text:
    E.E.K. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES. K.H. v. Jefferson County Department of Human Resources.
    2050733 and 2050734.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      E.E.K., pro se.
    K.H., pro se.
    Martha Jane Patton, Legal Aid Society of Birmingham, guardian ad litem.
   MOORE, Judge.

These appeals have been consolidated for the purpose of issuing one opinion. In appeal no. 2050733, E.E.K. appeals from an order of the Jefferson Circuit Court, Bessemer Division (“the circuit court”), denying his motion, filed pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which he sought to have a July 21, 2003, judgment vacated. We dismiss that appeal as moot.

In appeal no. 2050734, K.H. appeals from an order of the circuit court remanding the case to the juvenile court of Jefferson County, Bessemer Division (“the juvenile court”), to conduct a jurisdictional hearing. We treat that appeal as a petition for a writ of mandamus, and we deny the petition.

Appeal No. 2050733

On July 21, 2003, the juvenile court entered an order declaring three children, M.K., Mc.K, and C.K., to be dependent based on a petition filed by the Jefferson County Department of Human Resources (“DHR”) and an admission by K.H., their mother, that the children had no legal father. In that order, the juvenile court awarded custody of the three children to the mother. However, on April 15, 2004, the juvenile court entered an order stating, among other things, “This court closes these cases [and] sets aside all prior orders in these cases.” On April 19, 2004, DHR filed another petition alleging dependency of the children; the juvenile court ultimately dismissed that petition for lack of jurisdiction. This court reversed that order. See M.J.P. v. K.H., 923 So.2d 1114 (Ala.Civ.App.2005).

On April 21, 2005, E.E.K. (“the father”) filed a Rule 60(b)(4) motion in which he requested the juvenile court to set aside its July 21, 2003, order. In that motion, the father argued that he had not been notified of the July 2003 dependency hearing and that he had not been given the opportunity to be heard at that hearing; therefore, he asserted, the July 2003 order was void. He filed another Rule 60(b)(4) motion on September 6, 2005, asserting the same argument. On November 16, 2005, the juvenile court entered an order denying all pending motions, which included the father’s Rule 60(b)(4) motions.

The father filed a motion to alter, amend, or vacate the November 16, 2005, order; that motion was denied on December 19, 2005. The father appealed to the circuit court for a trial de novo. Once in the circuit court, the father again filed a Rule 60(b)(4) motion, which was identical to the Rule 60(b)(4) motions he had filed in the juvenile court. After concluding that the father had appealed from a nonfinal order, the circuit court remanded the case to the juvenile court with a suggestion that the juvenile court conduct a hearing to determine if the father’s Rule 60(b)(4) motion had been timely filed and whether the motion had merit.

The father filed an appeal to this court. In his brief on appeal, the father asserts that the circuit court erred in failing to rule on his Rule 60(b)(4) motion and in remanding the case back to the juvenile court. He urges this court to reverse the circuit court’s remand order and to instruct the circuit court to conduct a hearing on his Rule 60(b)(4) motion. Ultimately, the father seeks an order vacating the July 21, 2003, order awarding custody of the children to the mother.

In Ex parte Connors, 855 So.2d 486 (Ala.2003), our Supreme Court stated:

“It is well settled that the judiciary of Alabama is not empowered ‘“to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.” ’ Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis omitted). ‘ “[Iff o, case has become moot, or [if a] judgment would not accomplish an end recognized as sufficient in law, there is no necessity for the judgment, the court will decline to consider the merits, and [the court] mil dismiss the case.” Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.1997) (quoting Chisolm v. Crook, 272 Ala. 192, 194, 130 So.2d 191, 193 (1961)) (emphasis added).”

855 So.2d at 488.

In its April 15, 2004, order, the juvenile court specifically set aside all of its previous orders in the case, which would include the July 21, 2003, order finding the children dependent and awarding custody to the mother. Therefore, the father’s Rule 60(b)(4) motion requesting that the July 21, 2003, order be vacated seeks relief that has already been provided by the juvenile court. Hence, the father’s appeal presents a moot question and is due to be dismissed.

Appeal No. 205078k.

On November 16, 2005, the juvenile court entered an order concluding that, pursuant to Ala.Code 1975, § 30-3B-204, it had temporary emergency jurisdiction over the custody dispute between the mother and the father. The juvenile court ordered the mother, who at that time resided in Ohio, to produce the children and ordered DHR to conduct a home study of the children’s residence. In that order, the juvenile court stated that “all other motions not previously denied are denied herein” and that “[a]ny party may appeal this decision within 14 days from entry of the judgment by filing written notice with the Clerk of this Court and the Clerk of the Court of Civil Appeals.” The mother filed a motion to alter, amend, or vacate the November 16, 2005, order; that motion was denied on December 19, 2005. The mother then appealed to the circuit court, seeking a trial de novo.

On May 12, 2006, the circuit court remanded the case to the juvenile court, concluding that it had no jurisdiction over the appeal because it arose from a nonfinal judgment. On May 26, 2006, the mother appealed to this court. In her brief, she argues that the circuit court erred in determining that the appeal was from a non-final judgment because, she says, the juvenile court indicated in no uncertain terms that she could appeal the order.

Initially, we must determine whether this court has appellate jurisdiction. “An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.” Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). A ruling by a circuit court that it does not have jurisdiction to conduct a trial de novo remanding the case to the juvenile court is not a final judgment. Hence, the circuit court’s May 12, 2006, order will not support an appeal.

However, this court has discretion to treat an appeal from an interlocutory order as a petition for a writ of mandamus. Ex parte C.L.J., 946 So.2d 880, 887 (Ala.Civ.App.2006).

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

Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005) (quoting Ex parte Liberty Nat’l Life Ins. Co., 888 So.2d 478, 480 (Ala.2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)).

In this case, the mother has failed to show that she had a clear legal right to appeal to the circuit court. Rule 28, Ala. R. Juv. P., authorizes an appeal from a final judgment of the juvenile court. Although the juvenile court indicated that its November 16, 2005, order was final and appealable, as this court has noted many times, whether a judgment is final, and thus appealable, does not depend on the trial court’s characterization of the order; rather, it depends on whether the judgment sufficiently ascertains and declares the rights of the parties. See, e.g., Mike Makemson Logging v. Colburn, 600 So.2d 1049 (Ala.Civ.App.1992). The November 16, 2005, order from which the mother sought to appeal merely established that the juvenile court had temporary emergency jurisdiction over the custody dispute. The order did not establish custody in either party. Hence, as the circuit court concluded, it was not a final judgment that would support an appeal.

Because the mother has not shown a clear legal right to proceed in the circuit court, we deny her petition.

2050733 — APPEAL DISMISSED AS MOOT.

2050734 — PETITION DENIED.

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

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

      . We note that the mother has not appealed or filed a petition for a writ of mandamus challenging the juvenile court’s ruling that it had temporary emergency jurisdiction pursuant to Ala.Code 1975, § 30-3B-204. Hence, we do not address that issue.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Sam GREENWOOD and Lesa T. Greenwood v. LINDSEY HARBOR, LLC.
    2060041.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Sam Greenwood and Lesa T. Greenwood, pro se.
    Jerry Wayne Baker, Jr., Albertville; and George M. Barnett, Guntersville, for appellee.
   THOMAS, Judge.

Sam Greenwood owns Lots 1 through 16 of Lindsey Lane Lake Estates. Lindsey Harbor, LLC, owns property adjacent to part of Lindsey Lane Lake Estates, which it is developing into a subdivision. Lindsey Lane Lake Estates contains 16 lots, all owned by Greenwood, and, based upon the recorded subdivision plat, has a right-of-way running through the subdivision. Lindsey Harbor used that right-of-way to haul timber and other materials off of its property during the early development stages of its subdivision project. Greenwood obstructed the use of that right-of-way, and Lindsey Harbor sued Greenwood, seeking a temporary injunction and a permanent injunction to prevent Greenwood from obstructing what Lindsey Harbor contended was a public right-of-way. The trial court granted a temporary injunction, and, after a trial on the merits, determined that the right-of-way was public and permanently enjoined Greenwood from obstructing the right-of-way. However, during the trial, it was determined that the right-of-way did not connect to the public road that it was intended to join. The trial court, in order to afford complete relief to Lindsey Harbor, ordered that a survey be completed so that the right-of-way could be adjusted to connect to the public road. However, before the survey to determine how the right-of-way would be adjusted was completed, Greenwood appealed the trial court’s judgment. Lindsey Harbor argues that Greenwood’s appeal was taken from a nonfinal judgment. We agree and dismiss the appeal.

An appeal ordinarily lies only from the entry of a final judgment. Ala. Code 1975, § 12-22-2; Bean v. Craig, 557 So.2d 1249, 1258 (Ala.1990). A judgment is generally not final unless all the claims, or the rights or liabilities of all the parties, have been decided. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987). The only exception to this rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. Bean, 557 So.2d at 1253.

