of the putative father’s separation from military service. Finally, on June 25, 2002, the putative father submitted additional financial documents that he claimed showed day-care expenditures made by him on behalf of the child.

The probate court’s judgment from which the putative father appeals is dated June 19, 2002; however, the parties contend that that judgment was not “filed” (i.e., entered) until June 25, 2002. The probate court’s judgment is in the same typeface as the petitioners’ filings, and it appears to be based on a judgment form supplied by the petitioners. In its judgment, the probate court stated, in pertinent part:

“This above-styled cause is now properly before the Court for disposition; and it now appears that an Interlocutory Order has been entered in this matter ...; .that due and proper notice of these proceedings has been perfected on those entitled; that all required consents to the adoption have been placed of record; and that all other requisites of law have been met; and on motion the Court proceeds; and
“The Court being satisfied from clear and convincing , evidence adduced that the facts alleged in said petition are true; that the adoptee has been in the actual physical custody of the Petitioner(s) for a period of sixty (60) days or more; that there has been no contest or objections brought in this cause; that the Petitioner(s) is/are suitable to be the parent(s) of said adoptee and he/she/ they desires to establish a parent/child relationship with the adoptee; that the best interest of the adoptee will be served by granting the petition; and that a change [of name of the adoptee and a change] of guardianship to the Petitioner(s) is proper.
“It is therefore ORDERED, ADJUDGED AND DECREED by the Court that the Petition for leave to adopt ... be and the same is hereby granted....”

(Emphasis added; bracketed language in the original.)

On appeal from the probate court’s judgment, the putative father contends that the probate court’s judgment is based upon an incorrect premise, i.e., that there were no contests or objections to the adoption. The record clearly indicates that the probate court’s judgment on this point is in error — the putative father, within 30 days of receiving notice of the adoption proceedings, appeared through counsel and filed an objection to the adoption. The probate court, in rendering a judgment on a form that appears to have been supplied by counsel for the petitioners, erroneously failed to address the merits of the putative father’s contest as required by § 26-10A-24(a), which mandates that a hearing be set to determine, among other things, the best interests of the adoptee and the validity of any actual or implied consents to adoption “[w]henever a motion contesting the adoption is filed.” Moreover, we note that, in overlooking the putative father’s contest of the adoption, the probate court failed to comply with § 26-10A-22, Ala. Code 1975, which requires the appointment of a guardian ad litem “[i]n the event of a contested adoption.”

The probate court’s failure to address the merits of the putative father’s contest of the adoption sought by the petitioners necessitates that we reverse the probate court’s judgment. We therefore do not address the putative father’s second argument concerning whether the putative father has consented to the adoption of the child, either expressly or by his conduct, or whether his parental rights should be terminated. We remand the cause to the probate court for that court to address the putative father’s contest.

In reversing the probate court’s judgment and remanding this case, however, we note that the law in this area is in a state of relative flux. As the putative father correctly notes, a number of recent opinions issued by the Alabama Supreme Court and this court have considered the procedural and substantive rights of putative fathers in adoption cases under the versions of the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975, and the Putative Father Registry Act, § 26-10C-1 et seq., Ala.Code 1975, in effect at the time those cases were decided. E.g., Ex parte F.P., 857 So.2d 125 (Ala.2003) (plurality opinion); Ex parte S.C.W., 826 So.2d 844 (Ala.2001); Ex parte C.V., 810 So.2d 700 (Ala.2001) (plurality opinion); K.L.B. v. W.M.F., 864 So.2d 333 (Ala.Civ.App.2002) (plurality opinion). However, in April 2002, the Legislature enacted Act No. 2002-417, 2002 Ala. Acts, which made significant changes to the Alabama Adoption Code and the Putative Father Registry-Act, especially as to whether a putative father, by his failure or refusal to register with the Department of Human Resources, impliedly consents to an adoption. Moreover, in Section 3 of Act No. 2002-417, the Legislature expressly gave those amendments retroactive effect to January 1, 1997. In addressing the putative father’s contest, the probate judge will necessarily be called upon to consider the effect of those legal developments upon the rights of the litigants in this case, including whether application of Act No. 2002-417 to the father in this case would violate § 95 of the Alabama Constitution of 1901. See Ex parte F.P., supra. Because of the scant record in this case, we deem it prudent to leave those issues for a determination in the first instance by the probate court on remand.

REVERSED AND REMANDED.

MURDOCK, J., concurs in the result.

YATES, P.J., and CRAWLEY, J., concur in the result in part and dissent in part.

THOMPSON, J., dissents.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached by the main opinion. I write separately only to note the following: The main opinion references a potential issue relating to § 95 of the Alabama Constitution. Judge Thompson responds to this reference in his dissent, discussing our Supreme Court’s holding in Ex parte F.P., 857 So.2d 125 (Ala.2003). Among other things, our Supreme Court stated in Ex parte F.P. that “the father’s rights had vested before the passage of Act No. 2002-417[, Ala. Act. 2002,] and [, therefore,] that Act cannot be applied retroactively as to him” under Article IV, § 95, Ala. Const, of 1901. 857 So.2d at 138. The Supreme Court also stated in Ex parte F.P.: “[W]e do not address the arguments concerning the constitutionality of the substantive provisions of the Act in proceedings where § 95 is not at issue; we leave those questions for another day.” 857 So.2d at 138.

There may well be potential issues concerning the retroactive nature of the 2002 amendments to the Putative Father Registry Act; however, those issues have not been raised and I therefore would not address them.

YATES, Presiding Judge,

concurring in the result in part and dissenting in part.

