author: PER CURIAM.

text:
    LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC., and Guy Moore v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT, Alabama Environmental Management Commission, Sloss Industries Corporation, Business Council of Alabama, and Water Works and Sanitary Sewer Board of the City of Montgomery.
    2040688.
    Court of Civil Appeals of Alabama.
    June 30, 2006.
    David A. Ludder, Tallahassee, Florida, for appellant.
    Olivia H. Rowell, office of gen. counsel, Alabama Department of Environmental Management; Robert P. Fowler and Jeffrey H. Wood of Balch & Bingham, LLP, Birmingham, for appellee Business Council of Alabama.
    Robert E. Sasser, Joel D. Conally, and Charlanna W. Spencer of Sasser, Littleton & Stidham, P.C., Montgomery, for appel-lee the Water Works and Sanitary Sewer Board of the City of Montgomery.
    Jarred 0. Taylor II, Alvin L. Fox, Jr., and D. Bart Turner of Maynard, Cooper & Gale, P.C., Birmingham, for appellee Sloss Industries Corporation.

      . We note that in July 1999 ADEM sent Sloss a letter stating that it considered Sloss to have submitted an incomplete permit-renewal application because it had failed to disclose information concerning discharges from Sloss's discharge point that originated from a contaminated water supply affiliated with United States Pipe & Foundry Co., Inc., and because ADEM had questions concerning Sloss's relationship with United States Pipe. However, ADEM stated that ''[i]f there is information that will answer the above concerns we ask that it be provided.” After Sloss and ADEM met concerning the foregoing issues, and after Sloss and United States Pipe provided ADEM with additional information in February 2000, ADEM sent a letter to Sloss stating that the "permit application issues” had been resolved.

   PER CURIAM.

The Legal Environmental Assistance Foundation, Inc. (“LEAF”), and Guy Moore appeal from a judgment of the Montgomery Circuit Court affirming an order of the Alabama Environmental Management Commission (“EMC”). The EMC’s order denied LEAF’S and Moore’s contest of the decision of the Alabama Department of Environmental Management (“ADEM”) to reissue a NPDES (National Pollutant Discharge Elimination System) permit held by Sloss Industries Corporation.

In September 1993, ADEM issued NPDES permit no. AL0003247 to Sloss. The permit authorized Sloss to discharge certain pollutants into Fivemile Creek in Jefferson County. Moore, who is a member of LEAF, an organization concerned with environmental protection, owns and resides on property that adjoins Fivemile Creek and that is downstream from Sloss’s discharge point. Moore uses Fivemile Creek for fishing and other recreational uses.

Sloss’s 1993 permit was due to expire in September 1998. The 1993 permit stated that if Sloss desired to continue to discharge pollutants after the expiration date of the permit it must file a “complete application” for reissuance of the permit “at least 180 days prior to its expiration.” See Ala. Admin. Code (ADEM), r. 335-6-6-.06 (“The terms and conditions of an expiring NPDES permit are automatically extended until the effective date of a new NPDES permit if the permittee has submitted a timely and complete application for reissuance of an NPDES permit and the delay in permit issuance has not been caused by the actions of the permittee .... ” (emphasis added)). The 1993 permit further stated that “[fjailure of the permittee to apply for reissuance at least 180 days prior to permit expiration will void the automatic continuation of the expiring permit provided by [Ala. Admin. Code (ADEM), r. 335-6-6-.06].” (Emphasis added.)

In April 1998, Sloss filed an application with ADEM requesting that its discharge permit be reissued. Thereafter, ADEM requested additional information from Sloss concerning its permit-renewal application, and ADEM and Sloss engaged in discussions concerning Sloss’s alleged failure to comply with the terms of the 1993 permit. In part, the discussions resulted in consent decrees between ADEM and Sloss in 2001, 2002, and 2003, pursuant to which Sloss agreed to pay substantial penalties and agreed to comply with pertinent 1993 permit terms until its permit might be reissued.

On February 25, 2003, while Sloss’s permit-renewal application was still pending, ADEM reclassified Fivemile Creek from the “Agricultural and Industrial Water Supply” use classification to the “Fish and Wildlife” use classification. The reclassification resulted in the application of more stringent water-quality standards for Fi-vemile Creek, effective April 3, 2003. On March 3, 2003, in response to the reclassification of Fivemile Creek, Sloss submitted a revised permit-renewal application.

ADEM’s regulations provide that ADEM may grant a permittee with an existing permit up to three years to comply with newly adopted water-quality standards for a particular state body of water. See Ala. Admin. Code (ADEM), r. 335-6-10-.05. After ADEM received Sloss’s revised permit-renewal application, and after it reviewed Sloss’s files, ADEM concluded that Sloss’s permit should be renewed and that Sloss should be allowed up to three years to fully comply with certain of the newly adopted water-quality standards applicable to Fivemile Creek. Thereafter, ADEM proposed to issue Sloss a renewed permit, subject to a compliance schedule, and it prepared a draft of the permit. In pertinent part, the draft permit authorized Sloss to discharge effluent containing certain pollutants at discharge limits that are appropriate for waters classified for use as an “Agricultural and Industrial Water Supply.” Among other things, the draft permit also required that by February 25, 2006, three years from the date that ADEM reclassified Fivemile Creek, Sloss’s discharge effluent must comply with water-quality standards deemed appropriate for the Fish and Wildlife use classification.

On June 17, 2003, ADEM issued a “Fact Sheet” concerning Sloss’s proposed permit renewal. The Fact Sheet included a copy of the draft permit and the permit-renewal application, as revised. See Ala. Admin. Code (ADEM), r. 335-6-6-.20 (describing the requirements for the Fact Sheet). The Fact Sheet specifically stated that

“[Sloss] is being allowed three years to comply with the Fish & Wildlife requirements for Available Cyanide and Chronic Toxicity because of the significant economic impact and extensive time period required for implementation of additional treatment systems necessary to meet these more stringent standards.”

ADEM gave public notice of its intent to renew Sloss’s permit, subject to a compliance schedule, and it requested public comment. See Ala. Admin. Code (ADEM), r. 335-6-6-.21 (the public notice includes information concerning who the public may contact to obtain copies of the Fact Sheet, the draft permit, and the permit application).

During the public-comment period, LEAF and Moore filed comments with ADEM. Moore commented that the permit should be denied because of Sloss’s past noncompliance with the 1993 permit and its lack of assurance of future compliance. LEAF made numerous comments, including, in part, that Sloss’s permit-renewal application “fail[ed] to identify corporate officers, administrative complaints, notices of violations, or administrative orders, or litigation” as required by Ala. Admin. Code (ADEM), r. 335-6-6-.08(l)(f) and r. 335-6-6-.08(l)(g); see also Ala. Admin. Code (ADEM), r. 335-6-6-.02(b) (defining “application” as “forms, and additional information that are required by Rule 335-6-6-.08 to be submitted when applying for an NPDES permit”). According to LEAF, Sloss’s “incomplete” permit application did not result in an automatic extension of the 1993 permit under r. 335-6-6-.06. Therefore, according to LEAF, Sloss’s permit automatically expired in September 1998. Based on the foregoing conclusion, LEAF contended that Sloss was thus not an existing permittee to whom ADEM could grant a three-year compliance schedule under r. 335-6-10-.05 and that ADEM should require Sloss to immediately comply with the more stringent water-quality standards.

ADEM responded to LEAF’S and Moore’s comments, and it concluded that Sloss’s permit-renewal application was acceptable. On June 25, 2003, the same date that the 2003 consent order was executed, ADEM reissued Sloss’s permit.

LEAF and Moore filed a permit contest with the EMC and-requested a hearing to contest the reissuance of Sloss’s permit. In part, LEAF and Moore alleged that ADEM should not have granted Sloss three years to comply with the more stringent water-quality standards at issue because Sloss had submitted an “incomplete” permit-renewal application. LEAF and Moore did not seek to have Sloss’s permit rescinded; they sought only to have the permit modified to delete the three-year compliance schedule and to require immediate compliance with the more stringent water-quality standards.

Sloss, the Business Council of Alabama, Inc., and the Water Works and Sanitary Sewer Board of the City of Montgomery intervened in LEAF’S and Moore’s permit contest.

In December 2003, an administrative law judge (“the ALJ”) for the EMC conducted a three-day evidentiary hearing as to LEAF’S and Moore’s permit contest. On May 6, 2004, the ALJ entered an order recommending that the EMC approve ADEM’s issuance of the renewed permit. As to the alleged problems with ADEM’s processing of Sloss’s “incomplete” application, the ALJ concluded that, based on the evidence presented, LEAF and Moore had not demonstrated that they had suffered a threatened or actual injury as a result of ADEM’s actions; thus, the ALJ concluded, they had no standing to pursue an administrative appeal. See Ala.Code 1975, § 22-22A-7(c) (“any person aggrieved by an administrative action of [ADEM] shall be entitled to a hearing before the [EMC] or its designated hearing officer”); Ala. Admin. Code (ADEM), r. 335-2-l-.02(b) (“ ‘aggrieved’ means having suffered a threatened or actual injury in fact”). The ALJ based his conclusion that LEAF and Moore lacked standing as to the alleged procedural irregularities on two grounds: (1) that LEAF and Moore had not demonstrated that the terms of Sloss’s renewed permit had caused or would cause an actual or threatened injury to them, as opposed to a conjectural injury, and (2) that LEAF and Moore had not demonstrated that they had suffered a substantive injury as a result of the alleged procedural deficiency at issue, i.e., ADEM’s conclusion that the permit-renewal application was sufficiently complete to proceed with the permit-renewal process. According to the ALJ, LEAF and Moore failed to demonstrate any causal link between ADEM’s alleged procedural error and any substantive problem with the terms of the renewed permit.