Although the trial court adjudicated the claims asserted by Lindsey Harbor, to afford complete relief by making certain that Lindsey Harbor could access the right-of-way from the public road, the trial court determined, and noted in its exchanges with counsel at trial, that the right-of-way would need to be adjusted to connect to that public road. See Rule 54(c), Ala. R. Civ. P. (“Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.”). The trial court’s judgment does not resolve how the right-of-way will be adjusted to accomplish that objective; instead, the trial court ordered that a survey be performed to determine the appropriate manner of adjusting the right-of-way. Thus, the judgment leaves something else to be done and does not entirely resolve the issues before the court. In addition, we note that the manner by which the right-of-way is adjusted might well engender additional postjudgment litigation. Because the trial court’s judgment does not resolve all the issues or determine the rights and liabilities of all the parties and because the record does not contain a Rule 54(b) certification, the judgment is not final and will not support an appeal.

APPEAL DISMISSED.

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

      . Lesa T. Greenwood was named as a defendant in the action below and is an appellant; she was described as an owner of the property. However, the deed in the record indicates that Sam Greenwood is the sole record owner of the property.


author: BRYAN, Judge.

text:
    LaQuanda M. WANNAMAKER v. Raymond L. WANNAMAKER.
    2060207.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Kelli F. McDaniel, Montgomery, for appellant.
   BRYAN, Judge.

LaQuanda M. Wannamaker (“the wife”) appeals a default divorce judgment. We reverse and remand with instructions.

The wife and Raymond L. Wannamaker (“the husband”) married in Maryland in 1994. Two children were born of the marriage. The wife and the husband separated in November 1997, while they were residing in Germany. Subsequently, the wife moved to New York and the husband moved to Montgomery County, Alabama.

On December 21, 2005, more than six months after he had begun residing in Alabama, the husband sued the wife in the Montgomery Circuit Court, seeking a divorce and an equitable division of the parties’ marital assets. However, he did not seek custody of the parties’ two children; instead, he requested that the trial court award the wife custody of the children and award her child support.

After the process sent by certified mail to the wife’s address in New York was returned “unclaimed,” the husband, without introducing evidence indicating that the wife had resided in Alabama when he filed his action and had subsequently left the state in order to avoid service of process, sought and obtained an order authorizing service on the wife by publication. Thereafter, the trial court clerk published a notice of the divorce action in a newspaper of general circulation in Montgomery County once a week for four consecutive weeks. When the wife failed to answer or otherwise defend the action within 30 days after the last publication of the notice, the husband applied for a default judgment, and the trial court entered one. Although the trial court expressly found in the default judgment that it did not have personal jurisdiction over the wife, it not only divorced the parties but also divided the parties’ marital property and ruled that neither the husband nor the wife were obligated to pay alimony. The trial court did acknowledge that its lack of personal jurisdiction over the wife prevented it from adjudicating the issues of child custody, visitation, and child support.

On appeal, the wife argues that the trial court erred insofar as it entered a default judgment divorcing the parties because the wife was not properly served with process. We agree. If one party to a divorce action has resided in Alabama for the six months preceding the filing of his or her divorce action and the other party resides outside Alabama and does not have minimum contacts with Alabama, an Alabama court may nonetheless enter a default judgment divorcing the parties if the out-of-state party was properly served with process. See Burke v. Burke, 816 So.2d 498, 500 (Ala.Civ.App.2001), and Shaddix v. Shaddix, 603 So.2d 1096, 1098-99 (Ala.Civ.App.1992). However, a failure to properly serve the out-of-state party deprives the trial court of personal jurisdiction to enter a default judgment divorcing the parties regardless of whether the out-of-state party has minimum contacts with the state of Alabama, and, therefore, such a default judgment is void. See Shaddix, 603 So.2d at 1098-99. In the case now before us, the trial court erroneously authorized service of process on the wife, a nonresident of Alabama, by publication. See Williams v. Williams, 910 So.2d 1284, 1286-88 (Ala.Civ.App.2005) (holding that a nonresident may not be served by publication). Consequently, the attempt to serve the wife by publication did not confer personal jurisdiction over the wife. See Williams, 910 So.2d at 1287. However, despite expressly finding that it did not have personal jurisdiction, the trial court erroneously entered a default judgment purporting to divorce the parties. Accordingly, the default judgment is void insofar as it purported to divorce the parties.

The wife also argues that the trial court erred insofar as it adjudicated marital-property and alimony issues when it lacked personal jurisdiction over the wife. We agree. An Alabama court that lacks personal jurisdiction over one of the parties to a divorce action may not adjudicate marital-property and alimony issues regardless of whether that party was properly served with process. See Burke, 816 So.2d at 500. In the case now before us, the trial court, despite expressly finding that it did not have personal jurisdiction over the wife, erroneously entered a default judgment purporting to adjudicate marital-property and alimony issues. Accordingly, the default judgment is void insofar as it purported to adjudicate marital-property and alimony issues.

We reverse the default judgment entered by the trial court, and we remand the case to the trial court with instructions for it to enter an order vacating the default judgment. We grant the wife’s request for an attorney’s fee on appeal and award her an attorney’s fee in the amount of $1,000.

REVERSED AND • REMANDED WITH INSTRUCTIONS.

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

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


text:
    ALABAMA BOARD OF NURSING v. Amber Nicole PETERSON.
    2060131.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Troy King, atty. gen., and Gilda Branch Williams, gen. counsel and asst. atty. gen., Alabama Board of Nursing, for appellant.
    James R. Cooper, Jr., of Cooper & Cooper, Montgomery, for appellee.
   BRYAN, Judge.

The Alabama Board of Nursing (“the Board”) appeals from the judgment of the Montgomery Circuit Court reversing the Board’s revocation of Amber Nicole Peterson’s practical-nursing license. We affirm.

The Board issued a “statement of charges” against Peterson, alleging that she had violated certain statutes and regulations by working as a licensed practical nurse (“LPN”) without a current license. Peterson filed a response to the charges, denying the material allegations made against her. On March 22, 2006, the Board held an administrative hearing before a hearing officer. At the hearing, Peterson appeared and stated that she was not represented by an attorney and that she could not afford to be represented by one. Peterson further stated that she did not believe that she could adequately represent herself at the hearing and that she would not remain at the hearing. The hearing officer told Peterson that, if she left the hearing, the hearing would proceed in her absence and that she consequently would be unable to submit evidence or present arguments in her defense. Peterson subsequently left the hearing without submitting evidence or presenting arguments.

Cathy Boden, a nurse consultant employed by the Board, testified at the hearing. Boden testified that the Board had licensed Peterson as an LPN in February 2003 but that her license had lapsed on December 31, 2003. In 2005, Peterson applied for reinstatement of her lapsed LPN license. Boden testified that Peterson’s application was returned to her on June 9, 2005, due to questions regarding whether Peterson had satisfied continuing-education requirements. After Peterson resubmitted her application, the Board reinstated her LPN license on June 29, 2005.

Sunrise Healthcare Management (“Sunrise Healthcare”), located at DeKalb Baptist Medical Center (“DeKalb Baptist”), hired Peterson to work as an LPN, beginning in late June 2005. On June 27 and 29, 2005, Peterson attended a “general hospital orientation” at DeKalb Baptist for new employees. At the hearing, the Board submitted into evidence two “sign-in sheets” for the orientation sessions held on June 27 and 29. Peterson’s name was signed on the sign-in sheets, and the title “LPN” was handwritten beside Peterson’s name under the heading “title/license.” Boden testified that the sign-in sheets indicated that Peterson had been employed at DeKalb Baptist before the Board had reinstated her LPN license on June 29, 2005.

The Board also submitted a payroll register indicating that Sunrise Healthcare had paid Peterson for 32.75 hours of work during the pay period ending on July 2, 2005. Peterson’s “job code” on the payroll register was listed as “HLPN.” A “monthly employee schedule” submitted by the Board indicated that a Sunrise Healthcare employee identified as “Amber” had been scheduled to attend orientation on June 27-29, and July 1, 2005.

On April 24, 2006, the hearing officer found that Peterson had been employed as an unlicensed LPN by Sunrise Healthcare on June 27-28, 2005. The hearing officer concluded that Peterson, by working as an LPN without a license, had violated various statutes and regulations. The hearing officer recommended that the Board revoke Peterson’s LPN license.