I agree with the.main opinion that the case should be remanded to the probate court because J.N.F. attempted to contest the adoption. However, I believe the probate court should address whether J.N.F. was the “presumed” father before addressing his challenge to the adoption as a “putative” father. Although J.N.F. does not specifically contend that he is the child’s “presumed” father under § 26-10A-7(a)(3), Ala.Code 1975, there is a question of fact as to whether J.N.F., “regardless of paternity,” “received the adop-tee into his home and openly held out the adoptee as his own child.” See also § 26-17 — 5(a)(4) of the Alabama Uniform Parentage Act. Consent of the adoptee’s presumed father is necessary. There is evidence in the record indicating that J.N.F., the mother, and the child lived with the paternal grandmother for a short period. J.N.F. and the paternal grandmother paid medical bills and day-care expenses for the child. Also, on a medical-information sheet the mother provided to the child’s doctor, the mother acknowledged that J.N.F. was the father. I would remand the case for the probate court to determine whether the evidence would be sufficient to support a finding that J.N.F. was the presumed father under § 26-10A-7(a)(3)(d). If there is sufficient evidence to support such a finding, then the probate court should address whether he impliedly consented to the adoption under § 26-10A-9. If the probate court does not find that J.N.F. is the presumed father, then the court should address the adoption contest in terms of J.N.F’s status as a putative father.

CRAWLEY, J., concurs.

THOMPSON, Judge,

dissenting.

On April 17, 2002, the Alabama Legislature enacted amendments to the Alabama Adoption Code, § 26-10A-1 et seq., Ala. Code 1975, and the Putative Father Registry Act, § 26-10C-1 and -2, Ala.Code 1975. See Act No. 2002-417, Ala. Acts 2002. One of the primary changes created by the enactment of Act No. 2002-417 was the amendment of the Alabama Adoption Code and the Putative Father Registry Act so that each enactment now cross-references the other. See § 26-10A-7(a)(5), Ala.Code 1975; § 26-10A-9(a)(5), Ala.Code 1975; and § 26-10C-1®, Ala. Code 1975. Thus, because the Legislature has clearly dictated that those provisions of the Alabama Adoption Code and the Putative Father Registry Act deal with the same subject matter, those provisions must be construed in pari materia. Tuders v. Kell, 739 So.2d 1069 (Ala.1999).

In this case, the child was born on June 10, 2001; therefore, the provisions of the Alabama Adoption Code, as amended by Act No. 2002-417, apply to govern this action. See Act No. 2002-417, § 3, Ala. Acts 2002 (providing that the act has retroactive effect to January 1, 1997). After the petitioners filed their petition to adopt the child, the trial court ordered that notice by publication be provided, pursuant to § 26-10A-17(a)(10), Ala.Code 1975, to any putative father of the child. Upon receiving notice by publication of the adoption proceedings, J.N.F. filed a document on June 4, 2002, entitled “objection to [the] adoption.” In that filing, J.N.F. objected to the adoption, contended that he was the child’s natural father and that he was the fit and proper person to have custody of the child, and requested a DNA test to establish his paternity of the child.

J.N.F. does not contend that he is the child’s presumed father under § 26-10A-7(a)(3), Ala.Code 1975, and the record does not support an inference that he is the child’s presumed father. There is no evidence that the mother and J.N.F. ever married or attempted to marry, or that J.N.F. received the child into his home and held the child out as his own. See § 26-10A-7(a)(3), Ala.Code 1975. Also, the paternity of the child has never been established. Therefore, I conclude that J.N.F. is a putative father of the child. See In re Adoption of J.C.P., [Ms. 2010594, Aug. 16, 2002] — So.2d - (Ala.Civ.App.2002) (concluding, under facts similar to those in this case, that the appellant was not the presumed father but was a putative father of the child at issue).

Act No. 2002-417, among other things, amended § 26-10A-7, Ala.Code 1975, which sets forth the persons whose relinquishment or consent to an adoption is required. Section 26-10A-7, as amended, now provides in pertinent part that consent to an adoption shall be required from

“[t]he putative father if made known by the mother or is otherwise made known to the court provided he complies ivith Section 26-10C-1 [of the Putative Father Registry Act] and he responds within 30 days to the notice he receives under Section 26-10A-17(a)(10).”

§ 26-10A-7(a)(5), Ala.Code 1975 (emphasis added).

Thus, pursuant to the amendments to the Alabama Adoption Code effected by Act No. 2002-417, a putative father’s consent for an adoption is required only where the putative father responds within 30 days to notice of the adoption and “complies with Section 26-10C-1.” § 26-10A-7(a)(5), Ala.Code 1975. Section 26-10C-1, Ala.Code 1975, sets forth the method by which a putative father must register his intent to claim paternity of a child with the Department of Human Resources.,' The record in the instant case does not indicate that J.N.F-. complied with § 26-10C-1 by registering under the putative-father registry; J.N.F. made no assertion before the trial court or in his brief to this court that he did in fact comply with § 26-10C-1. Therefore, under the clear terms of § 26-10A-7, as amended, J.N.F.’s consent to the adoption was not required.

Further, I conclude that, given the changes in the Alabama Adoption Code and the Putative Father Registry Act created by the enactment of Act. No.2002-417, J.N.F. was not a person entitled to file a contest to the adoption proceedings. The Putative Father Registry Act, as amended by Act No. 2002-417, now provides in pertinent part:

“(i) Any person who claims to be the natural father of a child and fails to file his notice of intent to claim paternity pursuant to subsection (a) prior to or within 30 days of the birth of a child born out of wedlock, shall be deemed to have given an irrevocable implied consent in any adoption proceeding.
“This subsection shall be the exclusive procedure available for any person who claims to be the natural father of a child bom out of wedlock on or after January 1, 1997, to entitle that person to notice of and the opportunity to contest any adoption proceeding filed and pending on or after January 1, 1997.”