The ALJ also concluded that ADEM’s decision to process Sloss’s “incomplete” permit-renewal application was a matter of ADEM’s internal procedure, not an “administrative action” that was the subject to the EMC’s jurisdiction. See Ala.Code 1975, § 22-22A-7(c) (“any person aggrieved by an administrative action of [ADEM] shall be entitled to a hearing before the [EMC]”); Ala.Code 1975, § 22-22A-3(8) (in part, defining an “administrative action” as “[t]he issuance, modification, repeal or denial of any permit”). The ALJ stated that “[t]he relevant issue is whether the reissued permit meets all the requirements for issuing an NPDES permit, especially whether that permit is protective of water quality.”

Furthermore, the ALJ concluded that LEAF and Moore’s requested relief was inconsistent with their claim. According to LEAF and Moore, Sloss’s failure to file a complete permit-renewal application resulted in the automatic expiration of the permit. The ALJ noted that ADEM had no authority to “modify” or “renew” an expired permit. Yet, LEAF and Moore insisted that the EMC modify Sloss’s permit by deleting the compliance schedule, not that the EMC revoke the permit and require Sloss to apply for a new permit (which would be subject to certain regulatory criteria not pertinent to a reissued permit and which would not automatically qualify for a three-year compliance schedule).

On June 29, 2004, after receiving written submissions from the parties, the EMC entered an order adopting the ALJ’s recommendation; the EMC’s decision to adopt the ALJ’s recommendation was unanimous.

LEAF and Moore appealed the EMC’s decision to the Montgomery Circuit Court. See Ala.Code 1975, § 22-22A-7(c)(6). The circuit court reviewed the administrative record and written briefs from the parties, and it heard oral argument from the parties. On March 30, 2005, it entered a judgment affirming the EMC’s order. The circuit court specifically declined to address the issue of LEAF’S and Moore’s standing. Instead, it concluded that “the question whether the permit application was complete is an internal procedure to be determined by ADEM” and that “the EMC’s interpretation of the limits of its jurisdiction with regard to the hearing of appeals of administrative action is reasonable and entitled to judicial deference.” The circuit court also concluded that the claim regarding the alleged procedural error committed by ADEM, i.e., processing an allegedly “incomplete” permit application, was moot because the hearing before the EMC was de novo and the EMC’s charge was to determine whether the permit as issued, including the compliance schedule, was substantively appropriate. The circuit court also agreed with the ALJ’s conclusion that LEAF and Moore’s requested relief was inconsistent with their claim. Further, as to the completeness of the permit-renewal application, the circuit court noted that LEAF and Moore had not demonstrated that they were “injured or harmed” by the omitted information and that the evidence reflected that ADEM had the “minimum amount of information to process” the permit-renewal application. The circuit court stated:

“[E]ven if this Court determined that [LEAF and Moore] had standing to challenge the [permit-renewal application] for completeness, and that the EMC had jurisdiction to conduct such a review, the Court concludes that [LEAF and Moore] have failed to submit record evidence to support [their] argument that the purported omissions for the [permit-renewal application] impacted the development of the Reissued Permit.”

On appeal, LEAF and Moore contend that the circuit court’s judgment affirming the EMC’s order approving the reissuance of Sloss’s permit is due to be reversed because, they say, it is based on erroneous conclusions of law regarding the EMC’s jurisdiction, mootness, standing, the inconsistency of their claim and their requested relief, and the interpretation and application of ADEM’s regulations.

We need not render an opinion as to the foregoing issues, because LEAF and Moore’s appeal itself is moot. The only harm that LEAF and Moore alleged that they suffered as a result of the alleged procedural irregularity at issue is that Sloss was given a three-year compliance schedule that permitted it to discharge pollutants in excess of the Fish and Wildlife use classification criteria; the three-year period ended on February 26, 2006. The only relief that LEAF and Moore sought was the modification by ADEM of Sloss’s permit so as to delete the three-year compliance schedule and require immediate compliance by Sloss with the more stringent water-quality standards at issue. They specifically did not seek the revocation of Sloss’s permit, and they abandoned all other arguments as to the terms and conditions of Sloss’s permit. Since February 26, 2006, has passed, no decision of this court can provide LEAF and Moore with the relief they requested. Consequently, their appeal is moot and it is due to be dismissed. See Gross v. QMS, Inc., 669 So.2d 839 (Ala.1995).

APPEAL DISMISSED.

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

MURDOCK and BRYAN, JJ., recuse themselves.

      . This case was reassigned on June 27, 2006.

      . On appeal, the parties argue about whether Sloss's permit-renewal application was sufficiently complete. LEAF and Moore conceded during public comment that Sloss's permit-renewal application was timely filed. Also, LEAF and Moore did not argue before the EMC, and they do not contend on appeal, that Sloss's actions caused a delay in permit issuance.

      . By its terms, the execution of the 2003 consent decree (the decree was executed on June 25, 2003) was intended by ADEM and Sloss to coincide with the issuance of Sloss's renewed permit. The 2003 consent decree between ADEM and Sloss specifically provided that "[i]n accordance with ADEM Admin. Rule 335-6-10-.05 [Sloss] must attain compliance with the [Fish and Wildlife] classification within three years from [February 25, 2003]." The 2003 consent decree also stated that it was to be "made available to the public for review and comment for 30 days,” after which Sloss was to submit an acceptable compliance plan that would bring it into compliance with the Fish and Wildlife use classification standards, including those standards "for which a three-year compliance schedule has been given under the effective permit.”
      It is undisputed that when ADEM reissued Sloss's permit it required Sloss to immediately comply with some Fish and Wildlife use classification standards, apparently because Sloss was capable of complying with those more stringent standards at the time the permit was reissued. There was no evidence at trial indicating that Sloss was capable of currently complying with the standards that were subject to the three-year compliance schedule. The only evidence on that issue was that it would likely take the entire three years for Sloss to determine what technology could be used to meet the more stringent standards and to determine how to implement that technology so as to ensure ongoing compliance.

      . Although LEAF and Moore argued before the EMC that certain of the permit discharge limits were insufficient to meet pertinent water-quality standards, LEAF and Moore do not raise that issue on appeal.


source: Caselaw Access Project

author: PER CURIAM. MURDOCK, Judge, BRYAN, Judge, CRAWLEY, Presiding Judge, PITTMAN, Judge,

license: Public Domain

text:
    Robert W. TOLER v. Kristy W. TOLER.
    2040757.
    Court of Civil Appeals of Alabama.
    June 30, 2006.
    Stephen W. Shaw and Laura S. Gibson of Redden, Mills & Clark, Birmingham, for appellant.
    Banks T. Smith of Hall, Smith, Prim & Freeman, P.A., Dothan, for appellee.
   PER CURIAM.

Robert W. Toler, the father, appeals from a judgment of the Jefferson Circuit Court dismissing his custody-modification petition.

The father and Kristy W. Toler, the mother, married in 1989. They had one child, a son who was born in June 1991. The parties were divorced pursuant to a 1996 divorce judgment entered by the Jefferson Circuit Court. The judgment awarded the mother primary physical custody of the parties’ son, and it awarded the father visitation rights. The father’s visitation rights included, in part, visitation on the first and third weekends of each month and 31 days during the summer. The father appealed the custody award to this court. This court affirmed the divorce judgment, without issuing an opinion. Toler v. Toler, 705 So.2d 887 (Ala.Civ.App.1997) (table).

In September 1998, the father filed a petition to modify custody. In November 1999, the trial court entered a judgment denying the father’s request that he be awarded custody of the parties’ son. The court did, however, modify the father’s summer visitation rights to provide that the 31 days of visitation would be “consecutive days.”

In June 2004, the father filed another petition to modify custody, specifically invoking the provisions of the Alabama Parent-Child Relationship Protection Act, Ala. Code 1975, § 30-3-160 et seq. In particular, the father alleged that on May 25, 2004, the mother notified him by letter that she planned to relocate with their son “to Dothan, Alabama in ‘the middle of July 2004.’ ” The father objected to the relocation of the son’s principal residence. The father alleged that the parties resided in the Altadena area of Birmingham, “approximately 200 yards from each other, allowing the minor child frequent contact with [the father],” and that “[t]he child has spent during his life extensive time with the father, by agreement of the parties, in addition to [the] visitation set forth in the orders of th[e] court.” Also, the father alleged that the son had expressed his desire to reside with the father and that “the [mother] ha[d] informed the minor child on occasion that he could remain in the Birmingham area and continue to attend Briarwood Christian School, the school that he ha[d] always attended since the 1st grade.” Further, the father alleged:

“12. The Father’s mother lives approximately 3 miles from the father and has a good relationship with the minor child and participates in activities with him, including overnight visits and golf and on occasions she picks him up from school.
“13. The minor child attends Valley-dale Baptist Church with each parent on their respective weekends, he has good friends at that church and he has been attending church for approximately 2 1/2 years. Previously, the child attended Lakeside Baptist Church with the father on a regular basis since he was 1 year old.
“14. During the past 5 years said child has played football in the Oak Mountain League and now plays for the • Briarwood School; he participated in the January-February 2004 Winter practice; and he is scheduled to begin practice for the 8th grade team on July 5th.”

The father alleged that a material change of circumstances had occurred “which would justify a change of custody ... with extended visitation for the [mother].”

In addition to his custody-modification petition, the father also filed a “Motion for Temporary Restraining Order or in the Alternative Pendente Lite Relief.” In the motion, the father requested that, pending a hearing on his custody-modification petition, the trial court enter an order enjoining the mother from relocating the son’s principal residence or that it award him pendente lite custody.

In response to the father’s motion, the mother filed an “Emergency Motion To Allow Change of Residence.” In her emergency motion, the mother alleged that she had complied with all of the notice requirements found in Ala.Code 1975, § 30-3-169.1, and that her husband had “received a new employment opportunity which requires a change of residence and would allow the [mother] to stay at home full time with the” parties’ son and the mother’s and her husband’s five-year-old daughter. The mother also alleged that the proposed change of residence was in the son’s best interests and that the change of residence “would not result in a detrimental effect on his educational, developmental and emotional needs.”

