text:
    Ex parte Danny Ray WEDDINGTON. (In re Danny Ray Weddington v. State of Alabama).
    1010037.
    Supreme Court of Alabama.
    May 17, 2002.

      Richard L. Fricks, Boaz, for petitioner.
    William H. Pryor, Jr., atty. gen., and Michael B. Billingsley, asst. atty. gen., for respondent.
   LYONS, Justice.

Danny Ray Weddington was convicted of first-degree sexual abuse, first-degree sodomy, production of obscene matter, and possession of obscene matter. The convictions arose out of Weddington’s videotaping himself engaging in sexual acts with the four-year-old daughter of his wife’s best friend. The trial court sentenced him to consecutive terms of 10 years in prison on the convictions for first-degree sexual abuse and possession of obscene matter, and to life imprisonment on the convictions for first-degree sodomy and production of obscene matter.

The Court of Criminal Appeals affirmed the convictions in an unpublished memorandum. Weddington v. State (No. CR-00-1061, August 24, 2001), 837 So.2d 889 (Ala.Crim.App.2001) (table). We reverse that court’s judgment only insofar as it held that Weddington failed to preserve for appellate review his objections to the trial court’s jury instructions on the count charging production of obscene matter. In all other respects, we affirm the Court of Criminal Appeals’ judgment.

Facts

In September 1998, Weddington’s wife, Paula, while talking on the telephone with her best friend, T.V., was looking through her bedroom closet for a cancelled check when she found on the closet shelf a box of videotapes of the type used in the Wed-dingtons’ eight-millimeter camcorder. She testified that some of the tapes were marked “family” in Weddington’s handwriting. Paula testified that she had never seen those tapes before, and she inserted them into the camcorder and started fast-forwarding through them while she was talking on the telephone. Paula testified that on two of the videotapes she saw Weddington and M.V., T.V.’s four-year-old daughter. She also testified that M.V. was on a bed Paula recognized as being in the bedroom of her and Weddington’s son. Paula testified that the videotapes showed Weddington placing his mouth on the child’s genital area and inserting his “pinky finger” into the child’s vagina. Paula said she then told T.V., “I have to go,” and hung up the telephone. She took their two children and the tapes and went to a relative’s home.

The next day, Paula consulted an attorney, who advised her to disclose the content of the tapes to M.V.’s parents. She did so, and thereafter she and T.V. filed reports with the local police department. Paula gave the videotapes to the police chief. Subsequently, law-enforcement officers searched the Weddingtons’ residence and Danny Weddington’s vehicle, seized numerous items, and arrested Danny Wed-dington. The police chief testified that the videotapes were sealed in an envelope after Paula gave them to him, kept in the care of the police, and were not altered. Paula also testified that she knew how the camcorder worked and that it was in working order when she found the videotapes. Weddington also testified that he often used their camcorder for work-related and family videotaping.

Paula testified that in a telephone conversation with Weddington after he was arrested, when she asked Weddington why he would hurt an innocent child, he replied, “I’m sorry.” Weddington also gave the following written statement:

“I Danny Weddington, don’t understand how I got involved with this (looking at child porn). I started by looking at reg. porn on the [Ijnternet then stumbled onto child porn at different sites. I did download some pictures at home. I am first very sorry I searched for underage porn. I could not believe such things were out there on the [Ijnternet. This seemed to be like an addiction of some sort. I have repented of my sins and had forgot I still had the tapes, which was the only time I done something this stupid. I was making a tape of me and my wife and was very drunk when the tapes were made (both on. the same date). I do confess my sin and myself don’t understand why and have already repented and refrain from looking at such sick stuff. I know this doesn’t mean much, but [I] want [to] beg forgiveness both from my family and the public and most of all from the family which was the victim. I got addicted to porn which [led] to this. The only time and the only person which I committed this sin is on the 2 tapes. I wish I never searched for underage nude pictures. I swear I will never do or will ever think of such stuff again. I have committed an immoral sin and ask God, family and public for forgiveness. I don’t want my kids to look at porn, but yet [I] did and got addicted to it which [led] to much worse things. I did not receive any satisfaction from this action I have done....”

At trial, however, Weddington testified that the videotapes did not depict him with M.V. and that the room shown on the tapes was not his son’s room. Rather, he stated that the videotapes contained files and images he had downloaded from the Internet. Weddington admitted that he had downloaded child pornography from the Internet and had transferred it to tapes, compact discs, and floppy disks.

During their marriage, Paula had participated with Weddington in downloading adult pornography from the Internet. However, Paula testified that she was not aware of any child pornography in their house until she found the videotapes. Weddington had also videotaped himself sexually abusing Paula while she was unconscious. Weddington claimed that the tapes he referred to in his written statement were the videotapes he had made of himself having sexual intercourse with his unconscious wife.

Weddington testified that when he was arrested he was told only that he was being charged with “possession of pornography, production of pornography, sexual abuse, and sodomy.” He also testified that he remembered an officer telling him after he arrived at the police station that the officer’s brother-in-law had gotten involved in child pornography and had committed suicide after molesting a child, but Wed-dington testified that he ignored this comment. Investigator Zac Johnson, who participated in questioning Weddington and who was present when Weddington gave the written statement, testified that he asked Weddington why he did this to M.V., that M.V.’s name was mentioned to Wed-dington several times, and that Wedding-ton admitted that he was the person on the tapes with the little girl. Weddington then gave the previously discussed written statement while he was in the interrogation room.

At a pretrial hearing, the trial court denied Weddington’s motion to suppress the videotapes Paula identified as depicting him performing sexual acts on M.V. in her son’s bedroom. At trial, Weddington objected to the introduction of the tapes into evidence, arguing that they had not been properly authenticated. The trial court overruled this objection and permitted the jury to view the two videotapes.

At the hearing on the jury instructions, the State requested that the trial court give instructions based on Rutledge v. State, 745 So.2d 912 (Ala.Crim.App.1999), concerning the charges of possession of obscene matter and production of obscene matter. The State also requested that the trial court instruct the jury that the “electrical or electronic reproduction” prohibited by Alabama’s anti-obscenity statutes includes computer images depicting child pornography and that the statutes creating the offenses Weddington was charged with prohibit the possession of child pornography by any means, including visual depictions displayed on a computer or computer diskettes, and found on the Internet.

Weddington, through counsel, argued that the requested instructions should not be given because, counsel argued, to be found guilty of producing child pornography the defendant must be present with the child. The trial court overruled Wed-dington’s objection and instructed the State to prepare a proposed jury instruction. After a break, the trial court stated that the jury charges previously discussed had been submitted, that the defendant’s exceptions were incorporated and overruled, that the court would give the charges, and that Weddington was granted a continuing exception.