On May 16, 2006, the Board entered an order finding that “[o]n June 27-28, 2005, [Peterson] was employed by Sunrise Healthcare ... at DeKalb Baptist ... as an LPN without a current license. [Peterson’s] license was reinstated on June 29, 2005. On June 27, 2005, [Peterson] signed the sign-in sheet using the protected title ‘LPN.’ ” Based upon those factual findings, the Board concluded that Peterson had violated §§ 34-21-22 through -25, Ala. Code 1975; and Rules 610-X-8-.03(6)(a) and (b), and -.03(8)(a), Ala. Admin. Code (Alabama Board of Nursing). The Board consequently revoked Peterson’s LPN license.

Peterson appealed the Board’s order to the circuit court, pursuant to § 34-21-25(h), Ala.Code 1975. The circuit court held two hearings and heard arguments from the Board and Peterson. Although the circuit court received no evidence at the hearings, Peterson, acting pro se, made certain assertions regarding facts that were not contained in the evidence that had been submitted at the administrative hearing.

On September 27, 2006, the circuit court entered a judgment reinstating Peterson’s LPN license. In its judgment, the circuit court stated, in pertinent part:

“The Board’s [administrative] complaint [against Peterson] rests on the assertion that Peterson practiced or worked as an LPN on a lapsed license and/or held herself out as a ‘LPN.’ [The Board] base[s] this assertion on the fact that Peterson, on June 27th and 29th, 2005, attended a new employee orientation at De[K]alb Baptist ... and signed the ‘sign-in sheet’ as a ‘LPN.’ ... The facts of this case also reveal that (1) Peterson’s license was reinstated on June 29, 2005 — a mere two days after Peterson attended the first day of orientation; ... (3) Peterson was formerly licensed in Alabama and had applied for reinstatement of her Alabama license a few days before attending the orientation; and (4) [Peterson] had paid the application fees and met the application requirements. The procedure for reinstatement was essentially complete.
“In conclusion, this Court does not find that the behavior of Peterson was a violation of Alabama law. The orientation sign-in sheet merely asked for her ‘Title/License,’ and she wrote down the title of the position that she had been employed at DeKalb Baptist .... It does not appear that she had the intent to hold herself out as something she was not. At the time she signed the sheet, Peterson ... knew that her Alabama LPN license was being reinstated for her employment [in Alabama].
“Accordingly, the findings of the Board were erroneous as to the legal conclusions, and its actions were arbitrary and capricious.”

The Board subsequently appealed the circuit court’s judgment to this court.

Section 41-22-20(k), Ala.Code 1975, controls judicial review of agency decisions. In pertinent part, it provides:

“(k) Except where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute. The court may affirm the agency action or remand the case to the agency for taking additional testimony and evidence or for further proceedings. The court may reverse or modify the decision or grant other appropriate relief from the agency action ... if the court finds that the agency action is due to be set aside or modified under standards set forth in appeal or review statutes applicable to that agency or if substantial rights of the petitioner have been prejudiced because the agency action is any one or more of the following:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) In violation of any pertinent agency rule;
“(4) Made upon unlawful procedure;
“(5) Affected by other error of law;
“(6) Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or
“(7) Unreasonable, arbitrary, or capricious, or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.”

Our supreme court has stated:

“This Court has further defined the standard of review of an agency ruling in Alabama as follows:
“ ‘ “Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers. Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.” ’ ”

Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d 1093, 1096-97 (Ala.2004) (quoting Ex parte Alabama Bd. of Nursing, 835 So.2d 1010, 1012 (Ala.2001), quoting in turn Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989)). Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court reviews a circuit court’s judgment without a presumption of correctness because the circuit court is in no better position to review an agency’s decision than this court. Clark v. Fancher, 662 So.2d 258, 261 (Ala.Civ.App.1994). Further, this court reviews the Board’s legal conclusions and its application of the law to the facts without a presumption of correctness. Barngrover v. Medical Licensure Comm’n of Alabama, 852 So.2d 147, 152 (Ala.Civ.App.2002).

On appeal, the Board first argues that there were no appealable issues before the circuit court because, the Board says, Peterson failed to preserve any ap-pealable issues at the administrative hearing. At the administrative hearing, the Board raised the straightforward issue whether Peterson had violated certain statutes and regulations. On appeal, the circuit court considered the same issue, reviewing whether the Board’s resolution of that issue was supported by substantial evidence, was reasonable, and was within its statutory and constitutional powers. See Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d at 1096-97; and § 41-22-20(k), Ala.Code 1975. Therefore, in this case, the Board had before it an appealable issue that was squarely before the hearing officer at the administrative hearing.

The Board revoked Peterson’s LPN license based on the Board’s conclusion that Peterson had violated §§ 34-21-22 through -25, Ala.Code 1975; and Rules 610-X-8-.03(6)(a) and (b), and -,03(8)(a), Ala. Admin. Code (Alabama Board of Nursing). We must consider whether the Board’s conclusions that Peterson violated those statutes and regulations are supported by substantial evidence.

Section 34-21-22, Ala.Code 1975, provides, in pertinent part:

“(c) Any person who holds a license to practice practical nursing as a licensed practical nurse in this state shall have the right to use the title ‘licensed practical nurse’ and the abbreviation ‘L.P.N.’ No other person shall assume or use such title or abbreviation or any other words, letters, signs or devices to indicate that the person using the same is licensed to practice practical nursing as a licensed practical nurse.”

The Board had before it substantial evidence indicating that Peterson, two days before her license was reinstated, used the abbreviation “LPN” on a sign-in sheet at the general hospital orientation on June 27, 2005. Therefore, the Board’s conclusion that Peterson violated § 34-21-22 was supported by substantial evidence.

Section 34-21-23, Ala.Code 1975, provides, in pertinent part:

“(d) .... It shall be unlawful for any person to practice practical nursing in this state during the time his or her license so to practice has lapsed, and such person shall be subject to the penalties of this chapter.”

There was not substantial evidence indicating that Peterson actually practiced as an LPN on June 27 or June 28, 2005, as the Board concluded. The evidence indicates that, before her license was reinstated on June 29, 2005, Peterson merely attended a general hospital orientation for new employees. The Board submitted no evidence establishing that she performed any duties as an LPN at this orientation. Therefore, there was not substantial evidence indicating that Peterson violated § 34-21-23.

Section 34-21-24, Ala.Code 1975, provides that “[t]he board shall set the fees and charges annually for the services under this chapter.” Given the ministerial nature of this section, the Board clearly erred in concluding that Peterson violated it.

Rule 610-X-8-.0S, Ala. Admin. Code (Alabama Board of Nursing), provides, in pertinent part:

“The Board may reprimand, fíne, probate, suspend, revoke or otherwise discipline any ... licensed practical nurse upon proof that the person:
“(6) Is guilty of unprofessional conduct of a character likely to deceive, defraud, or injure the public in matters pertaining to health, that includes but is not limited to:
“(a) Failure to comply with the Alabama Nurse Practice Act [§ 34-21-1 et seq., Ala.Code 1975] and rules and regulations as well as all federal, state or local laws, rules or regulations applicable to the area of nursing practice.
“(b) Failure to practice nursing in accordance with the standards of practice adopted by the Board.
“(8) Has willfully or repeatedly violated any of the provisions of a statute or rule that includes but is not limited to:
“(a) Practicing or seeking to practice professional or practical nursing without a current license or temporary permit.”

Regarding Rule 610-X-8-.03(6), there was no substantial evidence indicating that Peterson was “guilty of unprofessional conduct of a character likely to deceive, defraud, or injure the public in matters pertaining to health.” There was no evidence indicating that Peterson’s use of the protected “LPN” title on the sign-in sheet at a hospital orientation was likely to adversely affect the public as contemplated by Rule 610-X-8-.03(6). Accordingly, there was no substantial evidence indicating that Peterson violated that rule.

Regarding Rule 610-X-8-.03(8), as we have noted, there was not substantial evidence indicating that Peterson practiced practical nursing on June 27 or 28, 2005. Furthermore, there was no evidence indicating that Peterson sought to practice practical nursing during those two days. Instead, the record indicates that Peterson only attended a general hospital orientation. Accordingly, the Board erroneously concluded that Peterson violated Rule 610-X-8-.03(8).

