author: MURDOCK, Judge.

text:
    Robert Burton SMITH v. Brenda Kay Hall SMITH. Brenda Kay Hall Smith v. Robert Burton Smith.
    2040310.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2005.
    Rehearing Denied May 19, 2006.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1051246.

      Phyllis J. Logsdon, Dothan, for appellant/cross-appellee Robert Burton Smith.
    J.E. Sawyer, Jr., Enterprise, for appel-lee/cross-appellant Brenda Kay Hall Smith.
   MURDOCK, Judge.

Robert Burton Smith, the husband, appeals and Brenda Kay Hall Smith, the wife, cross-appeals from a divorce judgment entered by the Houston Circuit Court.

The husband and the wife married in 1990. They have one child, a son who was born in July 1998.

In January 2003, the wife filed a complaint in the Houston Circuit Court requesting the entry of a judgment legally separating her from the husband. See Ala.Code 1975, § 30-2-40. In her complaint, the wife alleged that the parties continued to reside in the same dwelling, but she stated that they had “physically separated from each other and no longer live together as husband and wife.” The wife requested a legal separation on the grounds of “irretrievable breakdown” and “complete incompatibility of temperament,” requested custody of the parties’ child, and requested awards of marital property and alimony.

In February 2003, the husband filed an answer and a counterclaim requesting that the circuit court enter an order divorcing the parties on the ground of incompatibility of temperament. The husband requested that the circuit court award him custody of the parties child and that it equitably divide the marital property.

After ore tenus proceedings, the trial court entered an order in February 2004 entitled “Final Judgment of Divorce.” The February 2004 order cited “incompatibility of temperament” as the ground for the parties’ divorce. The order also awarded the parties “joint custody” of their son, with the husband having “primary care, custody, and control” of the child. The child was to reside with the husband during the school year, subject to the wife’s visitation rights, and the child was to reside with the wife during the summer, subject to the husband’s visitation rights. Also, in the February 2004 order, the circuit court addressed the division of some, but not all, of the parties’ assets and debt and it set the matter of the division of the parties’ retirement benefits for a future hearing. The wife filed a notice of appeal from the February 2004 order.

While the wife’s appeal was pending, and after additional hearings, the circuit court entered a “Final Order” in November 2004 addressing the remaining issues between the parties, including the division of the husband’s retirement benefits and the amount of the wife’s child-support obligation. Paragraph 1 of the November 2004 order states that the parties

“shall equally divide the following accounts that are solely in [the husband’s] name, to include, but not limited to the following:
“a. Snecma Savings Plan [a 401k retirement account] with a balance of $188,722.02 (as reported on a Wells Fargo statement reflecting an account number of-).
“b. Snecma Retirement Account Plan with a balance of $11,924.56 (as reported on a Wells Fargo statement reflecting an account number of-).
“c. Account identified as ‘TRW’ account (p. 71 of trial transcript and p. 148 of court record) with a balance of $31,912.07.
“d. Labinal Retirement Account Plan and/or Labinal Inc. Savings Plan through Defendant’s employment with Globe Motors.
“e. Merrill Lynch Roth IRA account number-with a balance of $42,259.00 (said funds held in the trust account of [the husband’s attorney] ).[]
“¾ the event said account has not been rolled over into another account already addressed by this Court Order, then said account is subject to an equal division between the parties.”

The husband filed a motion for a new trial alleging that the circuit court’s division of his retirement benefits was in error for various reasons. After holding a hearing on the husband’s motion, the circuit court entered an order in December 2004 denying the husband’s motion for a new trial and modifying the November 2004 order to add the following language: “The burden of proof to show both the existence of the accounts alleged in Paragraph 1(c) and 1(d) and the amounts accrued in said accounts during the pendency of the marriage rests with the [wife].” The husband filed a notice of appeal.

In February 2005, after this court initially addressed the procedural deficiencies of the parties’ appeals and reinvested the circuit court with jurisdiction, see note 1, supra, the circuit court entered a “Final Order” “redating” and “making final” the aforementioned February 2004 and November 2004 orders. The husband filed a motion for a new trial, again alleging that the circuit court’s division of his retirement benefits was in error for various reasons. The circuit court denied the motion.

On appeal, the husband contends that the circuit court erred as to its retirement-benefits award. The wife contends that the circuit court erred by not finding that the ground for the parties’ divorce was the husband’s adultery and that it erred by awarding the husband custody of the parties’ child because he committed adultery.

Regarding the wife’s argument that the trial court erred by not granting the divorce on the ground of adultery, the evidence indicates the following. The wife initially threatened to divorce the husband in the summer of 2002, but the parties apparently reconciled. There is no evidence indicating that the wife’s threat to divorce the husband was based on any relationship the husband might have had with another woman. The husband broached the subject of divorce with the wife in November 2002, and the wife testified that the parties thereafter “separated,” i.e., stopped living as husband and wife. The wife argues that, based on her testimony, the husband’s behavior in November 2002 suggested that he already had a sexual relationship with his paramour and that the circuit court should have concluded that adultery was the ground for the parties’ divorce. However, the husband and his paramour, who was employed by the same employer as the husband, testified that in November 2002 they were only friends and that they did not begin a sexual relationship until after the parties had “separated.” Also, the circuit court received testimony that would support a finding that as of November 2002 the parties already had an acrimonious relationship, in part, due to the demanding and immature character of the wife.

Based upon our standard of review under the ore tenus rule and the conflicting testimony received by the circuit court, we cannot conclude that the circuit court erred by not finding that adultery was the ground for the parties’ divorce; nor -can we conclude that the circuit court erred when it determined that the divorce should be granted on the ground of incompatibility of temperament. See, e.g., Martin v. Martin, 623 So.2d 1167, 1169 (Ala.Civ.App.1993).

Furthermore, as to the wife’s contention that the circuit court failed to properly consider the husband’s postseparation adultery (which was not the cause of the parties’ divorce) when it awarded him primary physical custody of the parties’ son, we do not believe that it is necessary to recite in detail the evidence that supports the circuit court’s custody award. We have carefully reviewed the record, and we cannot conclude that the circuit court’s custody award is plainly and palpably wrong or that, under the circumstances, it failed to properly consider the husband’s postseparation affair. Accordingly, as to the wife’s cross-appeal, the circuit court’s judgment is due to be affirmed.