As to the count charging production of obscene matter, the trial court instructed the jury as follows:

“The defendant is charged with the production of obscene matter. Any person who knowingly films, prints, records, photographs or otherwise produces any obscene matter that contains a visual reproduction of a person under the age of 17 years engaged in any act of sadomasochistic abuse, sexual intercourse, sexual excitement, masturbation, breast nudity, genital nudity, or other sexual conduct shall be guilty of a Class A felony.”

The trial court then stated,

“I have some definitions to read on some of the matters that I’ve just read to you, but I’m going to go ahead with Count Four, which is possession of obscene matter and read that to you and then I’ll go back and read some of these definitions that would apply to either one or more or both of these statutes.”

After reading the charge on possession of obscene matter, the trial court defined several terms it said applied to both the charge of possession of obscene matter and the charge of production of obscene matter. The trial court defined “matter” as follows:

“Matter. Any book, magazine, newspaper or printed — or other printed material or any picture, photography, motion picture or electrical or electronic reproduction or any other articles or materials that either are, or contain a photographic or other visual reproduction of a live act, performance or events.”

The trial court also stated:

“As used in the statutes applicable to this case, the terms ‘electrical or electronic reproduction of a photographic or other visual reproduction’ includes computer images depicting child pornography.
“Section 13A-12-192 prohibits the possession of child pornography by any means, including visual depictions of children engaged in sexual acts displayed on computers, computer diskettes, and the Internet.”
“Under these statutes, the production of child pornography by any means is prohibited.”

After concluding the jury instructions, the trial court held an off-the-record discussion with counsel. Afterward, the trial court asked the jury to retire and begin its deliberations. The trial court then went back on the record and stated:

“Let the record reflect that the defendant’s exceptions to the requested jury charges were timely made and that they have been made again and are incorporated by reference.”

The trial court again overruled Wedding-ton’s objections.

Discussion

The Court of Criminal Appeals affirmed the convictions in an unpublished memorandum. We granted Weddington’s petition for certiorari review of the decision of the Court of Criminal Appeals. Wedding-ton argues that the Court of Criminal Appeals erred in concluding: (1) that the videotapes that allegedly showed him engaging in sexual acts with M.V. were not privileged as communications made during his marriage; (2) that the tapes had been properly authenticated; (3) that the trial court had properly excluded as irrelevant other pornographic videotapes Weddington had downloaded from the Internet; and (4) that he had not preserved for appellate review his objection to the jury instructions on the production-of-obscene-matter count.

The Court of Criminal Appeals held that the videotapes that were shown to the jury, which Weddington admits contain child pornography, were not privileged communications because there was no evidence tending to show that the making of the tapes and the storing of the tapes in the closet grew out of the confidence inspired by the marital relationship of Paula and Weddington. The Court of Criminal Appeals also held that the trial court did not abuse its discretion in excluding on relevancy grounds Weddingtoris other pornographic videotapes. We agree with those holdings; we see no need for any further discussion of those issues.

Weddington also argues that the Court of Criminal Appeals erred in holding that the State established the proper predicate for admission of the videotapes under the “silent-witness” theory. Weddington argues that the State did not lay the proper predicate for the admission of the tapes because, he says, it did not provide evidence (1) showing how the device by which the videotapes were created works, (2) showing how the device ensures reliability, (3) showing that “the device ... was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded,” and (4) showing that the operator of the device that produced the videotape was competent. Ex parte Rieber, 663 So.2d 999, 1008 (Ala.1995).

The State presented the testimony of Paula, Investigator Johnson, and the police chief. All three testified that the videotape depicted Weddington performing sexual acts on M.V. Investigator Johnson further testified that Weddington admitted before he gave his written statement that he was the person depicted on the videotape with M.V. Moreover, Weddingtoris written statement can be interpreted as an admission that he made the videotape in which he appeared with M.V. Although Weddingtoris testimony at trial provided an interpretation of the statement that was consistent with his innocence of an activity with M.V., the jury could reasonably have found that Weddingtoris written statement was an admission that the videotape accurately depicted him sexually abusing M.V. See Rule 901(a), Ala. R. Evid. (“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”). T.V. also testified that she had been shown a freeze-frame of the videotape and she identified the girl on the tape as her daughter M.V. Paula further testified that the videotape “fairly and accurately depicted” her son’s bedroom and the comforter on his bed. Paula testified that she found the tapes in the bedroom closet of the bedroom she and Weddington shared and that the tapes were labeled in Wedding-toris handwriting with a “1” and a “2” and that the letter “M” was written on both tapes. She also testified that the videotapes were of the type used in her husband’s camcorder and that she had viewed the videotapes on the camcorder. Paula further testified that the camcorder was in working condition and that she and her husband used the camcorder to videotape family activities. The police chief testified that the videotapes introduced at trial had not been altered in any way.

Weddington also testified: “[T]hese are my tapes and, so, if there’s pornography on there, then I don’t deny.” However, Weddington maintained that the tapes contained child pornography he had downloaded from the Internet and testified, “From what I can see, it isn’t [M.V. on the tapes].” Weddington also testified that he used the camcorder to videotape things at work and that he had previously produced two videotapes of him sexually abusing Paula while she was unconscious.

Weddington relies upon Voudrie v. State, 387 So.2d 248 (AIa.Crim.App. 1980), in which the Court of Criminal Appeals established a seven-part test for the admissibility of sound recordings. This test requires a showing as to (1) technical information as to the operation of the recording device, (2) the expertise of the operator, (3) the accuracy of the recording, (4) the absence of changes, additions, or deletions, (5) the manner of preservation, (6) the identity of the persons speaking on the recording, and (7) the involuntariness of the statement made in the recording. Subsequent cases such as Carraway v. State, 583 So.2d 993 (Ala.Crim.App.1991), and Molina v. State, 533 So.2d 701 (Ala.Crim.App.1988), applying the Voudrie test were analyzed by this Court in Ex parte Fuller, 620 So.2d 675 (Ala.1993). In Fuller, this Court upheld the admissibility of a tape recording of a statement given by the defendant while he was in custody. In Fuller, this Court recognized two distinct theories with respect to determining whether a proper foundation has been laid for the admissibility of photographs and electronic recordings. 620 So.2d at 678. First, is the “pictorial-communication” or “pictorial-testimony” theory; under this theory a person who was present at the time the recording was made can authenticate the recording by stating that it is consistent with his recollection. Fuller, 620 So.2d at 678. The second theory is the “silent-witness” theory, which comes into play when “there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question.” Fuller, 620 So.2d at 678. Under the silent-witness theory a foundation is laid by offering evidence as to the validity of the process or mechanism based upon the seven-part test established in Voudrie. In Ex parte Rieber, this Court applied both theories in upholding the admissibility of a surveillance video where in some instances witnesses who appeared on the tape could authenticate its accuracy and in other instances Voudrie-based foundational requirements were satisfied.