§ 26 — 10C—l(i), Ala.Code 1975 (emphasis added). Thus, as I interpret the newly amended Putative Father Registry Act, J.N.F.’s- failure to comply with that section precludes him from filing a valid contest to the adoption. Section 26 — 10C—1 (i) now provides the exclusive method by which a putative father is “entitle[d] ... to notice of and the opportunity to contest” any pending adoption proceeding. (Emphasis added.) Therefore, because J.N.F. did not comply with § 26-10C-1, I believe that he is precluded from contesting the adoption of the child.

In Ex parte F.P., 857 So.2d 125 (Ala.2003), the supreme court recognized the implications of Act No. 2002-417 and its retroactive effect on the constitutional rights of a putative father. In Ex parte F.P., the putative father filed a “petition to determine father and child relationship” on July 1, 1999, in which he alleged that he had registered with the putative-father registry; the father registered, pursuant to the Putative Father Registry Act, more than two years prior to the enactment of Act No. 2002-417. 857 So.2d at 137. The supreme court held that the putative father’s constitutional rights had vested before the passage of Act No. 2002-417, and, therefore, the father had a defense to the adoption action filed by the adoptive parents. Ex parte F.P., 857 So.2d at 138.

Unlike the putative father in Ex parte F.P., the record in the instant case does not indicate that J.N.F. registered as a putative father pursuant to the Putative Father Registry Act. Moreover, J.N.F. first filed his notice of appearance on June 4, 2002, 48 days after Act No. 2002-417 was enacted by the Legislature. It is clear that, in applying the supreme court’s holding in Ex parte F.P. to the facts before us in the instant case, J.N.F.’s rights did not vest and the retroactive application of Act No. 2002-417 was proper.

In its judgment, the trial court determined that all required consents to the adoption had been provided, and that no contest to the adoption proceeding had been filed. Although J.N.F. filed a document in which he sought to object to the adoption of the child, because of his failure to comply with § 26-10C-1, Ala.Code 1975, as amended, J.N.F. was not a person entitled to contest the adoption. See § 26-10C-l(i), Ala.Code 1975. Therefore, the trial court was correct in determining that no contest to the adoption had been filed, because no person entitled to file a contest to the adoption proceedings did so. I believe that in reaching the findings contained in its judgment, the trial court properly interpreted the Alabama Adoption Code and the Putative Father Registry Act, as amended by Act No. 2002-417. I would affirm the trial court’s judgment, which approves the petitioner’s petition to adopt the child. Therefore, I must respectfully dissent.

      . We note that no case number has been assigned by the probate court.

      . Section 26-10A-17 was amended in 2002; however, the quoted language was unchanged by the-amendment.

      . We also note that the Alabama Adoption Code, § 26-10A-1 et seq., Ala.Code 1975, in addition to requiring the appointment of a guardian ad litem to represent the adoptee in a contested-adoption proceeding, also requires the appointment of a guardian ad litem to represent the interests of a minor parent when that parent’s consent is required for an adoption. See § 26-10A-8(a), Ala.Code 1975. The mother of the child was a minor at the inception of this action.

      . A man is presumed to be the natural father of the child if "[w]hile the child is under the age of majority, he receives the child into his home or otherwise openly holds out the child as his natural child.”

      . In Ex parte S.C.W., 826 So.2d 844 (Ala.2001), our supreme court, relying on a dissent authored by Judge Crawley, reversed this court’s affirmance of a judgment of adoption. This court had based its holding on the conclusion that the putative father's failure to comply with the Putative Father Registry Act rendered his consent to the adoption unnecessary. S.C.W. v. C.B., 826 So.2d 825 (Ala.Civ.App.2001), rev’d, 826 So.2d 844 (Ala.2001). The Supreme Court of Alabama found that the Alabama Adoption Code and the Putative Father Registry Act, as they existed at the time of that court's decision, were separate enactments that did not cross-reference each other, and, therefore, that the two enactments were in conflict. Ex parte S.C.W., 826 So.2d at 850. The supreme court resolved the conflict by concluding that the provisions of the more inclusive Alabama Adoption Code took precedence over the Putative Father Registry Act; therefore, the court held that the putative father’s failure to comply with the Putative Father Registiy Act, because he had taken other action to object to the adoption, did not prevent him from contesting the adoption. Ex parte S.C.W., supra.
      On April 17, 2002, after the Supreme Court released its decision in Ex parte S.C.W., supra, the Legislature adopted Act No. 2002-417, Ala. Acts 2002. That act amended the Alabama Adoption Code and the Putative Father Registry Act so that each enactment now cross-references the other; pursuant to the new amendments, the two enactments are to be construed together. Thus, Ex parte S.C.W. has been superseded by statute.


author: CRAWLEY, Judge. THOMPSON, Judge,

text:
    Brian C. SMITH v. N. Laquetta SMITH. N. Laquetta Smith v. Brian C. Smith.
    2011193.
    Court of Civil Appeals of Alabama.
    May 23, 2003.

      Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant/cross-appellee Brian C. Smith.
    Susan C. Conlon, Huntsville, for appel-lee/cross-appellant N. Laquetta Smith.
   CRAWLEY, Judge.