Although the Board’s order concluded that Peterson “violated” § 34-21-25, Ala. Code 1975, that section in fact authorizes the Board to discipline licensees for violations of other statutory provisions or regulations. Section 34-21-25, Ala.Code 1975, provides, in pertinent part:

“(b) The board may ... deny, revoke, or suspend any license issued by it or to otherwise discipline a licensee upon proof that the licensee: is guilty of fraud or deceit in procuring or attempting to procure a license; has been convicted of a felony; is guilty of a crime involving moral turpitude or of gross immorality that would tend to bring reproach upon the nursing profession; is unfit or incompetent due to the use of alcohol, or is addicted to the use of habit-forming drugs to such an extent as to render him or her unsafe or unreliable as a licensee; has been convicted of any violation of a federal or state law relating to controlled substances; is guilty of unprofessional conduct of a character likely to deceive, defraud, or injure the public in matters pertaining to health or has willfully or repeatedly violated any of the provisions of this article, as defined by board rules and regulations.... ”

After concluding that Peterson had violated various statutes and regulations, the Board disciplined Peterson by revoking her license, pursuant to § 34-21-25(b). Most of the reasons listed in § 34-21-25(b) for revoking a license are clearly inapplicable in this case. As we have noted, there is not substantial evidence indicating that Peterson was “guilty of unprofessional conduct of a character likely to deceive, defraud, or injure the public in matters pertaining to health.” The Board seems to suggest that its authority to revoke Peterson’s license derives from her “repeatedly” violating statutory and regulatory provisions. However, as we have noted, there was substantial evidence indicating that Peterson violated § 34-21-22 on only one occasion by using the protected “LPN” title on a sign-in sheet two days before her LPN licence was reinstated. The Board does not argue that Peterson “willfully” violated § 34-21-22; therefore, we decline to construe that term.

We conclude that the Board has failed to establish that any of the reasons listed in § 34-21-25(b) for revoking a license are present in this case. Therefore, the Board acted beyond its statutory authority in revoking Peterson’s LPN license. § 41-22-20(k), Ala.Code 1975; Ex parte Medical Licensure Comm’n of Alabama, 897 So.2d at 1096-97. Accordingly, we agree with the circuit court’s conclusion reversing the Board’s revocation of Peterson’s license. See § 41-22-20(k), Ala.Code 1975.

The Board argues that the circuit court erred in considering evidence not contained in the record made before the administrative hearing. Subject to certain exceptions that are inapplicable in this case, an appellate court’s review of an agency’s action is limited to a review of the administrative record. § 41-22-20(i) and (j), Ala.Code 1975. As we have noted, the circuit court did not receive evidence on appeal from the Board’s order; it merely heard arguments from the Board’s counsel and Peterson. The circuit court’s judgment, however, included as “facts” certain information that was never submitted into evidence at the administrative hearing. This information reflects certain factual allegations made by Peterson in her arguments to the circuit court, in her response to the Board’s charges, and in her notice of appeal to the circuit court. However, basing our review solely on the administrative record, we agree with the circuit court’s conclusion that the Board erred in revoking Peterson’s license. Therefore, the circuit court’s recitation of “facts” outside the administrative record was harmless error. See Rule 45, Ala. R.App. P.

Because we conclude that the Board erred in revoking Peterson’s LPN license, we affirm the circuit court’s judgment reinstating Peterson’s license. See § 41-22-20(k), Ala.Code 1975.

AFFIRMED.

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

      . Section 34 — 21—25(h), Ala.Code 1975, provides:
      "(h) Any person whose license is ordered suspended or revoked may appeal to the circuit court or a court of like jurisdiction of Montgomery County, from any order of the board under this section, within 30 days from date of the decision of the board. The trial of appeals shall be conducted in like manner, as nearly as may be, as provided for in the Alabama Administrative Procedure Act [§ 41-22-1 et seq., Ala.Code 1975].”


author: MOORE, Judge. PITTMAN, Judge,

text:
    J.W.J., JR. v. P.K.R. and P.H.R.
    2051040.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      Linda F. Coats, Huntsville, for appellant.
    William P. Burgess, Jr., and Rebekah L. Howard of William P. Burgess, Jr., P.C., Huntsville, for appellees.
   MOORE, Judge.

J.W.J., Jr. (“the father”), appeals from the judgment of the Madison Circuit Court awarding P.K.R. and P.H.R. (“the maternal grandparents”) visitation with his minor child. We reverse and remand.

Facts

On January 26, 2001, the Madison Juvenile Court (“the juvenile court”) entered a judgment declaring J.W.J., Jr., to be the biological father of P.J. (“the child”). The juvenile court awarded custody of the child to the child’s mother and awarded the father visitation rights.

During the mother’s pregnancy and after the child’s birth, the mother and the child resided with the maternal grandparents. The maternal grandparents cared for the child while the mother worked and attended college. The father regularly exercised his visitation rights.

The mother died on December 19, 2002, when the child was two and one-half years old. The father picked the child up for his regular visitation period on December 20, 2002, and returned the child to the maternal grandparents’ home on December 26, 2002. The father later assumed physical custody of the child, and the child resided with the father in the home of the father’s parents (the child’s paternal grandparents). On January 5, 2003, the father and the maternal grandparents had a discussion regarding custody of the child; that discussion ended with the father denying the maternal grandparents any visitation with the child.

Not long after that discussion, the maternal grandparents petitioned the juvenile court for visitation rights, pursuant to Ala. Code 1975, § 30-3-4.1 (“the Grandparent Visitation Act”). The father and the maternal grandparents reached an agreement, which the juvenile court incorporated into a pendente lite order, whereby the maternal grandparents were awarded visitation on the first and third weekends of each month. The juvenile court subsequently entered a final order awarding the maternal grandparents far more extensive visitation rights. The father appealed, and this court reversed the juvenile court’s judgment, concluding that the juvenile court lacked jurisdiction to enter an order on the visitation petition and that the juvenile court’s order was therefore void. See J.W.J. v. P.K.R., 906 So.2d 182 (Ala.Civ.App.2005).

Although this court ruled that the order of the juvenile court awarding grandparent visitation was void, the father continued to allow the maternal grandparents to visit with the child. The father permitted the child to stay with the maternal grandparents one weekend per month and for seven days during June 2004. The father also allowed the child to visit with the maternal grandparents on additional occasions upon the maternal grandparents’ request.

Although regularly receiving visitation, the maternal grandparents filed a second petition for grandparent-visitation rights in the Madison Circuit Court (“the circuit court”) in February 2005. On April 1, 2005, the father answered the petition, asserting that the Grandparent Visitation Act violates his federal constitutional rights. On May 4, 2005, the attorney general filed his response to the father’s constitutional challenge.

On May 4, 2006, the circuit court held an ore tenus hearing. The father testified that the child loves the maternal grandparents and that the maternal grandparents love the child. He stated that he would not take the child out of the lives of the maternal grandparents because they love each other and because the child needs her mother’s side of the family in her life. The father testified that he has no doubt that the maternal grandparents will take care of the child during the time they visit with her. The father testified, however, that he felt it would be detrimental to the child if he were deprived of the ability to determine the time, the place, and the manner of the child’s visitation with the maternal grandparents. The father noted that during the time a court-ordered visitation schedule had been in place, the maternal grandparents had denied his request to alter the visitation schedule so the child could attend an event with him and his family on the fourth of July. He stated that when there is no court-ordered visitation schedule in place there is communication and flexibility. He also stated that during the time in which there was no court-ordered visitation schedule, he had agreed to set the maternal grandparents’ visitation for the second weekend of each month unless one of the parties needed to change that schedule.

The maternal grandparents do not dispute that the father has allowed the child to visit with them; however, they assert that there have been communication problems that worsen when there is no court-ordered visitation schedule in place. They testified that the visitation plans are often made at the last minute and that the last-minute arrangements create planning problems. The maternal grandfather testified that he has to contact the father every month and verify which weekend they will have the child for visitation. The maternal grandparents also testified that they have problems getting in touch with the child because the child is not home when they call her. They further testified that the father had not informed them of where the child would be attending school until school had already begun and that, therefore, the maternal grandmother had not been able to be present for the child’s first day of school. The maternal grandfather testified that he has been concerned that the father would “cut off’ visitation. He acknowledged that the father had testified at his deposition that he did not foresee himself withholding visitation from the maternal grandparents but that he would not exclude the possibility.

The testimony of Dr. Frankie Preston, a psychologist who had evaluated the child, indicated that termination or undue limitation of the child’s access to the maternal grandparents could be harmful to the child. The father testified that he respects Dr. Preston’s advice and that he intended to follow it. The parties stipulated that Dr. Preston’s current opinion was that the child is a “healthy, normal five year old.”