The husband contends that the circuit court’s division of his retirement benefits is in error for several reasons. Some of the husband’s reasons are without merit. However, we agree that the evidence would not support a finding that the husband’s “Labinal Retirement Account Plan and/or Labinal Inc. Savings Plan” was still in existence when the complaint for divorce was filed. Likewise, we agree that the wife failed to present evidence to support the circuit court’s retirement-benefits awards as to his Snecma 401k Savings Plan, his Snecma Retirement Account Plan, his TRW account, and his Merrill Lynch Roth IRA.

Section 30-2-51(b), Ala.Code 1975, states:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-eov-ered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

See also Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002).

Although the husband’s retirement accounts contained the vast majority of the assets that were acquired during the parties’ 13-year marriage, the record reflects that the husband’s Snecma 401k Savings Plan, his Snecma Retirement Account Plan, and his TRW account all contained some retirement benefits acquired before the parties’ marriage. Except for the Snecma 401k Savings Plan, which had a value of approximately $8,000 when the parties married, the wife presented no evidence of the value of the retirement benefits in the husband’s retirement accounts when the parties’ married, i.e., the value of the retirement benefits acquired before the marriage. See Ala.Code 1975, § 30-2-51(b)(2). Also, as to the Snecma 401k Savings Plan, the Snecma Retirement Account Plan, and the TRW account, the wife presented no evidence of the interest or appreciation on the premarriage benefits that accrued after the date of the parties marriage. See id. Furthermore, as to the Snecma 401k Savings Plan and the Snec-ma Retirement Account Plan, which the husband and his employer continued to contribute to after the complaint for divorce was filed, the wife presented no evidence of the value of the retirement benefits in those accounts in which the husband had a vested interest “on the date the action for divorce [was] filed”; as to those accounts the only evidence of the value that the husband had a vested interest in was the value at the time of trial or a few months before trial. In other words, the circuit court’s retirement-benefits award contains premarriage retirement benefits, and income and appreciation thereon, and postcomplaint retirement benefits, and income and appreciation thereon, in violation of § 30-2-51(b). See Ala.Code 1975, § 30-2-51(b)(2) (regarding retirement benefits accruing before marriage, and interest and appreciation thereon); see also Killingsworth v. Killingsworth, 925 So.2d 977, 982 (Ala.Civ.App. 2005) (Retirement benefits “earned after the filing of the divorce action ... do not constitute vested benefits subject to division under § 30-2-51.”); Wilkinson v. Wilkinson, 905 So.2d 1, 5 (Ala.Civ.App.2004) (Murdock, J., concurring specially) (“If the judgment ... had simply awarded a percentage of whatever benefits were vested in the husband as of the date of the filing of the complaint for divorce (along with any subsequent interest on or appreciation in value of those vested benefits), the judgment would have been in compliance with the first sentence of § 30-2-51(b).”).

Also, as to the husband’s Merrill Lynch Roth IRA, the record would only support a finding that it contained premar-riage retirement benefits and interest and appreciation thereon. However, in December 2002 the husband liquidated the Merrill Lynch Roth IRA with the intent of paying off a loan that he had taken from his Sneema 401k Savings Plan in the summer of 2002; the proceeds from the loan had been used to build the marital residence and to pay some living expenses incurred before January 2003. After the wife filed her complaint, the husband did not use the funds from the liquidated IRA to pay off the Sneema 401k Savings Plan loan, nor did he roll the funds over into another retirement account. Instead, the husband delivered the funds from the liquidated IRA to his attorney, who thereafter held them in her trust account. Because the husband liquidated the Merrill Lynch Roth IRA before the complaint for divorce was filed, and because the funds were not thereafter rolled over into a retirement account or otherwise held as retirement benefits “on the date the action for divorce [was] filed,” the funds from the liquidated IRA did not constitute retirement benefits governed by the provisions of § 30-2-51(b). Instead, the funds from the liquidated IRA were governed by- § 30-2-51(a).

Section 30-2-51(a) authorizes a trial court to consider property acquired before marriage in dividing the marital estate only when such property “has been used regularly for the common benefit of the parties during their marriage.” The wife presented no evidence indicating that the funds from the liquidated IRA, or the income therefrom, was “used regularly for the common benefit of the parties during their marriage.” The only indication in the record as to the use of the liquidated IRA funds is that the husband obtained a court order allowing him to obtain $10,000 from the funds during the pendency of the divorce proceedings.

In response to the husband’s arguments, the wife contends that the circuit court’s division of the husband’s retirement accounts is due to be affirmed because, she asserts, during the marriage he allegedly withdrew funds from or took loans against some of the retirement accounts at issue and then allegedly used the proceeds for the benefit of the parties. She argues that such retirement accounts thus no longer fell within the provisions of § 30-2-51(b), but instead fell within the provisions of § 30-2-51(a), which states:

“If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse’s family. Notwithstanding the foregoing, the judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

For the reasons hereinafter discussed, we conclude that the wife’s argument is without merit.

This court must construe a statute based on its plain language, and when we must decide

“ ‘between alternative meanings ..., we will not only consider the results that flow from assigning one meaning over another, but will also presume that the legislature intended a rational result, one that advances the legislative purpose in adopting the legislation, that is “workable and fair,” and that is consistent with related statutory provisions.’ ”

Ex parte Berryhill, 801 So.2d 7, 10 (Ala. 2001) (quoting John Deere Co. v. Gamble, 523 So.2d 95, 100 (Ala.1988)). “As we must with any statute, we read the concept of reasonableness into the provisions of the statute at issue in this case.” Ex parte Berryhill, 801 So.2d at 10.

Section 30-2-51 (b) was enacted by our legislature in 1995, see Act No. 95-549, Ala. Acts 1995, and now governs the division of retirement benefits. It contains no provision authorizing a trial court to consider retirement benefits as marital property based on the use of the benefits during the marriage. Instead, the inclusion of particular retirement benefits as marital property depends exclusively on the vesting of the benefits, the length of the marriage, and when the benefits were accumulated. Ala.Code 1975, § 30-2-51(b); Smith, supra.

In contrast to the foregoing understanding of § 30-2-51, the wife’s argument suggests an understanding of § 30-2-51 that leads to irrational results that we cannot conclude were intended by-our legislature. See Ex parte Berryhill, supra. For example, based on the wife’s understanding of § 30-2-51, one alternative reading of § 30-2-51 (a) is that a trial court could award a spouse the entire retirement account of the other spouse where the latter spouse used premarriage retirement benefits from the retirement account for the common benefit of the parties during the marriage; however, under § 30-2-51 (b)(3) the trial court could not award a spouse more than 50% of a retirement account accrued solely during the parties marriage, even though the spouse who owned the account had used retirement benefits accrued during the marriage for the common benefit of the parties during the marriage. In other words, this court would have to conclude that retirement benefits accrued during the marriage, and that are used for the common benefit of the parties, are subject to the 50% award limitation of § 30-2-51(b)(3), but that retirement benefits accrued before the marriage, and that are used for the common benefit of the parties, could be awarded in their entirety to the other spouse pursuant to the last sentence of § 30-2-51(a).

