author: CRAWLEY, Judge.

text:
    COPENHAGEN REINSURANCE COMPANY, as subrogee of Addie P. Reed v. CHAMPION HOME BUILDERS COMPANY, INC.
    2020263.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.

      Lawrence J. Setter of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
    T. Julian Motes and Michael E. Gabel of Sirote & Permutt, P.C., Mobile, for appel-lee.
   CRAWLEY, Judge.

Copenhagen Reinsurance Company (“Copenhagen”), as subrogee of Addie P. Reed, deceased, appeals from the trial court’s summary judgment in favor of Champion Home Builders Company, Inc. (“Champion”). We affirm in part, reverse in part, and remand.

Following a fire resulting in the destruction of a mobile home, Addie P. Reed, Beronica R. Farmer, and Copenhagen (sometimes collectively referred to as “the plaintiffs”) sued Jack Lee, individually, and d/b/a Jack Lee Mobile Homes; Showplace Housing of Alabama, Inc. (“Showplace”); and Champion (sometimes collectively referred to as “the defendants”), seeking damages under the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”) and alleging negligence and wantonness, breach of express and implied warranties, and breach of contract. The plaintiffs’ complaint alleged that Reed and Farmer had purchased a new mobile home from Lee and Showplace and that, immediately after the mobile home was set up, they began to notice electrical problems with the mobile home, which they described in the complaint as the “lights going on and off.” They further alleged that they had contacted Lee and Showplace on numerous occasions to report the problems, that the problems were never corrected, and that, approximately three weeks after the mobile home was set up, it was destroyed by a fire. Copenhagen had issued a policy of insurance on the mobile home; it paid Reed and Farmer $89,472 for their loss. Champion was identified as the manufacturer of the mobile home. Champion filed an answer to the plaintiffs’ complaint.

Copenhagen filed a motion for a default judgment against Lee, individually, and d/b/a Jack Lee Mobile Homes, and Showplace, after they failed to file a responsive pleading. The trial court entered separate default judgments — one against Lee, individually; one against Lee d/b/a Jack Lee Mobile Homes; and one against Showplace — each in the amount of $89,472. On the motion of Champion, Reed was subsequently dismissed as a plaintiff after a suggestion of her death was filed and no proper substitution of parties occurred; Farmer was also dismissed as a result of her failure to comply with a discovery order. Copenhagen, the sole remaining plaintiff, filed an amended complaint with an additional count asserting that the defendants had violated the Magnuson-Moss Warranty-Federal Trade Commission Improvement Act, 15 U.S.C. § 2301 et seq. (“the Magnuson-Moss Act”). Champion filed an answer to the amended complaint.

Champion filed a motion for a summary judgment with a brief contending that it was due to be granted a judgment as a matter of law on the following grounds: (1) spoliation of evidence because Copenhagen had failed to preserve the remnants of the mobile home; (2) improper notice pursuant to the terms of the mobile home’s warranty; (3) lack of privity between Champion, on the one hand, and Reed and Farmer, Copenhagen’s insureds, on the other hand; and (4) improper notice of the Magnuson-Moss Act claim. Champion filed evidentia-ry materials in support of its summary-judgment motion. Copenhagen filed a motion in opposition to Champion’s motion for a summary judgment and also filed eviden-tiary material. Champion filed a response to Copenhagen’s motion in opposition. After conducting a hearing on-the motions, the trial court entered a summary judgment in favor of Champion, without stating a rationale. Copenhagen filed a notice of appeal to the supreme court, which transferred this case to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Copenhagen contends that the trial court erred by entering a summary judgment in favor of Champion; in its brief to this court, Copenhagen addresses the grounds that Champion asserted in support of its motion for a summary judgment.. Our review of a summary judgment is de novo.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990)

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

I. Spoliation of Evidence

Copenhagen first argues that not all of its claims were due to be dismissed because of spoliation of evidence. The pertinent facts relating to this issue, stated in a light most favorable to Copenhagen, Hob-son, supra, are as follows. The mobile home was purchased in August 1998 and set up on September 30, 1998. Immediately after moving in, Farmer began noticing problems with the electrical system such as lights blinking on and off and some electrical outlets not working. Farmer called Lee on at least four occasions, resulting in one of Lee’s employees unsuccessfully attempting to fix the electrical problem on one occasion. The mobile home was destroyed by a fire on October 20, 1998. The following morning, Farmer called Lee to tell him that the mobile home had been destroyed by a fire. Lee told Farmer that he would replace the mobile home, but he did not do so. Copenhagen hired two experts to investigate the fire scene in an effort to determine the cause of the fire. Larry Dewberry was the first to examine the fire scene on October 25, 1998; Dewberry was unable to determine the cause of the fire. Owen Posey then examined the fire scene on November 13, 1998; on November 23, 1998, Posey issued a report that stated, in pertinent part:

“It appears the wiring may have shorted in the breaker panel and melted back down to below the floor. The breaker panel is not available to determine if a short did occur in it which ignite[d] the fire.
“There was a short found in a receptacle branch circuit on the outside wall of the kitchen area, which could have also ignited the fire.... It appears from the burn patterns, on the wood structure, that was not completely burned, that the fire had burned faster under the floor than above it. The heavy burning was in the south end, ... where the breaker panel and branch circuit short were located.
“The mobile home duplex receptacles and switches had sharp edge slots that the wires were forced into to create a circuit junction connection. If this connection becomes loose it can create a hot spot in the connection and melt the wires as was found. This is what appears to have happened to cause the short ... that appears to have ignited the fire.
“Conclusion:
“The mobile home was almost a complete burn down with some charred stud near the center of the house ... The heaviest burning was at the south end of the house and kitchen area where the inside breaker panel was located and the melted receptacle wiring was found.
“... It appears a short occurred in the wall or floor near the breaker panel which caused the power problem and ignited the mobile home. The fire spread under the floor and overhead to the remaining [areas] of the mobile home.”

Some wiring and the receptacle-branch unit referred to in the report were kept by Posey. Both Dewberry and Posey took photographs of the fire scene during their investigations.

A few days after Posey issued his report, Copenhagen paid for the debris from the fire scene to be removed and discarded. The location of the discarded debris is unknown, leaving the wiring and the receptacle-branch unit kept by Posey as the only physical evidence remaining from the mobile home. Champion did not receive notice of the fire until the lawsuit was filed on August 14, 2000. In support of its motion for a summary judgment, Champí-on submitted an affidavit by Michael Southerland, its fire investigator, that stated, in pertinent part:

“5. I have been unable to inspect the remnants of the mobile home that was owned by Addie Reed and made the subject of this subrogation lawsuit by Copenhagen.... It is my understanding that the insurance company failed to preserve the home after the fire.
“6. I have reviewed the available reports related to the fire and the photographs taken by the insurance company’s adjuster and the insurance company’s cause and origin investigator, Larry Dewberry, within several days of the fire. I have also reviewed the photos taken by the insurance company’s second investigator, Owen Posey, several weeks after the fire, as well as Mr. Posey’s report.... I have also reviewed the deposition testimony of Larry Dewberry and Owen Posey.
“7. In addition to my review of the reports, on July 17, 2001, I traveled to Mobile, Alabama to examine wire fragments that had been retained by Owen Posey. Based upon my examination of the wire fragments, it appears that the damage to the wire is consistent with the type of damage that would have been caused by heat exposure during a fire, as opposed to electrical activity." However, without being able to examine the burn patterns near the original location of the wire in the remnants of the home, it is impossible to determine the cause of the wire damage or to form a conclusion regarding the role that the preserved wire played in the fire.
“8. I also traveled to the scene of the fire. However, the remnants of the home had been removed and a new mobile home had been placed -on the lot. While I was unable to examine the remnants of the home, I did notice many cigarette butts on the ground at the site of the fire.
“9. Due to the limited information available, I have been placed at an extreme disadvantage in determining the true cause or origin of the fire. An important aspect of determining the cause or origin of a fire is an examination of all the evidence and artifacts at the fire scene. Although I have examined photographs taken in this case, they do not present a complete picture of the fire scene in sufficient detail for me to determine the point of origin of the fire, or the cause of the fire....
“10. The photographs and the wire preserved by Owen Posey failed to provide sufficient evidence for me or anyone else to conclude, to a reasonable degree of scientific certainty, that the fire at the subject home was caused by any particular defect in the home. It would be impossible for me or anyone else to conclude, to a reasonable degree of certainty, that a particular defect (including the defects identified in Owen Posey’s report) caused the fire without the ability to physically examine the debris from the fire.
“11. In conclusion, I have been prevented from determining the exact cause and origin of the fire and performing] the investigation I would have performed had the insurance company retained the debris from the fire to allow me the opportunity to inspect the debris in person and properly investigate the fire.”

