source: Caselaw Access Project

author: PER CURIAM. SEE, Justice

license: Public Domain

text:
    STATE of Alabama ex rel. Troy KING, in his official capacity as Attorney General of Alabama; and Bob Riley, in his official capacity as Governor of Alabama v. Joe MORTON, in his official capacity as State Superintendent of Education, et al. State of Alabama ex rel. Troy King, in his official capacity as Attorney General of Alabama; and Bob Riley, in his official capacity as Governor of Alabama v. Lucy Baxley, in her official capacity as Lieutenant Governor of Alabama, et al.
    1051771 and 1051814.
    Supreme Court of Alabama.
    Oct. 12, 2006.

      Troy King, atty. gen.; Kevin C. New-som, deputy atty. gen., Scott L. Rouse, deputy legal advisor, office of the Governor; and James W. Davis, asst. atty. gen., for appellant.
    Joe Espy III and J. Flynn Mozingo of Melton, Espy & Williams, PC, Montgomery, for appellee the Joint Fiscal Committee.
   PER CURIAM.

The State of Alabama on the relation of Troy King, Attorney General of Alabama, and Bob Riley, Governor of Alabama (“the State”), challenges the constitutionality of Act No. 2006-511, codified at §§ 29-2-121, 29-2-123, and 41-24A-1, Ala.Code 1975. The trial court upheld the constitutionality of Act No. 2006-511 against the State’s challenge, and the State appeals (case no. 1051814). The State also filed a separate appeal, seeking an injunction prohibiting the defendants from disbursing any funds pending the disposition of its appeal (case no. 1051771). In case no. 1051814, we affirm; we dismiss as moot case no. 1051771.

Facts and Procedural History

In 1998, the Legislature passed Act No. 98-677, Ala. Acts 1998, codified at Ala. Code 1975, §§ 29-2-120 to -124. Section 29-2-121 created a “permanent Joint Legislative Oversight Committee on Community Services Grants” (the “Legislative Oversight Committee”), made up of eight members of the Legislature. The Legislative Oversight Committee was charged with reviewing “community services” grant applications. Section 29-2-123 authorized the Legislative Oversight Committee to “become a grant-making agency and receive and distribute any appropriations made by the Legislature to the committee for the community services grant program pursuant to Chapter 24 of Title 41.” As a grant-making agency, the Legislative Oversight Committee evaluated grant proposals based on certain criteria and either approved or rejected the proposals. Id.

This community-services-grant process established by Act No. 98-677 and the appropriations in Act No. 2004-456, the education-appropriations act, for the community-services grants were held unconstitutional in McInnish v. Riley, 925 So.2d 174, 176 (Ala.2005). This Court held in McInnish that § 29-2-123 encroached on the powers specifically reserved to the executive branch of government by the Alabama Constitution:

“[W]e hold that § 29-2-123, which authorizes a permanent joint legislative committee to award community-services grants, and so much of Act No. 2004-456 by which those grants are funded ‘constitute,’ in the words of the complaint, an ‘encroachment of the executive powers specifically reserved to the executive branch of government by the Alabama Constitution.’ The legislature cannot, consistent with § 42 and § 43, execute the laws it enacts. See Bowsker v. Synar, 478 U.S. [714] at 726, 106 S.Ct. 3181 [ (1986) ]; Stockman v. Leddy, 55 Colo. [24] at 31, 129 P. [220] at 223 [ (1912) ].
“ ‘ “[W]here the whole power of one department is exercised by the same hands which possess the ivhole power of another department, the fundamental principles of a free constitution, are subverted.” ’ Mistretta v. United States, 488 U.S. 361, 381, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (quoting The Federalist No. ⅛7, at 325-26 (James Madison) (J. Cooke ed.1961) (emphasis in The Federalist)). Because the grant-making process created by § 29-2-123 begins and ends in the legislature, it violates the separation-of-powers provisions of the Constitution of Alabama.”

925 So.2d at 188.

In 2006, after this Court had issued its opinion in Mclnnish, the Legislature passed Act No. 2006-511 (“the Act”). The Act created the State Executive Commission on Community Services Grants (the “Executive Commission”), which, according to §§ 41-24A-1 and 41-24w-2 to -5, Ala.Code 1975, is a “grant-making agency.” Further, the Act empowers the Executive Commission to distribute any appropriations made by the Legislature to the Executive Commission for the community-services-grant program. The Executive Commission is composed of certain members of the executive department, namely, the State Superintendent of Education, the Lieutenant Governor, the State Treasurer, and the Commissioner of Agriculture and Industries. The Governor does not serve on the Executive Commission, and he does not have any authority to appoint its members, directly oversee its actions, or veto its decisions.

The Act also amended §§ 29-2-121 and -123, to redesignate the Legislative Oversight Committee as the “Legislative Advisory Committee on Community Service Grants” (“the Legislative Advisory Committee”). Under the Act, legislators submit grant applications to the Legislative Advisory Committee, which is composed entirely of members of the legislative department, namely:

“[T]he Chair of the House Ways and Means Committee; the Chair of the Senate Finance and Taxation-Education Committee; the Chair of the Senate Committee on Economic Expansion and Trade; three members of the House Ways and Means Committee appointed by the Chair of the House Ways and Means Committee; one member of the Senate Finance and Taxation-Education Committee appointed by the Chair of the Senate Finance and Taxation-Education Committee; and one member of the Senate Committee on Economic Expansion and Trade appointed by the Chair of the Senate Committee on Economic Expansion and Trade.”

§ 29-2-121, Ala.Code 1975. The Legislative Advisory Committee is authorized under § 29-2-123 to conduct hearings and to gather information in order to determine whether a grant application falls within the applicable guidelines. The Legislative Advisory Committee is to forward the grant applications to the Executive Commission, along with its recommendations on those applications. Finally, the Executive Commission makes a final ruling on the grant applications forwarded to it from the Legislative Advisory Committee. “The [executive] commission shall have absolute discretion to award or reject any grant.” § 29-2-123, Ala.Code 1975. Finally, the Act appropriates to the Executive Commission $12,800,000 from the Education Trust Fund to be used for grants that promote public-education purposes, and $604,633 from the Education Trust Fund to be distributed within those legislative districts “that did not receive the full designated amounts for the fiscal year ending September 30, 2005.”

The State filed a complaint in the Montgomery Circuit Court challenging the constitutionality of the Act and moved the court for a preliminary injunction prohibiting the defendants from disbursing any funds from the Education Trust Fund pursuant to the Act. After a hearing, the trial court denied the State’s motion in a written order. The State then filed an “Emergency Motion for Injunction Pending Appeal” in this Court, seeking an injunction prohibiting the defendants from disbursing any funds pending the appeal of the trial court’s order denying the motion for a preliminary injunction. That case was assigned case no. 1051771.

While the State’s emergency motion was pending in this Court, the trial court held a final hearing on the merits of the underlying action. After the hearing, the trial court entered an order in favor of the defendants, upholding the Act against the State’s constitutional challenge. The State had argued to the trial court that the Act violated §§42 and 43 of the Alabama Constitution of 1901, the separation-of-powers provisions, in that it improperly denied the Governor his role as the chief executive officer under § 113 of the Alabama Constitution. The trial court ruled that the Act does not violate § 113 of the Alabama Constitution. Additionally, the trial court, in response to the defendants’ request for relief, issued a writ of mandamus directing the Governor to allot the funds appropriated to the Executive Commission, but the trial court also entered an injunction prohibiting the Executive Commission from disbursing those funds until October 1, 2006.