The trial court apparently requested that the parties submit affidavits in support of their respective motions. A few weeks after the mother filed her emergency motion, she filed six affidavits in opposition to the father’s motion for a temporary restraining order or for a pendente lite custody award; the affidavits were from herself, her husband, her two sisters, and her parents, who resided in Anniston. In contrast, the father submitted affidavits in support of his motion from himself, the parties’ son, and Curt Newell, a psychotherapist and licensed family therapist who had examined the son. The father also submitted an additional affidavit from himself in response to the affidavits submitted by the mother.

In August 2004, the trial court entered an order stating that it had “reviewed the various affidavits” and that it was denying the father’s motion for injunctive relief or for pendente lite custody. The order also set the father’s custody-modification petition for a hearing to be held in December 2004.

The mother, her husband, and the parties’ son relocated to Headland, a city near Dothan.

In November 2004, the father filed an amended petition to modify custody. The amended petition incorporated the allegations in the father’s original petition, and it also included allegations that the mother’s husband had recently struck the parties’ son in the face and bloodied his nose, without any intervention by the mother, and that the mother had restricted the father’s telephone contact with their son. The Jefferson County Department of Human Resources (“DHR”) investigated the physical-abuse allegation against the mother’s husband; DHR confirmed that the incident between the mother’s husband and the parties’ son had occurred, but it concluded that “[t]here does not appear to be any ongoing safety concerns which would justify the need for protective services. This appears to be an isolated incident between [the son] and [the mother’s husband].” The father also alleged that the mother had not enrolled the son in either of the schools that she had disclosed to him in her May 2004 relocation notice.

The December 2004 trial setting was continued. In March 2005, the trial court conducted an ore tenus proceeding on the father’s custody-modification petition. At the close of the father’s case-in-chief, the mother made an oral “motion for a directed verdict.” At the time of the oral motion, the only evidence that the mother had offered was the testimony of her husband, which had been “taken out of turn” by agreement of the parties. After the mother’s oral motion, the trial court consulted with the parties’ attorneys in chambers and then recessed the proceeding.

In April 2005, the trial court issued a judgment stating that the mother had made an “oral motion to dismiss” at trial and that the motion was “due to be granted.... Therefore, it is, ORDERED AND ADJUDGED ... [t]hat the [father’s] Motions and Petitions for Relief demanded therein are due to be Denied.” The father filed a postjudgment motion requesting that the trial court alter, amend, or vacate its judgment or that it award him a new trial. The father also requested that the trial court take additional testimony because the mother’s husband had allegedly been convicted of criminal trespass after the entry of the judgment. After hearing oral argument on the father’s post-judgment motion, the trial court denied the motion.

The father appeals, contending, as he did in his postjudgment motion, that the trial court ignored “the presumption, burden of proof, custody considerations and mandates” of the Parent-Child Relationship Protection Act, that it failed to “take into account all factors” affecting the child as stated in § 30-3-169.3, that the mother failed to meet her burden of proof as to statutory notice as described in § 30-3-165, and that the trial court erred by not awarding the father custody of the child.

Section 30-3-169.4, Ala.Code 1975, provides:

“In proceedings under this article unless there has been a determination that the party objecting to the change of the principal residence of the child has been found to have committed domestic violence or child abuse, there shall be a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.

(Emphasis added.)

Also, § 30-3-169.3, Ala.Code 1975, provides:

“(a) Upon the entry of a temporary order or upon final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:
“(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child’s life.
“(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
“(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
“(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
“(5) The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
“(6) The preference of the child, taking into consideration the age and maturity of the child.
“(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
“(8) The extent to which custody and visitation rights have been allowed and exercised.
“(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
“(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
“(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
“(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
“(13) Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
“(14) The stability of the family unit of the persons entitled to custody of and visitation with a child.
“(15) The reasons of each person for seeking or opposing a change of principal residence of a child.
“(16) Evidence relating to a history of domestic violence or child abuse.
“(17) Any other factor that in the opinion of the court is material to the general issue or otherwise provided by law.”

(Emphasis added.) Section 30-3-169.3(c) further requires that

“[t]he court, in approving a change of principal residence of a child, shall order contact between the child and the non-relocating party and telephone access sufficient to assure that the child has frequent, continuing, and meaningful contact with the non-relocating party and shall equitably apportion transportation costs of the child for visitation based upon the facts of the case.”

(Emphasis added.)

We have carefully reviewed the record. There is no evidence indicating that the father “committed domestic violence or child abuse”; the only evidence of domestic violence related to the incident between the mother’s husband and the parties’ son. Thus, as the father correctly notes, there was a rebuttable presumption that a change of the son’s principal residence was not in the son’s best interests. The mother bore the initial burden of proof as to whether a change of principal residence was in the son’s best interests in light of the factors described in § 30-3-169.3(a). Until that burden of proof was met, the burden of proof in the present case did not shift to the father.

After reviewing the evidence presented to the trial court, and considering the factors that the trial court is required to consider under the Parent-Child Relationship Protection Act, we cannot conclude that the mother met her burden of proof based solely on the testimony of her husband and inferences that might be drawn from evidence presented by the father. For example, based on the undisputed evidence presented to the trial court, before the mother moved the son to Headland, the father exercised visitation with the son much more frequently than had been contemplated by the visitation schedule in the divorce judgment,- as modified. In fact, it was undisputed that in the summer of 2003 the son spent every day with the father and that at other times, particularly in 2004, the son generally spent at least two afternoons each week with the father, in addition to visitation every other weekend. In contrast, since moving to Headland, the mother had permitted the father to exercise visitation only on the first and third weekends of each month. She had required the father to drive 200 miles to Headland to retrieve their son on Friday afternoon and to return him to Headland on Sunday evening, thus requiring a considerable portion of the father’s visitation time to be spent driving. There was also testimony indicating that the mother had restricted the son’s telephone access to the father, although the mother’s husband denied that the mother had done so. We note that it was undisputed that as recently as April 2004 the mother had restricted the son’s visitation with the father as a means of discipline.

Furthermore, based on the evidence presented to the trial court, it appears that before the mother’s proposed move to Headland, the present case involved an enviable custody situation for the parties’ son; the mother and the father continued to reside within walking distance of each other after their divorce. It is undisputed that before the mother moved to Headland the son had resided in the Altadena area of Birmingham for most of his life. He had resided in the same residence in Altadena since he was six years old and in the same neighborhood since he was three years old. He had also attended the same private school since he was in the first grade. The father participated in school activities with the son, and the father helped the son with school work. The son’s daily activities in Altadena included fishing in the lake down the street from his father’s home, swimming, playing golf at the golf course down the street from his father’s home, playing paintball with his friends in a paintball course he and his friends built near a creek behind the father’s home, and playing basketball and football with other children who resided near the father. The son also visited his paternal grandmother, who resided near the father, on an almost weekly basis before the mother’s move to Headland.

We also note that the father is self-employed and worked out of his home. He was apparently able to spend a considerable amount of time with his son, despite his work schedule. The mother was employed outside the home when she resided in Altadena; she is apparently a “stay-at-home” mother in Headland. There is little evidence, however, as to the time the mother spent with the son on a daily basis.

As the foregoing evidence demonstrates, by moving to Headland, the mother uprooted the approximately 14-year-old son from his home, his friends, his school, his church, and his other day-to-day activities and contacts. Under the evidence presented, it appears that a change of custody to the father would have left much of the son’s day-to-day life intact and would have been less disruptive to the son than leaving custody with the mother. We also note that it is undisputed that in the spring of 2004, before any discussion occurred about moving to Headland, the son expressed his desire to reside with the father, a desire that the son reiterated at trial. “While not dispositive, the preference of a child with regard to its custody is entitled to much weight.” See Brown v. Brown, 602 So.2d 429, 431 (Ala.Civ.App. 1992); see also Ex parte Devine, 398 So.2d 686, 697 (Ala.1981) (holding that a trial court must consider the preference of a child of sufficient age and maturity).

We conclude that the trial court erred by dismissing the father’s petition. The initial burden of proof in this case was upon the mother; she was required to rebut the presumption that a change of principal residence was not in the son’s best interests. By dismissing the father’s petition without requiring the mother to meet her burden of proof, the trial court failed to give effect to the presumptions prescribed by our legislature in the Parent-Child Relationship Protection Act. We therefore reverse the trial court’s judgment and remand the cause for a new trial.

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

REVERSED AND REMANDED.

MURDOCK and BRYAN, JJ., concur specially.

CRAWLEY, P.J., concurs in the result, with writing, which PITTMAN, J., joins.

PITTMAN, J., concurs in the result, with writing.

THOMPSON, J., concurs in the result only, without writing.

MURDOCK, Judge,

concurring specially.

I concur in the main opinion. I write separately to respond to two aspects of Judge Pittman’s special writing by which he concurs in the result reached by the main opinion.

First, unlike Judge Pittman, I do not believe Rule 52(c), Ala. R. Civ. P., is applicable. Rule 52(c) allows a trial court to enter a judgment against a party when that party has been fully heard as to an issue, the trial judge finds against the party on that issue, and that party cannot prevail without a ruling favorable to it on that issue. Here, the father was fully heard as to the issue of whether there should be a change of custody if, without such a change, the mother will be allowed to change the child’s place of residence. Consistent with my view of the Alabama ParenWdhild Relationship Protection Act, Ala.Code 1975, § 30-3-160 et seq. (“the Act”), as discussed hereinafter in this writing, this is not a case in which the father can prevail only if he is successful as to the issue as to which he has been heard. Under that Act, the father also can prevail if the mother is unsuccessful in meeting the initial burden of proof imposed upon her in § 30-3-169.4, Ala.Code 1975, as to whether a relocation of the child would be in the child’s best interests.

