author: THOMPSON, Presiding Judge.

text:
    Mark A. EVANS v. Joni Lynn Morgan EVANS.
    2060158.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      J. Bernard Brannan, Jr., of The Bran-nan Law Firm, P.C., Montgomery, for appellant.
    James E. Wilson, Jr., Montgomery, for appellee.
   On Application for Rehearing

THOMPSON, Presiding Judge.

This court’s opinion of May 25, 2007, is withdrawn, and the following substituted therefor:

Mark A. Evans (“the father”) appeals from the Montgomery Circuit Court’s judgment denying his petition to modify custody. We affirm in part, reverse in part, and remand.

Joni Lynn Morgan Evans (“the mother”) and the father were never married. In September 1999, the mother gave birth to a girl (“the child”). After the father’s paternity of the child was determined, the mother received sole legal and physical custody of the child. The father paid child support and had supervised visitation rights. In 2000 and 2001, the parties came before the trial court on the father’s request for unsupervised visitation. The trial court heard the father’s request and also took evidence relative to the father’s failure to exercise visitation and disputes with his mother during his visits with the child. The trial court determined that the father’s visitation would continue to be supervised until otherwise ordered. In July 2002, the parties agreed that the father would have scheduled, unsupervised visitation with the child; the trial court adopted the agreement in an order dated September 25, 2002.

In June 2005, the father, who then lived with his mother, filed a petition for a rule nisi and a petition to modify custody. The father alleged that the mother had refused to allow him visitation with the child for 15 months and that the mother had changed her place of residence 11 times in the preceding 5 years, frequently without informing him where the child resided. The father asked the trial court to hold the mother in contempt and to award him joint custody of the child. The father alleged

that the mother’s refusal to allow visitation and to advise him of the child’s location was a material change of circumstance that justified a change in custody. The trial court set the petition for a hearing on July 25, 2005.

The mother was personally served with a copy of the father’s petition on July 14, 2005. The record shows that the mother received notice of the July 25, 2005, hearing, but she chose not to appear due to a conflict with her nursing studies. The mother later testified that she told the father’s attorney that she could not attend the hearing. The mother also testified that she attempted to contact the court regarding her absence and was told that she “had to have a motion filed”; the record does not show why the mother did not notify the court in writing of her absence. The trial court was unaware of the mother’s actions.

Knowing only that the mother had failed to appear at the July 25, 2005, hearing, the trial court found her in contempt. On July 26, 2005, the trial court ordered the mother to deliver the child to the father on July 29, 2005, for a three-week visitation period. The order stated that if the mother failed to comply she would “be immediately incarcerated in the Montgomery County Jail.” The order, however, was sent to an address that did not exist and was later returned to the circuit clerk. It is undisputed that the mother never received the July 26, 2005, order.

On August 1, 2005, without knowing that the mother had not received the July 26, 2005, order, the trial court held a hearing on the father’s petition to modify custody and the mother’s failure to deliver the child to the father as ordered. The trial court entered the following order, which we quote in its entirety:

“THIS CAUSE comes before the Court upon the Petition to Modify filed by the [father] seeking joint legal custody.
“Testimony showed that the [mother] refused to comply with the prior Orders of this Court even though in said prior Order she was notified that she would be incarcerated in the Montgomery County Jail if she failed to abide by the visitation.
“Testimony further revealed that the [father] and his mother went to pick up the child at the designated pick-up spot and the [mother] failed to appear.
“Testimony further revealed that counsel for the [father] placed a call to the [mother] via her cell phone, to which she failed to respond.
“Further evidence disclosed that the [mother] leaves the child in a trailer which is not connected to the home; then vacates the trailer and occupies the home with her live-in boyfriend, leaving the child unattended.[]
“The severity of these facts, especially in light that the [mother] failed to appear, concerns the Court greatly.
“Therefore, it is ORDERED as follows:
“1. That the [mother] be incarcerated in the Montgomery County Jail for failure to abide by the terms of this Court’s prior Orders.
“2. That custody is hereby immediately transferred from the [mother] to the [father].
“3. That the Sheriff shall accompany the [father] to obtain the child and the [father] is ordered to immediately place the child in kindergarten in his jurisdiction (school zone).
“4. That the [mother’s] visitation is hereby terminated pending further Order of this Court.
“5. That the [father’s] child support obligation is hereby terminated.
“6. That the [mother] is ordered ... [to pay the father’s attorney fees.]
“7. [That the mother shall pay the fees and costs referenced in the Court’s prior Orders.]
“8. Upon a Petition being filed the Court will consider child support to be paid by the [mother] to the [father].
“9. That a copy of this Order be transmitted to Counsel for the [father] and a copy served on the [mother].”

On August 1, 2005, the mother was detained and the child was delivered into the father’s custody. In an order filed with the circuit clerk’s office on August 2, 2005, the trial court stated:

“Present in Court were the [mother] and counsel for the [father],
“The Court hereby orders that a hearing be conducted on Friday, September 30, 2005, ... as it relates to support of the minor child, custodial/visitation time with the [mother], and furtherance of determining whether the [mother] has complied with this Court’s prior Orders as it relates to judgments’entered in by this Court.” ‘

On September 2i, 2005, the mother filed an untimely motion to vacate the August 1, 2005, order. See Rule 59(e), Ala. R. Civ. P. The trial court purported to deny the motion on September 23, 2005.

The record does not show what took place at the September 30, 2005, hearing. The case-action summary contains the following notation: “Custody, Temp. Hearing OSH: Oct. 19, 2005, at 9:00 a.m.” The record does contain a “Corrected Order” dated November 7, 2005, which purportedly set “a temporary hearing” before a special master on October 19, 2005, and also set a final hearing. It is unclear whether this order is misdated or whether it mistakenly includes language regarding the October 19, 2005, hearing. Notably, the order recognized that service of the July 26, 2005, order had not been perfected on the mother and concluded that, “therefore, the matter of change of custody is now before the Court for proper consideration.”

On October 19, 2005, the special master took ore tenus evidence on the issue of the child’s physical custody and subsequently submitted a detailed report of reference to the trial court. Among other findings, the special master reported that the process server who had served the mother with the father’s petition and the sheriffs deputy who had delivered the child into the father’s custody testified that they had found the child unattended in the mother’s mobile home along with several other children. The sheriffs deputy testified that when she picked up the child to be delivered to the father, the children in the mobile home appeared to be well-dressed, clean, and not malnourished. The mobile home is located on- the property of the mother’s boyfriend, but out of view of the boyfriend’s house. The mother denied that she had left the child unattended, and she asserted that her teenage son, the child’s half brother, watched the child. The father testified regarding the mother’s refusal to deliver the child for visitation and her changes of residence without informing him. The parties also offered disputed testimony regarding the character of the mother’s boyfriend and an alleged confrontation between the mother’s boyfriend and the father during one of the father’s visitations. The father testified that during the alleged confrontation the mother’s boyfriend had held a gun; the mother, however testified that it was the father’s mother who had held a gun.

The special master’s report concluded that “no harm can be done, pendente lite, with the physical custody of the child remaining with the [father] pending the final hearing in this matter.” The special master also found that “the benefits from the change in custody [to the father] has since offset the inherently disruptive effect caused by the change, and a change in custody may materially promote the child’s best interests.” The special master recommended that “for pendente lite purposes: ... the [father] shall continue to have the temporary physical custody of the parties’ minor child ... pending further Order of the court.” The trial court read and confirmed the report of reference and allowed the parties to object to and dispute the findings in. the report at the final hearing. Only the mother filed written objections to the report.

Pursuant to the mother’s request, the trial court ordered a psychological evaluation of the child before the final hearing. The psychologist met with the' child five times. He .reported that the child had long-term indications of low self-esteem and that she was reserved and .shy. He further reported that the child was thriving with the father and was adjusting well to the change of custody. The psychologist concluded that the child would need a great deal of structure and support and noted that the mother acknowledged that her home lacked structure and organization. The trial court accepted the report of the psychologist’s evaluation as an exhibit at the final hearing.

By the time of the final hearing on October 2, 2006, the father indicated that he was seeking full,custody of the child rather than joint custody as asserted in his petition to modify. At the final hearing the trial court recognized that the mother did not receive the July 26, 2005, order; The trial court also stated that it agreed with the mother that the burden remained on the father to satisfy the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

The trial court received ore tenus testimony substantially similar to that heard by the special master. The testimony focused on the living arrangements and respective stability of each party’s home, on the child’s withdrawn and shy demeanor, and on the mother’s refusal to allow the father visitation.