On May 11, 2006, the circuit court entered a judgment setting forth findings of fact and conclusions of law and awarding visitation rights to the maternal grandparents. Specifically, the circuit court ordered that the maternal grandparents “shall visit” with the child on the following occasions:

“a. The second weekend of every month from the end of the school day or 4:00 p.m. on Friday until the beginning of school or 8:00 a.m. Monday morning. If this weekend conflicts with the father’s birthday or Father’s Day then the parties will cooperate in choosing an alternate weekend for that month.
“b. The fifth weekend of every month from the end of the school day or 4:00 p.m. on Friday until the beginning of school or 8:00 a.m. Monday morning. If this weekend conflicts with the father’s birthday or Father’s Day then the parties will cooperate in choosing an alternate weekend for that month.
“c. One week in June to begin with the second weekend visitation. This visit will begin at 4:00 p.m. Friday through the following week and end on the second Monday morning at 8:00 a.m. If this weekend conflicts with the father’s birthday or Father’s Day then the parties will cooperate in choosing an alternate week for that month.
“d. One week in July to begin with the second weekend visitation. This visit will begin at 4:00 p.m. Friday through the following week and end on the second Monday morning at 8:00 a.m.
“e. The week following Christmas to start at 8:00 a.m. on December 26th through January 2nd at 4:00 p.m.
“f. Mother’s Day from 8:00 a.m. to 6:00 p.m.
“g. Grandparent’s Day every even-numbered year from 8:00 a.m. to 6:00 p.m.
“h. [The child’s] birthday from 5:00 p.m. to 8:00 p.m., every odd-numbered year. In even-numbered years, from 5:00 p.m. to 8:00 p.m. on the day preceding or subsequent to [the child’s] birthday.
“i. Visitation provided for herein shall not preclude other and further visitation as the parties may from time to time agree. The households of both parties shall be maintained in a wholesome and proper moral atmosphere whenever the minor child is present.”

The judgment also granted the maternal grandparents telephone-visitation rights and the right to eat lunch with the child at her school and to attend the child’s school and extracurricular activities.

The father filed a timely motion to alter, amend, or vacate the judgment, which the circuit court denied on August 7, 2006, prompting the filing of this appeal on September 18, 2006.

Discussion

A. Facial Challenge to the Grandparent Visitation Act

The father first argues that the Grandparent Visitation Act is unconstitutional on its face because, he says, it does not affirmatively require a trial court to presume that a parent’s decision regarding grandparent visitation is in the best interests of the child.

In Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the United States Supreme Court considered the constitutionality of a Washington statute granting trial courts the authority to award visitation to any person who convinced the court that visitation would be in the best interests of a child. As construed by the Washington Supreme Court, the statute did not require the lower courts to give any deference to, or special weight or presumption in favor of, a fit parent’s decision regarding visitation. 530 U.S. at 67, 120 S.Ct. 2054. As such, a plurality of the Court ruled, the statute, as applied, unduly infringed on the mother’s fundamental constitutional right to the care, custody, and control of her child. Id.

Following Troxel, this court held that the Grandparent Visitation Act, as it existed in 2000, was unconstitutional. R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001). At that time, the Grandparent Visitation Act contained a presumption that it would be in the best interest of a child to have visitation with his or her grandparents. A majority of this court ruled that that presumption violated the parents’ fundamental constitutional right to the care, custody, and control of their child.

A year later, in L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002), this court construed subsection 30-3-4.1(d)(6) to require trial courts to give great weight to the decision of parents as to visitation with grandparents. Subsection 30 — 3—4.1(d)(6) provided, at the time, that in determining the best interests of the child, the trial court shall consider “[ojther relevant factors in the particular circumstances.” Although that subsection did not specifically mention consideration of the parents’ determination, the court construed the subsection broadly so as to assure its constitutionality. A majority of the court agreed that the trial court must presume that the visitation decision of the parent is in the best interests of the child.

In 2003, the legislature amended the Grandparent Visitation Act. See Act No. 2003-383, Ala. Acts 2003. Among other changes, the legislature deleted the presumption in favor of grandparent visitation declared unconstitutional in R.S.C. and expanded subsection 30-3-4.1 to require the trial court to consider, when making its best-interests determination, “[ojther relevant factors in the particular circumstances, including the wishes of any parent who is living. ” (Emphasis added.) In Dodd v. Burleson, 932 So.2d 912, 919 (Ala.Civ.App.2005), a majority of this court construed the amended statute as having explicitly adopted the presumption in favor of the parent’s visitation decision first recognized in L.B.S.

The father is correct that the current Grandparent Visitation Act does not expressly state that the parent’s visitation decision shall be presumed to be in the child’s best interests. Rather, as written, the statute simply requires the trial court to consider the parent’s wishes along with other factors without specifying that any particular factor should be given any greater weight. However, as stated in L.B.S.:

“Our supreme court has recognized that ‘[a] statute may be enacted without containing [a] provision for constitutional requirements but in such terms as not to exclude them and to justify the court in holding that it was intended to be sub-jeet to those requirements, which should then be treated as a feature of it.’ Almori v. Morgan County, 245 Ala. 241, 246, 16 So.2d 511, 516 (1944).”

826 So.2d at 185. In order to meet the constitutional requirements set out in Troxel, the statute must contain a presumption that the parent’s wishes are presumed to be in the child’s best interests. In L.B.S. and Dodd, this court has treated that presumption as an implied part of § 30 — 3—4.1(d)(6). Thus, the implied presumption is as much a feature of the statute as its plain language. Consequently, the statute is not unconstitutional on its face, as the father argues, for failing to expressly include a presumption in favor of a parent’s visitation decisions.

B. “As Applied” Challenge to the Grandparent Visitation Act

The father next argues that the Grandparent Visitation Act is unconstitutional as applied to him for two reasons: 1) he was already voluntarily providing visitation to the maternal grandparents and 2) the circuit court failed to give any presumption in favor of his visitation preferences.

In support of his first position, the father argues that in Beck v. Beck, 865 So.2d 446 (Ala.Civ.App.2003), this court held that “where visitation is not being denied, clear and convincing evidence must be presented to show that it would be denied in the future.” Actually, in Beck, a majority of the court merely ruled that the grandparents had used an improper procedure to petition the trial court for visitation, thereby rendering the visitation award void. As Judge Pittman’s special writing noted, all further comments in the lead opinion regarding the substantive propriety of the visitation order in the Beck opinion amounted to no more than dicta. 865 So.2d at 450 (Pittman, J., concurring in the result).

Even if the remainder of the lead opinion was not dicta, the court did not hold as the father contends. Presiding Judge Yates wrote in the lead opinion:

“Ordering scheduled visitation in a case where the grandparents have never been denied visitation with the child, where there is no indication in the record that the father would deprive his child of a relationship with the grandparents, where the grandmother described her relationship with the child as ‘normal grandparent involvement,’ and where the grandparents’ time with child has decreased in large part because of the child’s and the parent’s schedules, goes beyond the constitutionally mandated limits for awarding grandparent visitation.”

865 So.2d at 450. Presiding Judge Yates did not state that when a living parent voluntarily grants grandparents visitation a grandparent can only petition the court for judicial enforcement of his or her visitation rights if clear and convincing evidence shows that the living parent would deny visitation in the future.

Unlike many grandparent-visitation statutes, see, e.g., Miss.Code Ann. § 93-16-3(2)(a) (1994) (court must find that “the parent or custodian of the child unreasonably denied the grandparent visitation rights with the child”); R.I. Gen. Laws § 15-5-24.3(a)(2)(iii)-(iv) (Supp.1999) (court must find that parents prevented grandparent from visiting grandchild and that “there is no other way the petitioner is able to visit his or her grandchild without court intervention”), Alabama’s Grandparent Visitation Act does not condition court-ordered visitation in every case upon a prior denial of visitation by the living parent. The Grandparent Visitation Act allows “any grandparent” to file an original action for visitation rights “[w]hen one or both parents of the child are deceased,” without regard for whether the living parent has previously denied or significantly restricted visitation. § 30 — 3—4.1(b)(1).

In Troxel, supra, the mother did not deny the grandparents visitation, but she wanted to restrict visitation to one short visit per month and special holidays. 530 U.S. at 571, 120 S.Ct. 2402. The grandparents petitioned for visitation on two weekends per month and two full weeks in the summer. Id. The trial court gave no weight to the mother’s visitation plan; instead, it chose a middle ground, ordering one weekend of visitation per month, one week in the summer, and time on both grandparents’ birthdays. Id. Considering those facts, together with the trial court’s apparent use of a presumption that grandparent visitation would be in the best interests of the child, the lead opinion in Troxel concluded that the trial court had unduly infringed on the mother’s fundamental right to make decisions concerning the care, custody, and control of her children. Id.

As we read Troxel, a grandparent-visitation statute is not unconstitutional simply because it allows grandparents to petition a court for greater visitation rights than they are already receiving. Rather, the key to the holding in Troxel was that the trial court had improperly failed to give proper weight to the parent’s visitation decision. Hence, we do not agree that the Grandparent Visitation Act has been unconstitutionally applied to the father based on the fact that it allowed the maternal grandparents to petition for greater visitation rights than the father was already voluntarily providing.

As to the father’s second point, we agree that a trial court would act unconstitutionally if, when acting on a petition for grandparent visitation, it failed to afford a presumption that the living parent’s decision as to the amount, method, and duration of visitation was in the best interests of the child. The question presented here is whether the circuit court failed to apply that presumption, thus unduly infringing on the father’s due-process rights.