This is the second time the parties have been before this court. Brian C. Smith (“the husband”) and N. Laquetta Smith (“the wife”) were divorced in March 2001. The trial court awarded the wife physical custody of the parties’ two children, ordered the husband to pay child support, divided the marital assets and liabilities, and reserved jurisdiction to determine the issue of periodic alimony. The trial court determined that 64% of the husband’s 401 (k) retirement account at Nichols Research Corporation had been accumulated during the marriage. The court awarded the wife 32% of the balance of that account as of February 1, 2001.

The husband appealed, arguing, among other things, that the wife was not entitled to a share of his retirement benefits because the couple had not been married for 10 years at the time the divorce was filed. Deciding an issue of first impression, this court agreed that, for purposes of the 10-year-marriage requirement of § 30-2-51(b)(1), Ala.Code 1975, the duration of a marriage is measured by the date of the filing of the complaint for divorce rather than by the date the judgment divorcing the parties is entered. Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002) (“Smith I ”). That opinion states:

“The husband received approximately $71,000 of marital assets compared to the wife’s receipt of approximately $100,485 of marital assets. Because the entire judgment, including the division of marital assets and the failure to award periodic alimony must be considered together in order to determine whether the trial court abused its discretion, see Hanna v. Hanna, 688 So.2d 887 (Aa.Civ.App.1997), and because we are reversing the trial court’s award to the wife of a portion of the husband’s retirement benefits, we must remand this case with instructions that the trial court reconsider the division of the marital assets and the award of periodic alimony. Athough § 30-2-51(b)(l) precludes the division of the husband’s retirement benefits as marital property, the retirement benefits may be considered as a source of income to the husband from which to pay periodic alimony. See Brasili v. Brasili, 827 So.2d 813, 821 n. 9 (Aa.Civ.App.2002).”

Smith I, 836 So.2d at 900.

During the pendency of the appeal, the wife withdrew 32% of the husband’s 401(k) account and had it transferred to a separate 401(k) account in her name. The amount of that withdrawal was $24,346.23. The husband did not move for a stay of execution of the trial court’s judgment or file a supersedeas bond. On remand after this court’s reversal of the judgment, the trial court,- on July 19, 2002, ordered the wife to restore to the husband the $24,346.23 she had withdrawn from his 401 (k) account. The trial court also ordered the husband to pay the wife $400 per month in periodic alimony. The trial court made no other changes in the division of marital assets and liabilities. Each party filed a postjudgment motion and requested a hearing. The trial court denied both motions without a hearing. The husband appeals; the wife cross-appeals.

The husband presents four issues on appeal. He argues that this court erred in stating that the trial court could consider his retirement benefits as a source of income from which to pay periodic alimony when, he states, he is not currently drawing those benefits. He maintains that the trial court was misled by this court’s error into awarding the wife periodic alimony to compensate her for losing a share of the husband’s retirement benefits. The husband also argues that the award of periodic alimony conflicts with the principle established in Ex parte Billeck, 777 So.2d 105 (Aa.2000). In addition, he contends that the trial court erred by denying his Rule 59, Aa. R. Civ. P., motion without a hearing. He maintains that, in the absence of any evidentiary showing that the wife’s need for periodic alimony — or his ability to pay her periodic alimony' — -was greater than it had been at the time of the original divorce judgment, when the trial court reserved jurisdiction to determine the issue of periodic alimony, the trial court abused its discretion by awarding the wife periodic alimony on remand after this court’s reversal. Finally, the husband claims that the trial court erred by not ordering the wife to pay 12% interest on the $24,346.23 she was ordered to restore to the husband.

On her cross-appeal, the wife argues that the trial court erred by denying her postjudgment motion without a hearing. She contends that the trial court erred by ordering her to restore to the husband the $24,346.23 she withdrew from the husband’s 401(k) account when, she says, she was entitled to present evidence indicating that, due to a decline in the stock market after the divorce and through no fault of her own, the value of the retirement funds at the time of the court’s order on remand was only $10,953.68. Furthermore, she also alleged the following:

“5. That all Nichols [Research Corporation] employees, former and present, had to roll over or close their 401(k) accounts] (due to [a] merger with CSC), and that employees were given six (6) months to make the election to roll over or close the accounts. The [wife] was never provided with such notice and believes that the [husband] was provided with the information but did not pass it along to her.
“6. As no election was made, the [wife] received a check for $9348.35 and has been informed that $2337.07 has been paid to the Internal Revenue Service for tax and penalty. Said sum is not recoverable from the IRS.
“7. That the Order should be amended so that [the wife] returns to the [husband] $9348.28, the value of the account on the date it was closed.”

I. The Appeal

The husband is 43 years old; he is not retired and has no plans to retire in the near future. He insists that this court’s statement in Smith I that the trial court could consider a retirement account from which he is not currently drawing any benefits as a “source of income” from which to pay periodic alimony is erroneous. He argues that periodic alimony must be payable from current income. We agree.

“[P]eriodic alimony is defined as an allowance from the current earnings of a spouse to provide for the current and continuous support of the other[.] [I]n order to be awarded periodic alimony, the spouse seeking alimony should present evidence of the other spouse’s current earnings.”

P. Davis & R. McCurley, Alabama Divorce, Alimony & Child Custody Hornbook § 18-6 at 205-06 (3d ed.1993). See Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974) (quoted in Daniel v. Daniel, 841 So.2d 1246, 1248 (Ala.Civ.App.2002))(stating that “ ‘periodic alimony’ is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse ]”) (emphasis added); Rowe v. Rowe, 601 So.2d 1048, 1052 (Ala.Civ.App.1992) (agreeing with a husband’s argument “that future income may not be considered in setting periodic alimony” and “that only his current net earnings ... could be considered by the court”).