This Court heard arguments on September 26, 2006, and issued an order extending beyond October 1, 2006, the trial court’s order enjoining the Executive Commission from disbursing the funds appropriated by the Act. Additionally, this Court ordered that the injunction constitutes an encumbrance on the funds appropriated by the Act, so that those funds will not revert to the state treasury at the end of the 2005-2006 fiscal year. Finally, this Court ordered the Joint Fiscal Committee to file a supplemental brief addressing whether the role of the Legislative Advisory Committee violates the separation-of-powers provisions of the Alabama Constitution.

Standard of Review

The State’s challenge to the Act is essentially a “ ‘facial challenge,’ which is defined as ‘[a] claim that a statute is unconstitutional on its face — that is, that it always operates unconstitutionally.’ ” Board of Water & Sewer Comm’rs of Mobile v. Hunter, 956 So.2d 403, 419 (Ala.2006) (quoting Black’s Law Dictionary 244 (8th ed.2004)). “Our review of constitutional challenges to legislative enactments is de novo.” Richards v. Izzi, 819 So.2d 25, 29 n. 3 (Ala.2001). Additionally, acts of the legislature are presumed constitutional. State v. Alabama Mun. Ins. Corp., 730 So.2d 107, 110 (Ala.1998). See also Dobbs v. Shelby County Econ. & Indus. Dev. Auth., 749 So.2d 425, 428 (Ala.1999) (“In reviewing the constitutionality of a legislative act, this Court will sustain the act ‘ “unless it is clear beyond reasonable doubt that it is violative of the fundamental law.” ’ ” White v. Reynolds Metals Co., 558 So.2d 373, 383 (Ala.1989) (quoting Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944))). We approach the question of the constitutionality of a legislative act “ ‘ “with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.” ’ ” Monroe v. Harco, Inc., 762 So.2d 828, 831 (Ala.2000) (quoting Moore v. Mobile Infirmary Ass’n, 592 So.2d 156, 159 (Ala.1991), quoting in turn McAdory, 246 Ala. at 9, 18 So.2d at 815).

Moreover, in order to overcome the presumption of constitutionality, the State, the party asserting the unconstitutionality of the Act, bears the burden “to show that [the Act] is not constitutional.” Board of Trustees of Employees’ Retirement Sys. of Montgomery v. Talley, 291 Ala. 307, 310, 280 So.2d 553, 556 (1973). See also Thorn v. Jefferson County, 375 So.2d 780, 787 (Ala.1979) (“It is the law, of course, that a party attacking a statute has the burden of overcoming the presumption of constitu-tionality_”).

Analysis

I.

The State argues first that “the act violates separation of powers because the [Executive Commission] shares authority with the legislature and remains in the legislature’s sphere of influence.” The State’s argument is based solely on our holding in McInnish, supra, and on that of the Supreme Court of the United States in Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Specifically, the State quotes the following language from Bowsher:

“[Ojnce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly — by passing new legislation.”

(State’s brief, p. 15 (quoting Opinion of the Justices No. 880, 892 So.2d 332, 337 n. 4 (Ala.2004), quoting in turn Bowsher, 478 U.S. at 733-34,106 S.Ct. 3181)). However, factually the case before us differs fundamentally from McInnish and from Bowsher, on which McInnish relies.

In Mclnnish, we reviewed a statutory scheme that provided, first, that the Legislature would appropriate money to the community-services-grant program by legislation. Then, after enactment of the legislation appropriating the funds, the Legislature — acting through the Legislative Oversight Committee — decided which applicants met the statutory criteria for community-services grants. Finally, the Legislative Oversight Committee would order the comptroller to disburse funds to a grant recipient. In Mclnnish, the Legislative Oversight Committee, a part of the Legislature, was executing the law. Its decision on a grant proposal was final, and the executive branch had no discretion in carrying out the Legislature’s decision. Mclnnish, 925 So.2d at 188 (“Once [the Legislative Oversight Committee] renders its decision, the Committee orders the comptroller, an executive-branch official, to perform the ministerial task of issuing checks to the recipients of the grants in the specified amounts.”). The Legislative Oversight Committee’s post-legislative-enactment participation in the grant procedure was the exercise of the ultimate executive authority and therefore violated § 43, Ala. Const.1901, the separation-of-powers provision.

The problem with the statutory scheme in Mclnnish was not that the Legislature was choosing which applicants should receive the community-services grants; the Legislature could have done that by an act of the Legislature because the Legislature’s power over appropriations is plenary, as Mclnnish recognizes. 925 So.2d at 179. The problem addressed in Mclnnish was that the Legislature, in its appropriation act, had determined not to decide to whom the community-services grants should be awarded, but, instead, had appropriated a lump sum to be distributed in accordance with certain statutory criteria. Such a course of action is perfectly permissible. The Legislature can constitutionally delegate certain decisions to another branch of government “ ‘so long as the delegation carries reasonably clear standards governing the execution and administration.’ ” Monroe, 762 So.2d at 831 (quoting Folsom v. Wynn, 631 So.2d 890, 894 (Ala.1993)). In Mclnnish, however, the Legislature delegated that decision to itself. The result of the statutory scheme in Mclnnish was that the Legislature could pass an appropriation act and then, after that enactment, apply its own criteria and decide more specifically where the appropriation should go. The problem was not that the Legislature made the more specific decision as to where the money would go, but that the Legislature was making that decision post-enactment, in a manner other than by enacting new legislation, and that post-enactment decision was binding on the executive branch. In so doing, the Legislature crossed the line between legislative and executive responsibility.

Similarly, Bowsher involved a statutory scheme in which Congress made a general decision regarding the federal budget, which was then to be applied more specifically in accordance with statutory guidelines. As was the case in Mclnnish, Congress attempted to delegate to itself the power to apply and to execute the statutory guidelines it had established by placing in the hands of the comptroller general, who is a legislative employee, the ultimate authority for determining, after the federal budget was enacted, how to apply the law. The Supreme Court of the United States held that “[t]o permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto.” 478 U.S. at 726, 106 S.Ct. 8181. The Supreme Court held in Bowsher that “once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly — by passing new legislation.” 478 U.S. at 783-34, 106 S.Ct. 3181.

The determinative factor in both Mclnnish and Bowsher is that the legislation at issue in each case allowed the legislative body to control, post-enactment, the executive branch in the execution of the law. In the case before us, the Act, on its face, does not create legislative control, post-enactment, of the execution of the law. Nothing on the face of the statute permits the Legislative Advisory Committee to control the decision of the Executive Commission. Instead, the Act vests “absolute discretion” in the Executive Commission to approve or to reject any community-services-grant application.

Unlike the legislation in Mclnnish, the Legislative Advisory Committee, under the Act, plays an advisory role only. Also, the Act does not require the Executive Commission to give any deference to the Legislative Advisory Committee’s recommendation or to explain why it has departed from the Legislative Advisory Committee’s recommendation. Thus, neither Mclnnish nor Bowsher is authority upon which we can find the Act unconstitutional under the separation-of-powers doctrine.