Copenhagen contends that not all of its claims were due to be dismissed based on Champion’s spoliation argument. Rather, it suggests that it would be more appropriate for it to be limited to attempting to prove that the fire was caused only by the evidence preserved by Posey. Under similar facts in Vesta Fire Insurance Corp. v. Sears, Roebuck & Co., 705 So.2d 382 (Ala. Civ.App.1996), this court stated:

“The facts of this case are indistinguishable from the facts in Cincinnati Ins. Co. v. Synergy Gas, Inc., 585 So.2d 822 (Ala.1991). In Cincinnati Ins., fire destroyed a home insured by Cincinnati. Within days of the fire, the company sent experts to examine the scene. They concluded that the fire was caused by an LP gas system. An investigator for the Alabama LP Gas Board removed and preserved the regulator from the LP tank, but during the rebuilding of the home the homeowners allowed all of the fire debris, including all of the LP gas system (with the exception of the regulator), to be removed from the premises. The homeowners and Cincinnati later sued Synergy. Synergy’s expert stated that she could not formulate an opinion regarding the cause of the fire because the plaintiffs had not preserved any physical evidence from the fire scene and because the only item available for firsthand testing was the regulator preserved by the LP Gas Board investigator. The trial court dismissed the plaintiffs’ claims because of their failure to preserve evidence. In Cincinnati Ins., there was no allegation of malicious intent in the destruction of evidence, but the trial court found that it was ‘inconceivable that an insurance company who had investigators on the fire scene three days after the fire could fail to realize the importance of such evidence in future litigation.’ 585 So.2d at 824. Likewise, there is no allegation of malicious destruction of evidence in the case before us. In reversing the dismissal in Cincinnati Ins., our supreme court stated:
“ ‘We can find no abuse of discretion on the trial court’s part in dismissing the plaintiffs’ claims that were based on the alleged malfunction of those components of the gas system that were destroyed by the plaintiffs. However, the plaintiffs urge us to allow them to proceed with their claims that are based on the alleged malfunction of the gas regulator, which is still available for further inspection by Synergy’s experts.... This Court has a long-established and compelling policy objective of affording litigants a trial on the merits whenever possible. Although we do not condone the plaintiffs’ willful destruction of the most crucial pieces of the evidentiary puzzle in this case, after careful review we are persuaded that, in keeping with this policy objective, the plaintiffs should be allowed to proceed to trial, but solely on the theory that the gas regulator was defective and that that defect alone caused the fire. By allowing the plaintiffs to proceed to trial solely on this theory, all of the applicable policy objectives will be furthered in this case. The plaintiffs will be afforded the opportunity to have a trial on the merits; the restriction of the plaintiffs’ case to the single theory based on the allegedly defective regulator will serve to punish them for their willful destruction of crucial evidence and, therefore, to preserve the integrity of the discovery process; and Synergy will be assured of an opportunity to present an adequate defense.’
585 So.2d at 827-28 (citations omitted).
“Based on the authority of Cincinnati Ins., we conclude that the trial court erred in entering the summary judgment against Vesta as to all of its claims. Under almost identical circumstances, our supreme court allowed both Cincinnati Insurance and the insured homeowners to pursue the specific claim that the equipment available for testing and inspection caused the fire. We see no reason to treat Vesta differently here. It should be allowed to proceed to trial with the Wilkersons, but solely on the theory that the air conditioner was defective and that that defect alone caused the fire.”

705 So.2d at 383-84.

Based on the authority of both Cincinnati Insurance Co. v. Synergy Gas, Inc., 585 So.2d 822 (Ala.1991), and Vesta Fire Insurance Corp., supra, we conclude that not all of Copenhagen’s claims should have been dismissed on spoliation grounds and that it should have been allowed to proceed to trial solely on the theory that the wiring and the receptacle-branch unit kept by Posey were defective and that they caused the fire, if the other theories advanced by Champion in support of its motion for a summary judgment do not support the trial court’s judgment. Thus, it is necessary to examine whether those additional theories support the trial court’s judgment.

II. Improper Notice

Copenhagen also argues that Champion was not due to be granted a summary judgment on Copenhagen’s breach-of-express-warranty claim based on Copenhagen’s, Farmer’s, or Reed’s failure to provide proper notice pursuant to the warranty. The warranty at issue, signed on receipt by Reed, states, in pertinent part:

“Subject to the conditions set forth below, Champion Home Builders Co. (the ‘Manufacturer’) warrants to the owner that each new manufactured home manufactured by it (a) meets all standards prescribed by applicable laws and regulations concerning construction and safety in effect at the time of manufacture, (b) was manufactured and delivered to the Dealer free from substantial defects in material or workmanship, and (c) is reasonably fit for human habitation. ...
“The terms of this warranty commence on the day of delivery of the manufactured home to the Original Buyer (the ‘Effective Date’). For a period of one year following the Effective Date, the Manufacturer or its Dealer will repair or replace any part or parts whose condition does not conform with the above warranties, PROVIDED THAT the Owner gives written notice of any such defect to the Manufacturer or its Dealer at their business address within one (1) year and ten (10) days after the Effective Date.”

(Capitalization original; emphasis added.) It is undisputed that the only notice of alleged electrical problems with the mobile home were made by Farmer to Lee by telephone.

In Southern Energy Homes, Inc. v. Washington, 114, So.2d 505 (Ala.2000), our supreme court addressed a similar claim involving a plaintiffs alleged failure to give proper notice pursuant to a mobile-home warranty. The warranty at issue in that case provided, in pertinent part:

“ ‘If the owner believes that the home contains a defect covered by this warranty, ... the owner should notify the service manager at the manufacturer’s plant at the address shown below, giving the service manager complete information about the problem.... In the event the owner has an emergency problem which might affect the safety of the home or the ability of the owner to reside therein, the owner should immediately notify [Southern] by telephone at (XXX)XXX-XXXX....’”

774 So.2d at 509. In addressing whether sufficient notice had been provided, our supreme court noted:

“ ‘Express warranties [are] treated like any other type of contract and interpreted according to general contract principles.’ See Ex parte Miller, 693 So.2d 1372, 1376 (Ala.l997)(citing 2 Alphonse M. Squillante & John R. Fonseca, Willi- ston on Sales, § 15-9 (4th ed.1974)). If a company wishes to require a specific mode of notice as a prerequisite to warranty coverage, it may do so. See generally Miller, 693 So.2d at 1376 (stating that a company can limit its warranty coverage); see also Rhode v. E & T Invs., Inc., 29 F.Supp.2d 1298, 1303 (M.D.Ala.1998)(construing a warranty under which a manufacturer agreed to replace defective parts ‘PROVIDED THAT the Owner gives written notice of any such defect to the Manufacturer or its Dealer at their business address withing one (1) year and ten (10) days’).”

774 So.2d at 511.

The warranty at issue in this case requires only one specific mode of notice-written notice. The terms of the warranty are the same as those stated in Rhode v. E & T Investments, Inc., 29 F.Supp.2d 1298, 1303 (M.D.Ala.1998), cited in Southern Energy, supra. . Since neither Champion nor Lee received written notice pursuant to the terms of the warranty, the trial court correctly granted a summary judgment to Champion on Copenhagen’s breach-of-express-warranty claim. Further, because Copenhagen’s arguments concerning the trial court’s entry of a summary judgment in favor of Champion on its Magnuson-Moss warranty claim relate primarily to its argument that its express-warranty claim was not barred for improper notice, we also conclude that the trial court properly entered a summary judgment in favor of Champion on that claim. Moreover, since the express warranty was the only contract alleged to have - existed between Champion and Reed, we conclude that the trial court’s entry of a summary judgment as to Copenhagen’s breach-of-contract claim was also proper.

III. Lack of Privity

The negligence and wantonness and breach-of-implied-warranty claims asserted by Copenhagen against Champion are subject to Champion’s contention that, because there was no privity of contract between it .and Copenhagen’s insureds— Reed and Farmer—those claims cannot be asserted. Under the facts of this case, Champion was the “manufacturer” of the mobile home, Lee and Showplace were the “sellers” of the mobile home, and Reed and Farmer were the “buyers” of the mobile home. In Tucker v. General Motors Corp., 769 So.2d 895, 901 (Ala.Civ.App.1998)(reversed in part on other grounds, Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999)), this court determined .that implied warranties apply only to “sellers” and not to manufacturers. In Tucker, this court quoted Rhodes v. General Motors Corp., 621 So.2d 945, 947 (Ala.1993)(quoting in turn Wellcraft Marine v. Zarzour, 577 So.2d 414, 419 (Ala. 1990)), for the proposition that “ ‘ “[tjhere is no right of action on an implied warranty theory against a manufacturer for property damage [or for direct economic loss] without privity of contract.” ’ ” 769 So.2d at 902. Accordingly, the trial court properly entered a summary judgment on Copenhagen’s breach-of-implied-warranty claims.

Copenhagen’s negligence and wantonness claims are similarly subject to this lack-of-privity argument. In Keck v. Dryvit Systems, Inc., 830 So.2d 1 (Ala.2002), our supreme court determined that the plaintiffs’ negligence claim failed because the manufacturer had not entered into a contract with them to specially build their mobile home, distinguishing that case from Ex parte Grand Manor, Inc., 778 So.2d 173 (Ala.2000), and that the manufacturer could not be held liable for negligence when the mobile-home purchasers were unknown to it. The record in this case demonstrates that Reed and Farmer purchased a finished mobile home from Lee and Showplace and that the mobile home had not been specially built by Champion specifically for Reed and Farmer’s use. Therefore, the trial court properly entered a summary judgment in favor of Champion on Copenhagen’s negligence and wantonness claims.

IV. Economic-Loss Doctrine

In its brief on appeal, Copenhagen does not challenge the applicability of the economic-loss doctrine to limit its damages to the amount of money paid to its insureds that was in excess of the value of the mobile home. Copenhagen paid $89,472 to its insureds; $72,782 of that amount represented the value of the mobile home. We further accept Copenhagen’s and Champion’s assertions in their respective briefs that the doctrine does not limit Copenhagen’s ability to seek to recover the remaining amounts paid for the contents of the mobile home, Reed and Farmer’s living expenses, and the removal of debris, which totaled $16,690.