Weddington contends that the silent-witness theory controls in this case and that the State failed to offer sufficient evidence to satisfy the foundational requirements established in Voudrie. Weddington contends that the absence of expert testimony concerning video systems generally, the absence of evidence as to the qualifications of the operator, and the absence of testimony of a witness familiar with converting Internet images to videotape require the conclusion that the foundational requirements of Voudrie were not satisfied and that the videotapes should, therefore, not have been admitted.

At trial, the State argued that Voudrie did not apply because, it argued, the production and possession of child pornography were, in themselves, the crime. Moreover, the State contends that it laid an adequate foundation for the admission of the tapes for the purpose of presenting evidence indicating Weddington’s sexual misconduct, pointing to the previously summarized evidence, including Paula’s identification of the accuracy of the depiction on the videotape of the bedroom in the Weddingtons’ house, the accuracy of the depiction of M.V. and Weddington, the capability of the camcorder to produce videotapes based on Paula’s knowledge of how the camcorder worked, the presence of Weddington’s handwriting on the videotapes, and the testimony of the police chief as to the handling of the tapes once they were turned over to him.

The Court of Criminal Appeals agreed with the State, noting that it had previously stated in Molina v. State, 533 So.2d at 711, that “ja]s long as satisfactory evidence of the integrity of the film or videotape is presented, stringent foundational requirements, such as proof of the continuous chain of custody, are now almost universally rejected as unnecessary.’ ” (Quoting C. Scott, 3 Photographic Evidence § 1297 (2d ed. 1969) (1987 Pocket Part)).

The difficulty in applying previously developed rules to the facts of this case arises from its unique status as involving a video the defendant himself is charged with producing. We agree with the State that strict adherence in this case to the foundational requirements applicable to the silent-witness theory is inappropriate. This case should be considered under the pictorial-communication theory because the person appearing on the videotape has given evidence in his written statement and his comment to the police officer that supports the accuracy of the videotape. According to the police officer, Wedding-ton admitted that he was the person depicted on the tapes with M.V. As previously noted, the jury had before it a written statement that could also be construed as consistent with this admission. In Fuller, 620 So.2d at 678, this Court limited the application of the silent-witness theory to instances where “there is no qualified and competent witness who can testify that the sound recording or other medium accurately and reliably represents what he or she sensed at the time in question.” We leave for another day the question whether the foundational requirements necessary to proceed under the silent-witness theory should be relaxed when the defendant is charged as the maker of the videotape and there is insufficient evidence to satisfy the foundational requirements of the pictorial-communication theory.

Finally, Weddington argues that the Court of Criminal Appeals erred in holding that he did not preserve for review his objections to the State’s requested jury instructions on the production-of-obscene-matter count. In its unpublished memorandum, the Court of Criminal Appeals stated,

“[Weddington] argues that the trial court improperly instructed the jury on production of child pornography based on instructions the State requested. However, he did not object after the trial court indicated that it would give the requested instructions, and he did not object after the trial court’s oral charge. Therefore, this argument is not properly before this court. See Rule 21.3, Ala.R.Crim. P.; Bullock v. State, 697 So.2d 66 (Ala.Crim.App.1997).”

During the jury-charge conference, the State asked the trial court to instruct the jury that “electrical or electronic reproduction,” included in the definition of “matter” in § 13A-12-190, Ala.Code 1975 (the Code section that defines the offense of possession of obscene matter), includes computer images of pornography. The State also asked the trial court to instruct the jury that the possession of child pornography by any means, including computer images or images stored on computer diskettes, is prohibited by the statute. Immediately thereafter, Weddington, through counsel, argued that the requested charges should not be given because, counsel argued, the offense of production of child pornography, as distinguished from possession of child pornography, required that the defendant be physically present with the child during the production of the obscene matter. After Weddington’s counsel completed his argument, the trial court stated, “Overruled. We’ll give it,” and asked the prosecutors to draft a jury instruction. The prosecutors did so, and the trial court again stated that Weddington’s exceptions to the instructions were incorporated and were overruled, and he gave Weddington a continuing exception to the jury instructions.

The trial court then read the instructions to the jury. Immediately after the trial court read the instructions, but before the jury was excused, the trial court requested a bench conference with the attorneys. After this conference the trial court excused the jury and then stated that the defendant’s objections to the jury charges were timely made, were incorporated by reference, and were overruled.

In his brief to this Court, Weddington does not challenge his conviction for possession of obscene matter. He concedes that the videotapes introduced into evidence at trial were made by him and that those videotapes depict child pornography. However, he argues that the videotapes contain child pornography he downloaded from the Internet and that they do not depict him performing sexual acts on M.V.

Rule 21.3, Ala. R.Crim. P., states:

“No party may assign as error the court’s giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

See also Woods v. State, 845 So.2d 843 (Ala.Crim.App.2002). In its brief to this Court, the State acknowledges that, contrary to the statement of the Court of Criminal Appeals, ‘Weddington did raise an objection to the State’s requested charge.” (State’s brief at p. 23.) Because Weddington objected to the proposed jury instructions when the trial court indicated it would give the instructions and again after the trial court gave the instructions, but before the jury retired, his objections were timely. Rule 21.3, Ala. R.Crim. P.

The State, nevertheless, argues that Weddington did not preserve the issue for appeal because, it says, he did not object specifically on the ground that the State’s requested instructions would permit him to be convicted of “producing” child pornography merely as a result of his downloading it from the Internet. To preserve an issue for appeal, a defendant’s objection must be specific enough “to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.” Ex parte Works, 640 So.2d 1056, 1058 (Ala.1994), Ex parte Washington, 448 So.2d 404, 406 (Ala.1984). Weddington’s objec tion that the State’s requested jury instructions would permit a person to be convicted of production of child pornography without his being physically present with the child was sufficient to put the trial court on notice of the alleged error, and thus to preserve for appellate review his objection to the jury instructions on the charge of production of obscene matter. In holding that Weddington’s objections preserved the alleged error for appellate review, we do not reach the question whether the jury instructions were, in fact, erroneous, or if so, whether the error was harmless.