A second alternative reading under the wife’s argument is that the legislature intended § 30-2-51(a) to override § 30-2-51(b) entirely when retirement benefits have been used for the common benefit of the parties. Thus a spouse would have to ensure that his or her retirement benefits are not used for the common benefit of the parties during the marriage (regardless of when the benefits were accumulated), or else that spouse would risk the inclusion of all of the retirement account at issue in the marital estate under § 30-2-51(a). This would mean that the legislature intended § 30-2-51(b) to apply only to retirement benefits accrued during the marriage that have not been used for the common benefit of the parties.

There are two obvious objections to such a reading of § 30-2-51(b). First, it does not plainly say that it was intended to apply to only a selected class of retirement benefits accumulated during the marriage, i.e., those not used for the benefit of the parties. See IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) (“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.”). Second, § 30-2-51(b) clearly states that an award can be made from a retirement account as to which the earning spouse “may be receiving [benefits] on the date the action for divorce is filed.” We cannot conclude that the legislature, on the one hand,, effectively built into the statute an incentive for spouses to hoard their retirement benefits from one another (i.e., to not begin receiving their retirement benefits during the marriage) so as to avoid the application of § 30-2-51(a), while it simultaneously provided in § 30-2-51 (b) for the inclusion in the marital estate of up to 50% of any retirement benefits accrued during marriage, regardless of their use.

Based on the foregoing, the circuit court’s judgment is due to be reversed as to the award to the wife of one-half of the retirement benefits from the husband’s Snecma 401k Savings Plan, his Snecma Retirement Account Plan, his TRW account, his Labinal Retirement Account Plan and/or Labinal Inc. Savings Plan, and his Merrill Lynch Roth IRA. However, because the only relief that the husband requested from the circuit court in connection with the erroneous retirement-benefits awards was that he be granted a new trial, we must remand this cause to the circuit court for a new trial on the issue of the division of the husband’s retirement accounts.

As to the ground for the parties’ divorce and the custody award to the husband, the circuit court’s judgment is affirmed. As to the award of the husband’s retirement benefits, the judgment is reversed, and this cause is remanded for proceedings consistent with this opinion.

APPEAL — REVERSED AND REMANDED.

CROSS-APPEAL — AFFIRMED.

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

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

      . Initially, the wife filed an appeal from a February 2004 circuit-court order entitled "Fined Judgment of Divorce” (appeal no. 2030733). However, the February 2004 order did not dispose of all of the issues between the parties. Specifically, the February 2004 order failed to designate the amount of child support that the wife must pay to the husband and it set the issue of the division of the parties’ retirement benefits for a future hearing.
      Before this court addressed appeal no. 2030733, the circuit court held additional hearings and it entered a "Final Order” in November 2004 that purported to address, among other things, the amount of the wife’s child-support obligation and the division of the parties’ retirement benefits. The husband filed a motion for a new trial. The circuit court denied the husband’s motion. The husband appealed (appeal no. 2040310).
      In February 2005, this court entered an order in appeal no. 2030733, dismissing that appeal as being from a nonfinal judgment. We simultaneously entered an order in appeal no. 2040310 (1) that temporarily reinstated the circuit court’s jurisdiction so that it could enter a final judgment and (2) that authorized the parties to raise the issues asserted in appeal no. 2030733 as part of the appeal in appeal no. 2040310. Thereafter, the circuit court entered a final judgment, and, upon motion of the parties, we entered orders incorporating both the record and the parties’ briefs from appeal no. 2030733 into appeal no. 2040310.

      . At trial, the wife argued, without objection, that she was seeking a divorce; she no longer desired only a legal separation from the hus-band-

      . See note 1.

      . The November 2004 order also divided other accounts owned by one or both of the parties. However, only the accounts described above are at issue.

      . The circuit court did not "redate” and "make final” the December 2004 order modifying the November 2004 order. Had the circuit court incorporated its December 2004 modification order, which on its face reflects that the circuit court had not finally adjudicated the division of the two retirement accounts referred to in that order, the current appeal and cross-appeal would be due to be dismissed as being from a nonfinal judgment. See Deal v. Deal, 899 So.2d 1010, 1011 (Ala. Civ.App.2004). However, unlike the December 2004 order, the February 2005 judgment incorporates the language form the court’s earlier November 2004 order and, as a consequence, purports to fully adjudicate the division of the husband’s retirement accounts, without reference to the need for additional evidence regarding "the amounts accrued in said accounts during the pendency of the marriage.”

      . The Alabama Supreme Court has stated that in making a child-custody award, a trial court must consider and balance numerous factors. See Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981). The trial court must make the custody award that is in the best interest of the child. Price v. Price, 440 So.2d 1110, 1110 (Ala.Civ.App.1983). Also, in reviewing the trial court’s custody award, this court must consider the unique position of the trial court to observe witnesses, see Ex parte Fann, 810 So.2d 631, 633 (Ala.2001), and we must “assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.” McGough v. McGough, 710 So.2d 452, 453 (Ala.Civ.App.1997).
      As to the reasons for the child-custody award in the current case, the February 2004 order states, in part:
      "The Court recognizes that the child custody issue was very difficult and troubling. The Court in considering the best interest of the child took into consideration the fact that the [wife] threatened the [husband] regarding the son and unilaterally kept the son from the [husband] in violation of the Court's order. Additionally, testimony revealed that the [wife] was having a difficult time controlling her son.... Testimony also revealed that the [wife] and son would scream at each other.”
      The foregoing findings are supported by testimony received by the circuit court at trial. We also note that the wife admitted that she repeatedly failed to properly utilize a child-safety seat when she drove with the child in the car, and the record contains a picture of the wife “shooting the bird” at the camera while the child is watching in the rear seat of the car. There was also testimony that the wife was lacking in a normal "maternal temperament” and in "maternal instincts,” and there was favorable evidence regarding the husband’s parenting skills and his relationship with the child.

      . The parties had little equity in the marital residence, and the other marital assets are not substantial in comparison to the husband's retirement accounts. Also, we note that the circuit court did not award the wife periodic alimony.