In its final order dated October 10, 2006, the trial court stated that the mother had been “ordered to relinquish the child to the [father] temporarily....” The order stated:

“The question now centers on whether or not the [father] has met his burden of .a material change of circumstances as outlined in the McLendon case.”. ■

After stating its findings of fact, the trial court held that the father did not satisfy the McLendon standard as to the change of physical custody. Regarding the issue of joint legal custody, the trial court found that the father had satisfied the McLen-don standard. The trial court ordered that the child be returned to the mother and that the father pay child support and have visitation with the child every other weekend and one month each summer. The father filed a timely notice of appeal to this court.

The father argues that the trial court incorrectly required him to satisfy the McLendon standard,

“Initially, we note that the ore tenus rule only applies to questions of fact and that where the trial court resolves a factual issue in a custody action its determination on that issue is afforded a presumption of correctness on appeal. Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991). However, when this court is presented with an issue of law, such as the application of the correct child-custody-modification standard,- we review the judgment of the trial court de novo, without affording it any presumption of correctness. Ex parte Perkins, 646 So.2d 46 (Ala.1994).
“In Ex parte McLendon, supra, our supreme court held that the proper standard to be applied in child-custody cases wherein a parent has either voluntarily forfeited custody or has lost custody due to a prior judgment is whether there has been a material change in circumstances since the prior judgment; whether a change in custody will materially promote the best interests of the child; and whether the benefits of the change in custody will more than offset the inherently disruptive effect caused by uprooting the child. 455 So.2d at 865.”

Barber v. Moore, 897 So.2d 1150, 1153 (Ala.Civ.App.2004).

According to the father, the August 1, 2005, order was a custody order to which the mother did not file a timely challenge. The father argues that, as a result, the McLendon burden shifted to the mother. Additionally, the father notes that after the August 1, 2005, order, the child resided with him for 18 months during which she began and completed kindergarten and began her first-grade year. The mother argues on appeal that the August 1, 2005, order was a pendente lite order that did not result in a shifting of the burden under McLendon.

In T.J.H. v. S.N.F., 960 So.2d 669 (Ala.Civ.App.2006), this court recently explained the difference between custody orders and pendente lite orders, particularly with respect to a trial court’s use of the term “temporary order.”

“A pendente lite custody order is an order that is effective only during the pendency of the litigation in an existing case and is usually replaced by the entry of a final judgment. Hodge v. Steinwinder, 919 So.2d 1179, 1182 (Ala.Civ.App. 2005). Pendente lite, custody orders allow a trial court to take into consideration developments in the lives of the child and the parties that naturally occur during the gap in time between the filing of an action and the final hearing in the matter. Id.

“However, a ‘temporary custody award’ or a ‘temporary order’ as to custody is a ‘final’ custody award or judgment. Despite its name, a temporary order as to custody is intended to remain effective until a party seeks to modify it. It may be modified if the trial court reviews the case and determines that changed circumstances that warrant a modification have come into existence since the last custody award. 919 So.2d at 1182-83. Such an award is not a pendente lite award. Id.

“The language often used by the trial courts is confusing. Custody, by its very nature, is always temporary and never permanent, and the trial court always retains jurisdiction to modify custody under the appropriate circumstances even though the temporary custody of a child may have been determined. Ex parte J.P., 641 So.2d [276,] 278 [ (Ala.1994) ]. ‘Semantically, this entire matter would be simpler if all courts declined to use the phrase “temporary custody” and simply used “pendente lite” or “custody” as circumstances require.’ Id.”

T.J.H., 960 So.2d at 672. This court has held that the McLendon standard shifts after the entry of a custody order, whereas, after the entry of a pendente lite order, it does not. See Sims v. Sims, 515 So.2d 1, 2-3 (Ala.Civ.App.1987).

When the trial court understood that the mother had not received the July 26, 2005, order, it thereafter treated the August T, 2005, order awarding custody to the father as a pendente lite order — an order effective only during the pendency of the litigation to be replaced by a final order. See T.J.H., supra. It required the parties to submit evidence to a special master and at a final hearing regarding the issue of custody; on the mother’s request, it ordered that the child undergo a psychological evaluation; and it held its determination of child support until after the final hearing. Likewise, the special master considered the transfer of custody to the father as a pendente lite transfer pending a final hearing and determination. Indeed, the special master was charged with making a recommendation as to the matter at issue in the father’s petition to modify — the physical custody of the child.

In light of this procedural history, and under the unique facts of this case, we find that the August 1, 2005, order was a pen-dente lite order. The father, therefore, had the burden of reasonably satisfying the trial court by the evidence that a change in the child’s custody would materially promote the child’s best interests and welfare. Ex parte McLendon, supra.

The father next argues that the trial court erred in denying his petition to modify physical custody because, the father asserts, he satisfied the McLendon standard set forth above.

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore ten-us, we presume the trial court’s decision is correct: ‘ “A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....”’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).”

Ex parte Fann, 810 So.2d 631, 633 (Ala.2001); Marusich v. Bright, 947 So.2d 1068, 1070-71 (Ala.Civ.App.2006).

We have reviewed the record on appeal in its entirety, and we find that we need not discuss the facts in great detail. The father’s June 2005 petition asserted that the mother’s refusal to allow visitation, frequent changes of residence, and failure to notify the father of the child’s location constituted a material change in circumstances and that, therefore*-it would.be in the child’s best interests for custody, to be placed with the father. Before the special master and at the final hearing, the father presented evidence indicating that his home offered more stability and organization than 'the mother’s and that the psychologist had found that the child would function better in a more stable environment. The father also presented testimony indicating that the child was thriving in his custody. The parties vigorously disputed the evidence regarding the alleged confrontation involving the mother’s boyfriend. The parties also disputed the fa,-ther’s allegation that the mother had, left the child unattended in a mobile home while she was at her boyfriend’s house.

• Based on the record the parties have presented to us on appeal, we cannot say that the trial court was plainly and palpably wrong in finding that there'was not sufficient evidence of the existence of a material change in circumstances. The father filed his petition to modify after the mother had denied him visitation for an extended period of time. The evidence presented to the special master and at the final hearing centered largely around visitation issues. .However, “this court has held that ‘[c]ustody of children should not be modified due solely to problems of visitation.’ Hays v. Elmore, 585 So.2d [40,] 42 [ (Ala.Civ.App.1990) ]; see also Ward v. Rodenbaugh, 509 So.2d 910 (Ala.Civ.App.1987).” Smith v. Smith, 865 So.2d 1207, 1211 (Ala.Civ.App.2003). The Smith court explained:

“While the record demonstrates the father’s difficulty in dealing with the mother regarding matters of visitation, a change in custody is not proper in such instances. The trial court’s contempt powers are a sufficient method of regulating the mother’s conduct in a manner that will enforce the visitation provisions of the trial court’s judgments and best protect and serve the child’s best interests.”

Id.

Additionally, although the father did present testimony indicating that the mother had left the child unattended, this evidence was disputed, and the trial court specifically determined that it “was not founded.” Furthermore, although it is undisputed that the father’s home was, at the time of the hearing, more stable than the mother’s, based on the stringent child-custody-modification standard set forth in McLendon, supra, we cannot say that this fact alone shows that a change in custody would materially promote the best interests of the child. Although we may have reached a different result, the trial court was not plainly and palpably wrong in finding that the father had failed to satisfy the McLendon standard as to the physical custody of the child.

Finally, the father argues that the trial court miscalculated the child-support award. The father listed $240 in monthly child-care costs on his CS-41 child-support income affidavit; the mother listed none. The father asserts that the trial court improperly included this amount in its calculation of child support that he was to pay to the mother. Neither the mother’s CS-41 child-support income affidavit nor the testimony received at the hearing show that the mother would incur child-care costs. Indeed, nothing in the record shows that the mother would bear such an expense. In light of this lack of evidence, the trial court erred in including child-care costs as a part of its child-support determination. See Hoplamazian v. Hoplamazian, 740 So.2d 1100, 1105 (Ala.Civ.App.1999).

Based on the foregoing, we find that the trial court correctly applied the McLendon standard to the father and was not plainly and palpably wrong in denying the father’s petition to modify physical custody. It did, however, err in including child-care costs in its child-support calculation. We therefore affirm the trial court’s judgment in part, reverse it in part, and remand.

OPINION OF MAY 25, 2007, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION FOR REHEARING OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND' REMANDED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

BRYAN, J., concurs in the result, without writing.

      . The record does not show who testified at the hearing; however, the evidence indicating that the child was in a mobile home unattended originated from observations of the process server who served the father’s petition on July 14, 2005.