We note that Bowsher, upon which the analysis in Mclnnish relies, addresses the separation-of-powers doctrine as it applies to the federal constitution. Although, federal separation-of-powers authority is persuasive in some cases, we note that there is a marked difference between the structure of the Constitution of the United States and that of the Constitution of Alabama. The Constitution of the United States has no express separation-of-powers provision, relying instead on the structure of the document; indeed, The Federalist No. k8, at 332 (J. Madison) (J. Cooke ed., 1961), notes that the separation-of-powers doctrine “does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other.” The Constitution of Alabama, on the other hand, expressly requires, first, that

“[t]he powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

Section 42, Ala. Const.1901. And, second, that

“[i]n the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

Section 43, Ala. Const.1901.

Our Constitution may provide for a stricter application of the separation-of-powers doctrine than is compelled by the federal constitution; however, neither Mclnnish nor Bowsher provides analysis peculiar to our Constitution on which we can rely, and the State has not set forth any alternative arguments based specifically on the Alabama Constitution. Therefore, the State has failed to meet its burden of proving that the Act calls for an impermissible post-enactment legislative involvement that violates the Alabama Constitution.

II.

The State also argues that the Act is unconstitutional because the Governor does not sit on the Executive Commission and, therefore, has no role in executing the Act. The State says that although § 112, Ala. Const.1901, creates several executive officers, § 113, Ala. Const.1901, puts the Governor “at the top of the chain of command.” That section provides: “The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled ‘The Governor of the State of Alabama.’ ” Additionally, the State argues, only the Governor is given the duty to “take care that the laws be faithfully executed.” § 120, Ala. Const.1901.

The State argues that the word “supreme” as used in § 113 means that the Governor has “a higher rank and power than other members of the Executive Branch.” (State’s brief, p. 21.) Therefore, the State contends, the Governor must have a “meaningful role” on the Executive Commission. The State, however, was unable to articulate in its brief or at oral argument “how much” control or oversight the Governor must have, or what the nature and character of that control ought properly to be. The State suggests that the closer the executive activity is to a “core executive function,” such as the distribution of state funds, the greater the role the Governor should have. The State argues that this Court need not attempt to determine how much control is enough, because “it is surely more than zero”— which, the State asserts, is the amount of control the Governor has over the distribution of community-services grants in this case.

We note, however, that the Governor is not totally without control of the Executive Commission. The Executive Commission is composed of executive department officers. If the State is correct that § 113 gives the Governor supreme control of the executive department, then the Governor perforce has a measure of control over the Executive Commission. Additionally, Ala. Const.1901, Art. V, § 121, gives the Governor power to monitor executive department agencies:

“The governor may require information in writing, under oath, from the officers of the executive department, named in this article, or created by statute, on any subject, relating to the duties of their respective offices, and he may at any time require information in writing, under oath, from all officers and managers of state institutions, upon any subject relating to the condition, management and expenses of their respective offices and institutions. Any such officer or manager who makes a willfully false report or fails without sufficient excuse to make the required report on demand, is guilty of an impeachable offense.”

Moreover, Ala.Code 1975, § 6-5-4, provides that the Governor may institute an action to recover public funds that have been lost by neglect or default or that have been wrongfully expended or disbursed or wrongfully used by an officer of the executive department or that have been wrongfully received from him or her. Thus, by its failure to establish that the Governor has absolutely no control and its failure to articulate with any specificity the degree of involvement in excess of the control already available by law that § 113 requires in order for the Act to be valid, the State has failed to meet its burden to prove that the Act is an unconstitutional violation of the separation-of-powers doctrine and to overcome the presumption that the Act is constitutional.

Conclusion

Because we find no basis in the authorities relied upon by the State in support of its claim of a violation of the separation-of-powers doctrine as set forth in § 43 of the Constitution of Alabama, we cannot hold that the Act violates that provision, and because the Constitution and laws of Alabama provide authority for oversight to the Governor and the State is unable to explain what more is required, we cannot hold that the Act violates § 113 of the

Constitution of Alabama. Therefore, the judgment of the trial court is affirmed, and the State’s “Emergency Motion for Injunction Pending Appeal” is dismissed as moot.

1051771 — DISMISSED AS MOOT.

1051814 — AFFIRMED.

NABERS, C.J., and LYONS, HARWOOD, SMITH, BOLIN, and PARKER, JJ., concur.

SEE and STUART, JJ., concur specially.

WOODALL, J., concurs in the result.

SEE, Justice

(concurring specially).

I concur fully in the per curiam opinion. I write specially to explain why I believe that there may be a significant difference between the federal separation-of-powers doctrine and the separation-of-powers doctrine embodied in § 43 of the Constitution of Alabama of 1901.

James Madison explained in The Federalist No. Jp7 and summarized in The Federalist No. í8 that Montesquieu’s separation-of-powers doctrine “does not require that the legislative, executive and judiciary departments should be wholly unconnected with each other.” The Federalist No. ⅛8, at 332 (J. Cooke ed., 1961). In The Federalist No. ⅛,8, he continued:

“It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and compleatly administered by either of the other departments. It is equally evident, that neither of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it. After discriminating therefore in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary; the next and most difficult task, is to provide some practical security for each against the invasion of the others.”

The Federalist No. 48, at 332 (J. Madison) (J. Cooke ed., 1961). Madison notes that the method relied upon in the constitutions of the various states for protecting against the encroachment of one department of government upon the demesne of another has been “to mark with precision the boundaries of these departments in the Constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power.” The Federalist No. 4.8, at 332-33. He states, however, that such “parchment barriers” alone are not enough:

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to con-troul itself.”

The Federalist No. 51, at 349 (J. Madison) (J. Cooke ed., 1961). Thus, the structure of the Constitution of the United States is not one in which the legislative, executive, and judicial powers are totally segregated into their respective departments; rather, it is one in which the powers of the three great departments check and balance one another.

Similarly, the Constitution of Alabama organizes the various powers into checks and balances; thus, there will not be a complete isolation of all legislative, executive, and judicial powers distinctly into the three respective departments of the government. The drafters of the Alabama Constitution, however, did not rely only on these structural measures; they relied also upon “parchment barriers,” and it is incumbent on this Court to give effect, when the question is properly before us, to those barriers.

Section 42 of the Constitution of Alabama provides:

“The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.”

Section 43 of the Constitution of Alabama states that no department shall exercise the powers of either of the other departments “except in the instances in this Constitution hereinafter expressly directed or permitted.” Thus, it would appear to be incumbent on the department that exercises the power generally entrusted to another department to point to an express constitutional direction or permission to do so. Unlike the Constitution of the United States, from which we may deduce a general, but limited, separation-of-powers doctrine by its structure, the Constitution of Alabama provides expressly for a separation of powers that appears more rigorous than that of the federal constitution. Although the federal courts may look to the practical effect of a minor intrusion of one of the departments of the federal government on the jurisdiction of another, it appears that we are called upon to determine whether the exercise by one department of the government of the powers of another is “expressly directed or permitted.”

STUART, J., concurs.