In this case, the circuit court entered a very detailed six-page order. In that order, the circuit court, citing Dodd, supra, indicated that in deciding the visitation issue, it had considered “a variety of factors,” including:

“[T]he nature and stability of the relationship between the child and the grandparent seeking visitation; the amount of time spent together; the potential detriments and benefits to the child from granting visitation; the effect granting the visitation would have on the child’s relationship with the parents; the physical and emotional health of all the adults involved, the parents and the grandparents alike; the stability of the child’s living and schooling arrangements; the wishes and preferences of the child.”

The circuit court also stated that it had considered the “parent’s own determination regarding the visitation.” However, the circuit court did not indicate that it gave any greater weight to the father’s determination than it did the other factors it considered. The circuit court did not explicitly recognize that the father’s decision is presumed to be in the best interests of the child.

In the body of the order, the circuit court maintained that the visitation issue required a judicial resolution because the father and the maternal grandparents could not agree as to the appropriate visitation schedule and that it would be in the child’s best interests if the visitation controversy could be finally resolved in a manner that would best preserve the relationship between the child and the maternal grandparents. Those comments imply that the circuit court did not give any special presumption in favor of the father’s visitation decision. The circuit court did not note that when the parties disagree as to the appropriate visitation schedule, the parent’s position should be presumed to be in the best interests of the child. The circuit court further did not note that its role in deciding a dispute over a grandparent-visitation issue is limited to determining whether the grandparents have properly rebutted the presumption in favor of the parent’s decision. Instead, the circuit court improperly used a simple best-interests analysis to reach its own independent decision as to the mode of visitation that would best serve the interests of the child.

In Troxel, the Court criticized the Washington statute at issue for granting trial courts the power to unilaterally impose a visitation plan on parents based on the trial court’s own determination of the best interests of the child. The Court stated:

“Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. [The Washington statute] contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.”

530 U.S. at 67, 120 S.Ct. 2054 (quoted in R.S.C., 812 So.2d at 371). The Court held that this approach was unconstitutional because “the decision whether [a grandpa-rental] relationship would be beneficial in any specific case is for the parent to make in the first instance.” 530 U.S. at 70, 120 S.Ct. 2054. “ ‘It is not within the province of the state to make [a different decision] concerning the custody of children merely because it could make a “better decision.” ’ ” Troxel, 530 U.S. at 63, 120 S.Ct. 2054 (quoting In re Smith, 137 Wash.2d 1, 20, 969 P.2d 21, 31 (1998)).

Because we conclude that the circuit court failed to give the appropriate presumptive effect to the father’s visitation decisions and decided the case based solely on its own view of the best interests of the child, we agree that the circuit court’s order unduly infringes upon the father’s due-process rights. Accordingly, we reverse the judgment and remand the case for further proceedings consistent with this opinion.

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

REVERSED AND REMANDED.

BRYAN and THOMAS, JJ., concur.

PITTMAN, J., concurs in part and concurs in the result, with writing, which THOMPSON, P.J., joins.

PITTMAN, Judge,

concurring in part and concurring in the result.

I concur in that portion of the main opinion concluding that § 30-3-4.1, Ala. Code 1975, is not unconstitutional on its face. Because the trial court in this case utilized a preponderance-of-the-evidence standard, rather than a clear-and-convincing-evidence standard, in assessing the maternal grandparents’ right to a judgment in their favor, I concur in the result to reverse. See L.B.S. v. L.M.S., 826 So.2d 178, 186 (Ala.Civ.App.2002); see also Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005), and Dodd v. Burleson, 967 So.2d 715 (Ala.Civ.App.2007) (main opinions indicating that our legislature has rejected substantial harm as a precondition for a grandparental-visitation judgment).

THOMPSON, P.J., concurs.

      . The maternal grandmother testified that they had already made plans for that day.

      . Section 30-3-4.1(b)(5) grants grandparents the right to file an original action for visitation when the child is living with both biological parents, who are still married to one another, and either or both parents have exercised parental authority to prohibit a relationship between the child and the grandparents. That subsection is not at issue in this case.

      . The father maintains in the standard-of-review section of his brief that the maternal grandparents had the burden of proving by clear and convincing evidence that the visitation they sought was in the best interests of the child. The circuit court, again citing Dodd, supra, ruled that the maternal grandparents did not have to prove substantial harm to the child in the absence of visitation, but could rely on the best-interests standard. Accordingly, this court is not asked to decide the still unsettled question of whether due process requires grandparents to prove the child would be substantially harmed if visitation is not allowed. See R.S.C., supra; L.B.S., supra; and Dodd, supra.

      . The circuit court ruled that the "preponderance of the evidence” supported grandparent visitation. Because we are remanding this case for further proceedings, we note that the maternal grandparents have the burden of producing clear and convincing evidence in order to rebut the presumption in favor of the father's visitation decision. See L.B.S., 826 So.2d at 186.

      . Because we are vacating the circuit court’s visitation order on this ground, we do not address the father's remaining arguments that the circuit court failed to consider the maternal grandparents’ alleged hostility towards him; that the circuit court granted the maternal grandparents custody, not visitation; and that the circuit court erred in denying the admission into evidence of an anonymous letter.


author: MOORE, Judge.

text:
    Elizabeth W. MONTIEL v. ESTATE OF Gonzalo F. MONTIEL and Mobile Memorial Gardens. Estate of Gonzalo F. Montiel, Mark G. Montiel, and Robert Montiel v. Elizabeth W. Montiel.
    2060098.
    Court of Civil Appeals of Alabama.
    June 29, 2007.

      William E. Shreve, Jr., of Lyons, Pipes & Cook, P.C., Mobile, for appellant/cross-appellee Elizabeth W. Montiel.
    Douglas L. Anderson and Kristin T. Ashworth of Bowron, Latta & Wasden, P.C., Mobile, for appellees/cross-appellants Estate of Gonzalo F. Montiel, Mark G. Montiel, and Robert Montiel.
   MOORE, Judge.

This is an appeal and a cross-appeal from a series of orders entered by the Mobile Circuit Court in an estate proceeding.

Elizabeth W. Montiel (“Elizabeth”), the surviving spouse of Gonzalo F. Montiel (“Gonzalo”), appeals from the Mobile Circuit Court’s order determining that she is not the beneficiary of Gonzalo’s deferred-compensation plan from his employment at Mobile Memorial Gardens. The estate of Gonzalo F. Montiel (“the estate”), and the personal representatives of the estate, Mark G. Montiel and Robert Montiel (hereinafter collectively referred to as “the personal representatives”), cross-appeal from the trial court’s order requiring the estate to immediately pay certain remodeling and renovation debts incurred by Elizabeth and Gonzalo before Gonzalo’s death. We dismiss both the appeal and the cross-appeal as being from nonfinal judgments.

In Johnson v. Johnson, 835 So.2d 1032 (Ala.Civ.App.2002), an estate proceeding was removed to the circuit court, and the circuit court took jurisdiction over the administration of the estate. Thereafter, the circuit court entered an order for the sale and division of the decedent’s property. The surviving spouse appealed the order. This court dismissed the appeal on the basis that the order was not a final judgment because, among other reasons, the circuit court had retained jurisdiction over the administration of the estate. 835 So.2d at 1034. The court noted that the circuit court did not certify the order as final pursuant to Rule 54(b), Ala. R. Civ. P. The court stated, “In the absence of a Rule 54(b) certification of finality, the question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” 835 So.2d at 1034.

In this ease, the parties have appealed from interlocutory orders of the circuit court that have not been certified as final under Rule 54(b). Although the circuit court disposed of most of the issues between the parties by awarding Gonzalo’s deferred compensation to the estate and by ordering the estate to immediately pay the costs for renovating and remodeling Elizabeth and Gonzalo’s marital home, it did not settle the administration of the estate. Among the claims asserted against the estate is a claim by Elizabeth for the costs she incurred for storing Gonzalo’s property after his death. In accordance with Johnson, we therefore dismiss the appeal and the cross-appeal.

APPEAL DISMISSED; CROSS-APPEAL DISMISSED.

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

      . The appeal and the cross-appeal were originally filed in the Supreme Court of Alabama, but they were transferred to this court based on a determination that this court had jurisdiction.

      . Rule 54(b), Ala. R. Civ. P., provides:
      "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. Except where judgment is entered as to defendants who have been served pursuant to Rule 4(f), [Ala. R. Civ. P.,] in the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.”

      . The circuit court also ordered the estate to return certain personal property to Elizabeth. None of the parties has appealed that order.


author: WISE, Judge.

text:
    Thomas Lee DEDEAUX v. STATE of Alabama.
    CR-04-0792.
    Court of Criminal Appeals of Alabama.
    Dec. 23, 2005.