        . As the father argues, the child did reside with him for an extended period of one and one-half years during the pendency of the litigation. We are sensitive to the fact that this experience became a significant and formative part of the child's life. However, under the unique facts of this case, we believe that the trial court correctly treated the August 1, 2005, order awarding the father custody as a pendente lite order and that it correctly applied the McLendon standard to the father's petition to modify.

      . We also note that a "trial court is to accept the findings of a referee unless the findings are clearly erroneous; to the extent that the trial court adopts the findings of the referee, the same standard applies in appellate review. Rule 53(e)(2), Ala. R. Civ. P.; Harp v. Harp, 462 So.2d 372 (Ala.Civ.App. 1984).” E.F. v. H.P.K., 825 So.2d 125, 128 (Ala.Civ.App. 2001).


source: Caselaw Access Project

author: THOMAS, Judge. BRYAN, Judge,

license: Public Domain

text:
    STATE of Alabama ex rel. Tracie Crowe WILLIAMS v. Timothy Lorenzo CROWE.
    2060111.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      Troy King, atty. gen., and Sharon E. Ficquette and Jennifer M. Bush, asst, at-tys. gen., Department of Human Resources, for appellant.
   THOMAS, Judge.

In March 2006, the State of Alabama, acting through the Department of Human Resources and on behalf of Tracie Crowe Williams, filed a complaint seeking the termination of the child-support obligation of Timothy Lorenzo Crowe (“the father”) and seeking the establishment of a child-support arrearage and an award of interest on that arrearage. The trial court terminated the father’s child-support obligation; determined the father’s arrearage, after the application of credits based on the child’s having lived with the father since 1995, to be $0; and assessed interest in the amount of $7,871.95; however, the trial court then rebated the amount of interest owed. After the denial of its postjudgment motion, the State appealed. On appeal, the State argues that the trial court erred in rebating the interest.

As the State argues, a trial court cannot “waive” interest -due on a child-support arrearage. State Dep’t of Human Res. v. R.L.R., 743 So.2d 495, 499 (Ala.Civ.App.1999). However, a trial court may, pursuant to statute, rebate the amount of interest due on a child-support arrearage in certain circumstances. See Ala.Code 1975, § 30-3-6.1. Section 30-3-6.1 states, in pertinent part:

“(a) Notwithstanding any other provision of law regarding post-judgment interest, the parent responsible for making child support payments who has been delinquent in making the payments may petition the court that entered the order for child support or the appropriate court pursuant to Sections 30-3A-101 to 30-3A-906, inclusive, for a rebate of interest when any of the following conditions have been met:
“(1) The parent has paid the past due amount and has paid the current child support payments for 12 months before petitioning the court.
“(2) The parent has entered into a repayment agreement, has made all payments on the agreement for at least 12 months, and has paid the current child support payments for 12 months before petitioning the court.
“(b) Before a court may order a rebate of interest, each party to' whom interest is owed must agree in writing to the rebate of interest and the amount of interest rebated. A court of competent jurisdiction may reinstate the interest rebated upon a subsequent finding of contempt of court for failure to pay child support.”

Although the State concedes that the father met the requirements of subsection (a)(1), it argues that the father failed to meet the requirements of subsection (b) in that neither the mother, Tracie Crowe Williams, nor the State agreed to the rebate of interest in writing. Because of that failure, the State argues, the trial court was without authority to order the rebate. We agree. Accordingly, we reverse the trial court’s judgment insofar as it rebated the $7,871.95 in interest owed by the father and remand the cause for entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

BRYAN, J., concurs specially, with writing, which MOORE, J., joins.

BRYAN, Judge,

concurring specially.

I concur specially because of the requirements found in § 30 — 3—6.1(b), Ala. Code 1975. However, I agree with the trial court’s view of the evidence. It seems unjust for the father to raise the child without any assistance from the State and then be required to get the consent of the State in order to have the interest rebated. The trial court should have the authority to rebate interest without the consent of the parties when equity demands it. From all that appears in the record, equity demands it in this case.

This court’s job is not to legislate, and for that reason I concur. Given the facts of this case, Department of Human Resources’ strict application of the statute, and its refusal to consent to rebating the interest, our legislature should consider allowing trial courts more leeway regarding this issue. In my opinion, this case demonstrates that trial courts should be given the latitude to decide when equity demands that interest may be rebated, with or without the consent of the State or another “party to whom interest is owed.” § 30 — 3—6.1(b).

MOORE, J., concurs.

      . Interestingly, it appears that the mother in this case did not submit any child support to the father for at least 11 years.

      . I find it troubling that the State would argue in brief to this court that “there was no written consent by the Department [of Human Resources] or Ms. Williams to rebate the full amount of the interest of $7,871.95,” State's brief at 11 (emphasis added), and that “neither the State nor Ms. Williams consented to the rebate of interest,” State’s brief at 12 (emphasis added), when it argued to the trial court that "[Ms.] Williams, assigned her rights to [the] judgment and any interest that would be due when she received ADC or support from the State and therefore the ... money and interest would be due to us as if it were due to her because of the assignment. ...” Assuming that there was a valid assignment in place, only the State's consent would have been needed.

      . In fact, the trial court specifically found: ”[T]o cause [the father] to pay another $9,000.00 in interest to the State would be unjust, inequitable and detrimental to the minor child and would jeopardize the welfare of the minor child when [the father] is her sole provider.”


author: BRYAN, Judge.

text:
    Susan T. FIELDING v. Johnny M. FIELDING.
    2060243 and 2060244.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      Ralph K. Strawn, Jr., of Henslee, Robertson, Strawn & Sullivan, L.L.C., Gadsden, for appellant.
    Leon Garmon, Gadsden, for appellee.
   BRYAN, Judge.

In appeal no. 2060243, Susan T. Fielding (“the mother”) appeals a judgment entered on August 11, 2006, in case no. DR-96-956.02, contending that the trial court erroneously dismissed a petition to "modify the postminority-educational-support obligation of Johnny M. Fielding (“the father”) that she had filed in case no. DR-96-956.01 on July 24, 2003. Because neither the judgment entered on August 11, 2006, in case no. DR-96-956.02 nor any other judgment has adjudicated the petition she filed on July 24, 2003, in case no. DR-96-956.01, we dismiss the mother’s appeal in appeal no. 2060243. See Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006).

In appeal no. 2060244, the mother appeals the judgment entered on August 11, 2006, in case no. DR-96-956.02, contending that it erroneously dismissed the petition, as amended, that she had filed in case no. DR-96-956.02, in which she sought a modification of the father’s postminority-edu-cational-support obligation. For the reasons discussed below, in appeal no. 2060244 we reverse that judgment and remand the case to the trial court for further proceedings consistent with this opinion.

This is the second time the parties have been before this court. See Fielding v. Fielding, 843 So.2d 766 (Ala.Civ.App.2002). In Fielding, we reversed a judgment entered in case no. DR-96-956.01 ordering the father to pay one-half of the parties’ son’s postminority educational expenses because there was insufficient evidence of the son’s 'educational costs to determine whether that award had imposed an undue financial hardship upon the father. Id. at 770. We also reversed the judgment ordering the father to pay one-half of the parties’ daughter’s postminority educational expenses because it imposed an undue financial hardship upon him. Id. at 769. We concluded, however, that the father remained liable for one-half of the daughter’s postminority educational expenses that she had incurred before the filing of the father’s modification petition on June 21, 2000. Id. Because the record did not indicate the amount of the expenses that were incurred before June 21, 2000, we remanded the case to the trial court, for a determination of that amount. Id.

On remand, the trial court, following a hearing at which it received evidence ore tenus, entered a judgment, on June 25, 2003, finding that the father was $4,523.10 in arrears regarding the postminority educational expenses the daughter had incurred before June 21, 2000; finding that the father could contribute to the payment of the children’s postminority educational expenses in an amount equal to the amount of certain military disability benefits that the father was then eligible for; awarding postminority educational support in an amount equal to those benefits; and reserving jurisdiction to entertain petitions in the future seeking modification of the father’s postminority-educational-support obligation.

On July 24, 2003, the mother moved the trial court to alter, amend, or vacate the June 25, 2003, judgment or, in the alternative, to grant her a new trial. That post-judgment motion also contained a separate motion titled “Plaintiffs Motion for Modification of Child Support,” seeking a modification of the father’s postminority-edu-cational-support obligation based on a change in circumstances that had occurred since the hearing — the anticipated enrollment of the son in a four-year college in the fall of 2003.