We reverse the Court of Criminal Appeals’ judgment and remand the case for that court to consider Weddington’s objections to the trial court’s jury instructions on the production-of-obscene-matter count. As to all other issues, the judgment of the Court of Criminal Appeals is affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

       Note from the reporter of decisions: On August 23, 2002, after remand from the Supreme Court, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Charles S. TOMPKINS v. Sandra TOMPKINS.
    2000538.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      David B. Byrne, Jr., and Richard H. Allen of Capell & Howard, P.C., Montgomery, for appellant.
    Floyd Minor and John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for appellee.
   MURDOCK, Judge.

Charles S. Tompkins (the “husband”) appeals from a judgment of the Crenshaw Circuit Court divorcing him from Sandra Tompkins (the “wife”). The husband argues that the trial court erred by awarding the wife 65% of an individual retirement account maintained through Regions Bank, by setting his child-support obligation at $2,500 per month, and by granting custody of the parties’ child to the wife. The wife filed a motion to dismiss the husband’s appeal because he had allegedly remarried within 60 days of the divorce judgment in violation of Ala.Code 1975, § 30-2-10, and the corresponding portion of the trial court’s judgment.

The parties married in 1986 and had one child, a daughter, who was born in September 1991 and whom the parties adopted a few months after her birth. In October 1999, the husband filed a complaint for divorce in the Crenshaw Circuit Court and requested that he be granted custody of the child. The wife filed an answer and counterclaimed for a divorce, likewise requesting that she be granted custody of the child and also that she be awarded alimony and child support.

After an ore tenus hearing, the trial court entered a judgment of divorce on September 13, 2000. The parties each filed a postjudgment motion; those motions were denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.

Before considering the issues raised on appeal by the husband, we first address the wife’s motion to dismiss the husband’s appeal. The wife argues that we should dismiss the appeal because, she says, the husband remarried within 60 days of the divorce judgment in violation of Ala.Code 1975, § 30-2-10, and the corresponding portion of the trial court’s judgment.

Section 30-2-10 states, in pertinent part:

“When a judgment has been entered granting a divorce in this state, the court shall order that neither party shall again marry, except to each other, until 60 days after the judgment is entered, and that if an appeal is taken within 60 days, neither party shall again marry, except to each other, during the pen-dency of said appeal.”

The trial court’s judgment stated, in pertinent part:

“[Njeither party shall marry again except to each other until sixty (60) days after the date of this final judgment, and if an appeal is taken (which must be instituted within forty-two (42) days from the date of this judgment or from the date that a post-trial motion is denied) then neither party shall marry except to each other during the pendency of the appeal.”

It is undisputed that the husband remarried in December 2000 while the parties’ postjudgment motions were pending.

In Pope v. Pope, 268 Ala. 513, 109 So.2d 521 (1958), a wife appealed from a judgment of divorce because the trial court refused to award her alimony. The wife remarried while her appeal was pending, and the husband filed a motion asking the Alabama Supreme Court to dismiss the wife’s appeal based upon her remarriage. Pope, 268 Ala. at 516, 109 So.2d at 524. The Alabama Supreme Court denied the husband’s motion to dismiss the wife’s appeal and treated the alimony issue as a severable provision in the trial court’s judgment. Pope, 268 Ala. at 517, 109 So.2d at 524; accord Weatherford v. Weatherford, 91 So.2d 179 (Fla.1956); Klumb v. Klumb, 190 So.2d 454 (Miss.1966); see also Neal v. Neal, 258 Ark. 338, 341, 524 S.W.2d 460, 462 (1975) (“the majority rule appears to be that property rights and financial provisions are separable from the validity of a divorce decree”).

The husband’s appeal has raised issues only as to the financial and custody provisions of the trial court’s judgment. Neither party has argued that the trial court improperly granted the divorce. Moreover, even if the propriety of the parties’ divorce were at issue, the wife has cited no authority holding that the dismissal of a spouse’s appeal is an appropriate remedy for an alleged violation of Ala. Code 1975, § 30-2-10. Based upon the foregoing, the wife’s motion to dismiss the husband’s appeal is denied.

As to the merits of the husband’s appeal, the husband first argues that the trial court erred by awarding the wife 65% of his Regions Bank individual retirement account. As to the division of the parties’ retirement accounts, the trial court stated:

“a. The parties shall ... divide the Husband’s State Farm Individual Retirement Account ... with an approximate value of ... ($20,778.00).
“b. The parties shall equally divide the Husband’s Regions Bank Individual Retirement Account ... with an approximate value of ... ($309,186.00) so that Wife receives 65% and Husband receives 35%.
“c. The retirement account divisions stated herein are meant to be free of any tax liability and/or consequences to either party as it is a property division pursuant to a divorce. The parties shall do all acts necessary and complete any documents necessary in order for this division to occur and so that neither party incurs any adverse income tax consequences. The Court hereby reserves jurisdiction over the issue of the retirement account division to insure the proper implementation of this paragraph.
“d. The Wife shall have as her separate property all funds which are located in her State Farm Individual Retirement Account, which has an approximate balance of ... ($12,167.00).”

The division of retirement benefits in a marital estate is governed by Ala. Code 1975, § 30-2-51, which states, in pertinent part:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(3) The total amount of the retirement benefits payable to the noneov-ered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

In their postjudgment motions both parties argued that the trial court erred in awarding the wife more than 50% of the husband’s Regions Bank individual retirement account. However, the wife also requested that the trial court “make up the fifteen ... percent difference that she would be foregoing ... [by awarding her] a one time alimony in gross payment of ... ($46,378.00).” As noted above, the parties’ postjudgment motions were denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P.

Based upon the plain language of the trial court’s judgment and Ala.Code 1975, § 30 — 2—51(b)(3), the trial court erred by awarding the wife 65% of the husband’s Regions Bank individual retirement account. That portion of the judgment is due to be reversed and the case remanded for the trial court to reconsider its property division, taking into account § 30-2-51(b)(3).

The husband next argues that the trial court erred by setting his child-support obligation at $2,500 per month because, he says, the trial court based the award solely on his perceived ability to pay and the award “does not rationally relate to the reasonable and necessary needs of a nine-year-old child.” The husband also argues that in establishing his child-support obligation, the trial court failed to “impute income to the wife who was voluntarily unemployed notwithstanding her college degree and a demonstrated ability to work as a bookkeeper in a physician’s office.”