Second, and more importantly, I disagree with the suggestion in Judge Pittman’s writing that, on remand, the trial court is to decide this case based upon the standard enunciated in Ex parte McLendon, 455 So.2d 863 (Ala.1984). This case has given me occasion to reconsider the position indicated by my votes in Clements v. Clements, 906 So.2d 952 (Ala.Civ.App.2005), and T.B. v. C.D.L., 910 So.2d 794 (Ala.Civ.App.2005). I now disagree with the conclusion reached in Clements, and followed in T.B., regarding the continued applicability of the McLendon presumption in cases in which our legislature has said the provisions of the Act are to be applicable.

Ex parte McLendon was decided by our Supreme Court in 1984. The Act was adopted in 2004. As such, the Act reflects a legislative policy choice to supplant the so-called McLendon presumption in specific types of cases.

The legislature expressly states in the Act that the Act “promotes the general philosophy in this state that children need both parents, even after a divorce.” See § 80-3-160 (emphasis added). Toward this end, the Act adopts a new presumption and new rules of decision, including those in §§ 30-3-169.3 and 30-3-169.4, obviously intended to discourage unnecessary relocations by custodial parents that would make the maintenance of relationships between a child and both of his or her parents less likely or less fully realized.

In contrast to the view indicated in Clements, I believe there are differences in approach between the McLendon presumption and the presumption and rules of decision specified in the Act for cases in which the primary custodial parent seeks to relocate. Indeed, if the legislature did not intend to alter the presumptions and rules of decision in such cases, I see no reason for it to have adopted the Act. See, e.g., Ex parte Ted’s Game Enters., Inc., 893 So.2d 376, 384 (Ala.2004) (the legislature is presumed not to have done a vain and useless thing).

The ultimate objective in any custody case is to determine what custodial placement would be in the “best interests” of the child. It was only toward that end that the McLendon standard was formulated by our Supreme Court as a guide for lower courts. In the search for a child’s best interests under the McLendon standard, a relocation of a child by the custodial parent is a factor in whether the McLendon standard is met. Under the Act — specifically § 30-3-169.4 — there is now a presumption as to relocation, namely, that it is not in a child’s best interests to undergo a relocation under certain circumstances.

Moreover, § 30-3-169.3 enumerates 16 factors that a court is to consider in deciding whether a change of primary physical custody would be in a child’s best interests. The relationship of the relocating parent and the child is just part of the first one of those factors. See § 30-3-169.3(a)(1), Ala.Code 1975. The degree of disruption that would be occasioned by the change of custody is also but 1 of the 16 enumerated factors. See 30-3-169.3(a)(7), Ala.Code 1975. Furthermore, unlike the manner in which disruption is addressed in the so-called McLendon standard, the Act now requires the trial court to compare the degree to which a change of the principal residence of the child will result in disruption for the child with the degree to which a modification of the custody of the child will result in disruption for the child. Id.

To be sure, because the ultimate objective under both the McLendon standard and the Act is to determine the child’s best interests, and because the factors outlined in the Act should have been addressed in most cases decided under the McLendon standard, one might expect the outcome in many, if not most, cases will be no different under the Act than they would have been under the McLendon standard. To be equally sure, this will not be true in all cases. Obviously, the Act for the first time introduces an express presumption against relocation and imposes upon the custodial parent the burden of rebutting that presumption before the burden of proof then shifts to the noncustodial parent. In this and other respects, the Act clearly represents an effort on the part of our legislature to change the calculus by which courts address the issue of whether a parent who has previously been awarded the primary physical custody of a child should be allowed to maintain that custodial relationship in connection with changing the primary residence of the child.

BRYAN, Judge,

concurring specially.

Section 30-3-169.4 of the Alabama Parent-Child Relationship Protection Act, § 30-3-160 et seq., Ala.Code 1975 (“the Act”), provides:

“In proceedings under this article ..., there shall he a rebuttable presumption that a change of principal residence of a child is not in the best interest of the child. The party seeking a change of principal residence of a child shall have the initial burden of proof on the issue. If that burden of proof is met, the burden of proof shifts to the non-relocating party.”

(Emphasis added.)

The case now before this court precisely illustrates the purposes behind the requirement in § 30-3-169.4 of the Act, that the relocating parent has the initial burden of proof. The presumption under the Act implies that a child’s best interest is served when that child remains in the environment where the child has established significant ties. In the present case, the son has established significant familial, social, and educational ties to the Birmingham area. On remand, the mother has the initial burden of rebutting the presumption that the best interest of the son is served by the son’s residing in the Birmingham area.

CRAWLEY, Presiding Judge,

concurring in the result.

I concur in the reversal of the judgment in this case. However, in light of Judge Murdock’s stated belief that the legislature, by enacting the Alabama Parent Child Relationship Protection Act, Ala. Code 1975, § 30-3-160 et seq. (“the Act”), intended to “supplant” the long-applied burden on the noncustodial parent seeking a change of custody outlined in Ex parte McLendon, 455 So.2d 863 (Ala.1984), in cases involving the relocation of a custodial parent, I believed it best to express my opinion on this matter as well.

The Act states that its purpose is to “promote[ ] the general philosophy in this state that children need both parents, even after a divorce.... ” Ala.Code 1975, § 30-3-160. In general, the Act requires a custodial parent who intends to relocate outside of a span of 60 miles from the noncustodial parent to give notice of the intended relocation so that the noncustodial parent, if so inclined, can challenge the intended relocation. See §§ 30 — 3—162(b), 30-3-165, & 30-3-169. If a challenge is instituted, the custodial parent must rebut the presumption that the intended relocation is not in the best interests of the child. § 30-3-169.4. If a parent rebuts that presumption and is given the trial court’s permission to relocate, the other parent may seek a change of custody. § 30-3-169.3. And that is where the question whether Ex parte McLendon has continued application begins.

The Act itself, in my opinion, indicates that the legislature incorporated, at least in part, the Ex parte McLendon burden and the way that burden has been applied over the years in eases involving a relocation of the custodial parent. Section 30-3-169.3(a) provides:

“Upon the entry of a temporary order or upon a final judgment permitting the change of principal residence of a child, a court may consider a proposed change of principal residence of a child as a factor to support a change of custody of the child. In determining whether a proposed or actual change of principal residence of a minor child should cause a change in custody of that child, a court shall take into account all factors affecting the child, including, but not limited to, the following:
“(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the person proposing to relocate with the child and with the non-relocating person, siblings, and other significant persons or institutions in the child’s life.
“(2) The age, developmental stage, needs of the child, and the likely impact the change of principal residence of a child will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
“(3) The increase in travel time for the child created by the change in principal residence of the child or a person entitled to custody of or visitation with the child.
“(4) The availability and cost of alternate means of communication between the child and the non-relocating party.
“(5) The feasibility of preserving the relationship between the non-relocating person and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
“(6) The preference of the child, taking into consideration the age and maturity of the child.
“(7) The degree to which a change or proposed change of the principal residence of the child will result in uprooting the child as compared to the degree to which a modification of the custody of the child will result in uprooting the child.
“(8) The extent to which custody and visitation rights have been allowed and exercised.
“(9) Whether there is an established pattern of conduct of the person seeking to change the principal residence of a child, either to promote or thwart the relationship of the child and the non-relocating person.
“(10) Whether the person seeking to change the principal residence of a child, once out of the jurisdiction, is likely to comply with any new visitation arrangement and the disposition of that person to foster a joint parenting arrangement with the non-relocating party.
“(11) Whether the relocation of the child will enhance the general quality of life for both the custodial party seeking the change of principal residence of the child and the child, including, but not limited to, financial or emotional benefit or educational opportunities.
“(12) Whether or not a support system is available in the area of the proposed new residence of the child, especially in the event of an emergency or disability to the person having custody of the child.
“(13) Whether or not the proposed new residence of a child is to a foreign country whose public policy does not normally enforce the visitation rights of non-custodial parents, which does not have an adequately functioning legal system, or which otherwise presents a substantial risk of specific and serious harm to the child.
“(14) The stability of the family unit of the persons entitled to custody of and visitation with a child.
“(15) The reasons of each person for seeking or opposing a change of principal residence of a child.
“(16) Evidence relating to a history of domestic violence or child abuse.
“(17) Any other factor that in the opinion of the court is material to the general issue or otherwise provided by law.”

(Emphasis added.)

Generally, cases decided before the adoption of the Act in which the noncustodial parent was seeking a modification of custody and the custodial parent was relocating held that the change of residence of the custodial parent was considered but one factor in determining whether modification was warranted. See, e.g., Ex parte Murphy, 670 So.2d 51, 53 (Ala.1995); Morris v. Padgett, 890 So.2d 157, 159 (Ala.Civ.App.2004); Scacca v. Scacca, 694 So.2d 1, 4 (Ala.Civ.App.1997); Moore v. Moore, 585 So.2d 66, 68 (Ala.Civ.App.1991); and Patchett v. Patchett, 469 So.2d 642, 644 (Ala.Civ.App.1985). The Act, likewise, makes the change of principal residence one of numerous factors for the trial court to consider when determining whether a modification of custody is warranted. § 30-3-169.3(a). Under Ex parte McLendon, the noncustodial parent must prove that a change in custody would materially promote the child’s best interests, or, in other words, that the benefits of the change in custody would more than offset the inherent disruption caused by that change. See Ex parte McLendon, 455 So.2d at 866. The Act likewise requires the trial court to consider the impact of a change in custody and to weigh that against the obvious impact of a change of residence. § 30-3-169.3(a)(7). Section 30-3-169.4 shifts the burden back to the noncustodial parent once a custodial parent rebuts the presumption against relocation, so I believe that the noncustodial parent seeking a modification in custody on the basis of an approved relocation has the burden of demonstrating that the child’s best interests would be served by a change in custody.