The trial court denied the mother’s post-judgment motion on August 25, 2003. However, the trial court never ruled on the mother’s July 24, 2003, motion seeking a modification of the father’s postminority-educational-support obligation in case no. DR-96-956.01.

On June 28, 2004, the mother again petitioned the trial court, seeking a modification of the father’s postminority-edu-cational-support obligation. The trial court assigned that petition case no. DR-96-956.02. In her petition, the mother alleged that the cost of the son’s postminority education had increased because the son had enrolled in a four-year college.

After both parties filed various motions requesting discovery, the father moved to dismiss the mother’s petition in case no. DR-96-956.02 as a sanction for failing to comply with his discovery requests. On August 11, 2006, the trial court entered a judgment regarding the mother’s petition in case no. DR-96-956.02. That judgment states:

“This cause having previously been reversed by the Alabama Court of Civil Appeals and remanded with instructions and the Court having entered the appropriate Order pursuant to said instructions, as well as the [son] of the parties ... having graduated from college, the Court is of the opinion, based on previous instructions that it is without sufficient jurisdiction to granted [sic] the relief requested by the [mother]. Therefore, this case is hereby dismissed.”

The mother challenged that judgment by filing a postjudgment motion, which the trial court denied on November 2, 2006. The mother then filed two notices of appeal. Both notices of appeal designated the August 11, 2006, judgment entered in case no. DR-96-956.02 as the judgment appealed from; however, she filed one of the notices in case no. DR-96-956.01 and one in case no. DR-96-956.02. This court assigned appeal no. 2060243 to the notice of appeal filed in case no. DR-96-956.01 and appeal no. 2060244 to the notice of appeal filed in case no. DR-96-956.02. The two appeals were then consolidated.

In appeal no. 2060243, the mother contends that the trial court’s August 11, 2006, judgment dismissed her July 24, 2003, motion to modify in case no. DR-96-956.01. However, as noted above, neither the August 11, 2006, judgment nor any other judgment has ever ruled upon the July 24, 2003, motion to modify. In the absence of a final judgment adjudicating the mother’s July 24, 2003, motion to modify in case no. DR-96-956.01, we have no jurisdiction in that action. Therefore, we dismiss the appeal in appeal no. 2060243. See Hubbard, supra.

In appeal no. 2060244, the mother argues that the trial court erred in dismissing her petition in case no. DR-95-965.02 on the ground that it lacked jurisdiction, because, the mother says, the trial court did have jurisdiction over her petition in case no. DR-96-956.02 by virtue of its reservation of jurisdiction in: its June 25, 2003, judgment in case no. DR-96-956.01. We agree.

In Britt v. Britt, 684 So.2d 1325, 1327 (Ala.Civ.App.1996), this court reversed a trial court’s judgment insofar as it ruled that the trial court lacked jurisdiction to adjudicate a parent’s petition seeking a modification of an award of postminority educational support because the trial court had expressly reserved jurisdiction to modify that award in the judgment making that award.

In the case now before us, because the trial court had expressly reserved jurisdiction to modify its award of postminority educational support in its June 25, 2003, judgment, the trial court erred in ruling that it lacked jurisdiction over the mother’s petition in case no. DR-96-956.02. Accordingly, we reverse the judgment dismissing the mother’s petition to modify the award of postminority educational support in case no. DR-96-956.02.

2060243 — APPEAL DISMISSED.

2060244 — REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN, THOMAS, and MOORE, JJ., concur.


text:
    LADAS LAND & DEVELOPMENT, INC. v. MERRITT AND WALDING PROPERTIES, L.L.P.
    2060556.
    Court of Civil Appeals of Alabama.
    July 27, 2007.

      Bryan D. Smith of Partridge, Smith, P.C., Mobile, for appellant.
    Jerome E. Speegle, Anthony M. Hoffman, and Jennifer S. Holifield of Zieman, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee.
   BRYAN, Judge.

The plaintiff, Ladas Land & Development, Inc. (“Ladas”), appeals a summary judgment in favor of the defendant, Merritt and Walding Properties, L.L.P. (“Merritt”). We affirm.

On December 5, 2005, Merritt, the owner of a parcel of real property (“the property”) located in the northeast quadrant of the intersection of Airport Boulevard and Schillinger Road in Mobile, signed a letter of intent (“the letter of intent”) to convey to TLC Properties, Inc. (“TLC”), a perpetual easement for a billboard (“the billboard easement”) on the property for a price of $50,000. On February 23, 2006, before it had conveyed the billboard easement to TLC, Merritt entered into a written contract (“the sales contract”) in which it agreed to convey the property to Ladas for a price of $475,000. On April 13, 2006, before the conveyance of the property to Ladas had been closed, Merritt conveyed the billboard easement to TLC.

On June 9, 2006, Ladas sued Merritt, TLC, and Lamar Advertising Company (“Lamar”). With respect to Merritt, La-das alleged that Merritt’s conveyance of the billboard easement to TLC breached a provision of the sales contract that stated that “[tjhere shall not have occurred since the date of [the sales contract] any materially adverse change in the condition of the [property]” and that “[Merritt], subsequent to entering into the [sales contract] with [Ladas], fraudulently attempted to transfer an easement to [TLC], concealing the same from [Ladas].” Merritt’s answer to Ladas’s complaint denied that Merritt had breached the sales contract or committed fraud and, as affirmative defenses, asserted, among other things, that Ladas’s claims were barred by the doctrine of merger and were barred or diminished by Ladas’s failure to mitigate its damages.

On July 10, 2006, Ladas’s attorney notified Merritt’s attorney in writing that La-das was “prepared to consummate the acquisition of the [property]” and that Ladas had scheduled the closing for July 19, 2006. On July 11, Merritt’s attorney responded, stating:

“I am not sure how [we are] going to close on this transaction since my client has taken the position that title will be transferred subject to the easement of TLC Properties, Inc. and your client has maintained that he is to receive transfer of title not subject to that easement.
“I am open to suggestions.”

Ladas’s attorney then wrote Merritt’s attorney, stating that Ladas was “prepared to close on the acquisition with the ... easement in place.” On July 19, Merritt conveyed the property to Ladas by general warranty deed. The deed stated that the property was subject to the billboard easement that Merritt had conveyed to-TLC.

In November 2006, Merritt moved the trial court for a summary judgment. Citing Jones v. Dearman, 508 So.2d 707 (Ala.1987), and Roberts v. Peoples Bank & Trust Co. of Sylacauga, 410 So.2d 393 (Ala.1982), Merritt argued that it was entitled to a summary judgment because, it said, pursuant to the doctrine of merger, the execution and delivery of the deed providing that the property was subject to the billboard easement had extinguished any obligation Merritt may have 'had under the sales contract to convey the propérfy to Ladas unencumbered by the billboard easement. Merritt further argued that, although the merger doctrine does not apply when fraud is present, Ladas could not defeat Merritt’s merger defense based on fraud because Ladas was not fraudulently induced to accept the provision in the deed providing that the property was subject to the billboard easement — when Ladas accepted the deed, it knew that thb deed provided that the property was subject to the billboard easement.

In its brief in opposition to Merritt’s summary-judgment motion, Ladas conceded that it was not fraudulently induced to close the sale of the property. However, it, argued that Merritt, by failing to disclose its intent-.to convey the billboard easement to TLC, had fraudulently induced Ladas to enter into the sales contract and that the presence of that fraud precluded the application of the merger doctrine. Alternatively, Ladas argued that the trial court should deny the summary judgment because the determination whether the fraud exception precluded the merger doctrine from applying in this case required a determination whether Merritt’s failure to disclose its intent to convey the billboard easement constituted fraud, which was a question of fact to be determined by the trier of fact. Merritt responded to Ladas’s arguments by arguing that Jones v. Dearman and Thibodeaux v. Holk, 540 So.2d 1378 (Ala.1989), indicated that only fraud inducing Ladas to close the sale would preclude the application of the merger doctrine.

The trial court entered an interlocutory order granting Merritt’s summary-judgment motion, explaining its rationale for granting the motion as follows:

“The court finds that [Ladas] was fully aware of the easement granted to [TLC] by [Merritt] prior to the closing of [the] real estate purchase and [was] not fraudulently induced to close. The rights of the buyer under the contract for sale of the subject property were merged into the deed which expressly described the easement. When the plaintiff accepted the deed any rights to enforce the terms of the contract for sale were relinquished and are now barred. See Jones v. Dearman, [508] So.2d 707 (Ala.1987), and Thibodeaux v. Holk, 540 So.2d 1378 (Ala.1989).”