This court first stated that a trial court could consider one spouse’s retirement benefits as a source of income from which to pay periodic alimony payments to the other spouse in Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979), overruled on other grounds by Ex parte Vaughn, 634 So.2d 533 (Ala.1993). In Kabaci, the trial court had awarded the wife 25% of the husband’s retirement income and had stated that the award was not periodic alimony. 373 So.2d at 1146. This court held that, although “Mr. Kabaci’s retirement benefits can be used as a source of income from which to pay periodic alimony,” there was no authority for treating an award of retirement benefits as either a property settlement or alimony in gross. Id.

The oft-repeated statement from Kabaci that “retirement benefits can be used as a source of income from which to pay periodic alimony,” must be read in light of the facts in Kabaci that the husband was retired and drawing military retirement benefits. The retirement account in Kabaci, therefore, was current income to the husband. See also Strong v. Strong, 709 So.2d 1259, 1260 (Ala.Civ.App.l998)(affirra-ing an award of periodic alimony to “be deducted from the husband’s [current] monthly military retirement benefits”); Murphy v. Murphy, 470 So.2d 1297, 1299 (Ala.Civ.App.1985)(holding that a retired husband’s monthly military retirement pay could be considered, in a proceeding to modify periodic alimony, as a source of income from which to pay periodic alimony); Wade v. Wade, 518 So.2d 149 (Ala.Civ.App.1987) (holding that the trial court properly considered the retired husband’s civil-service pension as a source of income from which periodic alimony payments to the wife could be made).

As authority for our statement in Smith I that the husband’s retirement account could be considered as a source of income from which to pay periodic alimony, this court cited Brasili v. Brasili, 827 So.2d 813, 821 n. 9 (Ala.Civ.App.2002). On further reflection, we conclude that our citation to Brasili was erroneous. In Brasili, the husband, who was 32 years old and presumably years away from drawing his retirement benefits, nevertheless “conceded at trial that [his] 401(k) account could be taken into consideration in determining his separate estate and his ability to pay alimony.” 827 So.2d at 821 n. 9.

In the cases on which Brasili relied for the proposition that retirement benefits could be considered as a source of income from which to pay periodic alimony—Ex parte Bland, 796 So.2d 340 (Ala.2000), and Shelton v. Shelton, 595 So.2d 900 (Ala.Civ.App.1992) — the husbands were also not yet drawing their retirement benefits, but they, too, conceded that those benefits could be considered as a source of income from which to pay periodic alimony. See Bland v. Bland, 796 So.2d 335, 339 (Ala.Civ.App.1999), aff'd in part, rev’d on other grounds in part, 796 So.2d 340 (Ala.2000); Shelton, 595 So.2d at 902.

In other cases containing the “retirement benefits as a source of income” statement, the payor spouse had neither retired nor conceded that his retirement account could be considered as a source of income in awarding periodic alimony. See, e.g., Schwadron v. Schwadron, 840 So.2d 915, 919 (Ala.Civ.App.2002)(stating, in a case where the husband was not currently drawing his retirement benefits, that the trial court could “tak[e] into consideration the husband’s retirement accounts in determining his separate estate and his ability to pay alimony”); Morrow ti Morrow, 585 So.2d 61, 63 (Ala.Civ.App.1991)(repeat-ing the holding from Kabaci that retirement benefits “may be used as a source for periodic alimony”). To the extent that some of this-court’s decisions indicate that a trial court can consider, as a source of income from which to pay periodic alimony, a retirement account from which the account holder is not currently drawing benefits, those decisions are overruled on that point. This court misapplied the law when, citing Brasili, it instructed the trial court in Smith I that the husband’s “retirement benefits may be considered as a source of income to the husband from which to pay periodic alimony.” 836 So.2d at 900.

On remand after reversal in Smith I, the trial, court may have awarded the wife $400 per month in periodic alimony based solely on this court’s repetition of the “retirement benefits as a source of income” statement and our erroneous citation to and reliance upon Brasili We therefore reverse the trial court’s-judgment awarding the wife periodic alimony and remand the cause for reconsideration by the trial court. If the court determines that the wife needs support from the husband and that the husband is able to pay such support from his current income, then it may award the wife alimony. The court may not, however, consider the husband’s retirement accounts as sources of income from which to pay periodic alimony.

Because of our disposition of this issue, we need not address the other issues the husband raises on appeal, including his argument that the trial court’s award of periodic alimony on remand after Smith I conflicts with the principle established in Ex parte Billeck, supra.

II. The Cross-Appeal

The trial court awarded the wife 32% of the present value of the husband’s 401(k) account at Nichols Research Corporation. The wife then had $24,346.23 from the husband’s 401(k) account transferred to a 401(k) account in her name. The husband did not move for a stay of execution of the judgment or file a supersedeas bond. After this court reversed that portion of the divorce judgment dividing the marital property, specifically holding that the wife was not entitled to any portion of the husband’s retirement benefits, the trial court, on remand, ordered the wife to make restitution to the husband in the amount of $24,346.23. The wife filed a postjudgment motion and sought a hearing, arguing that there had been a decline in the value of the 401(k) account; that she did not have $24,346.23 to repay the husband; that, if the funds had remained in the husband’s account, they would have suffered a similar decline in market value; and that it was inequitable to order her to repay the amount she had withdrawn from the account.