I disagree, therefore, that the Act “supplants” the test outlined in Ex parte McLendon. I believe instead that the Act simply recognizes the long-applied standard that a change in residence is only one factor to be considered in a modification proceeding. The Act, in my opinion, further recognizes that a child facing relocation of his or her principal residence or a modification of custody will undergo change in either instance and instructs the trial court, as one would expect the trial court to have done in any event, to weigh the two impacts against each other. The Act does not, in my opinion, relieve the noncustodial parent from proving that the change of custody he or she seeks on the basis of an approved change in principal residence promotes the child’s best interests inasmuch as the benefits of a change in custody would outweigh the disruption caused by that change. The practical effect of the trial court’s weighing the disruptive impact caused by either proposed event — the relocation or the change of custody — may well be to make it relatively less difficult to secure a change of custody. However, that effect obtained in many a case of this nature decided before the adoption of the Act.

PITTMAN, J., concurs.

PITTMAN, Judge,

concurring in the result.

I was originally prepared to concur in the result in this case with only citations to Rule 52(c), Ala. R. Civ. P., and Clements v. Clements, 906 So.2d 952 (Ala.Civ.App.2005). Judge Murdock’s direct criticism of my reliance upon those authorities, however, arguably calls for a somewhat lengthier response.

Athough the dispositive motion filed by the mother in this case was described by her as a motion for a “directed verdict” (which has never been appropriate in non-jury proceedings — -see Fitzner Pontiac-Buickr-Cadillac, Inc. v. Perkins & Assocs., Inc., 578 So.2d 1061, 1063 n. 1 (Ala.1991)), and was labeled by the trial court as a “motion to dismiss” (which was correct before Rule 52(c), Ala. R. Civ. P., partially supplanted former Rule 41(b), Aa. R. Civ. P. — see Burkes Mech., Inc. v. Fort James-Pennington, Inc., 908 So.2d 905, 910 (Ala. 2004)), the substance of the motion was a request for the entry of a favorable judgment before the close of the presentation of all of the evidence. Thus, I believe that the judgment under review can properly be viewed only as a judgment on partial findings. See Rule 52(c), Ala. R. Civ. P. (governing judgments on partial findings in proceedings in which the trial court is the trier of fact).

Judge Murdock’s view that Rule 52(c) is inapplicable is unsound. Rule 52(c) supplies the current procedural mechanism under which a trial court can, in an appropriate case, enter a final judgment on a claim or a defense without hearing all of the evidence, which is precisely what the trial court did in this ease. See generally 9A Charles A. Wright et al., Federal Practice & Procedure § 2573.1 (2d ed.1995) (noting that Rule 52(c) authorizes trial courts “to enter judgment at any time a party has been heard fully on an issue” and that the grant of such a motion “is a decision on the merits in favor of the moving party” (footnote omitted)).

Clements, a case decided by this court just over a year ago, discussed the governing burdens of proof in cases involving relocation of the primary custodial parent and noted that under § 30-3-169.3, Aa. Code 1975, a proposed change of principal residence of a child is merely “a factor that a trial court may consider in determining whether to modify custody.” 906 So.2d at 958. I adhere to the reasoning set forth in the main opinion and in my special concurrence in that case. However, in my view, although the trial court in this case is free to enter an appropriate judgment on the father’s custody petition after having heard all of the evidence, that court should not “short-circuit” the decision process by pre-termitting the father’s claim without hearing the mother’s witnesses or any rebuttal witnesses called by the father because any or all of those witnesses might adduce evidence bearing upon the factors enunciated in Ex parte McLendon, 455 So.2d 863 (Ala.1984), a case governing custody-change determinations by which this court is bound unless it is overruled by the Alabama Supreme Court or unless its rule of decision is expressly abrogated by the legislature.

Based on the foregoing, I concur in the result.

      . The father filed a petition for a writ of mandamus with this court, specifically alleging that the trial court had directed the parties to submit affidavits in support of their respective motions, that it had “failed to conduct a hearing” on his motion, and that the only evidence the trial court had received was in the form of affidavits, which the father alleged contained insufficient evidence to support the trial court’s denial of his motion. In part, the father argued that the trial court erred by not conducting a hearing on his motion. See Ala.Code 1975, § 30-3-169.2(b). By order dated August 18, 2004, a majority of this court voted to deny the father’s petition for a writ of mandamus.

      . The mother's appellate brief is permeated with "facts” from the affidavits that she submitted in response to the father’s motion for a temporary restraining order or for pendente lite custody. The trial court's consideration of the aforementioned affidavits was in the context of determining whether the mother should be allowed to temporarily relocate the principal residence of the parties' son pending a hearing on the father’s objection to the permanent relocation of the son. Cf. Ala. Code 1975, § 30-3-169.2(c) ("If the court has issued a temporary order authorizing a party to change the principal residence of a child before final judgment is issued, the court may not give weight to the temporary change of principal residence as a factor in reaching its final decision.”). The affidavits were not offered or received into evidence at trial on the father’s custody-modification petition, which concerned, in part, whether the son's permanent relocation was in his best interests.
      Based on the mother's citation to matters outside the trial record, the father filed a motion to strike the mother’s statement of facts and to strike her appellate brief. We deny the motion to strike, but in doing so we note that this court considers only the evidence properly offered to and received by the trial court. See Wilson v. Crosby Lumber Co., 386 So.2d 1173, 1175 (Ala.Civ.App.1980) (“[MJatters outside the record will not be considered.”); see also Queen v. Belcher, 888 So.2d 472, 477 (Ala.2003) (noting that generally affidavits are inadmissible hearsay that cannot be offered as substantive evidence at trial).

      . The determination as to whether a child’s place of residence should be changed (the focus of § 30-3-169.4 and the presumption referenced therein that it is not in a child's best interests to be relocated, a presumption that the relocating parent has the burden of rebutting) and the determination of with whom the child will reside (see § 30-3-169.3, Ala.Code 1975) cannot be separated. Our courts are called upon to make custody decisions. As a general rule, once a court has done that, and barring some emergency implicating the immediate safety of the child, it is the custodial parent’s decision as to where the parent and the child will reside, how the child will be cared for, what associations the child will have, etc. In some cases, of course, and as contemplated by the Act, parental decisions as to these issues may be such as to justify a change of custody.
      Of necessity, a judicial determination that the presumption against relocation referenced in § 30-3-169.4 has been rebutted and that it is in the best interests of a child to be relocated is a determination that it is in the best interest of the child to relocate with the custodial parent. By the same token, a judicial determination that it is not in the best interests of the child to relocate with the custodial parent is necessarily a determination that the custody of the child cannot remain with that parent. The law cannot workably contemplate that a child will live alone, or a determination as to a child’s place of residence based only upon such extrinsic factors as the quality of school systems or cultural life in some new locale. The question of the location of the child's residence (upon which § 30-3-169.4 expressly focuses) and the question of which parent should have custody of the child (upon which § 30-3-169.3 expressly focuses) simply cannot be separated. Therefore, a noncustodial parent necessarily prevails in a case such as this in which the custodial parent has moved or will move but fails to rebut the presumption that a change in the residence of the child will not be in the child's best interests. (In a case in which the custodial parent subsequently chooses to remain in the same locale with the child, the cause for the proposed change of custody would be eliminated and the case would become moot, at least to that extent.)

        . I also note my disagreement with Judge Pittman’s view, expressed in his special writing in Clements, that § 30-3-169.4 applies only to those cases in which there has been no prior custody decision as between two parents. Clements, 906 So.2d at 961. I see no textual basis for so limiting the application of § 30-3-169.4. To do so would defeat a primary objective of the Alabama Parent-Child Relationship Protection Act, namely, preventing a parent who previously has been awarded primary custody of a child from making a significant change in the residence of the child over the objection of the other parent, at least without heightened judicial scrutiny.

      . In his special writing, Judge Pittman states that this court should continue to follow the McLendon standard until such time as the Supreme Court overrules McLendon or until that "rule of decision is expressly abrogated by the legislature.” 947 So.2d at 429 (Pittman, J., concurring in the result) (emphasis added). As explained in the text, I believe the legislature, in adopting the Parent-Child Relationship Protection Act, has in fact done what it needs to do in order to abrogate that rule of decision.

      . Judge Crawley comments in his separate writing that
      "[t]he practical effect of the trial court’s weighing the disruptive impact caused by either proposed event — the relocation or the change of custody — may well be to make it relatively less difficult to secure a change of custody. However, that effect obtained in many a case of this nature decided before the adoption of the Act.” 947 So.2d at 428 (Crawley, P J., concurring in the result). Be that as it may, it is true that that effect did not obtain in many a case decided under the so-called McLendon presumption, a fact that I believe the legislature was trying to change with its adoption of the Act.

      . To be sure as well, there remain, at least for this judge, substantial questions as to whether and how §§ 30-3-169.3 and 30-3-169.4, and the shifting burdens of proof described therein, can be reconciled and applied in relation to one another or in relation to the fundamental rights held by custodial parents. See generally note 3, supra. Unless those or other questions relating to the Act are shown to give rise to constitutional infirmity, however, the rule of decision articulated by the judicial branch in McLendon in an effort to facilitate proper custodial placements of children must now yield to the different rules of decision that have since been articulated by our legislature. No argument that the Act in any way violates the constitution has been presented in the present case.


author: BASCHAB, Judge.

text:
    Robert Gene RUSSAW v. STATE of Alabama.
    CR-05-0191.
    Court of Criminal Appeals of Alabama.
    March 3, 2006.
    Robert Gene Russaw, pro se.
    Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On January 16, 2002, the appellant, Robert Gene Russaw, was convicted of unlawful possession of a controlled substance. On February 5, 2002, the trial court sentenced him, as a habitual offender, to serve a term of twenty-seven or twenty-eight years in prison. See § 13A-5-9(c)(l), Ala. Code 1975. We ultimately affirmed his conviction in an unpublished memorandum and issued a certificate of judgment on September 24, 2002. See Russaw v. State, (CR-01-1055) 868 So.2d 484 (Ala.Crim.App.2002) (table). On February 15, 2005, the appellant filed a Rule 32 petition, challenging his conviction. After the State responded, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that his sentence exceeds the maximum authorized by law or is otherwise not authorized by law because

1) the district attorney allegedly misled the trial court regarding the law pertaining to good time and parole; and
2) one of the prior convictions that was used to enhance his sentence had been dismissed.