Ladas moved the trial court to “reconsider” its decision to grant Merritt’s summary-judgment motion. In addition to reiterating the arguments it had made before the trial court had granted Merritt’s summary-judgment motion, Ladas argued for the first time that the merger doctrine did not apply in this case because, Ladas said, it had been compelled to close its purchase of the property by its legal obligation to mitigate its damages.

The trial court denied Ladas’s “motion to reconsider” the grant of Merritt’s summary-judgment motion. Thereafter, at the behest of Ladas, the trial court dismissed Ladas’s claims against TLC and Lamar. Upon the dismissal of those claims, the summary judgment in favor of Merritt became a final judgment. Ladas timely appealed the summary judgment in favor of Merritt to the supreme court, and the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975, transferred Ladas’s appeal to this court.

“We review a summary judgment de novo. Alabama Ins. Guar. Ass’n v. Southern Alloy Corp., 782 So.2d 203 (Ala.2000). We apply the same standard of review as the trial court in determining whether the evidence presented to the trial court demonstrated the existence of a genuine issue of material fact. Jefferson County Comm’n v. ECO Preservation Servs., L.L.C., [788] So.2d [121] (Ala.2000) (quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988)). A summary judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c)(3), Ala. R. Civ. P. See Ex parte General Motors Corp., 769 So.2d 903 (Ala.1999), and Lawson State Comm. College v. First Continental Leasing Corp., 529 So.2d 926 (Ala.1988).”

Northwest Florida Truss, Inc. v. Baldwin County Comm’n, 782 So.2d 274, 276 (Ala.2000).

As it did in the trial court, Ladas concedes on appeal that it was not fraudulently induced to close the sale of the property, but it nonetheless argues that Merritt, by failing to disclose that it intended to convey the billboard easement to TLC, fraudulently induced Ladas to enter into the sales contract and that that fraud precluded the merger doctrine from applying in this case. Merritt, on the other hand, argues that only fraud inducing Ladas to close the sale would preclude the doctrine of merger from applying in this case.

“[M]ere silence as to a material fact is not fraud unless the defendant has a duty to disclose it.” Gewin v. TCF Asset Mgmt. Corp., 668 So.2d 523, 528 (Ala.1995). “[Wjhere both parties to a transaction are knowledgeable, are capable of protecting their own interests, and are dealing at [arm’s] length, no duty to disclose particular information exists unless the information is actually requested.” Id. The record does not clearly establish whether Merritt had a duty to disclose its intent to convey the billboard easement to TLC before Ladas signed the sales contract. However, for purposes of analyzing the issue whether that failure to disclose precluded the sales contract from merging into the deed, we will assume, without deciding, that Merritt had a duty to disclose its intent to convey the billboard easement to TLC and, therefore, that its failure to do so constituted fraud.

None of the cases cited by the'parties squarely addresses the issue whether Merritt’s fraudulently inducing Ladas to enter into the sales contract would prevent the sales contract from merging into the deed even though Ladas had actual knowledge that Merritt had conveyed the billboard easement to TLC before it elected to close the sale and accept a deed providing that the property was subject to the billboard easement. However, we hold that Merritt’s fraudulently inducing Ladas to enter into the sales contract did not preclude the application of the merger doctrine in this casé. We base that holding on the fact that Merritt’s fraudulently inducing Ladas to enter into the sales contract did not cause Ladas to close the purchase — Ladas learned that Merritt had conveyed the billboard easement to TLC before Ladas elected to close the purchase. By electing to close the sale and accept the deed providing that the property was subject to the billboard easement without stating that it was reserving its rights under the sales contract, Ladas implicitly consented. to the merger of the sales contract into the deed. Accordingly, we find no error in the trial court’s granting the summary-judgment motion on the basis of the merger doctrine.

Alternatively, Ladas argues that the trial court erred in granting the summary-judgment motion because, it says, the determination whether the fraud exception precluded the merger doctrine from applying in this case required a determination whether Merritt’s failure to disclose its intent to convey the billboard easement constituted fraud, which was a question of fact to be determined by the trier of fact. However, our holding that the merger doctrine applies in this case even if we assume that Merritt’s failure to disclose its intent to convey the billboard easement to TLC constituted fraud renders -Ladas’s second argument moot.

Finally, Ladas argues that the trial court erred in granting Merritt’s summary-judgment motion because, Ladas says, the merger doctrine should not bar its claims in this case because it was compelled to close the sale because the law required it to mitigate its damages. However, we cannot reverse the trial court on the basis of that argument because the record establishes that it was not presented to the trial court until after the trial court had already taken the summary-judgment motion under submission and ruled upon it. “[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment.” Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)) (second, third, and fourth emphasis added). Furthermore, even if we could base a reversal of the summary judgment on Ladas’s mitigation argument, Ladas has not cited any legal authority indicating that its duty to mitigate its damages required it to close the purchase without reserving its rights under the sales contract. As noted above, by electing to close the purchase without stating that it was reserving its rights under the sales contract, Ladas implicitly consented to the merging of the sales contract into the deed.

Accordingly, we affirm the summary judgment in favor of Merritt.

AFFIRMED.

THOMPSON, P.J., and THOMAS, J., concur.

PITTMAN and MOORE, JJ., concur in the result, without writing.

      . The record implies that TLC and Lamar are affiliated, but it does not indicate the nature of that affiliation.


author: PITTMAN, Judge.

text:
    Michael ROREX v. Angie ROREX.
    2060232.
    Court of Civil Appeals of Alabama.
    July 27, 2007.
    Charles H. Pullen, Huntsville, for appellant.

      Darla T. Furman of Gibbons & Furman, P.C., Huntsville, for appellee.
   PITTMAN, Judge.

Michael Rorex (“the father”) appeals from an order entered by the Limestone Circuit Court on his motion seeking relief from an order entered by that court denying his postjudgment motion challenging that court’s judgment in proceedings to modify and enforce a judgment that had divorced the father and Angie Rorex (“the mother”). Because the order from which the father has attempted to appeal is void, we dismiss the appeal for lack of subject-matter jurisdiction.

The parties, who have two minor children, were divorced in 1996; the divorce judgment awarded the mother sole custody of the two children and directed the father to pay child support to the mother. In December 2001, the mother brought an action in which she sought to enforce, among other things, the provisions of the divorce judgment concerning child-support payments and sought to have the judgment modified so as to permit her to claim the parties’ children as dependents on her federal income-tax return and to increase the father’s future child-support obligation. The father filed an answer denying the mother’s right to relief and asserted a counterclaim in which he sought, among other things, custody of the children. The action was ordered to be stayed in March 2003 while the father completed a foreign military deployment, but it was returned to the trial court’s active docket in August 2005, with a trial setting in December 2005; on the father’s motion, the trial court reset the trial for February 13, 2006.

When the case was called for trial on February 13, 2006, the mother and the parties’ attorneys were present in court, but the father was not; at that time, the father’s attorney orally moved to withdraw from his representation of the father, and the trial court granted that motion. The mother then applied for the entry- of a default judgment in her favor ■ on her claims and on the claims asserted in the father’s counterclaim, and she filed an affidavit on February 21, 2006, in which she not only gave testimony supporting her claims, but also testified that she had had a discussion with the father on the weekend before the scheduled trial date concerning the upcoming trial. On February 23, 2006, after considering the mother’s application for the entry of a default judgment and her supporting affidavit, the trial court entered a judgment granting the relief sought by the mother but otherwise ordering that the divorce judgment would “remain in full force and effect.”

On March 20, 2006, another attorney appeared on behalf of the father and filed a motion, pursuant to Rule 55(c), Ala. R. Civ. P., to set aside the trial court’s judgment entered on the mother’s application for entry of a default judgment. The trial court set a hearing on that motion for April 13, 2006, and stayed execution of its judgment pending that hearing. On May 4, 2006, the father filed a “motion for review” in which he cited facts and circumstances that had arisen after the entry of the trial court’s judgment, but he did not seek to amend his March 20, 2006, motion to set aside the judgment. On May 18, 2006, 59 days after the filing of the motion to set aside the-judgment, the trial court entered á typed and' signed order’ ón the case-action-summary sheet denying that motion, but setting the “motion for review” for a hearing; the case-action-summary sheet also bears the handwritten notation “Attys. Notified.” No notice of appeal was filed within 42 days of the entry of the order denying the father’s motion to set aside the judgment.