We conclude that the trial court erred in denying the wife a hearing on those issues. The wife was awarded a percentage of the husband’s retirement assets without regard to its value. Upon a reversal of the award, the wife would be required to return the same percentage of the assets to the husband, regardless of its current market value. See generally Green v. Green, 254 So.2d 802 (Fla.Dist.Ct.App.1971). If, as has apparently occurred in this case, the assets have declined in market value between the time of the initial award and the time of the appellate court reversal, then the wife is not liable to the husband for the depreciation because the husband did not move for a stay of execution of the judgment or file a super-sedeas bond. Id.

The other matters raised by the wife— that the husband failed to notify her of the time limit for her to elect to “roll over” or close the 401(k) account in her name after Nichols Research Corporation merged with CSC and that his failure resulted in her being liable to the Internal Revenue Service for taxes and penalties — are based on disputed questions of fact that must be resolved by the trial court.

On the appeal, the judgment is reversed and the cause is remanded to the circuit court with instructions for that court to reconsider the division of marital assets and the award of periodic alimony. On the cross-appeal, the trial court is instructed to hold a hearing on the wife’s Rule 59 motion.

APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS-APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and MURDOCK, JJ., concur in the result.

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

THOMPSON, Judge,

concurring in the result only.

I concur in the result only as it relates to the facts of this specific case.

YATES, P.J., concurs.


author: SHAW, Judge. WISE, Judge,

text:
    Gerald Ladon NELSON v. STATE of Alabama.
    CR-01-1515.
    Court of Criminal Appeals of Alabama.
    Nov. 22, 2002.
    Rehearing Denied Jan. 24, 2003.
    David K. Hogg, Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Thomas Leverette, asst. atty. gen., for ap-pellee.
   SHAW, Judge.

On February 11, 2002, Gerald La-don Nelson entered a guilty plea pursuant to a plea agreement with the State to first-degree rape, a violation of § 13A-6-61, Ala.Code 1975. After accepting his guilty plea, the trial court sentenced Nelson to 15 years’ imprisonment and scheduled a probation hearing for April 4, 2002. On February 26, 2002, Nelson moved to withdraw his guilty plea, making the following arguments:

“1. [Nelson] pleaded guilty based on a recommendation from the State that he would be placed on probation.
“2. The Court has not abided by this agreement and placed him on probation within 30 days after sentencing. It is necessary for [Nelson] to file this Motion to Withdraw his Guilty Plea to preserve his right to appeal this decision if the Court, in fact, does not place him on probation at the probation hearing.”

(C. 8.) On March 5, 2002, the trial court denied this motion, stating:

“State cannot guarantee [Nelson] that he will be placed on probation. [Nelson’s] attorney knows that and [Nelson] knew that when he pled guilty. Court never agreed to place [Nelson] on probation within 30 days. [Nelson] knew probation hearing would not be held within 30 days at time of plea. Motion denied.”

(C. 3.) On April 4, 2002, the trial court denied Nelson’s request to be placed on probation. On April 10, 2002, Nelson filed a notice of appeal.

On appeal, Nelson relies on Brown v. State, 495 So.2d 729 (Ala.Crim.App.1986), to support his contention that the trial court abused its discretion when it refused to allow him to withdraw his guilty plea. In Brown, 495 So.2d at 730, this Court stated:

“On February 27, 1986, a plea agreement was reached whereby the State agreed to recommend, upon appellant’s plea of guilty, a sentence of ‘three (3) years, upon the recommendation of the State of Probation, upon condition that Defendant undergo professional mental health counseling during the probation’ plus $250 restitution and costs.
“Appellant’s guilty plea was accepted by the court on February 27, 1986, at which time the court informed appellant:
“ ‘THE COURT: Upon the condition that she undergo counseling during her probation. She needs to understand that that is not something that I would assure her. That would depend entirely upon a probation report, whether or not the probation officer and I eventually — whether I felt you could respond to probation. Do you understand that?
“ ‘THE DEFENDANT: Yes.’
“The sentence hearing was held March 31, 1986, at which time the court declined to grant probation....
“Defense counsel immediately requested that appellant be allowed to withdraw her guilty plea. The court denied appellant’s motion on the basis of his having informed appellant during the guilty plea proceeding that he was not bound by the recommendation of the State. On April 1,1986, appellant filed a formal motion to vacate the judgment of the trial court, or to allow appellant to withdraw her guilty plea. This motion was denied. We reverse.
“In English v. State, 56 Ala.App. 704, 708, 325 So.2d 211, 215 (1975), cert. denied, 295 Ala. 401, 325 So.2d 216 (1976), it was held:
“ ‘If the trial court decides not to carry out the agreement reached between the prosecutor and counsel for the accused, the accused must be offered the opportunity to withdraw his guilty plea on motion promptly made, as was done in this case.’
“... Most recently, the Alabama Supreme Court reaffirmed this proposition in Otinger v. State, 493 So.2d 1362 (Ala.1986), wherein it was stated:
“ ‘Although, as in Blow [v. State, 49 Ala.App. 623, 274 So.2d 652 (1973)], the trial judge’s previous indication of sentence may have been conditioned, once that “indication” was repudiated, the petitioner should have been afforded the opportunity to withdraw his pleas.’
“In the instant case, the trial court denied appellant’s motions to withdraw her guilty plea on the basis of his conditional acceptance of the plea. The authority of Otinger and Blow dictate that this was error. The State does not argue to the contrary. Appellant should have been allowed to withdraw her guilty plea upon timely motion; and timely motions were made.”