      . The complaint named as defendants the members of the Executive Commission, including Joe Morton in his official capacity as State Superintendent of Education; Lucy Baxley in her official capacity as Lieutenant Governor of Alabama; Kay Ivey in her official capacity as Treasurer of Alabama; and Ron Sparks in his official capacity as Commissioner of Agriculture and Industries of Alabama. Additionally, the complaint named Robert L. Childree in his official capacity as Comptroller of the State of Alabama Department of Finance; and the "Joint Fiscal Committee,” which is composed of members of the legislature.

      . Governor Riley vetoed the Act, but his veto was overridden by the Legislature.

      . A “grant-making agency” is a State agency that has the authority to approve grant proposals and to direct and coordinate the expenditure of grant funds.

      . It was argued at oral argument that not only legislators, but also any citizen, may apply for a grant; however, our analysis does not turn on that point.

      .Section 29-2-123 provides;
      "It shall be the duty of the committee to review applications and recommend for approval any community services grants made from any funds appropriated to the State Executive Commission on Community Services Grants by the Legislature for the purpose of awarding community services grants. The committee shall evaluate grant proposals based on the relevance of such proposals to the purposes for which such grants shall be made; the extent to which such grant proposal advances the program objectives of the grant-making agency; the ability of the grant recipient to fulfill the objectives of the grant proposal; and the extent to which the grant proposal can benefit the greatest number of citizens, without excluding any geographic regions of the state. All of the above information may be ascertained by appropriate measures, which shall include interviews, audits, public hearings, and recommendations by members of the Legislature. The committee shall act in an advisory role only. All grants recommended for approval or rejection by the committee shall be forwarded to the State Executive Commission on Community Services Grants which shall review each grant for compliance with the criteria listed herein and shall approve or disapprove each grant. The commission shall have absolute discretion to award or reject any grant. The commission shall report to the committee, within 14 days after any meeting, all actions taken. It shall also be the duty of the commission to ensure that, of any appropriations awarded by the commission, a minimum of the equivalent of 0.4% of such appropriations shall be distributed to each House district and 1.2% of such appropriations shall be distributed to each Senate district.”

      . Section 113, Ala. Const.1901, provides:
      "The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled 'The Governor of the State of Alabama.' ”

      . This order rendered the Slate’s emergency motion moot.

      . The Joint Fiscal Committee is a "continuing legislative committee” created to “supervise the operation of the Legislative Fiscal Office.” Ala.Code 1975, § 29-5-2. By Act No. 91-606, Ala. Acts 1991, the Legislature expressly authorized the Joint Fiscal Committee "to defend against, intervene in or initiate legal proceedings on behalf of” that committee in actions challenging appropriation acts passed by the Legislature.

      .The record before us does not indicate that the State raised this separation-of-powers argument in the trial court. When the suggestion of a possible remand for attention to this important issue was broached during oral argument, the defendants, in the interest of ob-taming an expeditious resolution of these appeals, waived any objection to the review of this issue for the first time on appeal.

      . Some commentators have suggested that this divergence renders federal authority regarding the separation of powers not pertinent to a discussion of the requirements of a state constitution. See John Devlin, Toward a State Constitutional Analysis of Allocation of Powers: Legislators and Legislative Appointees Performing Administrative Functions, 66 Temp. L.Rev. 1205 (1993); and G. Alan Tarr, Interpreting the Separation of Powers in State Constitutions, 59 N.Y.U. Ann. Surv. Am. L. 329 (2003).

      . Madison points to reliance on the departments of government to prevent one another from obtaining power beyond their constitutional allocation:
      “To what expedient then shall we finally resort for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.”

        The Federalist No. 51, at 347-48.

      . For example, the legislature is a tribunal for impeachment hearings, a judicial function. § 173, Ala. Const.1901. Additionally, the Governor has the power to veto legislative enactments. § 125, Ala. Const.1901. The Constitution of Alabama also vests the Chief Justice of the Supreme Court with the authority to appoint "an administrative director of courts and other needed personnel to assist him with his administrative tasks.” Such appointments are an executive function. § 149, Ala. Const.1901.

      . Section 43, Ala. Const. 1901, provides:
      "In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.”

      . It is certainly true that, in order to exercise their constitutional powers and to perform their constitutionally mandated functions, those who serve in one department of the government must undertake tasks that are normally associated with one of the other departments. For example, in order to exercise the power of the judicial branch, the Chief Justice of this Court has the responsibility for allocating funds for staff and equipment. These tasks are executive in nature; however, they are not performed in the exercise of the executive function. Similarly, this Court, in performing its judicial function, promulgates internal rules for its governance; this task is legislative in nature. Administrative law judges in the executive department hear cases, a task that is judicial in nature, but a task that is undertaken in furtherance of the executive function of effecting statutes. Although particular tasks that may be primarily associated with a particular department of government, I believe, may be appropriately performed within any of the three departments, no department, the language of the Constitution suggests, may exercise the constitutionally endowed power of another branch or perform its function unless expressly directed or permitted to do so.

      .If the Legislative Advisory Committee is exercising the executive power, however minor that exercise might be, then the defendants, it appears, bear the burden of showing that the Alabama Constitution expressly directs or permits the legislature to do so. On appeal, however, the State does not challenge the lower court's order on the basis of the defendants’ failure to meet their burden of proof on this issue; therefore, the defendants were not required to demonstrate on appeal that they had done so.


author: PITTMAN, Judge.

text:
    Mark SARTIN v. Mike MADDEN d/b/a Inside Stone.
    2050019.
    Court of Civil Appeals of Alabama.
    Oct. 6, 2006.

      Neil Taylor, Jr., Russellville, for appellant.
    D. Edward Starnes III and Rodney C. Lewis of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellee.
   PITTMAN, Judge.

Mark Sartin appeals from a summary judgment entered in favor of Mike Madden doing business as Inside Stone in an action brought pursuant to the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”). We reverse and remand.

The record reflects that Inside Stone, a business located in Spruce Pine, entered into contractual agreements with various regional mobile-home manufacturers for the performance of stone masonry work in the construction of new mobile homes, including the installation of stone fireplaces. Sartin was one of several workers engaged by Inside Stone to help install rock in the fireplaces.

On September 10, 2004, approximately two years after Sartin had begun performing services for Inside Stone, Sartin filed a complaint in the Franklin Circuit Court alleging that he had been injured in the line and scope of his employment on November 24, 2003, and on June 29, 2004. In that complaint, Sartin averred that on November 24, 2003, he was grouting a fireplace hearth when he slipped and fell, injuring his back and kidney. He also averred that on June 29, 2004, he was again cleaning a hearth when he slipped and fell injuring his leg. Sartin claimed that as a result of those injuries, he was unable to bend down, had little use of his right leg, was unable to lift heavy objects, and suffered leg pain that caused insomnia. Inside Stone filed an answer generally denying the material allegations of the complaint and specifically averring that Sartin was not its “employee” under the Act. Sartin later filed an amended complaint to add additional counts alleging retaliatory discharge and intentional infliction of emotional distress.