The parties’ federal income-tax returns indicated that the husband, who is a physician, had gross income from his medical practice of approximately $250,000 per year in 1996, 1997, and 1998 and approximately $148,000 in 1999. The wife also offered evidence indicating that the husband had adjusted his work schedule in 1999 to reduce the income that he received from his medical practice and that the husband’s projected taxable income for 1999, including one-time investment distributions, exceeded $300,000. Pursuant to Rule 32(C)(1), Ala. R. Jud. Admin., “[t]he court may use its discretion in determining child support in circumstances where combined adjusted gross income ... exceeds the uppermost levels of the schedule,” i.e., $10,000 per month. The trial court’s discretion is not unbridled, however, and must meet a two-pronged test:

“The award of child support must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and it must reasonably relate to the obligor parent’s ability to pay for those needs.”

Brasfield v. Brasfield, 679 So.2d 1091, 1094 (Ala.Civ.App.1996) (first emphasis original; second emphasis added); see also Dyas v. Dyas, 683 So.2d 971, 973 (Ala.Civ.App.1995), aff'd and remanded, 683 So.2d 974 (Ala.1996). “To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.” Dyas, 683 So.2d at 974.

The husband had been the sole source of income for the family. In June 2000, he filed a child-support obligation income statement affidavit stating that he had gross monthly income of $12,525; the wife filed a child-support obligation income statement indicating that she had no gross monthly income. The wife had assisted with some administrative matters at her husband’s office on occasion after the parties married and until the husband filed his complaint for divorce. However, there is no evidence indicating that she was paid for her services, and the record reflects that the wife had not been employed since the parties adopted the child.

The record reflects that at the time of trial the parties’ child was nine years of age and participated in several extracurricular activities, including horseback riding, gymnastics, and dance lessons. She has enjoyed the use of her parents’ two vacation homes in Florida. The record reflects that the child has had the benefit of a somewhat privileged lifestyle. The wife testified that she was considering enrolling the child in private school if she and the child moved to Montgomery. The wife provided an itemized estimate of living expenses for herself and the child that totaled $11,570 per month. Given the standard of living the child enjoyed before the divorce, the wife testified that she needed $3,000 per month for the child’s support.

Under the ore tenus rule, the trial court’s judgment is presumed correct and this court will not reverse the judgment absent a showing that the trial court’s findings are plainly and palpably wrong or that the trial court abused its discretion. See Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). While we might have made a different child-support award in this case, this court “may not substitute its judgment for that of the trial court.” Id. Based upon a careful review of the entire record in this case, we cannot say that the trial court abused its discretion when it ordered the husband to pay $2,500 per month in child support.

The husband next argues that the trial court erred in granting the wife “sole” custody of the parties’ child. He argues that the parties had requested joint custody of their child and that the trial court erred by not making specific findings pursuant to Ala.Code 1975, § 30-3-152(c), as to why it had not granted the parties joint custody of their child. He also argues that it would have been in the child’s best interest for the trial court to award the parties joint custody.

Pursuant to Alabama’s joint-custody statute “joint custody” is defined as “[jjoint legal custody and joint physical custody.” Ala.Code 1975, § 30-3-151(1). Both “joint legal custody” and “joint physical custody” are separately defined. See Ala.Code 1975, §§ 30-3-151(2) and (3). Section 30-3-152(c), Ala.Code 1975, states, in pertinent part:

“If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted.”

(Emphasis added.)

Each party in their respective pleadings requested sole or primary custody of the child. At trial, although the husband testified that he desired that the parties be awarded joint custody of their child if the wife remained in Crenshaw County, he stated that he wanted primary custody of the child if the wife moved from Crenshaw County. The record indicates that the wife intended to relocate to Montgomery. For her part, the wife testified that she desired “joint legal and primary custody” of the parties’ child. Based upon the record, the trial court reasonably could have concluded that both parents did not request “joint custody” in the manner contemplated by [section] 30-3-152(e) and that the presumption established by that section therefore did not apply. Accordingly, we cannot say that the trial court erred in not making “specific findings” as to why it did not award the parties joint custody of the child.

A trial court’s custody determination based upon ore tenus evidence is presumed correct and will not be reversed on appeal unless “ ‘the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown.’ ” Bryant v. Bryant, 739 So.2d 53, 55 (Ala.Civ.App.1999) (quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). Also, “[w]hen a trial court does not make specific findings of fact concerning an issue, an appellate court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” McGough v. McGough, 710 So.2d 452, 453 (Ala.Civ.App.1997). In respect to a trial court’s determination as to what custody arrangement would be in a child’s best interest, we have held:

“In making its custody determination, the trial court should consider a number of factors, including the age and sex of the child and each parent’s ability to provide for the child’s emotional, social, moral, material, and educational needs.”

D.L. v. R.B.L., 741 So.2d 417, 419-20 (Ala.Civ.App.1999). Further, Alabama’s joint-custody statute states, in pertinent part:

“(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.”

Ala.Code 1975, § 30-3-152(a).

The husband’s argument for joint custody is based largely upon the favorable relationship he has had with the child. Based upon our review of the record, however, and considering the applicable factors the trial court was bound to consider, we conclude that there was substantial evidence to support the trial court’s determination that awarding the parties joint custody of the child would not be in the child’s best interest. Conversely, we cannot conclude from the record before us that the trial court’s decision to award custody of the child to the wife was plainly and palpably wrong. That portion of the trial court’s judgment awarding custody of the parties’ child to the wife therefore must be affirmed.

As a consequence of the erroneous award of 65% of the husband’s Regions Bank individual retirement account to the wife, that portion of the trial court’s judgment pertaining to the division of property is reversed. The portions of the trial court’s judgment pertaining to the husband’s child-support obligation and the award of sole custody of the parties’ child to the wife are affirmed. The cause is remanded for proceedings consistent with this opinion.

The appellee’s request for the award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Initially, the husband also argued on appeal that the trial court erred by denying his post-judgment motion without holding a hearing. However, the husband filed a motion with this court requesting that we voluntarily dismiss that issue. We granted that motion.

      . In addition to the aspects of the trial court's judgment from which the husband appeals, the trial court awarded the wife alimony in the following amounts: $5,000 per month for 24 consecutive months following the divorce, $4,000 per month for each of the next 36 consecutive months, $3,000 per month for each of the next 36 consecutive months, and $2,000 per month for each of the next 36 consecutive months. The judgment also included a property division in which the husband was awarded the parties' marital home, their farmland and commercial property, the office where the husband practiced medicine, an office building in Brantley, a parcel of real property that included a storage building, two automobiles, all farm equipment, three horses, two golf carts, a "peanut wagon,” and certain other property. The wife was awarded two properties that were located in Seag-rove, Florida, and Inlet Beach, Florida, an automobile, the parties’ household furnishings, and certain other property. With the exception of the award to the wife of 65% of one of the husband's retirement accounts, neither party asserts any error by the trial court in respect to either the alimony award or the property division.