V. Conclusion

In summary, we affirm the trial court’s entry of a summary judgment in favor of Champion on all claims except the claim made under the AEMLD. In pursuing its AEMLD claim, Copenhagen will be limited to proceeding solely on the theory that the wiring and the receptacle-branch unit preserved by Posey were defective and that they were the cause of the fire that destroyed the mobile home; Copenhagen’s total allowable recovery will be limited to $16,690 pursuant to the economic-loss doctrine, which Copenhagen has admitted applies in this case.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


source: Caselaw Access Project

author: THOMPSON, Judge.

license: Public Domain

text:
    TOWN OF ORRVILLE v. S & H MOBILE HOMES, INC., and Lula Powell.
    2020406.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.

      John E. Pilcher and E. Elliott Barker of Pilcher & Pilcher,. P.C., Selma, for appellant.
    Collins Pettaway, Jr., of Chestnut, Sanders, Sanders, Pettaway & Campbell, L.L.C., Selma; for appellees.
   THOMPSON, Judge.

The Town of Orrville (“the Town”) filed a complaint on May 10, 1999, against S & H Mobile Homes, Inc., and Lula Powell (hereinafter collectively referred to as “the defendants”) seeking to enforce the Town’s zoning ordinance prohibiting the placement of mobile homes on property within the municipal limits of the Town that is not specifically zoned for mobile-home use. On or about June 1, 1999, Powell requested a variance from the Town’s zoning ordinance after the Town filed its complaint to enjoin the defendants from placing a mobile home on property within the Town’s municipal limits that was not zoned for mobile home use; on June 19, 1999, the Town’s Board of Adjustments (“the Board”) voted unanimously to deny the variance. On July 7, 1999, the defendants answered the Town’s complaint and counterclaimed, alleging, among other things, that the Town engaged in an intentional discriminatory' practice by selectively enforcing the zoning ordinance. The defendants subsequently amended the counterclaim to appeal the decision of the Board pursuant to § 11-52-81, Ala.Code 1975.

On October 6, 1999, the parties filed a joint stipulation in which they agreed, in pertinent part, that all claims asserted by the defendants against the Town were dismissed except the defendants’ ■ statutory appeal of the denial of the variance. The parties further stipulated that the issues before the trial court were whether Powell violated the Town’s zoning ordinance and whether the Board’s denial of Powell’s application for a variance was proper. The joint stipulation also listed as the defenses of the defendants the selective enforcement and the unconstitutional application of the Town’s zoning ordinance.

The trial court held a hearing on September 25, 2001, and received ore tenus evidence. On December 2, 2002, the trial court entered a final judgment in favor of the defendants, in which the trial court denied the Town’s request to enjoin the defendants from placing a mobile home on Powell’s property. In its judgment, the trial court determined that the Town had selectively enforced its zoning ordinance, and, therefore, had unconstitutionally applied the zoning ordinance. The Town filed a postjudgment motion that was subsequently denied ljy the trial court. The Town appealed to the supreme court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala.'Code 1975.

Generally, where the trial court receives ore tenus evidence, the trial court’s judgment based on that evidence is entitled to a presumption of correctness and will not be reversed on appeal absent a showing that it is plainly and palpably wrong. Alverson v. Trans-Cycle Indus., Inc., 726 So.2d 670 (Ala.Civ.App.1998). However, that presumption of correctness applies to the trial court’s findings of fact, not to its conclusions of law. City of Russellville Zoning Bd. of Adjustment v. Vernon, 842 So.2d 627 (Ala.2002). Further, the presumption favoring the judgment of the trial court has no application when the trial court is shown to have improperly applied the. law to the facts. Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415 (Ala.1994).

On appeal, the Town contends that the trial court erred by misapplying the law to the facts in the instant case. More specifically, the Town avers that the trial court exceeded its authority by granting a variance to the defendants even though the defendants failed to show that the enforcement of the variance would result in an unnecessary hardship.

Alabama law is clear and our courts have repeatedly recognized that variances should be granted sparingly and only under unusual and exceptional circumstances where the literal enforcement of the ordinance would result in unnecessary hardship. Ex parte Chapman, 485 So.2d 1161 (Ala.1986); see also Board of Zoning Adjustment of Fultondale v. Summers, 814 So.2d 851 (Ala.2001); Ex parte Board of Zoning Adjustment of Mobile, 636 So.2d 415 (Ala.1994); Board of Zoning Adjustment of Mobile v. Dauphin Upham Joint Venture, 688 So.2d 823 (Ala.Civ.App. 1996); Board of Adjustment of Gadsden v. VFW Post 8600, 511 So.2d 216 (Ala.Civ. App.1987). “An ‘unnecessary hardship’ sufficient to support a variance exists where a zoning ordinance, when applied to the property in the setting of its environment, is ‘so unreasonable as to constitute an arbitrary and capricious interference with the basic right to private property.’ ” Ex parte Chapman, 485 So.2d at 1162 (quoting McQuillin, Municipal Corpora tions § 25.167 (3d. ed.1983)). The determination of what constitutes an “unnecessary hardship” must be determined from the facts of the particular case. City of Mobile v. Sorrell, 271 Ala. 468, 124 So.2d 463 (1960).

The record reveals that, in 1974, the Town adopted a zoning ordinance; that ordinance limited the placement of mobile homes within the municipal limits to mobile-home parks, stating:

“Trailers, buses, mobile homes, or any other structure so built to be, or give the reasonable appearance to be, mobile in the character of its construction will not be permitted in any district for any use other than for the purposes of transportation and transportation enterprises except that mobile homes may be located within mobile home parks and subdivisions where same are permitted under this ordinance.”

The zoning ordinance defined a mobile home as

“[a]ny structure intended for, or capable of, human habitation, mounted upon wheels and capable of being driven, propelled, or towed from place to place without change in structure or design, by whatsoever name or title it is colloquially or commercially known. Removal of wheels and placing the structure on the ground, piers, or other foundation shall not remove such a vehicle from this definition; provided that this definition shall not include transport trucks or vans for sleeping of a driver or drivers. To be termed a mobile home, such structure shall not have less than 250 square feet of floor area.”

In early 1999, Powell purchased property within the Town’s municipal limits; the property was located behind a house owned by Powell’s brother. The property was zoned as a combination of two districts — R-l for residential district, and A-0 for agricultural-open district. The zoning ordinance permits the following uses in an R-l residential district:

“Single family dwellings; accessory structures (carports and utility rooms and structures used for residential storage); gardens; playgrounds; parks; public buildings, including public schools and libraries.”

The following uses are permitted by the zoning ordinance for an agricultural-open district:

“Single family dwellings, accessory structures, playgrounds, parks, tree farms, crop farming, grazing of livestock, temporary or seasonal roadside product stands, commercial greenhouses, and nurseries and farms, provided that the Building Inspector determines that such use of land would not have an adverse effect upon land use and property values in any zoning district within the Town.”

At or about the time Powell purchased the property, Powell informed Gene McHugh, the Town’s mayor and building inspector, of her intent to purchase a mobile home and to place it on the property. McHugh told Powell that the property she had purchased was not zoned for mobile-home use; Powell testified that she understood the limitation on the property provided for in the zoning ordinance.

Shortly thereafter, Powell purchased a double-wide mobile home, and, in April 1999, she attempted to move the mobile home onto her property. McHugh testified that he went to the property and informed the defendants that they could not place the mobile home on the property; at that time, the defendants did not set up the mobile home. Approximately one week later, the defendants placed the mobile home on the property. The Town sued the defendants seeking to enforce the zoning ordinance. Powell subseqúently applied to the Board for a variance.

In support of her application for a variance, Powell stated that her mother was dying and that she needed a larger house in which she could care for her mother; according to Powell, her brother’s house was inadequate. At the time of the hearing before the Board, Powell’s mother had died and Powell asserted that her brother and children now needed a home. According to Powell and her brother, the neighbors did not object to her placing the mobile home on the property and the mobile home would not be visible from the street.

Following a hearing, the Board unanimously voted to deny Powell’s request for a variance. Frank Williamson, the chairman of the Board, testified that Powell had failed to present evidence that demonstrated an unnecessary hardship if the zoning ordinance was applied to the property. According to McHugh, 14 people had applied for a similar variance from the zoning ordinance, and all 14 requests had been denied. Since the enactment of the zoning ordinance, the Town has granted a variance only to June Moore, a member of the Town Planning Commission. According to McHugh, Moore had a modular home and not a mobile home.

McHugh testified that, contrary to the defendants’ assertion, the zoning ordinance had not been selectively enforced. Louve-nia Lumpkin placed a mobile home on the Town boundary line. According to McHugh, Lumpkin was allowed to live in the mobile home until she built her house; Lumpkin lived in the mobile home for approximately 8 years. Steve Erly had a mobile home on his property that, according to Inez Anderson, Erly’s sister, was placed on the property in approximately 1976. McHugh testified that Erly’s mobile home was on the property prior to the enactment of the zoning ordinance, and, therefore, -it was precluded from the application of the zoning ordinance.