The State, relying on State v. Holman, 486 So.2d 500 (Ala.1986), argues that Nelson’s contention that the trial court abused its discretion when it refused to allow him to withdraw his guilty plea is meritless. In Holman, 486 So.2d at 502-03, the Alabama Supreme Court stated:

“The Court of Criminal Appeals, relying upon the authority of Blow v. State, 49 Ala.App. 623, 274 So.2d 652 (Ala.Crim.App.1973), and English v. State, 56 Ala.App. 704, 325 So.2d 211 (Ala.Crim.App.1975), cert. denied [,] 295 Ala. 401, 325 So.2d 216 (Ala.1976), determined that the trial judge refused to carry out the terms of the plea bargaining agreement and, that, as a result, Holman was entitled to withdraw his guilty plea. We disagree and reverse and remand.
“Whether or not a defendant should be allowed to withdraw his guilty plea is a matter within the sound discretion of the trial judge. His refusal to allow such a request will not be disturbed except where an abuse of that discretion is demonstrated. Tiner v. State, 421 So.2d 1369 (Ala.Crim.App.1982) (citing Boykin v. State, 361 So.2d 1158 (Ala.Crim.App.1978).) The mere subjective beliefs or expectations of a defendant as to the length of sentence to be imposed, unsupported by any promise from the State or indications by the court, are insufficient and unavailing to set aside a guilty plea as unknowingly or involuntarily made. Tiner v. State, supra. The fact that a defendant who has knowingly and intelligently pleaded guilty later becomes dissatisfied with the sentence he received does not, alone, constitute a ground for invalidating the guilty plea. Chapman v. State, 412 So.2d 1276 (Ala.Crim.App.1982).
“Although it is undisputed that an agreement was reached between Holman’s counsel and the prosecutor, which provided for a recommendation of a sentence of 15 years in exchange for a guilty plea, it is apparent from the previously cited portion of the record that Holman’s guilty plea was made without objection to, and with full knowledge of, the added conditions set out by the trial judge. ...
“The purpose of the rule allowing a defendant to withdraw a guilty plea when the trial judge refuses to carry out an agreement reached between the prosecutor (or the trial judge) and defense counsel is to insure that such a plea is made voluntarily, which necessarily requires that it be made with full knowledge of the attendant consequences.”

In its brief, the State argues:

“Nelson’s reliance on Brown v. State, 495 So.2d 729 (Ala.Crim.App.1986) is misplaced because Broum is distinguishable to this case on the facts. In Brown, the guilty plea was conditioned upon the grant or denial of the probation under the terms of the plea agreement. That agreement was not amended, as was the case here and in the Holman case. The trial court in this case did not abuse its discretion because it did not refuse to carry out the terms of the amended plea agreement. Nelson entered his guilty plea “with full knowledge of the attendant consequences.’ Holman, 486 So.2d at 503.”

(State’s brief at p. 9.) However, we disagree with the State’s argument. During the guilty-plea proceeding in Holman, the following exchange occurred:

“ ‘THE COURT: Okay. As I understand it, Robert, you are to take a fifteen year plea on this 83-2319. That is, you are going to plead guilty today; right?
“ ‘MR. HOLMAN: Yes, sir.
“ ‘THE COURT: At your lawyer’s request, I am going to defer sentencing over to June the 15th.
“ ‘MR. HOLMAN: Yes, sir.
“ ‘THE COURT: When you come in here at 9:00 a.m. on June the 15th, if you have not picked up any new cases and if you timely appear, come in on time, you will lock into a fifteen year minimum sentence on this case. The other case, the search warrant case, will he dismissed.
“ ‘MR. HOLMAN: Yes, sir.
“ ‘THE COURT: If you fail to appear on June the 15th, or if you get arrested again, I reserve the option to sentence you up to life in the penitentiary.
“ ‘MR. HOLMAN: Yes.
“ ‘THE COURT: Okay. Well, do you plead guilty, Robert, to selling drugs?
“ ‘MR. HOLMAN: Yes, sir.
“ ‘THE COURT: On your plea I sentence you to fifteen years — excuse me, I accept your plea of guilty and find you guilty. And I will defer or put off sentence until June the 15th.
“ ‘MR. HOLMAN: Yes, sir.
“ ‘THE COURT: Under the stipulations that we have already gone over, all right?
“ ‘MR. HOLMAN: Yes, sir.’ ”

Holman, 486 So.2d at 501-02. The Alabama Supreme Court specifically noted in Holman, 486 So.2d at 503, that “the trial judge, in the present case, did not refuse to carry out the amended plea agreement. To the contrary, he sentenced Holman pursuant to it.”

In Taylor v. State, 677 So.2d 1284, 1285 (Ala.Crim.App.1996), this Court discussed Holman as follows:

“The state argues that Holman controls .... Holman, however, is distinguishable from this case. In Holman, the trial court accepted the plea agreement on the following express condition: ‘If you fail to appear [at the sentencing hearing] .... I reserve the option to sentence you up to life in the penitentiary.’ 486 So.2d at 501-02. On appeal, the Alabama Supreme Court interpreted this statement to be an amendment to the plea agreement. Thus, the Holman court held that when that appellant failed to appear at the sentencing hearing, he was sentenced to life in accordance with the plea agreement, as amended by the condition added by the trial court.”

(Emphasis added.)