Although the appellant couches it in jurisdictional terms, Claim 1 is actually a nonjurisdictional claim that is precluded because he could have raised it at trial and on appeal, but did not, and because it is time-barred. See Rules 32.2(a)(3), (a)(5), and (e), Ala. R.Crim. P.

With regard to Claim 2, the appellant specifically contends that the trial court “improperly considered a prior felony conviction that was reversed and remanded by the Alabama court of criminal appeals, And subsequently dismissed on a motion of the state, (See; entry 8/J/./93, Case action summary in Case no. CC-91-520).” (C.R. 11.) The record from the direct appeal in this case shows that the trial court relied on the appellant’s convictions in case numbers CC-78-178, CC-91-569, and CC-91-570 to enhance his sentence in this case. The record from the direct appeal in case number CC-91-570 shows that, on April 16, 1993, this court reversed the appellant’s conviction and remanded the case for further proceedings. See Russaw v. State, 624 So.2d 234 (Ala. Crim.App.1993). The case action summary sheet entry for 8/4/93 in case number CC-91-570 states, in pertinent part: “Dismissed on State’s motion.” (A.C.R. 30.) Finally, the district attorney conceded that one of the appellant’s prior convictions had been overturned. (C.R. 20.) Therefore, it appears that the appellant’s argument may be meritorious.

In its order denying the petition, the circuit court stated, in pertinent part: “Rule 32 petition denied as sentence was within the allowable range.... ” (C.R. 1, 22.) However, in McClintock v. State, 773 So.2d 1057, 1058-59 (Ala.Crim.App.2000), we addressed a similar situation as follows:

“In his Rule 32 petition, which was filed on June 24, 1999, McClintock claimed that his life sentence for first-degree escape was illegal because, he said, one of the convictions that was used to enhance his sentence, specifically, his 1986 conviction in Jefferson County for the sale of a controlled substance, case no. CC-85-2744, had been set aside in January 1989. On October 12, 1999, the circuit court entered an order summarily dismissing McClintock’s petition, stating as grounds that McClintock had raised this same claim in a prior postconviction petition, filed in February 1989, and that, therefore, his present petition was successive under Rule 32.2(b), Ala. R.Crim. P.
“The record reflects th[at] McClin-tock’s first postconviction petition was summarily dismissed by an order of the circuit court entered in April 1989. In that order, the circuit [court] found that although McClintock’s conviction in case no. CC-85-2744 had been, as McClintock alleged, set aside in January 1989, it was unnecessary to resen-tence McClintock because, the circuit court reasoned, McClintock’s sentence of life imprisonment was within the range authorized under the Habitual Felony Offender Act for a defendant upon conviction of a Class B felony where the defendant has been previously convicted of any two felonies. See § 13A-5-9(b), Ala.Code 1975 (Tn all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he must be punished as follows: ... (2) On conviction of a Class B felony, he must be punished by imprisonment for life or for any term of not more than 99 years but not less than 15 years.’)
“ ‘ “ ‘[A] conviction that has been set aside or reversed may not be used to enhance [a] penalty.’ ” Prock v. State, 471 So.2d 519, 521 (Ala.Cr.App.l985)(quoting 24B C.J.S. Criminal Law § 1960(6) (1962)).’ Crenshaw v. State, 740 So.2d 478, 479 (Ala.Cr.App.1998). Because McClin-tock’s conviction in case no. CC-85-2744 was set aside in January 1989, McClintock was entitled to be resen-tenced for his first-degree escape conviction, with the circuit court considering only two prior felony convictions (i.e., the 1976 conviction in Shelby County for second-degree burglary and the 1980 conviction in Washington for first-degree robbery) for enhancement purposes under the Habitual Felony Offender Act. However, the circuit court’s April 1989 order, which indicated merely that McClintock’s life sentence was within the authorized statutory range, fails to establish that McClintock was properly resentenced using two prior felony convictions, rather than three, for enhancement. Because McClintock has not received a sentencing hearing at which only two prior felony convictions were considered for enhancement purposes, his sentence is illegal. Therefore, the claim in his present Rule 32 petition is not (as the circuit court found in its October 12, 1999, order of dismissal) subject to the procedural bar of Rule 32.2(b), Ala. R.Crim. P. See Jones v. State, 724 So.2d 75, 76 (Ala.Cr.App.1998).
“Under § 13A-5-9(c)(2), Ala.Code 1975, a sentence of life imprisonment is mandatory upon conviction of a Class B felony where three prior felony convictions have been proven. However, under § 13A-5-9(b)(2), Ala.Code 1975, a broad range of possible sentences may be imposed upon conviction of a Class B felony where only two prior felony convictions have been proven. Notwithstanding the fact that, as the circuit court indicated in its April 1989 order, McClintock’s sentence of life imprisonment was within the range authorized under the Habitual Felony Offender Act for a defendant upon conviction of a Class B felony where the defendant has been previously convicted of any two felonies, fundamental fairness requires that this cause be remanded for a new sentencing hearing, so that it may be established with certainty that the circuit court has exercised the discretion allowed it under § 13A-5-9(b)(2) in imposing McClintock’s sentence. See Pickens v. State, 475 So.2d 637, 640 (Ala.Cr.App.1985). Accordingly, this cause is remanded with directions for the circuit court to conduct a new sentencing hearing in accordance with this opinion. The circuit court may impose a sentence within the statutory range set forth in § 13A-5-9(b)(2), Ala.Code 1975. The circuit court should specifically state that it is resentencing McClintock without considering his conviction in case no. CC-85-2744.”

See also Capps v. State, 747 So.2d 358 (Ala.Crim.App.1999); Crenshaw v. State, 740 So.2d 478 (Ala.Crim.App.1998).

For the reasons set forth herein, we must remand this case to the circuit court with instructions that it make specific, written findings of fact as to whether the appellant’s conviction in case number CC-91-570 was dismissed and therefore could not be used to enhance his sentence in this case. On remand, the circuit court may require the State to respond more specifically to the appellant’s claim and/or take affidavits or conduct an evidentiary hearing on that claim. If the circuit court determines that the appellant’s sentence was improperly enhanced using case number CC-91-570, it shall resentence him as a habitual offender with two prior felony convictions pursuant to § 13A-5-9(b)(l), Ala.Code 1975. 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 specific, written findings of fact; any additional response by the State; affidavits or a transcript of the evidentiary hearing, if any; a new sentencing order, if any; and a transcript of the new sentencing hearing, if any.

REMANDED WITH INSTRUCTIONS.

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

      . We have taken judicial notice of the record from the appellant's direct appeal. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App.1998). The case action summary sheet indicates that the trial court sentenced the appellant to serve a term of twenty-seven years in prison. (A.C.R. 4, 32.) However, the transcript of the sentencing hearing indicates that the trial court sentenced the appellant to serve a term of twenty-eight years in prison. (R. 82.) On remand, the circuit court should specify which sentence it imposed.

      . We have taken judicial notice of the record from the appellant’s direct appeal in that case as well. See Nettles, supra.

      . Although the State argues that the appellant refers to case number CC-91-520, the information regarding case number CC-91-570 corresponds with his remaining allegations as to this claim. Therefore, it appears that he simply referenced the incorrect case number.


author: McMILLAN, Presiding Judge.

text:
    Wallace Glenn SANDERS v. STATE.
    CR-04-1577.
    Court of Criminal Appeals of Alabama.
    March 24, 2006.

      H. Hampton Baxley, Dothan, for appellant.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

On September 5, 2003, the appellant, Wallace Glenn Sanders, was indicted for robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975, in connection with the robbery of a Texaco Pood Mart in Dothan. Sanders was also indicted for robbery in the first degree in connection with the robbery of the Cowboy Service Station in Dothan and with robbery in the third degree in connection with the robbery of the Krystal fast-food restaurant in Dothan, a violation of § 13A-8-43, Ala. Code 1975. The three cases were consolidated for trial. At the conclusion of the trial on February 7, 2005, the jury found Sanders guilty of first-degree robbery of the Texaco Food Mart as charged in the indictment. The jury also found him guilty of third-degree robbery in connection with the robberies of the Cowboy Service Station and the Krystal restaurant.

The State had notified the defendant that it was requesting an additional penalty under the firearm-enhancement statute, § 13A-5-6(a)(4) and (5), Ala.Code 1975. At the sentencing hearing on April 8, 2005, the trial court sentenced Sanders to a 5-year term of imprisonment on each of the third-degree-robbery convictions, and a 10-year term of imprisonment on the first-degree-robbery conviction, with the 10-year sentence to run concurrently with the two 5-year sentences. In connection with the first-degree-robbery conviction, the trial court ordered that Sanders’ sentence be enhanced by an additional 10 years under the use-of-firearm sentence enhancement statute, § 13A-5-6(a)(4), Ala.Code 1975, making his sentence for the first-degree-robbery conviction, in effect, 20 years’ imprisonment.

The single issue presented for review is whether the trial court abused its discretion in applying the firearm-enhancement statute to the sentence for Sanders’ first-degree-robbery conviction. Sanders argues that there was no evidence presented indicating that any firearm was seen in the his possession or used by him at the time the robbery was committed.