Relying on evidence presented at trial that indicated that others were allowed to place mobile homes on property within the Town’s municipal limits that was not zoned for mobile-home use, the trial court entered a judgment in favor of the defendants in which it determined that the Town had engaged in unlawful selectivity by granting only June Moore a variance and by excluding mobile homes merely because they were incompatible with housing in the affected area. Alabama courts have recognized that “ ‘a municipality may establish a comprehensive land-use plan and effectuate that plan through a scheme of comprehensive zoning regulations.’ ” Ex parte City of Orange Beach Bd. of Adjustment, 833 So.2d 51, 53 (Ala. 2001), citing Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala. 2000). Therefore, when reviewing a zoning ordinance, this court is limited to determining whether the ordinance in question is arbitrary or capricious. Id.

In the instant ease, the trial court based its judgment on what it perceived to be the selective application of the Town’s zoning ordinance. Generally, a trial court’s review of a decision of a board of adjustment is limited to only those issues that could be properly presented to the board. See Bedgood v. United Methodist Children’s Home, 598 So.2d 988 (Ala.Civ.App.1992)(circuit court’s review limited to issues presented to the board of adjustment). However, it does not appear from the record before us that Powell presented the issue of selective application to the Board or that the Board addressed the issue at the variance hearing. Moreover, the parties stipulated before trial that the issues before the trial court for review were limited to whether a violation of a zoning ordinance had occurred and whether the denial of the requested variance was proper.

Therefore, the dispositive issue on appeal is whether the enforcement of the zoning ordinance and the subsequent denial of a variance resulted in an unnecessary hardship to the defendants. “ ‘[T]he unnecessary hardship which will suffice for the granting of a variance must relate to the land rather than to the owner [herself]. Mere personal hardship does not constitute sufficient ground for the granting of a variance.’ ” Ex parte Chapman, 485 So.2d at 1164 (quoting 82 Am.Jur.2d Zoning and Planning § 275 (1976)). Further, a “ ‘self-inflicted or self-created hardship may not be the basis for a variance or for a claim thereof.’ ” Ex parte Chapman, 485 So.2d at 1163 (quoting Thompson, Weinman & Co. v. Board of Adjustments, 275 Ala. 278, 281, 154 So.2d 36, 39 (1963)).

It is undisputed that Powell knew of the zoning restriction before she purchased the mobile home. Nevertheless, Powell purchased the mobile home without first seeking and securing a variance. In her brief on appeal, Powell asserts that it would have been futile to apply for a variance in light of McHugh’s statement that the zoning ordinance prohibited the placement of the mobile home on the property. Regardless of the alleged futility in applying for a variance, Powell was aware of the zoning restriction but proceeded to place a mobile home on the property. Clearly, Powell created the hardship that she alleged existed, and, therefore, she may not be permitted to take advantage of it. See Ex parte Chapman, supra; see also City of Russellville Zoning Board of Adjustment v. Vernon, 842 So.2d 627 (Ala.2002)(holding trial court erred by granting variance from zoning restriction where appellee created hardship).

Moreover, the alleged hardship upon which Powell based her variance request did not relate to the property but, instead, related to her personal need for a larger house in order to care for her family. See Ex parte Chapman, supra (hardship must relate to land and not to person). We find this to be an insufficient basis on which to grant a variance. We must conclude that, given the defendants’ failure to demonstrate how the enforcement of the zoning ordinance would result in an unnecessary hardship, the trial court erred in granting the variance. The judgment of the trial court is, therefore, reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

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

      . This is the second time the trial court tried the instant case. The case was initially tried, and a judgment was rendered, on February 25, 2000. The Town appealed that judgment to the supreme court. Following a failed attempt to procure the first trial transcript,' te parties filed a joint motion with the supreme court seeking to vacate the February 25, 2000, judgment and to remand the case for a new trial; on February 9, 2001, that motion was granted.


text:
    J.A.P. v. M.M.
    2020431.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.

      J. Earl Smith, Dothan, for appellant.
    J. Christopher Capps, Dothan, for appel-lee.
    Derek E. Yarbrough of Motley, Motley & Yarbrough, LLC, Dothan, for amicus curiae L.W.A., the natural father.
   THOMPSON, Judge.

On December 7, 2001, J.A.P., f/k/a J.M.A. (“the mother”), filed a complaint in the Houston County Circuit Court (hereinafter “the trial court”) seeking a divorce from L.W.A. One child, J.B.K.A. (“the son”), was born of that marriage. The mother also had a child, C.M.W. (“the daughter”), from a previous marriage. At the time of the trial court’s hearing in this matter, the daughter was 15 years old and the son was 9 years old.

The testimony presented during the course of this matter indicates that at approximately the same time the mother filed her complaint for a divorce, L.W.A. and the mother’s mother, M.M. (hereinafter “the maternal grandmother”), filed an action in the Houston County Juvenile Court (hereinafter “the juvenile court”) seeking to have the daughter declared dependent. Although the transcript of that proceeding is not currently before this court, the juvenile court apparently de-dared the daughter dependent and awarded custody of the daughter to the maternal grandmother. On December 12, 2001, the trial court awarded pendente lite custody of the son to the maternal grandmother.

On April 12, 2002, the children’s guardian ad litem, who was apparently appointed by the juvenile court, filed a motion seeking to transfer that part of the divorce action pertaining to the custody of the son to the juvenile court. The mother and L.W.A. did not oppose that motion, and the trial court granted the motion.

The juvenile court conducted a hearing, and on August 27, 2002, it entered separate judgments finding both children to be dependent and awarding custody of the children to the maternal grandmother. The mother timely appealed the judgment pertaining to the son to the trial court. The trial court conducted an ore tenus hearing. The mother’s testimony at that hearing indicates that in November 2002 the trial court had entered an order pertaining to all the issues related to the mother and L.W.A.’s divorce except custody. On February 4, 2003, the trial court entered two separate judgments finding the two children dependent and awarding custody of the children to the maternal grandmother.

The mother appealed to this court, again only as to the judgment pertaining to the son, raising several issues. We note that one of the issues the mother raises before this court pertains to visitation orders the trial court entered after the mother had filed her notice of appeal from the February 4, 2003, judgment. The mother has not appealed from those orders, and this court does not consider the arguments in her brief that pertain to those orders. We also note that L.W.A. has not appealed from the trial court’s custody judgment, and, therefore, he is not a party to this appeal. However, L.W.A. has filed an amicus curiae brief in this court in which he advocates the affirmance of the trial court’s judgment awarding custody of the son to the maternal grandmother.

A detailed recitation of the facts of this case and the accusations the various family members have made against each other would serve no useful purpose. Suffice it to say that the family members involved in this matter have very tumultuous relationships. ■ The mother and maternal grandmother have feuded for years, and, according to the mother, the maternal grandmother became a part of the children’s lives only months before the mother filed her December 2001 divorce complaint. It appears from the record that immediately after the mother filed her divorce complaint, L.W.A. and the maternal grandmother hid the children from the mother until the maternal grandmother and L.W.A. had initiated the juvenile court proceedings.

Also during the months leading up to the mother’s filing her complaint for divorce from L.W.A., the relationship between the mother and the daughter deteriorated. For various reasons, the daughter sided with L.W.A. when the mother sought a divorce from him. The daughter testified that the mother left the home she shared with L.W.A. and the children approximately six months before she filed her complaint for a divorce from L.W.A. The mother denied that accusation; also, L.W.A. reported to one of the medical experts that he and the mother had been separated since approximately the time the divorce action was filed. The daughter testified at the hearing before the trial court that she wanted to live with the grandmother, and the mother stated that she did not believe her relationship with the daughter could be repaired.

The mother stated that she believed that the maternal grandmother and L.W.A. had conspired against her and that they had influenced the children against her. There was evidence presented at the hearing before the trial court that the maternal grandmother and the daughter had attempted to persuade a law-enforcement officer to arrest the mother for possession of illegal drugs. The law-enforcement officer testified that because of the insistence of the maternal grandmother and the daughter that drugs would be present in the mother’s vehicle, he suspected that they were trying to “set up” the mother, and he refused to take part in the alleged scheme.

L.W.A. apparently filed a petition in the juvenile court seeking custody of the son, but he did not present any evidence at the trial court’s hearing in this matter. At the time of the trial court’s hearing, L.W.A. was living in a “travel trailer,” and he admitted that he did not have adequate housing in which to raise a child.

The maternal grandmother has allowed the mother to visit the children only under the terms of the court orders allowing the mother visitation. The maternal grandmother objected when the mother visited the son at his school. However, the maternal grandmother has allowed L.W.A. and the daughter’s biological father to visit the children frequently.

The mother’s conduct with regard to the daughter has been less than exemplary. She has consistently accused the child of lying throughout the litigation of this matter. Much of the mother’s testimony at the hearing was aimed at demonstrating that the daughter had been untruthful with regard to some of her testimony before the juvenile court. The trial court cut the mother’s presentation of evidence short because, after repeated warnings from the trial court, the mother’s attorney, in the words of the trial court, continued to “badger” the daughter during her testimony.

Very little of the evidence at the hearing before the trial court actually pertained to the son or to the abilities of the mother, the maternal grandmother, or L.W.A. to care for the son. The mother testified that since the son began living with the maternal grandmother, his attitude toward the mother had changed and that he often cursed. She stated that the son often did not want to return to the maternal grandmother’s home after his visitation with the mother.

The parties presented two expert witnesses who performed psychological evaluations on the mother, L.W.A., the maternal grandmother, and each of the children. None of those evaluations revealed any psychological problems that would prevent any of the adults from properly parenting the children, and those evaluations did not reveal any significant problems with either of the children.

The testimony at the hearing before the trial court established that the children have a close relationship with each other. The daughter has apparently always been very involved in caring for the son, and she testified that she did not want to be separated from the son. One of the medical experts testified that it would be best not to separate the daughter and the son. The son was not offered as a witness before the trial court.