      . The TRW account was a retirement account that the husband "rolled over” when TRW, his former employer, was purchased by a third party.


source: Caselaw Access Project

license: Public Domain

text:
    Matthew K.L. BURGE v. Robin Burnette HAYES.
    2040829.
    Court of Civil Appeals of Alabama.
    May 26, 2006.
    Rehearing Denied Feb. 16, 2007.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1060787.

      M. Virginia Buck, Northport, for appellant.
    Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellee.
   MURDOCK, Judge.

Matthew K.L. Burge, the father, appeals from a Fayette Circuit Court judgment awarding Robin Burnette Hayes, the maternal grandmother, custody of the father’s eight-year-old daughter. The judgment awarded the father and the child’s mother, Tonyea Bridget Burnette Huffman, visitation. The mother has not appealed from the judgment.

The mother became pregnant by the father while they were in high school. Their daughter was born in January 1995. Thereafter, the father and mother’s romantic relationship ended. The mother subsequently married Robert Dewayne Huffman. In 1998, the father enlisted in the United States Air Force; he was still serving in the Air Force at the time of trial.

In August 1999, the maternal grandmother filed a petition in the Fayette Circuit Court against the mother; the petition alleged that the mother’s husband had physically abused the child and that the mother feared her husband. The maternal grandmother also alleged that she believed the mother’s husband had sexually abused the child. The maternal grandmother requested that the circuit court award her pendente lite custody of the child, that it award her custody of the child after a final hearing, and that it require the mother to pay child support.

A few days after the maternal grandmother filed her petition, the circuit court conducted a hearing and entered an order awarding the maternal grandmother pen-dente lite custody of the child. After an additional hearing, the circuit court also ordered the Department of Human Resources (“DHR”) to perform home studies on the maternal grandmother’s home and on the mother’s home, and it authorized weekend visitation by the mother. Further, the circuit court issued restrictions as to the child’s contact with the mother’s husband. The circuit court subsequently suspended the mother’s visitation rights based on alleged violations of its order as to contact between the child and the mother’s husband.

The trial in this action was continued on several occasions, and eventually the case was placed on the circuit court’s administrative docket. In June 2004, the father filed a motion to intervene, and he requested that the circuit court place the case on its active docket. The father also filed a petition requesting that he be awarded custody of the child. Thereafter, the circuit court granted the father’s motion to intervene and it placed the case on its active docket.

The trial court conducted an ore tenus proceeding in November 2004. On January 13, 2005, it entered a judgment awarding the maternal grandmother custody of the child, awarding the mother and the father visitation with the child, and requiring the father and the mother to pay child support to the maternal grandmother. We note that the trial court specifically found that the father had voluntarily relinquished custody of the child and that the mother was unfit to have custody of the child.

The maternal grandmother filed a post-judgment motion. Thereafter, on February 9, 2005, the father filed a post-judgment motion. The trial court set the postjudgment motions for a hearing to be held on April 6, 2005.

In mid-March 2005, the mother’s counsel filed a motion to withdraw as her attorney. The trial court granted the motion a few days later.

On March 31, 2005, the father’s attorney and the maternal grandmother’s attorney filed a “Joint Motion to Continue,” requesting that the hearing on their post-judgment motions be continued because the father’s attorney had a trial in another county on the scheduled hearing date. The motion stated that the guardian ad litem concurred with the request and that the mother’s attorney was provided with a “courtesy copy” of the motion because the attorney had withdrawn from representing the mother. The motion requested that the trial court “continue and specially set the [postjudgment] Motions.” The trial court thereafter set the postjudgment motions for a hearing to be held on May 31, 2005.

On June 3, 2005, the trial court entered an order stating that it had heard arguments on the postjudgment motions on May 31, 2005. The order purported to amend the January 2005 judgment by modifying the father’s visitation rights. On June 22, 2005, the father filed his notice of appeal.

On appeal, the father contends that the trial court erred by awarding custody of the child to the maternal grandmother. We do not reach the merits of the father’s appeal, however, because the appeal is due to be dismissed as being untimely filed.

Neither party has raised an issue relating to the timeliness of the father’s appeal. Nonetheless, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely fifing of a notice of appeal is a jurisdictional act. Rudd v. Rudd, 467 So.2d 964, 965 (Ala.Civ.App.1985).

Subject to certain exceptions that are not applicable in this case, Rule 4(a)(1), Ala. R.App. P., requires that in all cases in which an appeal is permitted, the notice of appeal shall be filed within 42 days of the entry of the judgment or order appealed from. Rule 4(a)(3), Ala. R.App. P., states that a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., will suspend the time for fifing a notice of appeal until (1) the date such motion is granted or denied or (2) the date the motion is deemed denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P. In pertinent part, Rule 59.1 states that

“[n]o post-judgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record. ... A failure by the trial court to dispose of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

(Emphasis added.)

As this court stated in Moore v. Moore, 910 So.2d 137, 140 (Ala.Civ.App.2004):

“A trial court loses jurisdiction to rule on a postjudgment motion if it does not rule on the motion within the time prescribed by Rule 59.1. See Ex parte Caterpillar, Inc., 708 So.2d 142, 143 (Ala.1997). Also, our courts have held that any extension of the 90-day period provided in Rule 59.1 ‘must be of record before the 90-day period expires, because any purported extension after the 90 days is a nullity.’ Id. (emphasis added); see also Newman v. Neuman, 773 So.2d 481, 483 (Ala.Civ.App.1999); and Scheilz v. Scheilz, 579 So.2d 674, 675 (Ala.Civ.App.1991).”

We further note that our Supreme Court has held that any consent to an extension of the 90-day period provided in Rule 59.1 must reflect the parties’ “consent to extend the pendency of the postjudgment motion beyond the 90-day period” not just their “consent to extend the time for a hearing on a postjudgment motion.” Ex parte Bodenhamer, 904 So.2d 294, 295 (Ala.2004).

In the present case, the father’s post-judgment motion was filed on February 9, 2005. The “Joint Motion to Continue” filed by the father and the maternal grandmother did not satisfy the requirements of Rule 59.1 (1) because it did not reflect the express consent of the mother, who was a party to the present case, and (2) because it reflects only a consent to continue the hearing on the postjudgment motion; it does not express the parties’ consent to extend the pendency of the postjudgment motion beyond the 90-day period. Thus, the “Joint Motion to Continue” did not extend the 90-day time period prescribed in Rule 59.1.

In fight of the foregoing, the father’s postjudgment motion was denied by operation of law on May 10, 2005. He had 42 days from the date that his postjudgment motion was denied by operation of law to file a notice of appeal. The final date on which the father could have filed an effective notice of appeal was June 21, 2005. He filed his notice of appeal on June 22, 2005.