In April 2005, Inside Stone filed a motion for a summary judgment with supporting evidentiary materials. Sartin filed a response in opposition to Inside Stone’s motion, attaching his own affidavit, the affidavits of two men who had assisted Sartin in laying the fireplace rock, and excerpts from the transcript of Sartin’s deposition. Inside Stone subsequently filed a motion to strike the affidavits submitted by Sartin, alleging that those affidavits failed to comply with Rule 56(e), Ala. R. Civ. P., in various respects. On September 13, 2006, after holding a hearing, the trial court denied Inside Stone’s motion to strike but entered a summary judgment in favor of Inside Stone. That judgment stated, in pertinent part, as follows:

“The Court having considered all the relevant evidence submitted finds that the most credible indication that [Sartin] was an independent contractor is the method in which he chose to file his federal and state income tax return. Inside Stone did not withhold any federal income tax and issued a [form] 1099 to Mr. Sartin each year that he performed services for Inside Stone. That form 1099 reflects that the compensation paid for the year was for [a] ‘non-employee.’ Mr. Sartin did not contest his status of a non-employee and further chose to file his income tax [return] reflecting his income to be business income. Of course, that business income is subject to self-employment tax which is appropriately reflected in [Sartin’s] expenses.
“Additionally, it is the finding of the Court that Mr. Sartin controlled the hours of work and the method in which he performed the job. Paul Scott inspected the product to assure compliance with the standard expected of Inside Stone. Therefore, it is the finding of the Court that the motion for [a] Summary Judgment filed on behalf of [Inside Stone] is due to be granted.”

Sartin appeals. He contends that the trial court erred in entering a summary judgment in favor of Inside Stone on his workers’ compensation claim, because he says, he submitted substantial evidence to the trial court establishing that a genuine issue of material fact remained as to whether his relationship with Inside Stone was that of an employee or an independent contractor.

In reviewing the trial court’s judgment, we apply the standard of review applicable to summary judgments.

“[An appellate court] reviews a summary judgment de novo. Turner v. Westhampton Court, L.L.C., 903 So.2d 82, 87 (Ala.2004). We seek to determine whether the movant has made a prima facie showing that there exists no genuine issue of material fact and has demonstrated that the movant is entitled to a judgment as a matter of law. Turner, supra. In reviewing a summary judgment, [an appellate court] review[s] the evidence in the light most favorable to the nonmovant. Turner, supra. Once the movant makes a prima facie showing that he is entitled to a summary judgment, the burden shifts to the nonmov-ant to produce ‘substantial evidence’ creating a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.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 Fla., 547 So.2d 870, 871 (Ala.1989).”

Muller v. Seeds, 919 So.2d 1174, 1176-77 (Ala.2005).

In determining “whether [an individual] is an independent contractor or whether an employer-employee relationship exists, the courts look to the reserved right of control rather than the actual exercise of the control.” Turnipseed v. McCafferty, 521 So.2d 31, 32 (Ala.Civ.App.1987) (emphasis added). If the right of control extends no farther than directing what is to be ultimately accomplished, an employer-employee relationship is not established; however, “if an individual [or an entity] retains the right to direct the manner in which the task is to be done or if that individual [or entity] does in fact dictate the manner of operation, than an employer-employee relationship is established.” Tumipseed, 521 So.2d at 33 (emphasis added). Factors to consider in determining whether an individual or an entity has retained the right of control include: (1) direct evidence demonstrating a right or an exercise of control, (2) the method of payment for services, (3) whether equipment is furnished, and (4) whether the other has the right to terminate the employment. Id.; White v. Henshaw, 363 So.2d 986, 988 (Ala.Civ.App.1978). “[T]he retention of control necessary to establish employee status is determined on a case-by-case basis.” Luallen v. Noojin, 545 So.2d 775, 776 (Ala.Civ.App.1989). “No one fact by itself can create an employer-employee relationship.” Id.

Inside Stone supported its motion for a summary judgment with affidavits from Mike Madden, affidavits from four other persons who had been engaged by Inside Stone to install fireplaces, and the affidavit of a person who had been retained by Inside Stone to ensure that the completed fireplaces met the specifications of the mobile-home manufacturers.

Mike Madden testified by affidavit that Inside Stone utilizes the services of independent contractors to perform the installation of stone fireplaces in new mobile homes. He affirmed that the contractors are compensated on a per-fireplace basis and denied that they were on Inside Stone’s employee payroll. With respect to Sartin, Madden averred that Sartin had no set work schedule, that he could accept or decline work offers from Inside Stone, and that Sartin had hired his own employees to assist him in fulfilling his installation commitments to Inside Stone. Although Madden denied that anyone from Inside Stone had instructed Sartin on the manner in which he was to perform his job installing the fireplaces, Madden did acknowledge that Inside Stone checked Sartin’s final work product to ensure that it complied with the mobile-home manufacturers’ specifications.

Mike Riddle, Darrel Sumeral, Tracy Malone, and Kevin Vernon (collectively, “the contractors”) testified that they had been hired as independent contractors by Inside Stone to perform stone work on fireplaces in mobile homes at various manufacturing facilities. The contractors averred that they were compensated only on a per-fireplace basis and that no moneys were withheld from their paychecks for the payment of taxes or other benefits. The contractors further affirmed that they were allowed to accept or decline requests by Inside Stone to perform fireplace installations and that they were free to work for other business entities in addition to their work with Inside Stone. The contractors also affirmed that they commonly hired their own employees to assist them in fulfilling their contractual obligations to Inside Stone. Although the contractors denied that Inside Stone supervised their daily work activities, they acknowledged that Inside Stone inspected their final work product to ensure that it was installed in compliance with the manufacturers’ contract specifications.

Paul Scott affirmed that he was an “independent contractor” engaged by Inside Stone to coordinate the “performance” of Inside Stone’s contractual agreements with the mobile-home manufacturers. Although Scott affirmed that Sartin had controlled the details of his own work, Scott admitted that he had traveled to mobile-home manufacturing sites from “time to time” to check contractors’ work to ensure that the fireplaces were being installed in accordance with the specifications of the manufacturing facilities. With respect to Sartin, Scott denied that he or Inside Stone had controlled the details of Sartin’s work. He stated that Sartin was free to hire his own helpers without permission from or the consent of Inside Stone and asserted that Sartin had paid the helpers himself. Scott further testified that Sartin had no scheduled work hours, that he was free to come and go from the work site as he pleased, that he was paid on a per-fireplace basis, and that he turned in no paperwork to Inside Stone.

Inside Stone also submitted various excerpts from the transcript of Sartin’s deposition in support of its motion for a summary judgment. Sartin testified in those excerpts that he was paid based on the number of fireplaces that he completed weekly, that he had no set work schedule, and that he had no specific arrival time for work and could leave whenever his work was “done” for the day. Sartin also stated in his deposition that Paul Scott would periodically come to job sites to check Sartin’s work to make sure that it conformed with the mobile-home manufacturers’ specifications. Sartin also admitted that he had characterized his relationship with Inside Stone as that of a nonemployee on his 2003 and 2004 federal and state income-tax returns and that he had referred on those returns to the moneys that he had received from Inside Stone as “business income.” In addition, Sartin stated that he had filed for and received federal tax deductions for business-related expenses arising solely from the services that he had provided for Inside Stone for 2003 and 2004.