In its judgment, the trial court found, in pertinent part, as follows:

“The mother and [the daughter] are so estranged from each other that it would not be in the best interest of either of the children to be placed with [the] mother. Both children are very close and should not be separated. The Court finds that the two minor children are dependent under Juvenile Court considerations. The children are happy and well adjusted with [the maternal grandmother]. Forcing them to return to [the] mother would not be of any benefit of any party, particularly in light of the history of litigation in this case. Therefore, custody is transferred to the maternal grandmother, subject to prior visitation arrangements and restrictions ordered previously in the Juvenile Court.”

The trial court did not make any finding that the mother was unfit to have custody of the children.

The mother contends on appeal that the trial court erred in finding the son dependent and in awarding custody of the son to the maternal grandmother by utilizing the “best interests” standard applicable in the dispositional phase of a dependency proceeding. See S.T.S. v. C.T., 746 So.2d 1017 (Ala.Civ.App.1999) (the “best interests” standard is applied in determining the disposition or placement of a child after a court’s finding that the child is dependent). The mother argues that, as between herself and the maternal grandmother, this matter is a custody dispute to which the standard set forth in Ex parte Tetry, 494 So.2d 628 (Ala.1986), applies. Under the holding of Ex parte Terry, because there is a presumption that a child’s best interests are served by being in the custody of his or her parent, in order to award custody to a nonparent such as the maternal grandmother, a court must determine that the parent is unfit to have custody.

The Alabama Legislature has defined a “dependent child” as a child:

“a. Who, for any reason is destitute, homeless, or dependent on the public for support; or
“b. Who is without a parent or guardian able to provide for the child’s support, training, or education; or “c. Whose custody is the subject of controversy; or
“d. Whose home, by reason of neglect, cruelty, or depravity on the part of the parent, parents, guardian, or other person in whose care the child may be, is an unfit and improper place for the child; or
“e. Whose parent, parents, guardian, or other custodian neglects or refuses, when able to do so or when such service is offered without charge, to provide or allow medical, surgical, or other care necessary for the child’s health or well-being; or
“f. Who is in such condition or surroundings or is under [such] improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of the child; or
“g. Who has no proper parental care or guardianship; or “h. Whose parent, parents, guardian, or custodian fails, refuses, or neglects to send the child to school in accordance with the terms of the compulsory school attendance laws of this state; or “i. Who has been abandoned by the child’s parents, guardian, or other custodian; or
“j. Who is physically, mentally, or emotionally abused by the child’s parents, guardian, or other custodian or who is without proper parental care and control necessary for the child’s well-being because of the faults or habits of the child’s parents, guardian, or other custodian or their neglect or refusal, when able to do so, to provide them; or
“k. Whose parents, guardian, or other custodian are unable to discharge their responsibilities to and for the child; or
“1. Who has been placed for care or adoption in violation of the law; or “m. Who for any other cause is in need of the care and protection of the state; and
“n. In any of the foregoing, is in need of care or supervision.”

§ 12-15-1(10), Ala.Code 1975.

In S.T.S. v. C.T., supra, the trial court awarded custody of a child to the child’s maternal grandmother after concluding that the child was dependent. The father appealed, contending that the trial court erred in applying the dependency statute to the case, because, the father maintained, the case was more in the nature of a custody dispute than a dependency proceeding. In that case, the parties did not allege or present evidence that, with regard to the issue of custody, the child was dependent; the child had been deemed dependent several years earlier with regard to a truancy charge that was not related to the proceeding in which custody of the child was at issue. This court reversed the trial court’s judgment after concluding that the dispute at issue was a custody dispute and that the case did not involve the dependency of the child. S.T.S. v. C.T., supra.

The facts of this case are similar to those of S.T.S. v. C.T. In this case, the custody of the son was originally at issue in the divorce action between the mother and L.W.A. The mother and L.W.A. agreed to transfer the determination of custody of the son to the juvenile court in which the custody determination pertaining to the daughter was pending. However, that transfer did not necessarily equate to an acknowledgement by the mother that the issue whether the son was dependent was before the juvenile court. The record contains no indication, and the maternal grandmother and L.W.A. do not assert in their briefs submitted to this court, that a petition alleging the dependency of the son has ever been filed in either the juvenile court or the trial court. More importantly, our review of the record does not indicate that the parties attempted to argue or to present evidence on the issue of the alleged dependency of the son.

The maternal grandmother argues in her brief to this court that the trial court could have found, from the evidence presented at the trial court’s hearing, that the son was dependent under subsections (b), (c), (f), (g), or (n) of § 12-15-1(10), Ala. Code 1975. The evidence the parties presented before the trial court, however, does not support a conclusion that subsections (b), (f), or (g) of § 12-15-1(10) have been met in this case or that the catchall provision of § 12-15-l(10)(n) should apply. Further, a child such as the son in this case is not dependent under § 12-15-l(10)(c) solely because of a custody dispute that is part of a divorce action; otherwise, all children whose parents are in the midst of a divorce or proceedings incidental to a divorce would be dependent.

Determinations of child custody are matters within the discretion of the trial court, and such determinations should not be set aside absent an abuse of discretion. S.T.S. v. C.T., supra. However, we must conclude that the facts and procedural history of this case indicate that, with regard to the son, this case was in the nature of a custody dispute rather than a dependency action. See S.T.S. v. C.T., supra; C.P. v. M.K., 667 So.2d 1357 (Ala.Civ.App.1994).

This case obviously presented a difficult decision for the trial court, especially given the evidence that the children share a close relationship and that it would not be in their best interests to be separated. The trial court is to be applauded for its efforts in seeking to protect the best interests of the children in this case, especially in light of the family members’ seeming lack of regard for those interests. However, both the trial court and this court are bound by precedent, and that precedent indicates that this case “is more a custody case than a determination-of-dependency case, and [because] the court relied on the dependency statute to find a child to be dependent and to award custody to a non-parent, that ruling will not stand.” S.T.S. v. C.T., 746 So.2d at 1021 (citing, C.P. v. M.K., supra); see also N.G. v. L.A., 790 So.2d 262 (Ala.Civ.App.2000).

We must hold that, in ruling in this matter, the trial court erred in its dependency finding and in its application of the standard of review applicable to the dispo-sitional phase of a dependency action. Therefore, we remand this case to the trial court to conduct further proceedings consistent with this opinion and to apply an appropriate custody standard to the facts of this case. See S.T.S. v. C.T., supra.

The mother also contends in her brief on appeal that the trial court improperly reviewed this matter because, she contends, it can be “inferred” that the trial court merely intended to ratify the judgment of .the juvenile court. This court will not, based on the mere speculative assertions contained in the mother’s brief on appeal, make the “inference” the mother advocates.

As part of that issue, the mother also complains that the trial court allowed the parties a five-hour hearing in which to present evidence. At the ore tenus hearing, the mother called five of the seven witnesses who testified; the trial court asked to hear the testimony of the daughter, one of the two witnesses not called by the mother. The mother contends that, in addition to those witnesses, she should have been allowed .to present the testimony of five additional witnesses. The trial court disallowed the testimony of those five additional witnesses.

A trial court’s determination to disallow testimony is within the trial court’s discretion. Bama’s Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29 (Ala.1998). Further, the trial court may limit the number of witnesses when the testimony of those witnesses is shown to be cumulative. Alabama Power Co. v. Wallace, 548 So.2d 1372 (Ala.1989) (citing Sweatman v. Federal Deposit Ins. Corp., 418 So.2d 893 (Ala.1982)). In Case v. Case, 627 So.2d 980 (Ala.Civ.App.1993), this court affirmed a trial court’s decision to limit the testimony and the number of witnesses a party could offer at trial. In that case, this court concluded that the trial court had not abused , its discretion because the testimony presented at the trial “was becoming repetitive and cumulative.” Case v. Case, 627 So.2d at 984.

The trial court allowed the mother to make an offer of proof regarding the testimony of the witnesses it did not allow to testify. That offer of proof demonstrates that the mother sought to readdress, through the introduction of those witnesses’ testimony, additional evidence pertaining to issues to which she had already testified. Thus, that offered testimony was cumulative of evidence already before the trial court. Our review of the record demonstrates that the trial court did not abuse its discretion in its decision not to allow that testimony. Therefore, although we reverse the trial court’s judgment, we affirm its evidentiary ruling.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . Although the parties do not raise this issue, the maternal grandmother had not sought to intervene in the divorce action between the mother and L.W.A. that was pending in the trial court.

      . The record does not affirmatively demonstrate whether the record from the juvenile court proceedings was not adequate for a direct appeal to this court, and, therefore, that the appeal to the circuit court was appropriate, see Rule 28(A) and (B), Ala. R. Juv. P., but we assume that it was not.


text:
    Ex parte K.N.L. (In re B.D.P., a minor child).
    2020581.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.
    David P. Shepherd, Fairhope, for petitioner.

      Karol J. Kemp, Fairhope, for respondent W.D.P.
   CRAWLEY, Judge.

K.N.L., the mother of B.D.P., petitions this court for a writ of mandamus directing the Baldwin Juvenile Court to grant her motion to stay a pendente lite child-custody proceeding. We deny the petition.

The mother is a member of a United States Army Reserve unit that was called to active duty on February 10, 2003, for deployment overseas as a part of “Operation Enduring Freedom.” The mother sought a stay of the pendente lite child-custody proceeding pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 App. U.S.C. § 501 et seq. (“the Act”).