      . The trial court’s judgment also required the husband to maintain medical and dental insurance for the child and to pay all of the child's reasonable and necessary medical and dental expenses.

      . The husband was awarded visitation rights that, among other things, included visitation every other weekend, one afternoon each week, alternating holidays (including spring break), four weeks each summer, and such other periods as to which the parties may agree between themselves.

      . The husband’s brief to this court asserts that the wife and the child moved to Montgomery during the pendency of this appeal.


author: CRAWLEY, Judge.

text:
    Johnny M. FIELDING v. Susan T. FIELDING.
    2010207.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.
    Leon Garmon, Gadsden, for appellant.
    Charles Y. Boyd of Rhea, Boyd, Rhea & Coggin, Gadsden, for appellee.
   CRAWLEY, Judge.

Johnny M. Fielding (“the father”) and Susan T. Fielding (“the mother”) were divorced in 1997. Among other things, the divorce judgment awarded the mother custody of the parties’ two children, ordered the father to pay child support, and provided that the mother could live in the former marital residence until she remarried or cohabited with a member of the opposite sex, or until the youngest child, a son, turned 19. The mother had the right to purchase the father’s one-half interest at any time before or within six months following the occurrence of any of the above-mentioned events. If the mother did not exercise her option within those six months, the father would then have the opportunity to purchase her one-half interest. If neither party purchased the other party’s one-half interest, either party could request that the residence be sold and the proceeds divided equally.

The trial court, in an amended divorce judgment, reserved the issue of postminority-educational expenses. In September 1998, in response to the parties’ respective petitions to modify, the trial court relieved the father of the duty of making child-support payments on behalf of the oldest child, a daughter, who had reached the age of majority. The judgment also required that the father pay one-half of the daughter’s postminority-educational expenses.

In June 2000, the father filed a petition seeking the sale of the former marital residence and a reduction of his obligation to pay child support and postminority-edu-cational support. In his petition, he alleged that the mother had received funds from her mother for the children’s educations and that she would inherit a large portion of her mother’s substantial estate. On July 10, the father amended his petition to allege that he was about to be unemployed because the manufacturing plant at which he was employed was closing at the end of that month. The trial court, on September 15, entered an order reducing the father’s child-support payments. In that order the trial court “set aside” the prior postminority-educational-support orders until it held a hearing, which it set for December 2000. The mother filed a motion to amend the trial court’s September 15 order, requesting specifically that the trial court not set aside the father’s obligation to pay postmi-nority-educational support but that the issue simply be reserved for a future hearing. The trial court denied her motion.

On December 5, the trial court entered another order, adjusting the father’s child-support obligation because the father had found other employment. In that order, the trial court stated that “[a]ll issues regarding ... obligations to pay [postminority-educational support] for the minor [sic] children ... shall remain open until a further hearing. The [father] shall have the right to contest or attempt to modify his obligation to pay [postminority-educational] support for the minor [sic] children from the date of his petition filed on June 21, 2000.”

The wife, on March 8, 2001, filed a motion requesting a hearing on the issues left open in the trial court’s December 2000 order. She requested that the father be ordered to contribute to the postminority-educational expenses of both children. After a hearing, the trial court held the father in contempt for failing to pay the daughter’s postminority-educational expenses since December 1999, ordered the father to pay $16,654.11 in past-due post-minority-educational expenses incurred by the daughter, ordered the father to pay one-half of the future postminority-edu-cational expenses of both children, and modified the paragraph allowing the mother to five in the former marital residence until the son reached age 19 so as to allow the mother to continue living in the home until the son completed his college education.

After his postjudgment motions were denied, the father appealed. He argues that the trial court erred by ordering him to pay $16,654.11 in past-due postminority-educational support, in ordering him to continue paying one-half of his children’s postminority-educational expenses, and in modifying the property settlement in the divorce judgment by allowing the mother to reside in the former marital residence until the son completes his college education. After a review of the testimony and documentary evidence, we agree with the father that the trial court’s judgment is due to be reversed in its entirety.

Postminority-Educational Support for the Daughter

The record indicates that the daughter attended Shelton State Community College before attending the University of Alabama. According to his testimony at trial, the father paid the junior-college expenses, but he was not aware that the daughter had transferred to the University until she was in her second semester there. The father last paid any part of the daughter’s expenses in December 1999. The mother presented an exhibit at trial in which she had computed the father’s half of the daughter’s expenses prior to December 4, 2000, at $10,056.67. No documentation supporting the mother’s figures appears in the record. According to the mother, the father had paid only two payments totaling $1,442 toward the daughter’s educational expenses. The mother also calculated the father’s half of the daughter’s expenses from December 4, 2000, to June 12, 2001, to be $6,597.44. Those expenses are supported by documentation. The trial court awarded the mother $16,654.11. The judgment also ordered the father to continue to pay one-half of the daughter’s postminority-edu-cational expenses. The father argues that the award of postminority-educational expenses places an undue hardship on him.

The father, who has a high school education, testified about his income. Although the father was making $3,096.35 per month in August 1998, he lost his job when the manufacturing plant at which he was employed closed in July 2000. He is presently employed as a jailer by the Eto-wah County Sheriffs Department. His annual gross income is $19,760, which translates to $1,647 in gross income per month. The father’s expenses, including one-half the mortgage- payment on the former marital residence and the mortgage payments on the house in which he lives with his second wife, total $1,414, including a $135 payment on some miscellaneous debts. The father’s wife is employed at a grocery store. The father testified that he had approximately $100 in his checking account and that he had no savings accounts or certificates of deposit. Using the father’s monthly gross income, without allowing for taxes and other deductions, the father has $233 per month in disposable income after paying his expenses out of which to contribute to the postminority-educational expenses of both children.

The record does not provide a breakdown of the daughter’s educational expenses on a monthly or per semester basis. However, the award of approximately $16,200 in postminority-educational support, which allegedly represents one-half of the daughter’s expenses for six semesters of her college career, indicates that the daughter’s educational expenses total, on average, approximately $450 per month. That amount is nearly twice as much as the disposable income the father would have available to pay those expenses.