At trial, Ms. Dean Saltz testified that she was the clerk at the Texaco Food Mart on the Montgomery Highway in Dothan, on the day the robbery was committed. Her testimony, in relevant part, regarding the presence or absence of a firearm was as follows:

“[DEFENSE COUNSEL]: Okay. Now then, you say this guy, this defendant tried to rob you?
“[MS. SALTZ]: That’s right.
“[DEFENSE COUNSEL]: Well, tell us what happened.
“[MS. SALTZ]: Well, he came in, spoke to me. I mean, I spoke to him, like I did all my customers. He walks up right in front of me and he says, T need $200.’ I said, ‘So? I don’t have $200.’ He took his hand and stuck it under his shirt and he had his finger stuck out. And he said, ‘If you don’t give me $200, I’m going to kill you.’ And I said, ‘Well, go ahead and kill me, you’re still not getting $200.’ ”

There was no other evidence that would have indicated that the clerk perceived that Sanders had a gun in his possession.

In Snowden v. State, 842 So.2d 24, (Ala.Crim.App.2002), this Court held that the statute creating the firearm-enhancement for felonies applies only in those cases in which a firearm or a deadly weapon was used or attempted to be used in the commission of the felony, not in those cases in which the defendant only represented that he was armed with a firearm.

The State concedes that the trial court mistakenly assumed that the jury must have found that a firearm was used during the robbery of the Texaco Food Mart, reasoning that, if use of a firearm was an essential element of first-degree robbery, the jury must necessarily have found that the appellant used a firearm while committing the robbery. However, the State argues that robbery in the first degree is a Class A felony and that § 13A-5-6(a)(l), Ala.Code 1975, sets the term of imprisonment upon conviction of a Class A felony at between 10 and 99 years. Therefore, the State argues the 20-year sentence imposed upon Sanders is within the statutory range, and application of the firearm-enhancement statute is harmless error.

We do not agree; the imposition of this sentence resulted in an illegal sentence. Cf. Mount v. State, 920 So.2d 1132 (Ala.Crim.App.2005)(wherein use of an improper prior conviction in sentencing resulted in an illegal sentence despite the fact that upon the use of two prior convictions the sentence remained within the proper range of sentencing). See also Howard v. State, 902 So.2d 127 (Ala.Crim.App.2004)(stating that if no affirmative showing appears on the record of an improper use of an enhancement and the sentence is in the proper range, there is no error). Therefore, this case must be remanded to the circuit court for resen-fencing without applying the firearm-enhancement statute. A due return shall be made to this court within 42 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, and SHAW, JJ., concur.

WISE, J., concurs in the result.


author: WISE, Judge.

text:
    Robert Donald DUCK, Jr. v. STATE of Alabama.
    CR-05-1083.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.

      Robert Donald Duck, Jr., pro se.
    Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Robert Donald Duck, Jr., appeals from the circuit court’s dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his June 1996 guilty-plea conviction for possession of marijuana in the first degree, driving under the influence, and his resulting sentence of three years’ imprisonment. No direct appeal was taken from these convictions.

On December 30, 2005, Duck filed this, his first, Rule 32 petition, in which he alleged: (1) that the trial court was without jurisdiction to render judgment or to impose judgment because, he says, the trial court improperly amended the indictment from second-degree unlawful possession of marijuana to first-degree possession of marijuana and (2) that he was given no notice that his sentence would be enhanced. Duck requested that the trial court vacate his conviction and that it be expunged in its entirety. On February 6, 2006, the State filed a motion to dismiss, arguing that Duck’s claims were without merit. On February 10, 2006, the trial court issued an order dismissing Duck’s petition. This appeal followed.

The State does not contest Duck’s allegations and it concedes that the order dismissing his petition must be reversed and the case remanded on the authority of Ex parte Cole, 842 So.2d 605 (Ala.2002), and Hamilton v. State, 828 So.2d 957 (Ala.Crim.App.2002). Rule 13.5(a), Ala.R.Crim.P., states, in pertinent part:

“A charge may be amended by order of the court with the consent of the defendant in all cases, except to change the offense or to charge new offenses not contemplated by the original indictment. The court may permit a charge to be amended without the defendant’s consent, at any time before verdict or finding, if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.”

(Emphasis added.) Moreover, “an indictment may not be amended, even with the consent of a defendant, to charge a greater or different offense.” Hamilton v. State, 828 So.2d at 960 (emphasis added).

Duck’s indictment for unlawful possession of marijuana in the second degree (a Class A misdemeanor), his explanation-of-rights form, and his plea agreement are included in the record on appeal. Although the record shows that Duck, pursuant to a plea agreement with the State, pleaded guilty to the amended charge of first-degree unlawful possession of marijuana (a Class C felony) without objection, the circuit court did not have jurisdiction to accept Duck’s plea to an offense not contemplated in the original indictment, and its dismissal of his Rule 32 petition was in error. Toliver v. State, 881 So.2d 1070 (Ala.Crim.App.2003).

Based on the foregoing, we reverse the judgment of the Elmore Circuit Court dismissing Duck’s Rule 32 petition and we remand this cause for that court to vacate Duck’s felony conviction for unlawful possession of marijuana in the first degree.

REVERSED AND REMANDED.

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


author: SHAW, Judge.

text:
    Bobby WHITE v. STATE of Alabama.
    CR-05-0228.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.
    Bobby White, pro se.

      Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   SHAW, Judge.

Bobby White appeals the circuit court’s summary denial of his motion made pursuant to § 13A-5-9.1, Ala.Code 1975, to reconsider his two sentences of life imprisonment imposed upon application of the Habitual Felony Offender Act (“the HFOA”) for his convictions for first-degree escape and first-degree theft. See Kirby v. State, 899 So.2d 968 (Ala.2004).

White filed his motion on July 7, 2005, alleging that he was entitled to have his sentences reconsidered because, he said, he was convicted and sentenced before May 25, 2000, the effective date of the 2000 amendment to the HFOA, neither his present convictions nor his prior convictions involved violent conduct, and his prison record reflects his good behavior while in prison. After ordering and receiving information from the Department of Corrections regarding White’s prison record, the circuit court summarily denied White’s motion, stating:

“After reviewing the records supplied by the Department of Corrections, the Court has determined that the Defendant was paroled on this case on March 29, 2004. His parole was revoked on February 14, 2005, and he was sent back to continue serving his sentence.
“Section 13A-5-9.1, Code of Alabama, 1975, as amended, states in part ‘... for consideration of early parole.... ’ This Court finds that the Defendant has already received the benefit of early parole and is therefore not eligible for relief. Accordingly, his Motion to Reconsider Sentence is DENIED.”

(C. 75.)

On appeal, White contends, and the State concedes, that the circuit court erred in finding that White was ineligible for sentence reconsideration solely because he had previously been granted parole and that parole had been revoked. As this Court explained in Holt v. State, [Ms. CR-04-1250, March 3, 2006] — So.2d - (Ala.Crim.App.2006), there are only three eligibility requirements for sentence reconsideration under § 13A-5-9.1:

“There are three requirements for eligibility to have a sentence reconsidered under § 13A-5-9.1: (1) the inmate was sentenced before May 25, 2000, the date the 2000 amendment to the HFOA became effective; (2) the inmate was sentenced to life imprisonment without the possibility of parole pursuant to § 13A-5 — 9(c)(3) and had no prior Class A felony convictions or was sentenced to life imprisonment pursuant to § 13A-5-9(c)(2), see Prestwood[ v. State, 915 So.2d 580 (Ala.Crim.App.2005) ]; and (3) the inmate is a ‘nonviolent convicted offender.’ An inmate must satisfy all three requirements before he or she is eligible for reconsideration of sentence under § 13A-5-9.1.”

— So.2d at-. That an inmate has not previously been paroled is not a requirement for eligibility for sentence reconsideration under § 13A-5-9.1, although an inmate’s parole history is a factor to be considered in determining whether an inmate is a nonviolent offender and whether to resentence an eligible inmate. See Ferrell v. State, 944 So.2d 162 (Ala.Crim.App.2006). Therefore, the circuit court erred in finding that White was not eligible for sentence reconsideration solely because he had previously been paroled and that parole had been revoked.

Based on the foregoing, the judgment of the circuit court is reversed and this cause remanded for the circuit court to reconsider White’s § 13A-5-9.1 motion in light of this Court’s opinion in Holt.

REVERSED AND REMANDED.

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

      . The circuit court had jurisdiction to consider the motion because the judge who ruled on the motion is the judge who sentenced White. See, e.g., Holt v. State, [Ms. CR-04-1250, March 3, 2006] - So.2d -(Ala.Crim.App.2006), and the cases cited therein.


author: COBB, Judge. BASCHAB, Judge,

text:
    Robert GRIGGS, Jr. v. STATE of Alabama.
    CR-04-2546.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.
    Robert Griggs, Jr., pro se.
    Troy King, atty. gen., and Cecil G. Bren-dle, Jr., asst. atty. gen., for appellee.
   COBB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P. J., and SHAW and WISE, JJ., concur. BASCHAB, J., concurs in part and dissents in part with an opinion.

BASCHAB, Judge,

concurring in part and dissenting in part.

I concur with the majority’s conclusion that the circuit court properly summarily denied the appellant’s petition. However, I dissent as to the majority’s conclusion that “it is not apparent from the record that any jurisdictional defect exists in [the appellant’s] sentence.”

In this case, the appellant was convicted of trafficking in cocaine. On or about February 2, 2000, the trial court sentenced him to serve a term of ten years in prison, but split the sentence and ordered him to serve three years. It also ordered him to serve five years in prison because the offense occurred within five miles of a school and an additional five years because it occurred within five miles of a public housing project. See §§ 13A-12-250 and 13A-12-270, Ala.Code 1975.