The hearing on the father’s “motion for review” was rescheduled on four occasions on the parties’ motions and on the court’s own motion; according to the case-action-summary sheet, that hearing was apparently .ultimately held on August 18, 2006. Three days later, on August 21, 2006, the father filed a “Motion for Relief from Order” in which the father averred that he had not received notice of the entry of the trial court’s May 18, 2006, order denying his Rule 55(c) postjudgment motion to set aside the judgment, and that the father’s lack of notice of that order had “denied [him] of his right to appeal or present any post order motion”; citing Rule 60, Ala. R. Civ. P., the father requested that the trial court “reconsider its order of May 18, 2006, so as to give appropriate relief to the [father].” After a hearing, the trial court entered an order on October 27, 2006, purporting to deny the father’s August 21, 2006, motion. The father filed on December 7, 2006, a notice of appeal attempting to present for review the trial court’s October 27, 2006, order.

Although neither party has questioned this court’s appellate jurisdiction, it is by now well settled that “ ‘[i]t is the duty of an appellate court to- consider the lack of subject matter jurisdiction ex mero motu.’ Thompson v. Board of Pardons & Paroles, 806 So.2d 374, 375 (Ala.2001) (quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1983)). Pursuant to §§ 12-22-2 and 12-3-10, Ala.Code 1975, this court has jurisdiction to hear appeals from final judgments entered in, among other cases, domestic-relations cases. However, neither a void order nor a void judgment will support an appeal. See Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So.2d 1177, 1183 (Ala.2006).

The order from which the father has attempted to appeal is one entered in response to a motion in which the father expressly sought reconsideration of an order denying a postjudgment motion. However, “ ‘[t]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion.’ ” Package Express Ctr. v. Motley, 717 So.2d 378, 379 (Ala.Civ.App.1998) (quoting Ex parte Dowling, 477 So.2d 400, 404 (Ala.1985)). In Package Express, we held that a trial court lacked jurisdiction to act on a party’s motion to set aside that court’s previous ruling denying the party’s postjudgment motion and that “all actions taken after the denial of the [postjudgment] motion [were] void.” 717 So.2d at 379. In so holding, we further noted that, “[i]n most cases, the only review of a denial of a post-judgment motion is by [an] appeal” taken directly from that denial. Id. (citing Dowling, 477 So.2d at 404).

As the Alabama Supreme Court noted in Dowling:

“This Court has been presented from time to time several instances when losing parties have attempted to get trial judges to reconsider action taken on their post-judgment motions. Most attempt to draft their motions to come within the provisions of Rule 60(b). In view of the fact that this case presents to us that situation, we take this opportunity to point out to the bench and bar that the Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion. However, in some cases such successive post-judgment motions may be permitted. If, for example, the judge has rendered a new judgment pursuant to a Rule 59(e) motion to alter, amend, or vacate a judgment or pursuant to a Rule 50(b) motion for judgment notwithstanding the verdict, the- party aggrieved by the new judgment may have had no reason to make such a motion earlier. In the usual case, after a post-judgment motion has been denied, the only review of that denial is by appeal; a judge has no jurisdiction to ‘reconsider’ the denial.”

477 So.2d at 404 (emphasis added).

Based upon those authorities, we conclude that the trial court’s October 27, 2006, order purporting to deny the father’s motion of August 21, 2006, requesting the trial court to “reconsider its order of May 18, 2006,” is void and that this court therefore lacks jurisdiction to review that order. Our conclusion obviates the necessity of determining whether the trial court’s order denying the father’s August 21, 2006, motion would have been within that court’s discretion had that court had jurisdiction to act upon it. But see Altmayer v. Strem-mel, 891 So.2d 305, 309 (Ala.2004) (noting that relief under Rule 60(b) cannot be used as a method to extend the time within which to appeal and that a lack of notice of the entry of an order from the trial court clerk’s office is not a ground for relief under Rule 60(b), Ala. R. Civ. P.).

APPEAL DISMISSED.

THOMPSON, P.J., and BRYAN, THOMAS, and MOORE, JJ., concur.


author: COBB, Judge. BASCHAB, Judge,

text:
    Marcus PRESLEY v. STATE of Alabama.
    CR-03-0786.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2005.

      Richard Izzi, Birmingham; and Denise Young, Tucson, Arizona, for appellant.
    Troy King, atty. gen., and Stephen Shows, asst. atty. gen., for appellee.
   COBB, Judge.

Marcus Presley appeals from the summary dismissal of the petition he filed pursuant to Rule 32, Ala. R.Crim. P., seeking relief from his capital-murder conviction and sentence of death. We reverse in part and remand for further proceedings.

Presley was convicted for murder made capital because it was committed during a robbery or an attempted robbery, § 13A-5 — 40(a)(2), Ala.Code 1975. On direct appeal, we affirmed the conviction and sentence, Presley v. State, 770 So.2d 104 (Ala. Crim.App.1999), and the Alabama Supreme Court affirmed this Court’s judgment, Ex parte Presley, 770 So.2d 114 (Ala.2000). On September 27, 2001, Presley filed a 206-page petition for postconviction relief. Rule 82, Ala. R.Crim. P. The State filed an answer and a motion for partial dismissal, seeking summary dismissal of claims it alleged were precluded or were not pleaded with sufficient specificity, Rule 32.7(d), Ala. R.Crim. P. On December 19, 2001, Presley filed motions for discovery and a motion to proceed ex parte on a request for expert assistance and funds to hire experts. The State filed responses opposing Presley’s motions. On January 23, 2002, Presley filed replies to the State’s responses, arguing that he was entitled to discovery and to proceed ex parte on his request for funds to hire experts.

The record indicates that on January 2, 2002, the trial court granted the State’s motion for a partial dismissal of Presley’s Rule 32 petition. The trial court stated in the order that Presley would have the opportunity to plead with more specificity those claims that were dismissed on grounds that they had not been pleaded with sufficient specificity. (C. 352-55, 365, 370.) The case action summary indicates that the order was sent to the State but that it was never served on Presley. (C. 10, 12.) On January 4, 2002, the court denied Presley’s motions for discovery, but allowed Presley 14 days to file new discovery requests that contained additional details about the information sought and the claims from the Rule 32 petition that supported each discovery request. (C. 509-11.) On that date the court also denied Presley’s motion to proceed ex parte on his request for expert assistance and funds. The order stated that, if Presley petitioned the court for funds for experts, the request had to be linked to specific allegations in the Rule 32 petition. (C. 512.) These orders were never served on counsel for Presley; in fact, Presley’s responses to the State’s opposition to his requests for discovery and to proceed ex parte on his requests for funds for experts were filed after the trial court denied his motions. Even after the court received the (moot) responses to the State’s opposition to the request for funds, it did not serve Presley with the orders denying his motions or the order dismissing a majority of the claims in the Rule -32 petition. Obviously, Presley missed the 14-day deadline in which to file any new discovery requests. Because he was not served with the order denying the motion for expert assistance or the order for partial dismissal, he also was unable to avail himself of the opportunity to timely file a new motion for funds for experts that included more specific references to the allegations in his Rule 32 petition or an amended Rule 32 petition.

On November 21, 2002, Presley’s attorney wrote to the trial court regarding her recent discovery that neither she nor local counsel had been served with the three orders issued in January 2002. Counsel suggested that the problem could be resolved by the trial court’s vacating the January 2, 2002, order granting the State’s motion for partial dismissal and the January 4, 2002, orders denying Presley’s motions for discovery and to proceed ex parte on the request for funds to hire experts. On December 4, 2002, the State filed a letter opposing Presley’s request to vacate the orders. The State argued that Presley had “not checked the status of this case for eleven months” and that he wanted “to act as if this failure to prosecute should have no repercussions.” (C. 536.) The State further argued that Presley’s failure to “discover this order” dismissing the majority of the claims raised in the petition did not invalidate the court’s reasoning in dismissing the claims. (C. 537.) The State conceded that a few penalty-phase ineffective-assistance-of-counsel issues remained and suggested that the ■ court set an evi-dentiary hearing to resolve those claims. On February 25, 2003, Presley filed an extensive motion to set aside the January orders with which counsel had not been served. (C. 548-60.) The motion provided the details regarding the documents that had been filed and the efforts Presley’s counsel had undertaken to gain access to the previously entered orders and to have the case action summary corrected. The motion further alleged that the court’s failure to serve counsel with the orders prevented him from responding and constituted a denial of due process.

On April 7, 2003, the trial court denied Presley’s motion to vacate the January 2 and January 4, 2002, orders. The court allowed Presley 14 days to file new discovery motions. Finally, the court set the cas.e for an evidentiary hearing to be held ■on May 19, 2003. (C. 17.) Two days later, the trial court amended the order and set a status conference instead of an evidentia-ry hearing on May 19, 2003.