In the present case, the following occurred during the February 11, 2002, guilty-plea proceeding:

“THE COURT: Has anybody threatened you or coerced you or harassed you in any way to get you to plead guilty?
“[NELSON]: No, sir.
“THE COURT: Has anybody promised you anything, offered you any reward or any inducement of any kind whatsoever to get you to plead guilty?
“[NELSON]: Just probation, sir.
“THE COURT: Well, I mean, they can’t promise you probation.
“[NELSON’S ATTORNEY]: He just understands that it was going to be recommended as part of the plea bargain.
“THE COURT: You understand that the State is recommending a certain number of years and that they may recommend probation, but I’m not bound to go by it? You understand that?
“[NELSON]: Yes, sir.
“THE COURT: You understand that?
“[NELSON]: Yes, sir.
“THE COURT: So let me ask you again, has anybody promised you anything, offered you any reward or any inducement to get you to plead guilty?
“[NELSON]: No, sir.
“THE COURT: Now, you understand the State can recommend a sentence and they can recommend probation, but there’s nothing that binds me to go by that recommendation?
“[NELSON]: Right.
“THE COURT: You understand that?
“[NELSON]: Yes, sir.
“THE COURT: And with that, you still want to interpose a plea of guilty knowing that?
“[NELSON]: Yes, sir.”

(Supp.Record, R. 8-9.) It is clear from the above-quoted colloquy that Nelson entered a guilty plea based on the State’s agreement that it would recommend probation, which it did. Although the trial court advised Nelson during the guilty-plea proceeding that it was not bound by the State’s recommendation of probation, it did not add any additional conditions to the plea agreement as the trial court did in Holman.

Thus, the present case is not a situation, like Holman, where the trial court sentenced the defendant “in accordance with the plea agreement, as amended by the condition added by the trial court.” Taylor, 677 So.2d at 1285. Instead, the present case is a situation, like Taylor and Brown, where the trial court did not abide by the terms of the plea agreement. See also Alston v. State, 455 So.2d 264, 265 (Ala.Crim.App.1984), wherein this Court stated:

“Nevertheless, this cause must be reversed for another reason. As one of the inducements for appellant’s four guilty pleas, the State agreed to recommend, and did recommend, six year sentences to be served concurrently. The trial court did not follow this recommendation. Instead, the trial court sentenced the appellant to a combination of concurrent and consecutive six year sentences which resulted in a total consecutive term of twelve years, rather than the six years recommended by the State. Afterwards, the trial court would not permit the appellant to withdraw his guilty pleas. On the authority of Griswold v. City of Enterprise, 384 So.2d 1219 (Ala.Crim.App.1980); Clark v. State, 408 So.2d 168 (Ala.Crim.App.1981), cert. denied, 408 So.2d 168 (Ala.1982); and Arnold v. State, 409 So.2d 947 (Ala.Crim.App.1981), this refusal to permit the appellant to withdraw his guilty pleas after the trial court had refused to follow the bargained for sentencing recommendations by the State constitutes reversible error. See, English v. State, 56 Ala.App. 704, 325 So.2d 211, cert. denied, 295 Ala. 401, 325 So.2d 216 (1976), and cases therein cited.”

Consequently, we find that Nelson should have been allowed to withdraw his guilty plea. See Taylor, 677 So.2d at 1285; Brown, 495 So.2d 729; cases collected at 12 Ala. Digest 2d Criminal Law § 274(3.1) (1994); and Rule 14.3, Ala.R.Crim.P.

In light of the foregoing, the trial court’s judgment is reversed and this case is remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

WISE, Judge,

dissenting.

I dissent from the majority opinion reversing the appellant’s conviction and remanding this case to the Houston Circuit Court for that court to allow Nelson to withdraw his guilty plea. In my opinion, the trial court did not abuse its discretion in denying Nelson’s motion to withdraw his guilty plea. Like the trial court whose decision to deny a motion to withdraw a guilty plea the Supreme Court upheld in State v. Holman, 486 So.2d 500 (Ala.1986), the trial court in this case did not refuse to carry out the plea agreement. Here, the plea agreement provided for a sentence of 15 years’ imprisonment, with a provision that the prosecution would recommend that Nelson receive probation. During the plea colloquy, the trial court questioned Nelson at length regarding his understanding of the plea agreement, to ensure that Nelson understood the prosecution’s recommendation that he receive probation was no guarantee that the court would place him on probation. Nelson indicated that he understood this condition, and he pleaded guilty to first-degree rape. The trial court sentenced Nelson to 15 years’ imprisonment — as called for by the plea agreement — and postponed a decision on Nelson’s probation request. At the probation hearing, the court denied Nelson’s probation request.

I recognize that previous decisions of this Court, including Brown v. State, supra, relied upon by the majority, stand for the proposition that a defendant should be allowed to withdraw his plea if the trial court does not follow the prosecution’s recommendation of probation. In effect, such a requirement deprives the court of the discretion it has traditionally enjoyed in deciding whether to grant a request for probation. Additionally, such a holding limits the court’s ability to impose a sentence that reflects the severity of the crime. For this reason, I believe that this Court should revisit our holding in Brown v. State, supra, and other cases that hold that a trial court’s refusal to follow the prosecution’s recommendation of probation constitutes grounds for withdrawal of a guilty plea. Accordingly, I must dissent.

      . On this same date, Nelson filed a second motion to withdraw his guilty plea. However, this motion was not timely and thus could not be considered. "A motion to withdraw a guilty plea is the functional equivalent of a motion for a new trial.” Wallace v. State, 701 So.2d 829, 830 (Ala.Crim.App.1997). "A motion for a new trial must be filed no later than thirty (30) days after sentence is pronounced.” Rule 24.1(b), Ala.R.Crim.P.

      . The factual basis for this plea revealed that Nelson, who was 39 years old at the time of this incident, supplied a 16-year-old girl with alcoholic beverages, took her to a motel room, and had sexual intercourse with her against her will. Although circumstances not appearing in the record may have warranted a recommendation of probation, I find it difficult to understand such a recommendation.