Rule 2(a)(1), Ala. R.App. P., provides that “[a]n appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.” We therefore have no alternative but to, and we hereby do, dismiss this appeal.

APPEAL DISMISSED.

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

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

      . The father admitted that he had requested that the maternal grandmother seek “temporary” custody of the child because he was not able to care for the child at the time.

      . Although the record reflects that DHR previously had been involved with the child, there is nothing in the record to suggest that a dependency proceeding had been filed as to the child in the past or that the maternal grandmother sought to institute a dependency proceeding. See Ala.Code 1975, § 12-15-1 et seq. Instead, this proceeding is a custody action between the child's parents and a non-parent, which was properly litigated in the circuit court.


text:
    Joel Turner WEEKLEY v. Sharon Elizabeth WEEKLEY.
    2050096.
    Court of Civil Appeals of Alabama.
    Sept. 1, 2006.
    W. Gregory Hughes, Mobile; and W. Donald Bolton, Jr., Foley, for appellant.
    Sharon Elizabeth Weekley, pro se.
   MURDOCK, Judge.

Joel Turner Weekley (“the former husband”) appeals from a judgment and a postjudgment order denying his petition to reduce or terminate the periodic alimony payable by him to Sharon Elizabeth Week-ley (“the former wife”).

The parties were divorced in 1996. The divorce judgment awarded the former wife periodic alimony in the amount of $1,000 per month. In October 2004, the former husband filed this action, requesting that his alimony obligation be terminated or reduced.

On July 5, 2005, the trial court conducted a hearing on the matter at which evidence was received ore tenus. The case-action-summary sheet (“CAS”) bears a typed entry dated July 7, 2005, that reads: “Motion to modify is denied.” This entry is neither signed nor initialed by the trial judge.

On July 27, 2005, the former husband filed a purported postjudgment motion. See Rule 59, Ala. R. Civ. P. On September 13, 2005, a hearing was held on the former husband’s motion. At the end of the hearing, the judge orally announced her intention to deny that motion. The CAS contains an entry dated September 13, 2005; that entry reads: “Argument under Rule 59 this date. Motion denied.” That entry is neither signed nor initialed by the judge.

The former husband appeals. We pre-termit a discussion of the merits of this case; instead, ex mero motu, we address the efficacy of the purported judgment from which the former husband attempts to appeal.

A judgment is, and of necessity must be, the act of a judge. See 49 C.J.S. Judgments § 106 (1997).

“The rendition of a judgment is a judicial act by the court and must be rendered by a judge. A judgment entered without previous judicial action by the court is void. The rendition of judgment is not a ministerial act which may be delegated to the clerk of court. It is a manifestation of the court’s decision that constitutes the rendition of a judgment.”

46 Am. Jur.2d Judgments § 57 (2006) (footnotes omitted; emphasis added).

“Since the rendition of a judgment is a judicial act of the court, ... as a general rule it must be performed as such by the judge or magistrate who holds or presides in such court, and not by attorneys or ministerial officers of the court. Thus, in the absence of statutory provision to the contrary, the decision must be rendered by the judge and not by the clerk of the court, in order to constitute it a judgment.”

49 C.J.S. Judgments § 107 (1997) (footnotes omitted).

Consistent with these principles, Rule 58(b), Ala. R. Civ. P., requires that a judgment or order be signed or initialed by the trial judge. Hillegass v. State, 795 So.2d 749, 751 (Ala.Civ.App.2001). Rule 58(b) provides:

“Sufficiency of Judgment, Order, or Minute Entry Thereof. A judgment or order, or the minute entry thereof, need not be phrased in formal language nor bear particular words of adjudication. The judgment or order, or the minute entry thereof, will be sufficient if it is signed or initialed by the judge ... and indicates an intention to adjudicate, considering the whole record, and if it indicates the substance of the adjudication.”

In Ex parte Roberson, 749 So.2d 441 (Ala.1999), our Supreme Court reviewed the rationale for requiring orders to be signed or initialed and, in a plurality opinion, stated:

“According to the Committee Comments to Rule 58, the rule was amended effective March 1, 1984, to require ‘that a judgment, order, or minute entry be signed or initialed by the judge.’ The rationale, as explained by the Committee in its Comments to the March 1, 1984, amendment, is:
“ ‘Under Rule 58(b) there have developed some problems in determining whether an order of the court is intended to serve as a judgment disposi-tive of the lawsuit or as an order of lesser proportions.... This amendment requires the judge to add his signature or initials to the place in the record where the notation of the fact of the judgment appears. While this amendment does not alter the standard for evaluating the sufficiency of the phraseology, it does require, in the form of a signing or initialing, a direct judicial intervention in the process of making up the judgment, order, or minute entry. This mandate of direct involvement by the court should result in a greater concern for the necessity for clarity in a judgment or order.’
“(Citations omitted.) The entry of an order, signed or initialed by the trial judge, evidences the trial court’s intention to adjudicate. See, Cochran v. Wood, 504 So.2d 297 (Ala.Civ.App.1986).
“Thus, the requirement of a judge’s signature is to provide evidence of direct judicial intervention.”

749 So.2d at 448 (emphasis added).

The requirement that the judge sign or initial the judgment ensures that the judgment is in fact the act of the judge and not that of the “court system.” It also helps ensure that the judgment accurately reflects the trial judge’s intentions. Requiring the judge to sign or initial the judgment or order eliminates the risk of confusion, misunderstanding, and mistakes that might arise from informal communications between the judge and other court personnel. Furthermore, the signature requirement helps protect against incorrect dating of judgments and orders.

The main opinion in Ex parte Roberson describes a “long-standing policy” of the Supreme Court to remand causes in which the judgment or order from which an appeal is taken is neither signed nor initialed, but the appeal is otherwise timely. Because the final judgment in this case was neither signed nor initialed by the trial judge, and consistent with the remand procedure described in Ex parte Roberson, 749 So.2d at 448, we remand the cause to provide the trial court with an opportunity, within 14 days of the release of this opinion, to enter a final judgment that complies with Rule 58(b) and to enter an order on the former husband’s postjudgment motion that complies with Rule 58(b). Also consistent with the procedure described in Ex parte Roberson, a failure by the trial judge to respond to this remand within 14 days will subject this appeal to dismissal.