“ ‘This Court has consistently treated sentences imposed pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, as enhancements to a base sentence and, thus, as part of a single aggregate sentence for an offense.’ State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001).” Calloway v. State, 860 So.2d 900, 902 (Ala.Crim.App.2002). Therefore, the appellant’s aggregate sentence in this ease was twenty years in prison. When the appellant was sentenced, § 15-18-8, Ala.Code 1975, provided, in pertinent part:

“(a) When a defendant is convicted of an offense and receives a sentence of 15 years or less in any court having jurisdiction to try offenses against the State of Alabama and the judge presiding over the case is satisfied that the ends of justice and the best interests of the public as well as the defendant will be served thereby, he may order:
“(1) That the convicted defendant be confined in a prison, jail-type institution or treatment institution for a period not exceeding three years and that the execution of the remainder of the sentence be suspended and the defendant be placed on probation for such period and upon such terms as the court deems best....”

Because the appellant’s aggregate sentence was twenty years in prison, the trial court did not have jurisdiction to split his sentence. See Trawick v. State, 883 So.2d 1273 (Ala.Crim.App.2003); Calloway, supra.

“ ‘Matters concerning unauthorized sentences are jurisdictional,’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994); therefore, we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).”

Calloway, 860 So.2d at 902. Accordingly, we should remand this case to the circuit court with instructions that that court set aside the split portion of the appellant’s sentence.


author: BAILEY, JENNIFER D., Associate Judge. BAILEY, JENNIFER D., Associate Judge.

text:
    Richard MENDES, Appellant, v. Debra MENDES, Appellee.
    No. 4D05-279.
    District Court of Appeal of Florida, Fourth District.
    May 24, 2006.
    Opinion Denying Rehearing Feb. 21, 2007.

      Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.
    Alan R. Burton, Fort Lauderdale, for appellee.
   BAILEY, JENNIFER D., Associate Judge.

Richard Mendes (“former Husband”) appeals from an order rejecting downward modification of his permanent alimony obligation. The trial court properly rejected the General Magistrate’s Report and Recommendation on the modification. Although we affirm the result, we respectfully reject the trial court’s reasoning.

The parties were divorced on February 4, 2003. At the time,, Mr. Mendes was employed as a mortgage loan originator with Suntrust Bank, earning $127,998 per year. Mrs. Mendes earned $61,312 per year. The parties settled their divorce case by a settlement announced on the record before the trial court, which provided for $1500 per month in permanent alimony to the wife, with the proviso that “[ojbviously, the alimony would be subject to modification with respect to any material change in the earnings of either of the parties either up for her or down for him....”

Fourteen months later, former Husband moved to discharge his obligation to pay permanent alimony. He alleged a substantial change of circumstances due to the increase in interest rates and a reduction in referrals at Suntrust, which had reduced his income to less than his former wife’s income level.

The case was referred to the General Magistrate. The former Husband testified that re-financing had “dried up” since interest rates began to climb in July 2003. He also testified that he had quit his job at Suntrust because of a policy change limiting the number of internal referrals for refinancing which he could receive from Suntrust branch managers, previously unlimited. After Mr. Mendes left Suntrust, he joined another mortgage brokerage with the expectation of restoring his fortunes. However, Mr. Mendes testified, his income would never return to the levels of 2002 upon which the agreed permanent alimony had been based.

Suntrust witnesses testified that the referral limitation was adopted in March 2002, and that the rise in interest rates had substantially reduced refinancing business.

Former husband’s counsel argued that the evidence demonstrated that the 2002 earnings represented a unique spike in earnings due to historically low interest rates, and that Mr. Mendes would never earn that much again. Counsel for the former wife pointed out that the Suntrust referral limitation policy had been announced almost a year before the settlement, and that the fluctuating character of Mr. Mendes’s income was known at the time of the settlement agreement.

The General Magistrate granted the former Husband’s motion and completely discharged his permanent alimony obligation, finding that Mr. Mendes had suffered a substantial, involuntary, and permanent reduction in income. The former wife, not surprisingly, took exceptions to the magistrate’s recommendation before the trial court.

The trial court sustained the former wife’s objections, finding that the magistrate’s findings and determinations were not supported by substantial and competent evidence and were clearly erroneous. See Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999). The court determined the circumstances which produced the reduction in income were known at the time of the agreed settlement and that Mr. Mendes had failed to prove that his reduction in income was not contemplated at the time he agreed to pay $1500 permanent alimony. The trial court particularly found that fluctuating interest rates and the consequences to Mr. Mendes’s income were contemplated at the time of the final judgment, along with the known and existing Suntrust policy change of limiting in-house refinance referrals to staff mortgage originators.

In order to modify an alimony award, a movant must show: 1) a substantial change of circumstances; 2) that the change was not contemplated at the time of the final judgment; and 3) that the change is sufficient, material, involuntary, and permanent in nature. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). When the permanent alimony amount was originally determined by agreement between the parties, the movant has a heavier than usual burden of proof. Overbey v. Overbey, 698 So.2d 811, 814 (Fla.1997).

We find that the trial court correctly overruled the magistrate’s complete and permanent discharge of former Husband’s permanent alimony obligation. However, the trial court’s reliance on the former husband’s knowledge, at the time of final judgment, of the possibility of fluctuations in interest levels affecting his income as grounds for prohibiting modification is misplaced.

The trial court based its decision on the well-established principle that modification may not be based upon factors affecting income known to the parties at the time a final judgment is entered. Mastrilli v. Mastrilli, 478 So.2d 377, 378 (Fla. 2d DCA 1985). As aptly stated in Jajfee v. Jaffee, 394 So.2d 443, 445 (Fla. 3d DCA 1981): “The reason for this doctrine is an obvious one: if the likelihood of a particular occurrence was one of the factors which the court or the parties considered in initially fixing the award in question, it would be grossly unfair subsequently to change the result simply because the anticipated event has come to pass.”

In contrast here, Mrs. Mendes’s permanent alimony was calculated based on the 2002 income levels, without taking into account the possibility of future decline. In fact, the possibility was explicitly recognized in the announcement on the record, which contemplated modification if the parties’ earnings went up or down. While the possibility of fluctuating market conditions affecting Mr. Mendes’s income may have been known to the parties at the time of the settlement agreement and final judgment, the character of the actual change and consequences to income were not known at the time of the final judgment. “A possibility that income will decrease is not knowledge that it will do so.” Allison v. Allison, 554 So.2d 1196, 1198 (Fla. 1st DCA 1989). It is the actual occurrence of the change or fluctuation, the vesting of the possible variables, which serves to support a potential modification. At the time of the Mendeses’ settlement, Mr. Mendes could not have used speculation about a possible future upward creep in interest rates to minimize his alimony obligation. Therefore, the avenue of modification must be open to those who earn fluctuating incomes in the event that an adverse change materializes in substantial measure. However, the very fluctuating nature of the earnings leaves open that potential that favorable conditions may eventually return. Therefore, a permanent resolution in the form of discharge is inappropriate on this ground alone. A claim of fluctuating income due to market conditions may not support a complete discharge unless a permanent, not fluctuating, loss of ability to earn income at previous levels is evidenced. In lieu of such permanency, downward modification is the appropriate remedy, where sought. Mr. Mendes complained of a decline in refinancing in the home mortgage market. The evidence presented to the magistrate demonstrated that while Mr. Mendes remained at Suntrust, his earnings for 2004 were roughly on track with what he had earned in 2003, and that although he had lost in-house referrals, he had replaced that income source with outside refinance referrals. His initial job change to Allied produced zero income for several months, decreasing his earnings figures for 2004 and 2005. Further, while the refinancing market may have slowed, former husband’s evidence failed to address the potential income source from purchase money mortgages during a white hot South Florida real estate market.

The magistrate found a substantial, involuntary, permanent reduction in income, a finding unsupported by evidence, logic or law. While affirming the trial court’s ruling rejecting the Magistrate’s Report and Recommendations, we are confined in our remedy by the limited pleading of the Husband. Husband sought only discharge, not modification.

In light of the former Husband’s sole plea, which was for discharge, we affirm the trial court’s order overruling the magistrate’s report, requiring payment of $1500 per month in permanent alimony to the former wife.

Affirmed.

WARNER and KLEIN, JJ., concur.

On motion for rehearing and REHEARING EN BANC

BAILEY, JENNIFER D., Associate Judge.

The appellant (former husband) has moved for rehearing based upon the argument that our remand should include leave to seek to modify his permanent alimony obligation. He cites the case of Reno v. Reno, 884 So.2d 462 (Fla. 4th DCA 2004), which stated: “It is clear that when a party requests that alimony be terminated, the trial court has jurisdiction to simply modify the alimony.” Id. at 465.

The case below was tried because the parties had competing positions: the former husband took the position that his permanent alimony payments had to be terminated due to changes in the real estate finance market in which he was employed. The former wife took the position that the former husband could not seek modification on that ground because the fluctuating character of the real estate finance market was known to the parties at the time the permanent alimony was agreed upon in the parties’ marital settlement. The only issue tried in this case was whether termination was appropriate or prohibited. Neither party ever argued or tried the issue of a modified, reduced amount of permanent alimony to the trial court, nor presented the issue on appeal.

As the former husband did not seek a reduction in alimony in lieu of termination below, he failed to preserve this claim for purposes of our remand. While such an issue is within the trial court’s jurisdiction under Reno, the former husband did not invoke that remedy. As such, rehearing is denied. See Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001); see also Walls v. Sebastian, 914 So.2d 1110 (Fla. 4th DCA 2005); Utterback v. Utterback, 861 So.2d 465 (Fla. 3d DCA 2003). Former husband is not limited in seeking modification in a new proceeding if justified by the current facts and circumstances of the parties.

Rehearing Denied.

WARNER and KLEIN, JJ., concur.

      . In addition, the trial court can consider and grant a "good faith” modification where fluctuations have produced a temporary inability, to be reviewed periodically by the court as changing conditions dictate. See Overbey v. Overbey, 698 So.2d 811 (Fla.1997).