K.N.L. (“the mother”) and W.D.P. (“the father”) are the parents of B.D.P. (“the child”), a 10-year-old girl. : The parents have never been married. They lived together for the first six years of the child’s life and then broke up in 1999, with the father taking up residence in Alabama and the mother taking up residence in Pennsylvania. For the next two years, the child, by agreement of the parties, lived with the father in Alabama during the school year and with the mother in Pennsylvania during the summer. In May 2000, the mother executed a power of attorney in favor of the father, allowing him to assume and maintain guardianship of the child during a time when the mother’s reserve unit had been activated.

On May 2, 2002, the father filed in the Baldwin Juvenile Court a petition seeking sole physical custody of the child and requesting child support from the mother. The mother alleges that she was not served with the father’s petition until nearly two months after the petition was filed. On May 20, 2002, as the parties had previously agreed, the child left for summer visitation with the mother in Pennsylvania. On July 28, 2002, the mother filed a motion for a 30-day extension of time to answer the father’s petition. Three days later, the mother filed an appearance for the limited purpose of filing a motion to dismiss the father’s petition based upon her belief that the Alabama court had no personal jurisdiction over her. The mother did not return the child to the father at the end of the summer visitation.

On November 7, 2002, following a hearing, the juvenile court denied the mother’s motion to dismiss. On November 14, 2002, the mother filed a “Contest of Paternity,” alleging that W.D.P. was not the child’s biological father and requesting that the court order paternity testing. On December 13, 2002, the father, alleging that the mother had failed to return the child at the beginning of the school year and had denied him any physical contact with the child, filed a petition for pendente lite custody of the child, or, in the alternative, for visitation with the child pending a final hearing on his custody and support petition.

On January 17, 2003, the juvenile court determined, based on an affidavit of paternity signed by the parties, that the issue of paternity was precluded by the doctrine of res judicata; therefore, the court denied the mother’s request for paternity testing. The juvenile court set the father’s custody and child-support petition for a hearing on April 14, 2003.

On February 26, 2003, the father filed an emergency motion for pendente lite custody, of the child, alleging that the mother had filed a number of baseless motions in an attempt to delay the custody proceedings; that the mother had failed to return the child at the beginning of the school year according to the parties’ agreement; that he had reason to believe that the mother’s military unit had recently been activated; that the mother had given legal guardianship of the child to the maternal grandmother in Florida; and that the mother had set up a child-support allotment payable to the maternal grandmother. The juvenile court set the father’s emergency motion for pendente lite custody for a hearing on March 19, 2003. On the morning set for the hearing, the mother moved to stay the proceedings, alleging that, because of her military orders, it was impossible for her to attend any custody hearing — final or pendente lite — and seeking a postponement under the Act until she returned from her overseas assignment. The mother attached to her motion a letter from her commanding officer and a copy of her activation orders, dated February 10, 2003, from the Department of the Army. The father filed an affidavit on April 21, 2003, stating that he had been informed by the child that, one week before the scheduled March 19, 2003, hearing, the mother’s new husband had traveled to the home of the maternal grandmother in Florida to retrieve the child and to take her back to Pennsylvania to live with him while the mother was on active duty.

In Ex parte Integon Corp., 672 So.2d 497 (Ala.1995), our supreme court reiterated what a petitioner must establish in order to be entitled to the issuance of a writ of mandamus.

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

672 So.2d at 499. The applicable portion of the Act provides:

“At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act [Sections 501 to 591 of this Appendix], unless, in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.”

50 App.U.S.C. § 521. In Richardson v. First National Bank of Columbus, 46 Ala. App. 366, 242 So.2d 676 (Civ.1970), this court explained the purpose of the Act:

“ ‘The Soldiers’ and Sailors’ Civil Relief Act of 1940 (in like manner with all similar previous acts in our history) was prompted by at least two considerations, first, the maintenance in the armed forces of a reasonable measure of that unbothered serenity and security in respect of personal responsibilities which effectively promotes military efficiency and the national defense; and secondly, the assurance that in the field of individual justice no advantage in judicial proceedings by or against a soldier or sailor will result from his absorption in his country’s defense.’ ”

46 Ala.App. at 370, 242 So.2d at 679 (quoting Bowsman v. Peterson, 45 F.Supp. 741, 743 (D.Neb.1942)). “[T]he Act does not apply merely because [a] person is in military service and is not to be invoked for a needless purpose, but is to be administered as an instrument to accomplish substantial justice.” Brown Serv. Ins. Co. v. King, 247 Ala. 311, 314, 24 So.2d 219, 222 (1945). The Act “places upon the trial judge a wide discretion; and, in determining whether a service [member] is entitled to relief, each case must stand upon its own merits.” 247 Ala. at 315, 24 So.2d at 222. “Whether to grant a continuance or stay pursuant to the act is a matter which rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” Riley v. State ex rel. White, 563 So.2d 1039, 1040 (Ala.Civ.App.1990)(citing Martin v. Wagner, 247 Ala. 591, 25 So.2d 409 (1946)).

Decisions construing the Act indicate that when a military parent seeks a stay of a child-custody or visitation proceeding, the trial judge should consider the impact of such a stay on the other parent’s right to visit and communicate with the children. See, e.g., Henneke v. Young, 145 Ohio App.3d 111, 115, 761 N.E.2d 1140, 1143 (2001). In Henneke, the divorce judgment awarded the father, who was stationed in Korea, custody of the parties’ three children and gave the mother “‘[visitation ... as agreed upon between the parties.’ ” 145 Ohio App.3d at 112, 761 N.E.2d at 1141. In response to the mother’s motion to set a specific visitation schedule, the trial court awarded the mother one week of visitation in August. When the father indicated his inability to comply with the visitation order, the mother filed a petition seeking to hold the father in contempt. The father moved to have the contempt proceeding stayed until he was “relieved from his current assignment in Korea.” 145 Ohio App.3d at 113, 761 N.E.2d at 1141. The trial court granted the stay, the mother appealed, and the Ohio appellate court reversed. The court stated:

“[W]hen exercising its discretion in this matter, the trial court should have considered the nature of the civil action at issue here. The dispute between the parties involves their children' — the oldest of whom was nine years old at the time the proceedings were stayed — and the right of their natural mother to visit and communicate with them. Under the trial court’s ruling, [the father] could prevent [the mother] from seeing her children for a substantial period of time while he is serving in Korea, without [the mother’s] being able to do anything to vindicate her right, pursuant to the orders of the trial court, to visit and to communicate with her children. Under these circumstances, we conclude that the trial court acted unreasonably by suspending the proceedings in this matter, during the entire time that [the father] will serve in Korea, pursuant to the Soldiers’ and Sailors’ Civil Relief Act.”

145 Ohio App.3d at 115, 761 N.E.2d at 1143.

Citing decisions from Connecticut, Georgia, and Mississippi, the mother argues that the juvenile court’s order denying a stay cannot be upheld because it failed to recite specific findings by the juvenile court that the mother’s “ability to defend will not be materially affected by reason of [her] military service.” In light of United States Supreme Court authority to the contrary, we do not consider those decisions persuasive. Construing the Act in Boone v. Lightner, 319 U.S. 561, 571, 63 S.Ct. 1223, 87 L.Ed. 1587 (1943), the Court stated:

“The Act does not expressly require findings. It is one intended to apply to courts not of record as well as those of record, and it requires only that the court be of opinion that ability to defend is not materially affected by military service.”

Moreover, we fail to see how the juvenile court’s refusal to stay a pendente lite custody order could materially affect the mother’s ability to defend her interests at a final custody hearing after she returns from active duty. Compare Crowley v. Crowley, 708 N.E.2d 42 (Ind.Ct.App.1999)(holding that the trial court did not abuse its discretion by denying a military parent’s motion for a stay pursuant to the Act and by entering a provisional child-support order during the pendency of the divorce action because the service member’s ability to prosecute or defend at the final hearing would not be impaired); Catlin v. Catlin, 494 N.W.2d 581 (N.D.1992)(holding that the trial court’s refusal to stay an interim custody order did not prejudice the military parent’s litigation position on the merits in a permanent-custody hearing); Trevino v. Trevino, 193 S.W.2d 254, 256 (Tex.Civ.App.1946)(stating that because an interim custody order was “temporary in nature and subject to being reopened upon [the father’s] return [from military service], we do not think the court abused its discretion in [denying a stay under the Act]”).

The juvenile court would have been well within its discretion in determining that the mother had intentionally delayed the custody proceedings and had used her active-duty orders in an eleventh-hour attempt to effect a long-term denial of the father’s rights to visitation and custody. The Act “ ‘is not to be employed as a vehicle of oppression or abuse.... ’ Such statutes were enacted ... for the protection of the service [member’s] rights and remedies, but not to be unjustly taken advantage of.” Brown Serv. Ins. Co. v. King, 247 Ala. at 315, 24 So.2d at 222 (quoting Hunt v. Jacobson, 178 Misc. 201, 205, 33 N.Y.S.2d 661, 664 (Sup.Ct.1942)). See also Fluhr v. Fluhr, 140 N.J.Eq. 131, 134, 52 A.2d 847, 848 (1947)(stating that the Act “is not to be employed to enable [a person in the military] ... to obtain indefinite delay”). The juvenile court would also have been within its discretion in deciding that the best interests of the child would be served by having her reside, pending a final hearing on the merits of the custody issue, with her natural father rather than with a third party such as the maternal grandmother or the mother’s new husband.