      Susan Graham James, Montgomery, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Thomas Lee Dedeaux, appeals from the circuit court’s denial and dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R.Crim.P., in which he attacked his September 2001 guilty-plea convictions for burglary in the first degree, rape in the first degree, and sodomy in the first degree, and the resulting sentences of life imprisonment for each conviction. This Court dismissed Dedeaux’s appeal from those convictions on March 27, 2002, because it was untimely. Dedeaux v. State (No. CR-01-1343), 854 So.2d 1234 (Ala.Crim.App.2002) (table). A certificate of judgment was issued that same day.

On July 31, 2003, Dedeaux filed the instant Rule 32 petition, in which he alleged:

1. That his convictions were obtained by guilty pleas that were unlawfully induced or not made voluntarily with an understanding of the nature of the charges and the consequences of the pleas. Dedeaux also claimed that he would not have pleaded guilty but for several instances of ineffective assistance of his trial counsel.
2. That his conviction was obtained by use of evidence obtained pursuant to an unconstitutional search and seizure. The basis for this claim was that police officers for the City of Daphne, located in Baldwin County, lacked jurisdiction to conduct a warrantless search of his vehicle while it was parked at his residence in Theodore, located in Mobile County. Additionally, Dedeaux claimed that the officers lacked probable cause to search his vehicle prior to his arrest.
3. That his conviction was obtained by use of evidence obtained pursuant to an unlawful arrest. The basis for this claim was that Daphne police officers lacked jurisdiction to arrest Dedeaux at his home in Theodore.
4. That his conviction was obtained by violating his privilege against self-incrimination.
5. That his conviction was obtained by violating the protection against double jeopardy. The basis for this claim was Dedeaux’s allegation that the indictments returned against him were invalid because “the splitting of the facts or elements ... to create [multiple offenses violated the prohibition against] Double Jeopardy.”
6. That his conviction was obtained by action of a grand or petit jury that was unconstitutionally selected and impaneled.
7. That he was denied effective assistance of counsel. Specifically, Dedeaux claimed that his counsel failed to subpoena essential defense witnesses, that counsel disregarded his welfare by advising him to plead guilty, that counsel failed to file a motion in limine to suppress allegedly unlawfully seized evidence, that counsel failed to file a timely notice of appeal, that counsel failed to obtain a requested copy of the transcript and record, and that counsel failed to protect essential evidence — namely, a videotape critical to his defense — resulting in its destruction.
8. That the trial court was without jurisdiction to render the judgment or to impose the sentence.
9. That his sentence exceeded the maximum authorized by law or was otherwise not authorized by law.

Finally, Dedeaux sought an out-of-time appeal, based on his claim that his attorney had failed to file a timely notice of appeal after being requested to do so.

On August 12, 2003, the State filed its response, arguing that Dedeaux’s claims both were precluded from appellate review and were without merit. On November 6, 2003, the trial court issued an order dismissing all of Dedeaux’s claims not related to his various ineffective-assistance-of-counsel claims. The order further stated that all allegations concerning the ineffective-assistance-of-counsel claims would be addressed at an evidentiary hearing scheduled for January 5, 2004. After several continuances, an evidentiary hearing was conducted on October 18, 2004. On December 17, 2004, the trial court entered an order summarily denying Dedeaux’s Rule 32 petition. This appeal followed.

On appeal, Dedeaux contends: (1) that the circuit court erred in denying his petition without an evidentiary hearing on some issues and without making detailed factual findings on any of his claims; (2) that he was denied the effective assistance of counsel; (3) that his guilty plea was not entered knowingly and voluntarily; and (4) that the trial court erred in dismissing his claims not related to his ineffective-assistance-of-counsel claims.

Following the evidentiary hearing, the circuit court summarily denied Dedeaux’s petition by making the following notation on the case action summary: “Def.’s Petition for Relief under Rule 32 is hereby denied.” (C. 3.) The circuit court did not issue specific findings of fact relating to the material issues of fact presented at the evidentiary hearing.

The law and the record before us do not support the circuit court’s determination that all of Dedeaux’s claims not related to his claims of ineffective assistance of counsel were precluded from review.

Dedeaux’s first claim is that his convictions were obtained as the result of guilty pleas that were unlawfully induced or that were not made voluntarily with an understanding of the nature of the charges and the consequences of the pleas.

“In Cantu v. State, 660 So.2d 1026 (Ala.1994), the Alabama Supreme Court held that a challenge to the voluntariness of a guilty plea is not precluded in a timely filed Rule 32 petition ‘even though it was a matter that could have been, but was not, raised in the trial court — by a timely objection, a timely motion to withdraw the guilty plea, or a timely motion for a new trial — and then pursued on direct appeal.’ Baker v. State, 717 So.2d 859, 860 (Ala.Cr.App.1996).”

Faulkner v. State, 741 So.2d 462, 465 (Ala.Crim.App.1999). Because the circuit court should not have held that Dedeaux’s challenge concerning the voluntariness of his guilty plea was precluded, see Rumpel v. State, 847 So.2d 399, 401 (Ala.Crim.App.2002), remand is necessary for the circuit court to make findings concerning this claim.

Claims 2, 3, 4, and 6 are nonjuris-dictional claims that, unless specifically reserved for appellate review, would be waived by the entry of a knowing and voluntary guilty plea. See Thompson v. State, 680 So.2d 1014, 1018 (Ala.Crim.App.1996); Prim v. State, 616 So.2d 381, 382 (Ala.Crim.App.1993). Thus, those claims are precluded by Rule 32.2(a)(3), Ala. R.Crim.P. See Clayton v. State, 867 So.2d 1150, 1152 (Ala.Crim.App.2003). Accordingly, the circuit court correctly denied relief based on those claims.

Dedeaux’s claim 5 alleges that the indictments returned against him were invalid because “the splitting of the facts or elements ... to create [multiple offenses violated the prohibition against] Double Jeopardy.” As a result, Dedeaux alleged in claims 8 and 9, the trial court was without jurisdiction to render judgment or to impose sentence and that the three sentences of life imprisonment returned as a result of the alleged fact or element splitting exceeded the maximum authorized by law or was not otherwise authorized by law.

Alabama law prohibits a single crime from being divided into two or more offenses and thereby subjecting a defendant to multiple convictions for the same offense. Ex parte Darby, 516 So.2d 786, 787 (Ala.1987). However, Alabama law clearly permits multiple punishments for multiple statutory offenses occurring out of the same course of events. When determining whether two offenses constitute the same offense for double-jeopardy purposes, this Court looks to see whether each offense contains an element not contained in the other. United States v. Dixon, 509 U.S. 688, 697, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). In Ex parte Dawson, 675 So.2d 905 (Ala.1996), the Alabama Supreme Court held that double jeopardy did not preclude imposition of four separate consecutive life imprisonment sentences for burglary, robbery, rape, and sodomy convictions that arose out of a single continuing transaction in which separate offenses were committed, stating:

“[T]he United States Supreme Court held that multiple punishments for multiple statutory offenses do not violate the prohibition against double jeopardy where each statutory offense requires proof of an additional fact that the other statutory offenses do not require. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In other words, as long as each statutory offense requires proof of additional facts, the double jeopardy prohibition is not implicated.”

675 So.2d at 907. Here, each statutory offense required proof of additional facts not contained in the other offenses. Accordingly, Dedeaux’s double-jeopardy claim is without merit. Moreover, absent a double-jeopardy violation, Dedeaux’s claims that the trial court lacked jurisdiction to render judgment or to impose sentence and that his sentences exceeded the maximum authorized by law are likewise without merit. Thus, the circuit court correctly denied relief based on these claims. See Long v. State, 675 So.2d 532, 533 (Ala.Crim.App.1996) (“ ‘where the judgment of the circuit court denying a petition for post-conviction relief is correct for any reason, it will be affirmed by this Court, even if the circuit court stated an incorrect reason for its denial’ ” (quoting Swicegood v. State, 646 So.2d 159, 160 (Ala.Crim.App.1994))). Accord Whitt v. State, 827 So.2d 869, 876 (Ala.Crim.App.2001); Waddle v. State, 784 So.2d 367, 369 n. 2 (Ala.Crim.App.2000).

Dedeaux’s claim that he is entitled to an out-of-time appeal because he asked his attorney to appeal his conviction but his attorney failed to file a timely notice of appeal is likewise not precluded. If the failure to file a timely notice of appeal is through no fault of the appellant’s, then the appellant is entitled to an out-of-time appeal. Avery v. State, 832 So.2d 664, 666 (Ala.Crim.App.2001); Noble v. State, 708 So.2d 217 (Ala.Crim.App.1997). This claim was not specifically addressed by the circuit court. However, given that this Court dismissed Dedeaux’s direct appeal as untimely, remand is necessary for the circuit court to make findings regarding this claim.