REMANDED

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

      . We note that the federal judiciary addresses the need for direct judicial intervention by requiring that judgments be set forth in separate documents. Rule 58(a), Fed.R.Civ.P.


author: THOMPSON, Presiding Judge.

text:
    Deborah Diane CUNNINGHAM v. Randy Paul CUNNINGHAM.
    2060248.
    Court of Civil Appeals of Alabama.
    April 20, 2007.

      Mose Lee Sudduth, Jr., Vernon, for appellant.
    Dale Lawrence of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appel-lee.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. Deborah Diane Cunningham (“the wife”) and Randy Paul Cunningham (“the husband”) were divorced by a judgment of the trial court, and the wife appealed the judgment as to the division of property and the award of alimony. A full recitation of the facts of the first appeal is set forth in Cunningham v. Cunningham, 956 So.2d 1157 (Ala.Civ.App.2006)(hereinafter “Cunningham I”). Following are the portions of that opinion that are relevant to this appeal:

“The husband testified that he operates the lawn-care and tree-service business that both he and the wife had previously operated and that, in the past, he had listed his business in the telephone directory and in other advertisements as being owned by both the husband and the wife. At the time of the trial, both parties were still listed in the telephone directory and on other advertisements as being co-owners of the business. The husband’s testimony and the parties’ tax returns from 2003 and 2004 established that the business had gross receipts of approximately $116,000 in 2003 and $102,000 in 2004. After expenses, depreciation, and other costs, however, the parties reported only approximately $13,000 in net income in 2003 and approximately $6,000 in net income in 2004.
“The wife testified that she has been diagnosed with Klippel-Feil Syndrome and scoliosis, that, as a result, she has been declared permanently and totally disabled, and that she receives as her only source of income a Social Security disability check in the amount of $480 per month. She submitted an exhibit to the trial court indicating that her monthly expenses were approximately $2,060, which included $500 per month for rent, $162.50 per month for utilities, $200 per month for food, $469.51 per month for payments on the indebtedness on the 2005 Chevrolet Silverado truck, $250 per month for medication, $77.50 per month for automobile insurance, $130 per month in automobile expenses, $69.40 per month for life insurance, $100 per month for toiletries and other items marked ‘essentials,’ and $100 per month for telephone service.
“Both parties also gave testimony and submitted documents outlining the value of the property that they own. The parties testified that, with the exception of a few personal items whose total value was estimated by the parties to be less than $500, most of their property had been acquired after the marriage. The husband valued the parties’ house and the real property surrounding the house at $45,000, and the wife valued the house and property at $55,000. The wife valued the business property at $151,200, and the husband valued it at $127,600. The parties did not testify as to the present value of the 2005 Chevrolet Silverado truck, but the wife testified that $23,000 remained due on the truck at the time of the trial. The wife estimated a value of $15,250 for the parties’ household property, and the husband valued the same property at $6,520.
“... [T]he wife’s primary contention on appeal is that the trial court’s property division is inequitable as a whole. The retirement account is only one of the assets to consider in reviewing the overall property division. This court has stated:
“ ‘On appeal, the issues of alimony and property division must be considered together. The trial court’s judgment on those issues will not be reversed absent a finding that the judgment is so unsupported by the evidence as to amount to an abuse of discretion. The property division need not be equal, but it must be equitable. The factors the trial court should consider in dividing the marital property include “the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property.” Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996).’
“Courtright v. Courtright, 757 So.2d 453, 456 (Ala.Civ.App.2000)(some citations omitted).
“As we have previously mentioned, the parties were married for 22 years. The husband was 45 years old at the time of the trial, and the record indicates that he is in good health. The wife, however, though of comparable age, is permanently disabled due to several severe medical conditions. As to the parties’ future prospects, the husband has the ability to work and to earn an income through his business or some other source, but the wife cannot work due to her disability. The wife’s only source of income is her disability check in the amount of $480 per month.
“The wife testified that her estimated monthly expenses were in excess of $2,000. The trial court appears to have viewed the wife’s expenses as being excessive because the expenses included a $469 truck payment and what the court viewed as an unreasonable $100-per-month telephone bill. However, even if the wife pares down her expenses significantly, those expenses will still greatly outweigh her income, indicating that she will not be able to even remotely maintain the standard of living she enjoyed during the marriage. The husband, however, retains the right to all the income from the business, which the trial court awarded entirely to him.
“In Kaufman v. Kaufman, 934 So.2d 1073, 1081 (Ala.Civ.App.2005), we reversed a divorce judgment after concluding that the judgment ‘disproportionately favor[ed] the husband.’ In that case, the parties had been married for 33 years, were nearing retirement age, and had a limited ability to earn a living in the future. 934 So.2d at 1076-77. The ■wife was receiving approximately $400 per month in Social Security income and had no way to earn additional income. In making its property division, the trial court in Kaufman awarded the husband approximately 77% of the marital estate and awarded the wife approximately 23% of the marital estate, along with $500 per month in alimony. In reversing that judgment, this court noted that the property division was especially inequitable in light of the length of the parties’ marriage. 934 So.2d at 1081. See also Adams v. Adams, 778 So.2d [825,] 827 [ (Ala.Civ.App.2000) ] (reversing a trial court’s judgment containing a division of property that awarded only 16% of the parties’ assets to the wife because the division was ‘so disproportionate as to be inequitable’).
“Factoring in the value of the property awarded to the husband and the value of the business equipment and the husband’s retirement account and subtracting the $53,000 of business debt, the trial court awarded the husband property with a total value of $104,600 as estimated by the husband and $128,200 as estimated by the wife. As for the wife, the total value of the property she received is $6,520 as estimated by the husband and $15,250 as estimated by the wife. Even accepting the highest estimated value for the property awarded to the wife and the lowest estimated value for the property awarded to the husband, the trial court awarded the husband approximately 87% of the parties’ net worth and the wife approximately 13%. Though the trial court found that neither party’s valuation of the marital assets bore ‘indicia of reliability,’ we find the division of the martial assets to be inequitable.
“Here, the property division ordered by the trial court combined with the lack of alimony awarded to the wife and the wife’s complete disability leaves the wife with insufficient means to meet her basic expenses. Also, the award of approximately 13% of the parties’ assets to the wife is on par with the awards held to be inequitable in Kaufman v. Kaufman, supra, and Adams v. Adams, supra. Under these facts and in view of the length of the parties’ marriage, we conclude that the trial court’s property division and alimony award were inequitable.”

Cunningham I, 956 So.2d at 1160-63 (footnotes omitted).