In his affidavit filed in response to Inside Stone’s summary-judgment motion, Sartin averred that he had never been an independent contractor for Inside Stone, that Inside Stone had provided him with materials and equipment used for laying the stone, and that he had been “supervised” by Paul Scott, who, Sartin testified, had on “many occasions” directed him how to lay the stone around the fireplaces. Sartin’s response to the summary-judgment motion included excerpts from his deposition. According to those excerpts, Sartin testified that Scott would “tell us how to lay the rock on a fireplace” and that Scott told him “how to do the wire [and] how to cut it.” In addition, Sartin also testified that he had supplied a few of the tools needed to accomplish the particular jobs and that Inside Stone had supplied all of the raw materials and a majority of the tools used to cut and lay the stone. Although Sartin admitted that he had hired Terry Perkins and James Valentine to help Sartin lay the stone, he stated that he only did so after having received permission from Scott to hire the men and that those men had been paid directly by Inside Stone and not by Sartin.

In addition, Sartin also filed the affidavits of Brandon Motes and Terry Perkins, two men who had assisted Sartin in laying the stone fireplaces for Inside Stone. Motes affirmed that in the summer of 2004 Scott had told Motes to leave the job site because he was not an “employee” of Inside Stone. Perkins testified that Scott would “chew” workers out if they were not on the job by 8:00 a.m., that if Mike Madden failed to bring “us tools or materials, we charged them in [Madden’s] name at the lumberyard in Double Springs,” and that he had been discharged by Scott because “work was slow.”

Inside Stone argues that Sartin’s evidentiary materials should have been stricken by the trial court because they were based on inadmissable speculation, conjecture, opinions, conclusions, and hearsay, and that Sartin’s affidavit improperly contradicted his own deposition testimony. “Under Rule 56(e), an opposing affidavit must be made on personal knowledge, must set forth facts that would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated.” Black v. Reynolds, 528 So.2d 848, 849 (Ala.1988). Although Sartin’s supporting affidavits do not state verbatim that they are “based on personal knowledge,” the content of those affidavits demonstrates that the information recited in the affidavits is based on the affiants’ personal knowledge as to their recollection of conversations that transpired between Scott, on the one hand, and Sartin, Perkins, and Motes, on the other. Those affidavits present relevant, material, and admissible evidence supporting Sartin’s claim that Scott was acting on behalf of Inside Stone when he refused to allow Motes to remain on the job site and when he discharged Perkins because of a purported “slow down” in work.

Although Inside Stone alleges that Perkins’s affidavit contains inadmissible hearsay in that Perkins testified that he had “overheard” Scott telling Sartin that James Valentine was not supposed to be on the job site because Valentine was not an “employee” of Inside Stone, that statement is admissible because (a) it was made by an agent of Inside Stone concerning a matter within the scope of his agency, see Rule 801(d)(2)(D), Ala. R. Evid., and (b) it tends to prove that the statement was in fact made. “ ‘A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial.’ ” Yamaha Motor Co., v. Thornton, 579 So.2d 619, 625 (Ala.1991) (quoting Bryant v. Moss, 295 Ala. 339, 342, 329 So.2d 538, 541 (1976)). In this case, the statement is relative to the issue as to whether Scott, on behalf of Inside Stone, exercised control over Sartin and the manner in which he performed his job, ie., Sartin’s hiring of others to assist him in installing the fireplaces. The statement is also relative to support Sartin’s contentions that his relationship with Inside Stone and the relationship of similar workers who installed fireplaces for Inside Stone, was that of an employee rather than an independent contractor.

Inside Stone also contends that Sartin’s affidavit improperly contradicted his deposition testimony when Sartin affirmed that “I was told when to be at work.”

“[Our Supreme] Court has held that ‘a party is not allowed to directly contradict prior sworn testimony to avoid the entry of a summary judgment.’ Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992), citing Doe v. Swift, 570 So.2d 1209, 1214 (Ala.1990). ‘ “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” ’ Id., quoting Robinson v. Hank Roberts, Inc., 514 So.2d 958, 961 (Ala.1987). However, when a party submits a subsequent affidavit merely to clarify his or her answers to ambiguous questions asked by counsel during a deposition or other prior sworn proceeding or to supply information not necessarily sought by questions asked at the deposition or other prior sworn proceeding, the trial court should consider the subsequent affidavit. See, e.g. Rickard v. Shoals Distrib., Inc., 645 So.2d 1378, 1382-83 (Ala.1994); and Tittle v. Alabama Power Co., 570 So.2d 601, 606-07 (Ala.1990).”

Wilson v. Teng, 786 So.2d 485, 497 (Ala.2000).

In this case, the record reflects that on direct examination by Inside Stone’s counsel, Sartin testified at his deposition that he had no set work schedule and was not told when to arrive at work. However, when Sartin was later asked to clarify his earlier response, he testified as follows:

“Q. Did anybody ever tell you when you were supposed to be at work or how long you were supposed to be at work?
“A. No, sir. I was told at least to be there by 8:00.”

Sartin subsequently affirmed in his affidavit that he “was told when to be at work” and supported that statement with excerpts from the transcript of his deposition. Because Sartin’s affidavit serves to confirm certain aspects of his previous testimony, we conclude that the trial court did not err in not striking Sartin’s affidavit.

Viewing the evidence in the light most favorable to the non-movant, as we must, we conclude that although much of the evidence would support a finding that Sar-tin and Inside Stone were engaged in an independent-contractor arrangement, there is substantial evidence that creates a genuine issue of material fact as to whether the relationship was an independent-contractor relationship or an employer-employee relationship. Although Inside Stone deducted no taxes from Sartin’s paychecks and provided no fringe benefits, which are factors indicating an independent-contractor status, Sartin submitted evidence indicating that Paul Scott, who had been hired by Inside Stone to oversee the fireplace installations, exercised control over the manner in which Sartin did his daily job and also exercised the power to discharge others who had been hired by Sartin. Sartin also submitted evidence indicating that Inside Stone provided many of the tools that Sartin used to accomplish his job. Such evidence touches and concerns three of the four principal factors to be considered in determining the existence of an employer-employee relationship.

Accordingly, we reverse the summary judgment in favor of Inside Stone, and we remand the case for trial. Although we conclude that a genuine issue of material fact precludes a summary judgment as to Sartin’s claim for benefits under the Act, our opinion should not be misread to compel any particular conclusion regarding whether an independent-contractor relationship or an employer-employee relationship existed between Sartin and Inside Stone. Rather, we merely direct the trier of fact to weigh the evidence and reach its own conclusion based upon all the evidence.

REVERSED AND REMANDED.

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

MURDOCK and BRYAN, JJ., concur in the result, without writing.

      . The complaint identifies the defendants as "Mike Madden and Craig Madden d/b/a Inside Stone.” However, the answer and an affidavit filed in the trial court indicate that Inside Stone is a sole proprietorship owned by Mike Madden. Based on the record, it appears that Craig Madden did not participate in the proceedings below, and he has not filed a brief on appeal.