Finding that the mother had no clear legal right to a stay and that the juvenile court did not abuse its discretion in denying the stay, we conclude that the petition for the writ of mandamus is due to be denied.

PETITION DENIED.

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

THOMPSON, J., concurs in the result.

      . See § 26-17-22(h), Ala.Code 1975 ("[a] signed voluntary acknowledgment of paternity completed in accordance with this section [the 'hospital paternity acknowledgment program’] shall be considered a legal finding of paternity....”).


author: PER CURIAM.

text:
    James McCONICO, Jr. v. Grant CULLIVER et al.
    2020744.
    Court of Civil Appeals of Alabama.
    Aug. 8, 2003.

      James McConico, Jr., pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

In February 2000, James McConico, Jr., an inmate at Holman Correctional Facility, filed a four-count complaint in the Escam-bia Circuit Court against numerous defendants. McConico alleged in count I that another inmate, Sylvester Kennedy, had assaulted him while McConico was working in the prison law library. McConico asserted in count II of his complaint that Lieutenant Lee Raines and Deputy Warden Grant Culliver were negligent in failing to file charges against Kennedy following the assault, that Raines and Culliver had engaged in a “cover up” of the assault, and that Raines and Culliver had wrongfully placed McConico in separate confinement in retaliation for his previous efforts to help other inmates file civil-rights actions. Count III of McConico’s complaint asserted that Mike Haley, Commissioner of the Alabama Department of Corrections at the time this action was filed, had been negligent in failing to train Culliver and in promoting Culliver to deputy warden at Holman Correctional Facility (hereinafter “Holman prison”) where McConico was assaulted by Kennedy. Count IV alleged that Culliver and another correctional officer, “Captain Pouncey,” had moved McConico from a clean, heated prison cell into a very small, dirty, unheated cell in retaliation for his providing legal assistance to other inmates. McConico sought monetary relief and an injunction returning him to a dry, clean, and heated prison cell.

In March 2000, McConico amended his original complaint to add three additional counts. In his amended complaint, McConico alleged that Lt. Raines had altered the “incident report” regarding the assault so as to implicate McConico instead of Kennedy as the instigator of the inmates’ fight; McConico asserted that the reason Raines filed that altered report was to retaliate for McConico’s reporting other improper conduct that McConico alleged Raines had committed to the Alabama Ethics Commission. McConico also asserted that Raines had conspired with the other defendants and with Charlie Jones, the warden of Holman prison, to deprive him of his constitutional and civil rights. McConico further asserted that Jones, Culliver, “Captain Pouncey,” and Raines had conspired to improperly reclassify McConico from general-population confinement to solitary confinement solely to prevent him from assisting other inmates in their legal actions. McConico also asserted that two civil cases he had filed had been dismissed due to his removal from the general population to solitary confinement. Finally, McConico alleged that Jones and “Captain Pouncey” had abused their positions of authority by retaliating against McConico after he had filed the ethics complaint regarding Raines’s alleged misconduct because that report allegedly also implicated Jones and “Captain Pouncey.”

The defendants requested that the trial court issue an order requiring a more definite statement of McConico’s claims, pursuant to Rule 12(e), Ala. R. Civ. P. McCon-ico responded by voluntarily dismissing Counts III and IV of his original complaint, but he insisted that his other counts were sufficiently definite. In April 2000, McConico filed a motion to obtain affidavits from inmates at Holman prison in preparation for trial; the trial court denied that motion in June 2000. According to the case action summary sheet, the defendants’ filed a motion to dismiss the action in September 2002; that motion was denied in October 2002. Subsequently, the trial court set the cause for trial on March 24, 2003.

After receiving notice of the trial date, McConico filed three motions: one to compel completion of discovery, one to allow the trial to be held at Holman prison if he should not be allowed to travel to the courthouse for trial, and one to provide for McConico to testify by deposition if his motion regarding the location of the trial was not granted. All three of those motions were stamped “filed” by the circuit court clerk during February 2003.

The case action summary sheet contains the following entry:

“3-20-03 Counsel for defendants having contacted the court’s judicial assistant and informing her that he will submit on the pending motions, and the plaintiff having not appeared to argue said motions or otherwise contact the court regarding same, it is ordered that said motions are hereby denied.”

On March 25, 2003, the trial court entered a judgment dismissing the case “for lack of prosecution, upon motion of counsel for the defendants made in open court.” McConi-co filed a postjudgment motion contending that the trial court had abused its discretion in dismissing his complaint for failure to prosecute where he had sought by pretrial motion to secure his presence at trial or to obtain leave of court to preserve his testimony for, trial by deposition; that postjudgment motion was denied. McCon-ico filed a timely appeal to the Alabama Supreme Court, which transferred the ease to this court, pursuant to § 12-2-7(6), Ala.Code 1975.

McConico makes three allegations of error on the part of the trial court. The first, and dispositive, claim of error is that the trial court abused its discretion in failing to allow him the opportunity to testify by deposition and thereafter by dismissing his complaint for failure to prosecute. We agree.

The proper procedure for handling civil actions brought by incarcerated plaintiffs is well established. Although an inmate has no right to be present in court to prosecute a civil claim unrelated to his or her conditions of confinement, a court that dismisses an inmate’s action for lack of prosecution solely based on the inmate’s failure to be present in court, when that inmate has filed appropriate motions to proceed with the litigation, denies that inmate equal access to the courts. See Spears v. Chandler, 672 F.2d 834 (11th Cir.1982). That legal principle was clearly delineated in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), where the appellate court stated: “Prisoners have a constitutional right to ‘adequate, effective and meaningful’ access to the courts.” Id. at 1212 (quoting Bounds v. Smith, 430 U.S. 817, 822, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977)).

The Alabama Supreme Court, following federal strictures, has held that “a prisoner has no right to be removed from his place of confinement in order that he might appear and testify in his own behalf in a civil suit unrelated to his confinement.” Clements v. Moncrief 549 So.2d 479, 481 (Ala.1989). The Clements court concluded that the “ ‘proper course [for an incarcerated party] is to take his own oral or written deposition under Rule 30 or 31, [Ala. R. Civ. P.], to be used at trial as specifically provided in Rule 32(a)(3)(c), [Ala. R. Civ. P.]’ ” Id. (quoting Hubbard v. Montgomery, 372 So.2d 315, 316 (Ala.1979)).

This court recently reviewed a similar situation in Feagin v. Stokes, 837 So.2d 857 (Ala.Civ.App.2002). In that case, an inmate’s civil complaint against his bail bondsman was dismissed for lack of prosecution, while the inmate’s motion to testify by deposition was still pending. This court held that the trial court was precluded from dismissing the inmate’s claim for lack of prosecution where the inmate had done everything in his power to prosecute his claim, including filing a motion seeking to testify by deposition.

In this case, the record reflects that well before the case was dismissed for lack of prosecution, McConico had filed pretrial motions requesting that the trial court (1) allow him to come to trial in person, (2) hold the trial at the prison, or (3) allow him to give testimony by deposition. Both Rules 30(a) and 31(a), Ala. R. Civ. P., allow a party, upon obtaining leave of court, to take an incarcerated person’s deposition upon oral or written questions. Although McConico argues that the trial court never ruled on his motion seeking to testify by deposition, the trial court did deny all of McConico’s pending motions by its order entered on the case action summary sheet on March 20, 2003. Moreover, one of the reasons stated by the trial court in denying those motions was that “the plaintiff ha[d] not appeared to argue said motions or otherwise contact the court regarding same.”

We conclude that the trial court abused its discretion in denying McConico’s motion seeking to testify by deposition and then by dismissing the case for lack of prosecution. Just as in Feagin, such orders, taken together, “effectively thwart[ ] [a plaintiff prisoner] from following the ‘proper course’ specifically laid out by our Supreme Court for prisoners who need to present evidence on their own behalf in order to prosecute their civil claims.” Feagin, 837 So.2d at 860 (citing Clements, supra).

Accordingly, the trial court’s judgment is reversed. The cause is remanded for the trial court to permit McConico leave to take his own deposition pursuant to Rules 30(a) and 31(a), Ala. R. Civ. P., or, in the alternative, to make other arrangements as are necessary to afford McConico access to the court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result.

      . McConico voluntarily dismissed count IV of his complaint; that count was the only challenge to his conditions of confinement.


text:
    R.L.W. v. C.L.W.
    2020156.
    Court of Civil Appeals of Alabama.
    Aug. 15, 2003.
    W. Gregory Hughes, Mobile, for appellant.
    David P. Broome, Mobile, for appellee.
   CRAWLEY, Judge.

R.L.W. (“the husband”) and C.L.W. (“the wife”) were divorced in March 1992, after 28 years of marriage. Pursuant to the divorce judgment, the husband was required to pay the wife $6,500 in monthly periodic alimony. In September 2001, the wife filed a petition for a rule nisi, alleging that the husband was in arrears in paying periodic alimony. Specifically, the wife claimed that the husband had failed to pay the total monthly amount of periodic alimony since November 2000, and, as a result, the husband had accumulated an ar-rearage totaling $22,900. The husband cross-claimed, requesting that the trial court terminate his periodic-alimony obligation or grant him other, different, or farther relief based on the changed circumstance that his annual salary had decreased by approximately $400,000 since the divorce. Following an ore tenus hearing in September 2002, the trial court reduced the husband’s alimony obligation to $3,000 per month. The husband appeals, contending that the trial court abused its discretion by failing to terminate his alimony obligation.