On November 16, 2006, on remand from this court, the trial court entered the following judgment:

“The Alabama Court of Civil Appeals reversed this Court on the issues of property division and denial of alimony and remanded the case for fashioning of an equitable property division and alimony award.
“Regarding the property division, in footnote 2 the Court of Appeals observed that it did not consider the disposition of the house ‘in [its] analysis of the property division.’ This Court has no knowledge of what was before the Court of Civil Appeals; however, the case file shows that the clerk advertised the sale ordered by this Court and conducted the public auction on January 27, 2006. There were two bidders, the highest bid being $32,000. On that same day, the clerk reported the sale to the Court, and on January 31, 2006, this Court entered an Order Confirming Sale. After payment of the costs attendant to the sale, each party received $15,801.75. Attached hereto as ‘Exhibit A’ collectively are copies of the record. As observed by the [Court of Civil Appeals], the ... husband valued the household goods at $6,250; the ... wife valued them at $15,250. All of the household goods were awarded to the wife. The average of their divergent valuations is $10,750. [The wife] took the parties’ passenger vehicle upon their separation, wrecked it and received $4,450, being all of the insurance proceeds therefrom. The average of the parties’ valuation of the business property is $139,400. That is the only property awarded to [the husband] (other than the one-half equity in the house), and at time of trial he owed $53,096 on the property, leaving a balance of $86,304. That is his sole means of making a living.
“Factoring these figures, [the husband] was awarded 77% of the property, and [the wife] was awarded 23% of the property. [The husband] also was saddled with the large debt, and unless he performs, most, if not all of the business equipment will be repossessed. The business equipment represents 84.5% of the property awarded to [the husband]. On the other hand, [the wife] receives $480 per month disability and surely qualifies for Medicaid and perhaps food stamps. The Court of Civil Appeals held that she cannot ‘even remotely maintain the standard of living she enjoyed during the marriage.’ With all due respect, a combined net income of $6,000 (the most recent definitive evidence available to this Court) and living in a residence that brought $32,000 is already living at poverty level. When this Court decided the case, there was not reliable evidence upon which to fashion an alimony amount. This Court is charged now, however, with doing that. The trial court cannot create wealth, but taking the 2004 net income figure of $6,000, the Court will award [the wife] $500 per month periodic alimony, being 100% of the parties’ joint income.
“It is, therefore, ordered, adjudged and decreed by the Court that [the husband] pay to [the wife] the sum of $500 per month periodic alimony.”

Following the trial court’s judgment on remand, the wife filed a postjudgment motion, which the trial court denied on November 21, 2006. The wife timely appealed to this court. On appeal, the wife argues once again that the trial court failed to equitably divide the marital estate and failed to make a proper alimony award.

In Cunningham I, this court did not consider in its analysis of the division of property the amount awarded to each party from the sale of the marital house because the record did not contain evidence regarding the result of that sale. However, on this second appeal the record reveals that the parties’ marital house was sold for $32,000, and from the proceeds of that sale, each party was awarded $15,801.75. The trial court did not include the value of the husband’s retirement account in its calculation of the estate awarded to him, and it also used an average of the parties’ estimates in calculating the percentage of the estate awarded to each. Including now the proceeds from the sale of the marital house, the value of the retirement account, and the business assets, and after subtracting the $53,000 debt related to the business assets, the trial court awarded the husband property with a total value of $120,401.75, as estimated by the husband and $144,001.75 as estimated by the wife. As for the wife, the total value of the property she received, including the household goods, the proceeds from the sale of the marital house, and the insurance proceeds from her automobile accident, is $26,771.75 as estimated by the husband and $35,501.75 as estimated by the wife. The wife has also been awarded $500 per month of alimony by the trial court’s judgment on remand. Even taking the maximum estimated value of the property awarded to the wife and the minimum estimated value of the property awarded to the husband, the wife was awarded only approximately 23% of the parties’ net worth plus $500 per month in periodic alimony.

Based on these facts and the cases discussed in Cunningham, I, Kaufman v. Kaufman, 934 So.2d 1073, 1081 (Ala.Civ.App.2005) and Adams v. Adams, 778 So.2d 825, 827 (Ala.Civ.App.2000), our determination in Cunningham I still stands. Despite the award of alimony to the wife, the property division as a whole remains inequitable. In its judgment on remand, the trial court noted that it “cannot create wealth,” and seemed reluctant to divide the business assets that it had awarded exclusively to the husband. The trial court seemed to find relevant that, along with the business assets, the husband is responsible for a large amount of debt related to those assets and that those assets are his sole means of making a living. However, we note that the business debt has been factored into the conclusion that the trial court awarded the husband approximately 77% of the parties’ assets, even under the estimate most favorable to the husband.

Although the trial court makes much of the fact that business assets provide the husband with his only source of income, that business, in which both the husband and wife had ownership interests, was also once the sole source of income for the wife. Because the wife is disabled, she has no source of income other than her $480 per month disability check, and she has expenses that she estimates to be in excess of $2,000 per month. Although we understand the trial court’s concern in not wanting to divide the business assets that are potentially the only source for the husband’s income and alimony payments to the wife, that concern must give way to the need to create an equitable division of the parties’ marital estate. Additionally, the husband presented no evidence indicating that he is not employable at a place other than the lawn-care and tree-service business owned by the husband and the wife.

We also note that the trial court may minimize the need to divide the business assets by dividing the parties’ marital estate in another manner. See Daniel v. Daniel, 841 So.2d 1246, 1249 (Ala.Civ.App.2002)(“Generally, the trial court has wide discretion over the award of alimony and the division of property, and it may use whatever means are reasonable and necessary to divide the parties’ property equitably.”); Madden v. Madden, 399 So.2d 304, 305 (Ala.Civ.App.1981) (“[A]li-mony may be awarded as periodic payments, in a lump sum in gross, by an award of specific property or in a combination of any or all of these methods.”); and Daniel v. Daniel, 841 So.2d at 1250 (“Alimony in gross is considered ‘compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.’ ”) (quoting Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974)).

Under the circumstances of this case, namely that the wife is disabled and unable to work, that she receives only $480 per month in income for her disability, that she has expenses in excess of $2,000, that the husband is still capable of working and earning an income to support himself, and that the parties were married for 22 years, the trial court’s award of only 23% of the marital estate and $500 per month in alimony to the wife is inequitable. Accordingly we reverse its judgment and remand the case for the trial court to enter an equitable property division and alimony award. We would stress that in remand-mg the ease to the trial court we are not implying that the award necessarily be equal, for “[a] property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court.” Harmon v. Harmon, 928 So.2d 295, 298 (Ala.Civ.App.2005). Therefore, we instruct the trial court to enter an equitable award.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, BRYAN, and MOORE, JJ., concur.