In April 2003, Presley filed new motions for discovery and for funds, to hire experts. The State responded to the motions and requested that the court deny each of Presley’s requests. On May 14, 2003, Presley filed a motion to supplement his Jtule 32 petition. Presley noted that the pleading was filed in conformance with the court’s January 2, 2002, order dismissing many of the claims and granting Presley the opportunity to amend the petition to plead anew many of the dismissed claims so that they complied with Rule 32.6(b), Ala. R.Crim. P. Presley requested the court to consider the additional facts alleged in support of the allegations it had previously dismissed and to amend its January 2, 2002, order accordingly. Presley requested, alternatively, that the court grant him a reasonable time to amend his petition with additional facts obtained after the court granted his pending motions for discovery and for expert assistance. On June 9, 2003, the trial court held a status conference. The parties made the court aware that motions for discovery and for expert assistance were pending before it, as were the motions to amend the petition. The State informed the court that it had not filed an answer to Presley’s proposed amendment to the petition, and the trial court ordered the response to be filed by June 27, 2003. The court indicated it would not rule on the amended petition until the State responded but wanted to set a date for an evidentiary hearing. (R. 9.) No date was set for a hearing at that time.

On July 16, 2003, the State filed a response to Presley’s motion to supplement the petition, denying that the pleading deficiencies had been corrected and requesting the court to deny Presley’s request that it reconsider its January 2, 2002, order dismissing many of the claims for relief. (C. 685-701.) On August 4, 2003, Presley filed a reply to the State’s response. (C. 702-13.) On October 7, 2003, the trial court denied Presley’s motion for discovery, the motion for expert assistance, and the motion to supplement the Rule 32 petition. (C. 716.) The court ordered the State to respond to the “remaining issues” in the Rule 32 petition. Although it had previously conceded that an evidentiary hearing was due to be held, the State, on December 23, 2003, filed a motion to dismiss the remaining claims, all of which alleged ineffective assistance of counsel at the penalty phase of the trial. (C. 721-36.) The State argued in its motion that a majority of the claims were without merit and that others failed to meet the specificity requirements of Rule 32.6(b), Ala. R.Crim. P. On February 10, 2004, Presley filed a response to the State’s motion to dismiss. (C. 758-99.) On January 12, 2004, the trial court issued an order dismissing the remaining allegations of the petition. Presley now appeals from the trial court’s summary dismissal of his Rule 32 petition.

Although Presley raises several issues in this Court, we need address only one issue at this time. Presley argues that he was denied due process as a result of the trial court’s failure to serve him with three significant orders in January 2002, including the order dismissing most of the claims raised in the Rule 32 petition and allowing him 14 days to amend the petition. We are compelled to agree, and we reverse the trial court’s judgment because we find significant violations of Presley’s due-process rights.

Rule 34.5, Ala. R.Crim. P., provides, “Upon the entry of any order in a criminal proceeding made in response to a motion, other than an order made in open court, the clerk shall, without undue delay, furnish all parties a copy thereof by mail or by other appropriate means approved by the judge.” Thus, notice of each of the trial court’s orders was required by the Alabama Rules of Criminal Procedure. The lack of notice violated Presley’s due-process rights.

In Ex parte Fountain, 842 So.2d 726 (Ala.2001), the Alabama Supreme Court addressed a similar due-process issue that arose when the defendant, Fountain, was not served with the State’s brief in the appeal of the summary dismissal of Fountain’s Rule 32 petition. The Court corn-mented on the importance of due-process rights:

“ ‘Both the Alabama and United States Constitutions protect a citizen of this state from being deprived of life or liberty without “due process of law.” The phrase “due process of law,” although incapable of a precise definition, in its most basic sense encompasses the observation of that degree of fundamental fairness that is essential to our concept of justice.’

“Ex parte Frazier, 562 So.2d 560, 565 (Ala.1990) (citations omitted).”

Ex parte Fountain, 842 So.2d at 730 (emphasis added). The Court further stated:

“ ‘[Procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one’s life, liberty, or property interests are about to be affected by governmental action.’ Brown’s Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala.1992).
“ ‘Procedural due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution of 1901, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and the opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them.’
“Ex parte Weeks, 611 So.2d [259,] 261 [(Ala.1992)] (emphasis added).”

Ex parte Fountain, 842 So.2d at 729.

The Court noted that Rule 31, Ala. R.App. P., requires that each party’s briefs be served on the other party so that the opposing party can respond to the arguments. Finding that the lack of service of the State’s brief denied Fountain’s appellate due-process rights, the Court reversed the portion of this Court’s judgment affirming the denial of Fountain’s Rule 32 petition. The Court also ordered a remand so the State could serve Fountain with a copy of its brief and Fountain could reply to the brief; following the remand, this Court was ordered to “consider anew” those issues not disposed of by the Alabama Supreme Court. Ex parte Fountain, 842 So.2d at 730.

In Ex parte Weeks, 611 So.2d 259 (Ala.1992), quoted in Ex parte Fountain, above, Weeks was convicted in district court. He appealed the convictions to the circuit court for a trial de novo before a jury. The circuit court dismissed the appeal because Weeks failed to appear. Weeks failed to appear because, despite assurances that he would receive notice of the trial, the circuit clerk had failed to notify Weeks of his trial date. The time for taking an appeal had also passed. Weeks filed a petition for a writ of mandamus with this Court after the circuit court refused to set aside its order dismissing the appeal. This Court denied the petition by order. Weeks then filed a petition for a writ of mandamus with the Alabama Supreme Court, which granted the writ and directed the circuit court to reinstate the appeal. That Court determined that Weeks’s due-process rights had been denied when the court, acting through the clerk, failed to notify him of the trial date when it had undertaken the duty to do so.

The Court stated:

“Although it is generally held in Alabama that a party is under a duty to follow the status of his case, whether he is represented by counsel or acting pro se, and that, as a general rule, no duty rests upon either the court or the opposing party to advise that party of his scheduled trial date, see the cases collected at 18A Ala. Digest Trial § 9(1) (1956), a party’s right to procedural due process is nonetheless violated if he is denied his day in court because the court, acting through its clerk, assumed the duty of notifying that party of his scheduled trial date and then negligently failed to do so.”

Ex parte Weeks, 611 So.2d at 262.

The due-process principles discussed and applied in Ex parte Fountain and Ex parte Weeks were similarly violated here by the circuit court’s failure to serve Presley with copies of the circuit court’s order granting the State’s motion for partial dismissal and the orders denying his motions for discovery and for funds to retain experts, all of which granted Presley leave to amend. As soon as the court became aware that Presley had not been served with these orders, and that the deadline for amending the discovery motion had passed, the circuit court should have provided Presley with copies of the orders, and the case should have proceeded from there. The court did not do so, however, and as a result, the case took a convoluted path until it was eventually dismissed entirely without benefit of a hearing. The only adequate remedy at this point, as was the case in Ex parte Fountain and Ex parte Weeks, is to return the parties to their respective positions at the time the orders were entered in January 2002, and allow the proceedings to continue from that point.

The State contends that any error that may have resulted from the trial court’s failure to serve Presley with the order denying his motion for discovery was cured when the trial court granted Presley the option to file a new discovery motion. Presley did, in fact, file a new motion for discovery. Presley contends that the opportunity to file the new motion did not cure the error because, when the new motion for discovery was filed, nearly all of the claims in the Rule 32 petition had already been dismissed. As the State argued in its response opposing the discovery request, Presley was not entitled to discovery on any claims that had been dismissed. (C. 641-42.) Therefore, the court’s error in failing to serve Presley with the order denying discovery was not cured. Only returning Presley to the position he was in when the error occurred will cure this due-process violation and the other violations that resulted when the court failed to serve Presley with its orders.

Although the trial court dismissed many of the claims in the petition on grounds that they were not pleaded with specificity, when Presley attempted to amend his petition, the trial court summarily denied the motions to amend and supplement the petition. The trial court’s denial of the proposed amendments is a matter of concern, particularly in light of Ex parte Rhone, 900 So.2d 455, 458 (Ala.2004), in which the Alabama Supreme Court repeated the oft-stated principle, “Thus, it is clear that only grounds such as actual prejudice or undue delay will support a trial court’s refusal to allow, or to consider, an amendment to a Rule 32 petition.” Given the fact that the only arguable delay in the filing of the proposed amendment was the direct result of the circuit court’s failure to serve Presley with the order of partial dismissal and given that no prejudice to the State would appear to result from amendment, we urge the circuit court to consider Ex parte Rhone carefully before ruling on any subsequent amendments- offered by Presley.