The father argued at trial that he was simply unable to pay one-half of the post-minority-educational expenses incurred by his daughter and that the trial court should reduce or terminate his obligation. Our supreme court has stated that a trial court has jurisdiction to “award sums of money out of the property and income of either or both parents for the post-minority education of a child....” Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). However, this court has recognized that a trial court may not award an amount of postmi-nority-educational support if such an award would place an undue hardship upon the paying parent. See Thrasher v. Wilburn, 574 So.2d 889, 841 (Ala.Civ.App.1990) (discussing undue hardship).

This court has reversed an award of postminority-educational support when “[o]rdinary arithmetic would indicate that after taxes and other deductions, the father has a disposable income barely sufficient to meet his current financial obligations.” Jones v. Philpot, 591 So.2d 864, 867 (Ala.Civ.App.1991); see also A.L. v. B.W., 735 So.2d 1237, 1239-40 (Ala.Civ.App.1999). The father in the present ease faces a similar financial picture. The mother commented during the trial that the father “could also get a parent loan if he wanted to send his child to school.” Although this court has held that mere personal sacrifice on the part of a parent is not undue hardship, see Thrasher, 574 So.2d at 841, to require a parent to pay a portion of a child’s postminority-educational expenses despite the fact that he or she may be required to incur additional debt to do so goes beyond mere personal sacrifice. A child is not entitled to have his or her parent finance all or part of postminority-educational endeavors without regard to the financial impact doing so would impose upon that parent. A trial court considering whether to award postminority-edu-cational support should consider several factors, but must focus “primarily [upon] the financial resources of the parents and the child.” Ex parte Bayliss, 550 So.2d at 987.

We are convinced that the father has proven that he is unable to pay one-half of the postminority-educational expenses incurred by his daughter. The father first alleged his inability to pay in a motion filed on June 21, 2000, seeking to reduce child support and postminority-educational support. Our conclusion that the imposition of the obligation to pay those postminority-educational expenses places an undue hardship on the father is retroactive to that date. The father is still liable for one-half of any postminority-educational expenses the daughter incurred before that date. Because the record does not contain a breakdown of the daughter’s expenses by month or by semester, we cannot determine the amount of the expenses incurred before June 21, 2000. On remand, the trial court must determine the amount of the daughter’s postminority-educational expenses incurred before June 21, 2000, and then award the wife one-half of those expenses.

Postminority-Educational Support for the Son

The son, who reached the age of majority in July 2001, planned to attend Shelton State before attending the University of Alabama. The wife requested, and the trial court ordered, that the father be required to pay one-half of the son’s post-minority-educational expenses. The father argues that he cannot pay one-half of his son’s postminority-educational expenses without undue hardship.

We have already discussed the father’s income and expenses. Although the record contains some information about some of the costs associated with the daughter’s attendance at Shelton State, neither the mother nor the son testified concerning the tuition per semester, the anticipated cost of books and supplies, or the cost of room and board, if applicable. This court has often reminded trial courts that, without such information, this court cannot determine whether an award of postminority-educational support poses an undue hardship on the parent ordered to pay those expenses. See Thrasher, 574 So.2d at 841; Thompson v. Thompson, 689 So.2d 885, 888 (Ala.Civ.App.1997). The trial court’s award in the present case requires the father to assume one-half of an unknown amount. We cannot determine whether the award poses an undue hardship for the father; therefore, we must reverse the order requiring payment of postminority-educational expenses for the son.

Modification of the Provision Requiring Sale of the Former Marital Residence

The father also appeals the trial court’s modification of the provision in the 1997 divorce judgment permitting the mother to live in the former marital residence until the youngest child reached the age of majority. The father petitioned to have the house sold before the son’s 19th birthday; however, the trial court did not consider ordering the sale until the hearing in June 2001, approximately one month before the son turned 19. The trial court did not order the house sold, and, in fact, it amended the provision to allow the mother to remain in the house until the son graduates from college, provided he makes “satisfactory progress toward a four-year baccalaureate degree.” The father argues that the trial court impermissibly modified the provision. We agree.

The property-division provisions of a divorce judgment become final 30 days after the judgment is entered. McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995). After the 30 days has elapsed, the property division is non-modifiable. McGiboney, 679 So.2d at 1068; see also Johnson v. Johnson, 585 So.2d 89, 90 (Ala.Civ.App.1991). The trial court amended the 1997 provision concerning the timing of the sale of the marital residence in 2001, much more than 30 days after the judgment was entered. The trial court was without jurisdiction to modify the terms of the 1997 judgment as to the timing of the sale of the former marital residence.

The appellee’s request for an attorney fee on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

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

      . The record does not reveal when the daughter began attending the University of Alabama. However, it does reveal that she attended the University in fall semester 2000, spring semester 2001, and summer semester 2001. During the spring 2001 and summer 2001 semesters, the daughter was also enrolled in Shelton State.

      . This figure, according to the mother, includes $114 in court costs the father failed to pay and $340 for health insurance premiums that the mother paid while the father was unemployed.

      . The father has not argued that the trial court erred in its computation of the past-due postminority-educational expenses awarded.

      . Because it appears that the daughter has completed three years of college, we divided $16,200 by 36 to determine the average monthly cost of the daughter’s education.


author: THOMPSON, Judge.

text:
    Margaret KILLOUGH v. Sara Hearn Killough FLOWERS, as personal representative of the estate of William Forrest Killough II, deceased.
    2010696.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      John A. Tinney, Roanoke, for appellant.
    Robert L. Rumsey, Sylacauga, for appel-lee.
   THOMPSON, Judge.

William Forrest Killough II (“William”) and Margaret Killough (“Margaret”) were married on November 22, 1979. Margaret filed for a divorce, and on September 6, 1996, the trial court entered an order that, among other things, divorced the parties and fashioned a property division. Margaret appealed. On appeal, Margaret asserted that the trial court had erred in fashioning a property division and alimony award. This court affirmed the decision of the trial court, without an opinion. Killough v. Killough (No. 2960363, July 25, 1997), 723 So.2d 112 (Ala.Civ.App.1997) (table). On May 8, 1998, the Supreme Court of Alabama reversed this court’s judgment, holding that this court erred in affirming the trial court’s award of $100,000 alimony in gross and in affirming the trial court’s refusal to reserve the issue of periodic alimony. Ex parte Killough, 728 So.2d 589 (Ala.1998). Following the supreme court’s decision, this court reversed the trial court’s judgment and remanded the case to the trial court. Killough v. Killough, 728 So.2d 592 (Ala.Civ.App.1999).