Dedeaux also argues that the circuit court should have made findings of fact on his various allegations of ineffective assistance of counsel. Rule 32.9(d), Ala. R.Crim.P., requires that if an evidentiary hearing is conducted on a Rule 32 petition, “[t]he court shall make specific findings of fact relating to each material issue of fact presented.” The attorney general asks this Court to remand this cause for the circuit court to make formal, written findings as to each material issue of fact presented at the evidentiary hearing.

“Although we recognize that the trial courts of this state labor under a heavy caseload, and that requiring the trial court to prepare an order addressing each of the material allegations presented in the Rule 32 evidentiary hearing only adds to this already heavy burden, we must nonetheless remand this cause to the trial court, with instructions that it enter specific findings of fact ‘relating to each material issue of fact presented.’ Rule 32.9(d), Ala.R.Crim.P. (Emphasis added.) See also, Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Cr.App.1994); Kolmetz v. State, 649 So.2d 1342 (Ala.Cr.App.1994). As we have stated, ‘[a] statement of the basis of the trial court’s decision is essential to afford the appellant due process.’ Owens v. State, 666 So.2d 31, 32 (Ala.Cr.App.1994).”

Anglin v. State, 719 So.2d 855, 857 (Ala.Crim.App.1996).

This case is remanded to the trial court with instructions that the court enter a new order addressing Dedeaux’s claims challenging the voluntariness of his guilty plea and the competence of his trial counsel and his request for an out-of-time appeal. In remanding this case, we encourage the trial court to order that a transcript of Dedeaux’s guilty-plea hearing be prepared and that a copy of that transcript be included in the court’s return to remand. Should the circuit court deem it necessary to hold a second evidentiary hearing addressing Dedeaux’s claims, the court’s return to remand shall include a transcript of those proceedings. Rule 32.9(d), Ala.R.Crim.P., requires the trial court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994). However,

“if the court finds that a particular allegation fails to meet the requirements of specificity of Rule 32.6(b), we encourage the court to so note with particularity in its written findings. It is to do likewise if it finds that a particular allegation fails to state a claim or to present any material issue of fact or law that would entitle [the petitioner] to relief. In other words, the court’s written findings are to address individually each claim not precluded by Rule 32.2.”

Harper v. State, 676 So.2d 949, 950 (Ala.Crim.App.1995), aff'd on return to remand, 698 So.2d 796 (Ala.Crim.App.1996) (table). Finally, if the court’s findings are based on its personal knowledge of Dedeaux’s guilty-plea proceedings, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989).

The trial 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 of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and BASCHAB, JJ„ concur. SHAW, J., concurs in the result.

      . Because the certificate of judgment in De-deaux's case was issued between August 1, 2001, and August 1, 2002, Dedeaux had until August 1, 2003, to file a Rule 32 petition. See Ex parte Gardner, 898 So.2d 690, 691 (Ala.2004).

      . See Rule 32.9(a), Ala.R.Crim.P.

       Note from the reporter of decisions: On May 11, 2007, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On June 8, 2007, that court denied rehearing, without opinion. On July 13, 2007, the Supreme Court denied certiorari review, without opinion (1061364).


author: BASCHAB, Judge.

text:
    Victor ROBINSON v. STATE of Alabama.
    CR-05-2005.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.

      Victor Robinson, pro se.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Judge.

On September 14, 1984, the appellant, Victor Robinson, pled guilty to first-degree theft of property, two counts of second-degree theft of property, third-degree burglary, and two counts of unlawfully breaking and entering a vehicle. The trial court sentenced him, as a habitual offender, to serve concurrent terms of ten years in prison on each conviction. See § 18A-5-9, Ala.Code 1975. The appellant did not appeal his conviction. On May 8, 2006, he filed a Rule 32 petition, challenging his convictions. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

The appellant argues that he was deprived of the right to counsel at his arraignment and that he was deprived of the right to be personally present with counsel at arraignment.

“ ‘The right of a defendant to have counsel present at arraignment is a jurisdictional prerequisite to a conviction.’ Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (citing Johnson v. Zerbst, 304 U.S. 458 (1938); Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992)). Thus, this claim is not subject to any of the procedural bars provided in Rule 32.2, Ala. R.Crim. P.”

Betton v. State, 940 So.2d 1075, 1076-77 (Ala.Crim.App.2005). See also Castillo v. State, 925 So.2d 284 (Ala.Crim.App.2005).

The record indicates that the appellant was arraigned on three separate dates in these cases. It also indicates that he was represented by counsel at some point during the proceedings. However, based on the limited record before us, we cannot determine whether the appellant was represented by counsel at his arraignment in each of the cases and whether he was present with counsel at his arraignment in each of the cases. Therefore, we remand this case to the circuit court with instructions that it make specific, written findings of fact regarding whether the appellant was represented by counsel at his arraignment in each of these cases and whether the appellant was present with counsel at his arraignment in each of these cases. On remand, the circuit court may conduct an evidentiary hearing or otherwise take evidence as allowed by Rule 32.9, Ala. R.Crim. P. 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 42 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact; a transcript of the evidentiary hearing, if any; and additional evidence on remand, if any.

REMANDED WITH INSTRUCTIONS.

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

       Note from the reporter of decisions: On February 16, 2007, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On March 2, 2007, that court denied rehearing, without opinion. On July 13, 2007, the Supreme Court denied certiorari review, without opinion (1060833).


author: BASCHAB, Judge. WISE, Judge,

text:
    Graylon Lewis JOHNSON v. STATE of Alabama.
    CR-05-1989.
    Court of Criminal Appeals of Alabama.
    Jan. 12, 2007.
    Rehearing Denied Feb. 16, 2007.
    Certiorari Quashed July 13, 2007 Alabama Supreme Court 1060800.
    Graylon Lewis Johnson, pro se.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM. NO OPINION.

McMILLAN, P.J., and COBB, J., concur; SHAW, J., concurs in the result; WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I respectfully dissent from the majority’s unpublished memorandum affirming the circuit court’s denial of Graylon Lewis Johnson’s Rule 32, Ala.R.Crim.P., petition. Specifically, I disagree with the majority’s conclusion that the circuit court did not err when it denied Johnson’s petition without making specific findings of fact as to each claim in its order, even though it conducted an evidentiary hearing as to those claims.

Following the evidentiary hearing, the circuit court entered a written order denying Johnson’s petition. The court’s order set out the five claims raised by Johnson in his petition. It appears, however, that the court’s findings of fact addressed only two of the five claims' — claims one and two— and made no findings concerning the remaining three claims. Thereafter, Johnson filed a “motion to alter, amend, or vacate judgment,” objecting to the trial court’s failure to enter a written order that made specific findings of fact relating to each material issue of fact presented. (Supp. R. 3-8.) Johnson claimed in his motion that the circuit court had failed to make specific findings of fact with regard to claims three, four, and five, as set out in the court’s order; he specifically requested that the circuit judge enter a written order that complied with Rule 32.9(d), Ala. R.Crim.P., citing as authority a number of cases, including the Alabama Supreme Court’s decision in Ex parte Grau, 791 So.2d 345 (Ala.2000).

In Grau, the circuit court conducted an evidentiary hearing on Grau’s Rule 32 petition, then denied the petition without making specific findings of fact. Grau did not request that the circuit court enter an order making specific findings of fact, as required by Whitehead v. State, 593 So.2d 126 (Ala.Crim.App.1991). This Court affirmed the denial of Grau’s petition. Grau v. State (No. CR-97-2274), 768 So.2d 1021 (Ala.Crim.App.1999) (table). The Supreme Court granted Grau’s petition for a writ of certiorari and reversed this Court’s decision, holding that it would be premature for an appellate court to review the issues without the circuit court’s first making specific findings of fact. Ex parte Grau, 791 So.2d at 346-47. Based on its holding in Ex parte Grau, the Supreme Court appears to suggest that an appellate court should not be put in the position of being the first finder of fact^-whieh is precisely what this Court has done with regard to Johnson’s remaining claims.

Although I do not disagree with the majority’s conclusion that remanding this case for the circuit court to enter a new order making specific findings of fact as to the claims raised would be a waste of judicial resources, the language of Rule 32.9(d), Ala.R.Crim.P., makes such action mandatory: in the event an evidentiary hearing is conducted, “[t]he court shall make specific findings of fact relating to each material issue of fact presented.” (Emphasis supplied.) Thus, we are compelled to remand this case. Therefore, I would urge the Alabama Supreme Court to consider amending Rule 32.9(d) so that in future cases, this Court has the discretion to determine whether a remand is necessary. However, based on the current language of Rule 32.9(d), I would remand this case for the circuit court to enter a new order containing findings of fact as to each material issue of fact regarding Johnson’s claims. Accordingly, I must respectfully dissent.