      . Although the summary-judgment motion filed by Inside Stone was addressed only to the workers' compensation claim asserted by Sartin, the trial court's judgment indicates an intent to rule in favor of Inside Stone on all claims. Because Sartin does not contend on appeal that his other claims are viable, we do not reach the issue as to whether the summary judgment was proper as to those claims.


author: BRYAN, Judge. PITTMAN, Judge,

text:
    Cynthia WHITLOCK v. Joseph RICHARDSON et al.
    2040849.
    Court of Civil Appeals of Alabama.
    Oct. 20, 2006.
    Tony S. Hebson, Birmingham, for appellant.
    Clark Summerford and James Lambert of Zeanah, Hust, Summerford & Williamson, Tuscaloosa, for appellees Northstar EMS, Inc., and Joseph Richardson.
    Stephanie White Schmidt of Hare, Clement & Duck, P.C., Birmingham, for appellee Nationwide Mutual Insurance Company.
   BRYAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003); and Dykes v. Lane Trucking, Inc. 652 So.2d 248, 251 (Ala.1994).

This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

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

PITTMAN, J., concurs specially, with writing.

MURDOCK, J., dissents, without writing.

PITTMAN, Judge,

concurring specially.

I concur on the authority of Illinois National Insurance Co. v. Kelley, 764 So.2d 1283 (Ala.Civ.App.2000).


author:
PITTMAN, Judge.
      MURDOCK, Judge,

text:
    Kelley Edmondson LEOPOLD v. William F. LEOPOLD.
    2040611.
    Court of Civil Appeals of Alabama.
    Oct. 20, 2006.

      William Eric Colley, Fort Payne, for appellant.
    Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellee.
   PITTMAN, Judge.

Kelley Edmondson Leopold (“the mother”) appeals from a judgment modifying the amount of child support and alimony that William F. Leopold (“the father”) was responsible to pay.

On August 25, 2004, the father initiated an action in the DeKalb Circuit Court (“the trial court”) seeking a modification of the parties’ divorce judgment so as to reduce his child-support and alimony obligations. In his complaint, the father noted that the parties had been divorced by the Chancery Court of Giles County, Tennessee, in March 1999; the father filed a copy of the Tennessee court’s divorce judgment with the trial court for the purposes of domesticating that judgment. The mother filed an answer and a counterclaim in which she requested that the trial court determine that the father was in contempt for failing to comply with numerous provisions of the parties’ divorce judgment, including but not limited to having failed to pay child support, to provide medical coverage for the parties’ children, and to pay certain debts.

The trial court conducted a hearing on September 20, 2004; at that proceeding, the mother and the father acknowledged that they had become residents of Alabama and agreed that the Tennessee judgment should be registered as a foreign child-custody judgment pursuant to Ala. Code 1975, § 30-3B-305. The trial court entered an order registering the Tennessee judgment as a foreign child-custody judgment on September 24, 2004, and it scheduled the modification and contempt matters for a subsequent hearing.

The trial court conducted an ore tenus proceeding on January 11, 2005; at that hearing, the trial court proceeded to accept testimony and documentary evidence from the mother and the father. During that proceeding, the mother testified that in the parties’ divorce judgment the mother had been awarded custody of the parties’ two minor children and that the father had been ordered to pay $552 in monthly child support and to pay an ar-rearage of $6,016.60 in pendente lite alimony. She also noted that the only time during the years following the divorce that the father had paid any amounts owed to her had been when she had filed (or threatened to file) actions against him seeking findings of contempt. The mother also noted that at the time the parties had divorced, the father had been awarded a family business and the marital residence; the mother had been forced to seek new employment and new housing for herself and the parties’ two children. The mother stated that she had obtained employment at Edmondson Mobile Home Supply and that her gross monthly salary was $1,075.

The trial court admitted into evidence spreadsheets and other financial records into evidence that indicated that the father had never complied with the financial mandates of the divorce judgment. The father insisted that he was unable to meet his monthly child-support obligation because he was employed as a church janitor earning an annual salary of only $18,574.40, from which amount the employer was deducting the monthly amounts of $156.52 for health-insurance premiums to cover all of his children and $283.83 for child-care costs for two younger children not at issue in this action. Based upon the father’s financial testimony, his monthly disposable income after those deductions totaled $1,107.52. The father stated that since the divorce he had become the custodial parent and sole source of support for two other children. He agreed with the mother that he had been unable to make most of the child-support payments that had come due between 1999 and the time of trial and that a large arrearage had accumulated.

The trial court entered its judgment on February 14, 2005. In that judgment, the trial court specifically determined that the father was not voluntarily underemployed; that court ordered the father to maintain health-insurance coverage on the children in lieu of making prospective monthly child-support payments. The judgment also contained the following provision:

“3. The [father] owes the [mother] the sum of $39,124.91 in unpaid child support. The [mother] is awarded a judgment against the [father] in the amount of $39,124.91, plus interest. The [father] owes the [mother] the sum of $6,016.60 in unpaid alimony. The [mother] is awarded a judgment against the [father] in the amount of $6,016.60, plus interest. The [mother] shall not execute upon said judgments so long as the [father] pays to the [mother] the aggregate sum of $100 toward said judgments.”

Additionally, the trial court reiterated that the Tennessee judgment ordering the father to pay $4,063 to defray the mother’s attorney’s fee was a final judgment. Finally, the trial court modified the parties’ divorce judgment and relieved the father from paying any future alimony and from maintaining a life-insurance policy in the amount of $100,000 to benefit the parties’ children.

The mother filed a postjudgment motion, and the trial court denied that motion on March 22, 2005. The mother filed a timely appeal challenging the trial court’s judgment as it relates to the modified child-support amount and to the stay of execution as to the arrearages that were reduced to a money judgment. We affirm in part, reverse in part, and remand.

Our standard of review is well settled. When a trial court bases its decision on ore tenus evidence, its judgment is presumed correct and will not be reversed on appeal absent a plain and palpable abuse of discretion. See Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000), and Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). In addition, matters relating to child support, including modifications of a child-support obligation, rest soundly within the trial court’s discretion and will not be disturbed absent evidence of an abuse of discretion or evidence indicating that the judgment is plainly and palpably wrong. See Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App.1997); see also Hertzberg v. Gainey, 855 So.2d 561, 564 (Ala.Civ.App.2003).

The mother initially contends that the trial court abused its discretion by deviating from the child-support guidelines set forth in Rule 32, Ala. R. Jud. Admin. She asserts that the evidence at trial was undisputed that the father had continually failed to pay the monthly amount of child support required in the parties’ divorce judgment, even after receiving a downward modification of the obligation in September 2004 from $552 to $274. The primary reasons that the father cannot support the parties’ two children, the mother claims, are that he closed his privately owned business from which he had earned $55,000 per year during the marriage and that he became the sole source of support for two children he had fathered with two different women following the parties’ divorce. Although she concedes that the father’s income has decreased in the period following the parties’ divorce, the mother insists that the father’s “new family” cannot take precedence over the parties’ children.

The mother cites State ex rel. O’Neal v. Jones, 646 So.2d 150 (Ala.Civ.App.1994), to support her contention that the father was not entitled to have his child-support obligation reduced to an amount less than the amount provided under the Rule 32 child-support guidelines. In Jones, the trial court had made a determination that the paying spouse’s financial condition required a deviation from the application of the child-support guidelines; that decision was primarily based upon the fact that the paying spouse had remarried and had become financially responsible for a new set of children. This court reversed the trial court’s judgment and stated that

“the father’s primary legal and moral duty to these children is not diminished by his duties to his subsequent ‘new family.’ The father’s new family is inadequate justification for deviating from the guidelines, and the trial court’s decision in that regard is error.”