On remand, the trial court conducted another trial and received additional ore tenus evidence. On June 3, 1999, the trial court entered a new judgment. On June 30, 1999, Margaret filed a postjudgment motion. The record indicates that William died July 1, 1999, after Margaret had filed her postjudgment motion but before the trial court had ruled on that motion. On August 24, 1999, the trial court denied Margaret’s postjudgment motion. On September 30, 1999, Margaret appealed. On May 19, 2000, this court affirmed the decision of the trial court, without an opinion. Killough v. Killough (No. 2990009), 816 So.2d 112 (Ala.Civ.App.2000) (table).

On August 25, 1999, Sara Hearn Kil-lough Flowers, William’s daughter, petitioned the Talladega County Probate Court to probate a document purporting to be the last will of William Forrest Killough II. That document named Flowers as the executrix of the will. On September 21, 1999, William’s will was admitted to probate. Also on September 21, 1999, nine days before Margaret filed her notice of appeal from the trial court’s June 3, 1999, judgment, Margaret, as William’s purported surviving spouse, filed a petition in the probate court dissenting from the will and seeking to be awarded an elective share pursuant to § 43-8-70, Ala.Code 1975, the homestead allowance, the exempt property allowance, and the family allowance pursuant to §§ 43-8-110 through -113, Ala.Code 1975.

On June 1, 2001, Flowers filed a petition to remove the action to the Talladega Circuit Court; that petition was granted on June 6, 2001. Both Margaret and Flowers filed briefs in support of their positions with respect to Margaret and William’s marital status at the time of William’s death. On February 27, 2002, after hearing arguments of counsel and considering the parties’ briefs, the Talladega Circuit Court (hereinafter the “trial court”) entered an order finding that Margaret was not William’s surviving spouse and that she was not entitled to an elective share or statutory exemptions from William’s estate. Margaret appealed to the Supreme Court of Alabama which transferred the case to this court pursuant to § 12-2-7, Ala.Code 1975.

On appeal, Margaret argues that she was entitled to an elective share because, she contends, she was William’s wife at the time of his death. In support of her assertion that she is William’s surviving spouse, Margaret cites this court’s decision in Smith v. Smith, 601 So.2d 1032 (Ala.Civ.App.1992). In Smith, a judgment of divorce was entered on default in favor of the husband. The wife moved to set aside the default, arguing that she had not been properly served with notice of the application for default. The trial court held a hearing on the wife’s motion, and, at the end of the hearing, the trial judge indicated that the motion would be granted. Following the hearing, but before the trial court had entered its written order granting the wife’s motion, the husband died. The husband’s estate was substituted and the wife filed another motion seeking to have the default set aside. The administrator of the husband’s estate conceded that the wife had not been properly served with notice of the application for default. The trial court held another hearing and entered an order setting aside the divorce judgment. The estate appealed, and this court affirmed the decision of the trial court. Smith v. Smith, 601 So.2d at 1034. In doing so, this court determined that the wife’s action had not abated on the husband’s death because the divorce judgment affected property rights. Further, we concluded that the trial court had properly set aside the divorce judgment because the parties did not dispute that the proper notice requirements had not been met. Id.

The present case can be distinguished from Smith v. Smith, supra. Unlike the wife in Smith, supra, Margaret does not allege in this action, nor did she allege in her other two appeals to this court, that that portion of the trial court’s judgment divorcing the parties was entered in error. Margaret merely asserts that the trial court’s divorce judgment was insufficient to dissolve the parties marital status until she had exhausted the appellate process. We find no merit in this assertion.

Further, we agree with the decision of the United States Court of Appeals for the Fifth Circuit in Schurink v. United States, 177 F.2d 809, 811 (5th Cir.1949), that a trial court’s divorce judgment “completely and finally” dissolves the marital relationship between husband and wife on the date of its entry, “insofar as the responsibilities and duties incident to their marriage relationship was concerned.”

In Schurink v. United States, supra, the appellant sought to be awarded the proceeds of her former husband’s life insurance policy derived from his service in the United States Armed Forces. Twenty-one days before the husband’s. death an Alabama Court issued a judgment divorcing the parties. The relevant statutes required the appellant to be the husband’s widow at the time of his death in order to qualify to receive the proceeds. The appellant did not attack the validity of the divorce judgment; rather, the appellant asserted that she was legally the deceased’s wife on the date of his death because of the statutory requirement that prohibits the parties from remarrying during the 60 days following the entry of the divorce decree. In affirming the trial court’s decision that the appellant was not the widow of the deceased, the Fifth Circuit Court of Appeals stated:

“As we understand the applicable Alabama law, the decree of divorce completely and finally dissolved the bonds of matrimony between appellant and the insured as of the date it was rendered, insofar as the responsibilities and duties incident to their marriage relationship was concerned, the only restriction being the prohibition against remarriage until sixty days after the divorce decree was rendered. While the Alabama Supreme Court has held a divorce decree inoperative for the duration of this statutory waiting period, we think it clear from the decisions that this rule was applied as a matter of public policy solely to the prohibition against remarriage, and is not applicable here so as to suspend the dissolution of the marriage relationship as between the parties during the sixty-day period, nor does it alter the fact that at the insured’s death appellant was not his widow. Ex parte Jones, 249 Ala. 386, 31 So.2d 314 [ (1947) ]; Cf. Vance v. State, 210 Ala. 9, 97 So. 230 [ (1923) ]; Brand v. State, 242 Ala. 15, 6 So.2d 446 [ (1941) ]; Barfield v. Barfield, 139 Ala. 290, 35 So. 884 [ (1904) ].”

Schurink, 177 F.2d at 811.

The trial court divorced the parties on September 6, 1996. From that judgment, Margaret appealed only that portion of the trial court’s judgment related to the property division and alimony award; Margaret did not appeal that portion of the trial court’s judgment that terminated the parties’ marital relationship. The trial court entered its most recent divorce judgment in this matter on June 3, 1999. William died on July 1, 1999. Thus, at the time of William’s death, the bonds of matrimony between William and Margaret were completely and finally dissolved. The trial court’s judgment may have been inoperative during the pendency of the wife’s post-judgment motions and her appeals to this court; however, the parties’ marital status was terminated, at the latest, on June 3, 1999, the date of the entry of the divorce judgment. See id. Therefore, we conclude that the trial court did not err in finding that Margaret was not William’s surviving spouse, and, thus, that she could not dissent from his will and seek to be awarded an elective share pursuant to § 43-8-70, Ala.Code 1975, and to be awarded the statutory exemptions pursuant to §§ 43-8-110 through -113, Ala.Code 1975.

AFFIRMED.

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