We note, too, that we are concerned about the trial court’s reversal of its order setting an evidentiary hearing, a hearing the State had repeatedly acknowledged was appropriate. Based on our thorough reading of the record of the Rule 32 proceedings and of the trial record, it appears that Presley has raised valid claims of ineffective assistance of counsel at the penalty phase, and that those claims merit further investigation and careful consideration rather than summary dismissal. For example, Presley contends that he is mentally retarded and that trial counsel failed to investigate this fact and present it to the jury and judge as potential mitigation. In a reply to the State’s response opposing the motion for expert assistance, Presley included the results of an IQ test performed by the Department of Youth Services which classified him as mentally retarded with a Full Scale IQ score of 60. (C. 657.) If Presley is retarded, not only could that evidence have been considered as nonstatutory mitigation, it would preclude imposition of the death sentence. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Our review of the record before us suggests that summary dismissal of this claim, without the benefit of expert assistance and discovery, was highly questionable.

Furthermore, Presley has alleged that trial counsel conducted no' investigation into his background and upbringing, and that, if he had done so, he would have discovered substantial evidence that should have been presented as mitigation evidence; Presley alleged in detail in his petition that his upbringing had been chaotic, marked by physical and sexual abuse, parental abandonment and drug abuse, and extreme poverty. He was addicted to drugs and alcohol, was diagnosed with mental illnesses, and was once determined to have an IQ of only 60. Presley alleged that, in spite of the available mitigation evidence, counsel conducted no investigation and presented none of the available evidence to the jury or to the judge at sentencing. In fact, our review of the trial record reflects that counsel presented no evidence at the sentencing hearing arid that he argued at closing that only one mitigating circumstance applied — that Presley was 16 years old at the time of the crime.

The facts alleged by Presley in his Rule 32 petition are precisely the type that the United States Supreme Court has repeatedly held to be relevant to present for the sentencer’s consideration in a case in which the death penalty may be imposed. For example, in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Court found that defense counsel rendered deficient performance and that Williams was prejudiced when counsel failed to investigate and present substantial mitigating evidence- to the sentencing jury. The Court determined that counsel failed to uncover evidence of “Williams’ nightmarish childhood,” which included imprisonment of his parents for their neglect of Williams and his siblings, evidence indicating that Williams was borderline mentally retarded, and evidence of his positive adjustment to prison. Williams v. Taylor, 529 U.S. at 395, 120 S.Ct. 1495. The Court stated that the “graphic description of Williams’ childhood, filled with abuse and privation, or the reality that he was ‘borderline mentally retarded,’ might well have influenced the jury’s appraisal of his moral culpability.” Williams v. Taylor, 529 U.S. at 398, 120 S.Ct. 1495. In Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the Supreme Court found deficient performance and prejudice based on counsel’s failure to investigate and present evidence of Wiggins’s dysfunctional background and his bleak life history. Counsel failed to discover that Wiggins experienced poverty and substantial physical and sexual abuse, that he had been abandoned by his mother, and that he suffered from diminished mental capacity. Wiggins v. Smith, 539 U.S. at 535, 123 S.Ct. 2527. The Court noted that it had previously referred to “the standards for capital defense work articulated by the American Bar Association (ABA) — standards to which we have long referred as ‘guides to determining what is reasonable.’ ” Wiggins v. Smith, 539 U.S. at 524, 123 S.Ct. 2527 (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Noting that the ABA guidelines provide that counsel should attempt to discover “all reasonably available mitigating evidence,” the Court found that counsel’s review of only social services records and the presentence investigation report and the failure to pursue additional information was unreasonable. Wiggins v. Smith, 539 U.S. at 524, 123 S.Ct. 2527 (quoting ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), p. 93 (1989) (emphasis added in Wiggins)). The Court stated, “We further find that had the jury been confronted with this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence.” Wiggins v. Smith, 539 U.S. at 536, 123 S.Ct. 2527. We find some of the Court’s comments summarizing Wiggins’s case to be appropriate to Presley’s case:

“Petitioner thus has the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability. Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (“ ‘[Ejvidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background ... may be less culpable than defendants who have no such excuse’ ”); see also Eddings v. Oklahoma, 455 U.S. 104, 112 (1982) (noting that consideration of the offender’s life history is a “ ‘part of the process of inflicting the penalty of death” ’); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (invalidating Ohio law that did not permit consideration of aspects of a defendant’s background).
“Given both the nature and the extent of the abuse petitioner suffered, we find there to be a reasonable probability that a competent attorney, aware of this history, would have introduced it at sentencing in an admissible form.”

Wiggins v. Smith, 539 U.S. at 535, 123 S.Ct. 2527.

The United States Supreme Court has held clearly and repeatedly that, in a capital-murder case in which the death penalty might be imposed, counsel renders ineffective assistance when counsel fails to conduct the necessary investigation and, as a result, fails to present mitigating evidence to the sentencer. The United States Court of Appeals for the Eleventh Circuit has reached the same result, e.g., Brownlee v. Haley, 306 F.3d 1043 (11th Cir.2002), as has this Court, Harris v. State, 947 So.2d 1079 (Ala.Crim.App.2004). We strongly encourage the circuit court on remand to review the relevant caselaw carefully before determining whether to hold an evi-dentiary hearing and before issuing its final decision in this case.

We are compelled to reverse the cause and remand for further proceedings as a result of the glaring due-process violations that occurred. The remand ordered herein will provide the trial court with the opportunity to fulfill the mandates of Rule 32 and the relevant caselaw.

For all of the foregoing reasons, we reverse the circuit court’s final order dismissing Presley’s Rule 32 petition and the orders denying the motions for discovery and for expert funds and assistance. We remand the cause to the circuit court for further proceedings. The court is directed to serve Presley with the January 2002 orders and to conduct further proceedings. Upon final disposition of the Rule 32 petition, the court shall file a record of the proceedings on remand. The circuit court shall file the return to remand no later than 120 days after the release of this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

McMILLAN, P.J., and SHAW J., concur. BASCHAB, J., concurs in the result, with opinion. WISE, J., concurs in the result.

BASCHAB, Judge,

concurring in the result.

I agree with the main opinion’s decision to reverse and remand based on violations of the appellant’s due process rights. However, I do not agree with the main opinion’s comments about the merits of some of the appellant’s claims, including his claims of ineffective assistance during the penalty phase. At this point, such comments are speculative and inappropriate. Accordingly, I respectfully concur in the result.

      . We note that Presley's petition was not properly verified as required by Rule 32.6(a), Ala. R.Crim. P. However, in Smith v. State, 918 So.2d 141 (Ala.Crim.App.2005), an opinion released today, we expressly overrule our previous holdings in Kelley v. State, 911 So.2d 1125 (Ala.Crim.App.2004); Coleman v. State, 911 So.2d 1099 (Ala.Crim.App.2004); and Thornton v. State, 859 So.2d 458 (Ala.Crim.App.2003), that a circuit court lacks jurisdiction to rule on a Rule 32 petition that has not been properly verified, and we hold that the lack of verification of a Rule 32 petition is not a defect of subject-matter jurisdiction; rather, it is a defect that is waived if not properly objected to. The State did not object in this case to the lack of proper verification of Presley's petition; therefore, that issue is deemed to be waived.

      . It is unclear from the record whether the State received a copy of the January 4 orders. The State has never disputed the fact that Presley was not served with the orders issued by the court. (C. 536-37.)

      . Presley’s lead attorney in this proceeding resides and works in Arizona. (Appellant's brief at p. 13, fn. 9.)

      . On June 3, 2003, Presley filed an addendum to the motion; the addendum included additional facts and argument regarding Claim VII of the petition, which Presley had inadvertently omitted in his previous supplement to the petition.

      . In the opinion affirming the trial court's order granting Fountain an out-of-time appeal, this Court did not address whether Fountain had received a copy of the State’s brief.

      . The dismissal is particularly curious because the State initially conceded that Presley was entitled to discovery and a hearing on issues related to ineffective assistance of counsel at the penalty phase of trial, and because the trial court had once set a hearing on those issues.

      . We note, furthermore, that defense counsel also represented Presley on appeal. Presley’s appellate brief raised only two issues; the argument section of the brief was three and one-half pages.

       Note from the reporter of decisions: On April 4, 2006, on return to remand, the Court of Criminal Appeals again remanded the case with instructions, by order. On August 24, 2007, on return to second remand, the Court of Criminal Appeals affirmed, without opinion.

      . I also note that I adhere to my concurrence in the result in Smith v. State, 918 So.2d 141 (Ala.Crim.App.2005), which is being released today.