A decision to modify an award of periodic alimony is within the sound discretion of the trial court. Bush v. Bush, 784 So.2d 299, 300 (Ala.Civ.App.2000). The trial court’s judgment on this matter is presumed correct and will not be reversed unless it is unsupported by the evidence or is otherwise plainly and palpably wrong. Posey v. Posey, 634 So.2d 571, 572 (Ala.Civ.App.1994). A periodic-alimony obligation may be modified only upon a showing of a material change of circumstances that has occurred since the last award was made. Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995). In making this determination, “[t]he trial court may consider several factors, including the earning capacity of each spouse, the recipient’s needs and the payor’s ability to meet those needs, and the estate of each spouse.” Id.

The record indicates that at the time of the divorce the husband was a neurosurgeon earning $597,743 per year. During the first five years of their marriage, the wife held a few jobs and was employed as the office manager in the husband’s solo medical practice. The wife spent the remainder of their marriage at home with the parties’ three children. She has not worked since the divorce.

The wife was 61 years old at the time of the hearing. During the modification hearing, the wife testified that her medical condition has prevented her from obtaining employment. The wife explained that she has cerebrovascular disease and coronary artery disease and that she underwent heart-bypass surgery in 1989. In addition, the wife suffers from arthritis in her neck, back, hands, and hip. Her cartilage has completely deteriorated from the third cervical vertebrae to the first thoracic vertebrae, and the first thoracic vertebrae' has been fused. The wife further testified that at the time of the hearing she was under the care of a physician and that she took numerous prescription medications that cost $230 per month. After being removed from the husband’s insurance coverage, the wife, as a result of her poor medical condition, was unable to obtain health insurance. By the time of the hearing, she had incurred $24,884.66 in medical expenses.

The wife testified that because she had been unable to work her only sources of income since the divorce have been alimony and interest income derived from accounts and investments established with the money she received through the divorce judgment. The wife testified that she has money-market accounts worth a total of $29,502, an individual-retirement account worth $20,000, and stocks worth approximately $12,000. The wife does not receive Social Security or Medicare benefits.

The record indicates that the wife’s living expenses were $44,851 in 1999, 46,-566.10 in 2000, and $66,587.77 in 2001. The husband argues that those expenses included expenses for the support and maintenance of the parties’ adult daughter who lives with the wife. The wife testified that the daughter has had medical problems since she was a child. The daughter suffers from depression and has attempted suicide several times. The daughter also has developed an autoimmune disease. As a result of her medical condition, the daughter took a medical leave of absence from her job and has been unable to obtain employment since that time. The wife, however, calculated the daughter’s expenses separately from her own expenses. The daughter’s expenses totaled $3,107 in 2001.

At the time of the hearing, the husband was 67 years old. The husband testified that in September 2000 he had attempted suicide by taking an overdose of prescription medication. Following his suicide attempt, the State Medical Licensing Board prohibited the husband from performing operations, limited him to working 36 hours per week at the medical clinic, and prohibited him from taking night or weekend calls from the hospital. As a result, the husband’s annual salary declined to $180,000 by October 2000 and to $100,000 by July 2001. The husband stated that he had lost some of his dexterity and cognitive ability. The State Medical Licensing Board explained that the husband would have to be retested to determine whether the restrictions on what he could do and how many hours he could work could be lifted. The husband testified, however, that he was concerned about his ability to continue working at all if he was retested. According to the husband, he is unable to do anything else with his medical group to earn additional income. In addition to his salary, the husband receives Social Security benefits. He also has a 15% vested interest in a piece of real property worth between $45,000 and $50,000, a retirement plan worth approximately $25,000 to $80,000, and $250,000 in term life insurance. The husband’s current wife, a real estate agent, earns approximately $25,000 to $35,000 annually in commission income.

James Butler, the husband’s certified public accountant, testified that after the suicide attempt the husband went into arrears in his.alimony payments. In order to satisfy the alimony arrearage, the husband’s salary and a bank trust account were garnished. The record indicates that the husband’s wages were garnished approximately $1,678 per month. Butler testified that after the salary garnishment the husband’s net monthly income, which included Social Security benefits, was $5,595.88. From that account, Butler payed the husband’s monthly living expenses which totaled approximately $6,400. Butler testified that after these expenses were paid each month, the husband had approximately a $795 monthly deficit in the account managed by Butler’s firm. In addition, Butler also explained that because the husband could not afford to have his federal income taxes withheld, he was also accruing a tax liability to the Internal Revenue Service (“the IRS”) in the amount of $1,750 to $2,000 per month. Butler testified that the husband owed the IRS $25,000 to $30,000 for federal income taxes in 2001 alone. At the hearing, the wife did not dispute that the husband had a deficit each month. The following table lists the husband’s monthly income and his monthly expenses:

¡>5,595.88 net income
■ 2,400.00 alimony
• 1,261.00 mortgage payment
■ 1,000.00 payment on an equity line on the home
• 285.00 car insurance
■ 445.00 homeowner’s insurance
• 500.00 husband’s allowance
- 500.00 payment to Butler’s firm
-1,750.00 federal income tax liability
($2,545.12) deficit

Based on the evidence presented, the husband has insufficient funds to meet his monthly obligations. Even taking the lowest estimate of the husband’s monthly tax liability and an alimony payment of only $2,400, the husband has a $2,545 monthly deficit. His expenses clearly exceed his monthly income. Moreover, based on the husband’s age, medical condition, and the restrictions placed on his medical license, it does not appear that his salary will substantially increase in the future. Therefore, we conclude that the award of $3,000 a month in periodic alimony cripples the husband financially and should be reversed.

On remand, we instruct the trial court to reconsider the evidence already submitted to determine whether it can fashion a periodic-alimony award to the wife that will not financially cripple the husband.

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

REVERSED AND REMANDED.

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

THOMPSON and MURDOCK, JJ., dissent.

      . At the time of the modification hearing, the parties’ children were ages 32, 31, and 29.

      . At the hearing, there was a dispute as to whether the language in the divorce judgment required the husband to maintain health insurance on the wife after leaving his employment as a sole practitioner. The divorce judgment required the husband to maintain the wife on his "presently existing P.A. health insurance plan.” The wife was covered by the plan until 1996, when the husband left his solo practice and joined a medical group. The trial court determined that the wife was not entitled to coverage under the husband’s new plan.

      .The wife’s 2001 tax return reflects that the wife received periodic alimony of $35,250 and interest income of $2,030. The wife's 2000 tax return reflects that she received periodic alimony of $66,000 and interest income of $5,270.

      . At a hearing on May 7, 2002, the parties stipulated that the husband owed the wife $58,000 in periodic alimony arrearage. The amount of the arrearage at the time of the modification hearing was $22,000.

      . It appears that the husband paid the wife $2,400 in alimony in an attempt to avoid falling further behind in the amount due to the wife.

      . We have used the lowest estimate of the husband’s monthly tax liability.


author: BASCHAB, Judge.

text:
    Kelvin Dale BOLAN v. STATE of Alabama.
    CR-02-0802.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Kelvin Rolan, pro se.
    William H. Pryor, Jr., atty. gen., and Stephen N. Dodd, asst. atty. gen., for ap-pellee.
   BASCHAB, Judge.

On May 1, 2002, the appellant, Kelvin Dale Bolán, pled guilty to felony driving under the influence (“felony DUI”). The trial court sentenced him to serve a term of seven years in prison. He did not appeal his conviction. On November 4, 2002, the appellant filed a Rule 32 petition, challenging his conviction. Without requiring a response from the State, the circuit court summarily dismissed the ■ petition. This appeal followed.

The appellant argues that the trial court did not have jurisdiction to render a judgment and impose a sentence in his case because it allegedly improperly used five of his seven prior DUI convictions to enhance his sentence. Specifically, he contends that the trial court should not have used the convictions because he was not represented by counsel in those cases and because the State did not prove that he waived the right to counsel in those cases. The appellant also argues that his trial counsel rendered ineffective assistance because he did not investigate and object to the use of the allegedly invalid prior convictions. These claims may be meritorious. See Farley v. City of Montgomery, 677 So.2d 1251 (Ala.Crim.App.1995); Moon v. City of Montgomery, 536 So.2d 139 (Ala.Crim.App.1988). However, in its order dismissing the petition, the circuit court did not address any of the appellant’s claims. ' Therefore, the State requests that we remand this case for the circuit court to make specific, written findings of fact regarding the appellant’s claims.

Accordingly, we remand this case to the circuit court with instructions that that court make specific, written findings of fact concerning the appellant’s claim that the trial court improperly used five uncounseled prior DUI convictions to enhance his sentence and his claim that his trial counsel rendered ineffective assistance with respect to investigating and objecting to the prior DUI convictions. With regard to the claim that the trial court improperly used uncounseled prior DUI convictions to enhance his sentence, we note:

“The State, in order to use a prior DUI misdemeanor conviction to enhance a defendant’s DUI sentence, need not prove that in the earlier proceeding the defendant was represented by counsel or knowingly and voluntarily waived counsel, if in the prior proceeding the defendant did not receive a jail term.”

State v. Thrasher, 783 So.2d 103, 106 (Ala. 2000). On remand, the circuit court may require the State to respond to the appellant’s contentions and/or may conduct an evidentiary hearing. On remand, the circuit court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 56 days after the release of this opinion. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On August 15, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.