646 So.2d at 151. We conclude that Jones is distinguishable from the present case.

The father testified that he earned approximately $1,548 in monthly gross income from his employment as a janitor; the mother’s monthly income was $1,075. Applying the provisions of Rule 32, Ala. R. Jud. Admin., and the figures contained in the tables appearing in the Appendix to Rule 32, Ala. R. Jud. Admin., to those amounts, we can calculate that the father’s child-support obligation would be 59% of $607 per month, or $358.13. Subtracting the father’s $156.52 medical-insurance premium that he pays to obtain coverage for all of his children from that figure results in a difference of $201.61. If the only evidence before the trial court had been the father’s expenses relating to his additional children, the rationale of Jones might have required this court to reverse the child-support award. In this case, however, the mother conceded that the father’s income had decreased since the divorce. In addition, the trial court determined that, because the mother did not qualify for health insurance through her employment, ordering the father to maintain health-insurance coverage for the children was the best use of his disposable income. In addition, the trial court ordered the father to pay for one-half of all the children’s uncovered medical and dental expenses. We conclude that the trial court could properly deviate from the Rule 32 child-support guidelines to fashion this award that guarantees that the parties’ children will receive basic medical coverage as part of the father’s continuing duty to support the parties’ children.

The trial court also admonished the father to continue to seek more lucrative employment in order to fulfill his support obligations, and it placed the case on a continuing administrative docket so that a timely revision of the child-support award could be made upon proof of a positive change in the father’s income. We note for clarification that a trial court maintains continuing jurisdiction over child support and child-custody matters. See Ex parte Carstens, 728 So.2d 128, 132 (Ala.1998); see also Gross v. Loewen, 522 So.2d 306 (Ala.Civ.App.1988), and Brown v. Brown, 476 So.2d 114 (Ala.Civ.App.1985). Moreover, pursuant to Alabama’s standards relating to the reduction of delay in judicial administration, only “Exceptional cases in which the court’s jurisdiction is stayed or precluded may be transferred from the active docket to the administrative docket.” See Recommendations of the Circuit Judges Time Standards Committee, Recommendation II (emphasis added).

Turning to the mother’s assertion that the trial court abused its discretion when it prohibited the mother from attempting to collect the arrearage award, we note that the mother did not ask this court to reverse the trial court’s arrear-age-repayment schedule; she only requested that she be allowed to collect the arrearage award by other legal means. Although the father invites this court to overrule Osborne v. Osborne, 57 Ala.App. 204, 326 So.2d 766 (Ala.Civ.App.1976), we note that our Supreme Court reaffirmed the doctrine that arrearages may be collected as any other debt in Ex parte Morgan, 440 So.2d 1069 (Ala.1983). In Os-bome, this court noted:

“We comprehend that a contempt of court may be purged by an order of payment of a sum upon past-due installments, but such order should not be a bar to collection of the judgment by execution or garnishment if assets of [the] defendant are available to such process.... We therefore follow the rule that accrued installments of support are final judgments and may be collected as any other judgment. An order of the trial court permitting the payment of such judgments in installments is not a bar to any other process for collection of judgments.”

Osborne, 57 Ala.App. at 207, 326 So.2d at 768 (emphasis added). Moreover, in Ex parte Morgan, supra, our Supreme Court stated that “past due installments of child support ... create a final monied judgment, and that a writ of garnishment is a legally permitted method of collecting that judgment.” Morgan, 440 So.2d at 1072.

In Osborne, the trial court had determined that an arrearage of $12,220 existed and ordered that the arrearage judgment be paid in monthly installments of $100; this court recognized that such a repayment plan would make it “impossible for [the] defendant to pay the accrued judgment and interest at the rate of $100.00 per month during a normal lifetime.” Osborne, 57 Ala.App. at 207, 326 So.2d at 768. Similarly, in this case, the trial court determined that the father owed accrued ar-rearages in the amount of $45,141.51, plus interest. In this case, if the father were able to make only monthly $100 installment payments to reduce the owed arrear-ages, he would be paying those installments for over 37 years; that computation does not include the additional interest that will accrue during the repayment period, and the father will therefore most likely never be able to retire the total amount of the arrearages during his lifetime. In addition, the trial court also modified the divorce judgment to relieve the father from maintaining a life-insurance policy to benefit the parties’ children in the event of his death before they reach the age of majority.

In State ex rel. Thompson v. Thompson, 586 So.2d 7 (Ala.Civ.App.1991), this court noted that “where a large arrearage is owed, the trial court may abuse its discretion in failing to award a large enough amount toward the arrearage to satisfy the debt within a reasonable period of time.” Thompson, 586 So.2d at 8; see also Horwitz v. Horwitz, 897 So.2d 337 (Ala.Civ.App.2004), and Williams v. Williams, 554 So.2d 1046 (Ala.Civ.App.1989). Although we note that a trial court has the discretion to set a reasonable ar-rearage-repayment schedule commensurate with a party’s ability to pay (see Horwitz, 897 So.2d at 343), based upon the record before us we conclude that the trial court improperly attempted to restrict the mother’s ability to collect the arrearage award. We find the adoption of the rationale in Osborne by the Supreme Court in Morgan to be controlling in this case; therefore, we conclude that the trial court’s order permitting installment payments of the accumulated arrearages cannot bar any other process for collection of the judgment, such as garnishment. We reverse that portion of the judgment and remand the case for removal of the language restricting the mother’s ability to pursue any legal means to collect the ar-rearage award.

The trial court’s child-support award is affirmed; however, the trial court’s judgment insofar as it attempted to restrict the mother’s right to collect the arrearage award is reversed, and the cause is remanded with instructions to delete that portion of the judgment.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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

MURDOCK, Judge,

concurring in the result.

Given the holding of this court in State ex rel. O’Neal v. Jones, 646 So.2d 150 (Ala.Civ.App.1994), and considering the amount of child support called for by the Rule 32, Ala. R. Jud. Admin., guidelines based upon the current incomes of the parties, I am not persuaded that the factors recited in the main opinion alone would be enough to justify a deviation from those guidelines so as to result in the limiting of the father’s obligation to only the payment of medical-insurance premiums and one-half of all uncovered medical and dental expenses. I concur in the result as to this issue, however, because I note that the record further indicates that the father is required to spend substantial sums of money in treating his own asthmatic condition. Accordingly, I cannot conclude that the trial court acted outside its discretion in the manner in which it reduced the father’s monthly child-support obligation.

Further, consistent with the authorities cited in the main opinion relating to the continuing jurisdiction of the trial court and the placement of cases on administrative dockets, I come to the conclusion that the trial court arguably erred by placing this case on its administrative docket. Neither party has raised this issue on appeal to this court, however.

      . We note that the mother did not contest that specific provision of the trial court’s judgment.

      . The judgment in this case was intended by the trial court to be final, and this court has treated it as being final for purposes of appeal. If circumstances change in the future so as to justify a modification of the father’s child-support obligation, a new action — a modification proceeding — could be filed.