THOMAS, J., dissents, without writing.


author: McMILLAN, Presiding Judge.

text:
    Bryan Kevin STINSON v. STATE of Alabama.
    CR-05-0229.
    Court of Criminal Appeals of Alabama.
    Sept. 29, 2006.
    Susan Graham James, Montgomery, for appellant.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   McMILLAN, Presiding Judge.

The appellant, Bryan Kevin Stinson, appeals from his conviction for rape in the first degree, a violation of § 13A-6-61(a)(1), Ala. Code 1975.

The record indicates Stinson filed a Rule 32, Ala. R.Crim. P., petition, and pursuant to Rule 32.1(f), Ala. R.Crim. P., was granted an out-of-time appeal. The pertinent facts are as follows: On December 16, 2004, the jury returned a verdict finding Stinson guilty of first-degree rape. On January 6, 2005, Stinson was sentenced to 27 years’ imprisonment, was ordered to pay a fine of $2,500, and to pay $500 to the crime victims’ compensation fund, and was assessed court costs. On February 4, 2005, Stinson, through newly appointed appellate counsel, filed a motion for a new trial, alleging numerous claims of ineffective assistance of trial counsel. On March 29, 2005, a hearing was conducted on the motion; at the end of the hearing the trial court indicated that it could not make a ruling and write an order before the expiration of 60 days after which the motion would be denied by operation of law. Rule 24.4, Ala. R. Crim. P. The parties entered into what they believed was a valid written waiver and consent to extend the 60-day period, as provided by Rule 24.4, Ala. R.Crim. P. On April 15, 2005, the trial court, in a detailed order, denied the motion for a new trial. On April 18, 2005, appellate counsel filed a notice of appeal. On June 1, 2005, this Court noted that the motion for a new trial had been denied by operation of law after March 7, 2005, 60 days from the date Stinson had been sentenced, unless the motion had been continued in conformity with Rule 24.4, Ala. R.Crim. P., on or before March 7, 2005. Moreover, we asked appellate counsel to produce evidence, including, but not limited to, a certified copy of the case-action summary sheet, regarding the parties’ waiver and consent to continuing the motion for a new trial beyond March 7, 2005. Appellate counsel did not produce the evidence. Because the notice of appeal was not filed within 42 days of March 7, 2005, this Court dismissed Stinson’s direct appeal as untimely and issued its certificate of judgment.

On August 17, 2005, Stinson filed a Rule 32 petition seeking an out-of-time appeal, stating as grounds that appellate counsel had inadvertently failed to file a timely appeal of the conviction because of “a misunderstanding of the rules as relating to the filing of an appeal given the lateness of the evidentiary hearing and waiver.” At the hearing on Stinson’s Rule 32 petition conducted on October 13, 2005, appellate counsel requested an appeal to challenge the trial court’s order denying the motion for a new trial. The trial court granted the requested relief.

Rule 24.4, Ala. R.Crim. P., provides:

“No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day; provided, however, that with the express consent of the prosecutor and the defendant or the defendant’s attorney, which consent shall appear in the record, the motion may be carried past .the sixtieth day to a date certain; if not ruled upon by the trial court as of the date to which the motion is continued, the motion is deemed denied as of that date, unless it had been continued again as provided in this section. The motion may be continued from time to time as provided in this section.”

Because the motion for new trial was deemed to be denied by operation of law on March 8, 2005, i.e., the sixty-first day after Stinson was sentenced, every action taken in the trial court from that date forward, including the March 29, 2005, hearing on the motion for a new trial and the parties’ waiver and consent to extend the 60-day period was void, and the trial court’s order purporting to deny the motion was a nullity. See Similton v. State, 672 So.2d 1363 (Ala.Crim.App.1995). Therefore, based on the circumstances of this case, the trial court was correct in granting the out-of-time appeal. See Dedeaux v. State, [Ms. CR-04-0792, Dec. 23, 2005] — So.2d-(Ala.Crim.App.2005) (“If the failure to file a timely notice of appeal is through no fault of the appellant’s, the appellant is entitled to an out-of-time appeal.”).

Here, we have a situation similar to the one in Edgar v. State, 646 So.2d 683, 685 (Ala.1994), in which the trial court held a hearing on the motion for a new trial after the 60-day period; therefore, it did not take evidence until after the motion had already been denied by operation of law. Although the trial court, in Edgar, denied the motion, it failed to include in its.order any specific findings. The Alabama Supreme Court held:

“We hold that where, as here, a criminal defendant’s motion for a new trial is denied under the provisions of Rule 24.4, Ala. R.Crim. P., without an affirmative statement by the trial judge giving the ruling a presumption of correctness and the defendant supports his new trial motion by evidence that was not presented at trial, and that evidence, if not controverted by the State, will entitle him to a new trial, the denial by operation of law should be reversed and the case remanded for the trial court to conduct a hearing on his motion for new trial and then enter an order either granting or denying the motion.”

Edgar v. State, 646 So.2d at 687.

Additionally, this Court in Banks v. State, 845 So.2d 9 (Ala.Crim.App.2002), addressed a situation similar to the case at bar, having before it an affirmative response from the trial court denying a motion to withdraw a guilty plea, over which it no longer had jurisdiction because the motion had been denied by operation of law. Here, as in Banks, the trial court’s written order has no legal significance, because the trial court no longer had jurisdiction, to rule on the motion for a new trial. Because this Court cannot consider any proceedings in the trial court that occurred beyond the 60-day limit, a remand is necessary to bestow jurisdiction on the trial court. Moreover, we are confident that the trial court, which presided over the trial and the hearing on the motion for a new trial, is in the best position to make any findings of fact regarding Stinson’s claims. See, e.g., Vinnie v. State, 866 So.2d 1175, 1176 (Ala.Crim.App.2002).

Accordingly, the trial court is instructed to review the transcript of the hearing on the motion for a new trial and its order purporting to deny the motion, and at its discretion, either adopt its previous ruling and order, containing specific findings of fact regarding Stinson’s ineffective-assistance claims, or conduct any additional proceedings it deems necessary. The return to remand shall include a transcript of the proceedings, if any, conducted by the trial court on remand and the trial court’s specific written findings of fact. Due return shall be filed with this Court no later than 35 days from the date of this opinion.

REMANDED WITH INSTRUCTIONS.

BASCHAB and WISE, JJ„ concur.

COBB and SHAW, JJ., concur in the result.


author: WISE, Judge. COBB, Judge,

text:
    John Randall SIDES v. STATE of Alabama.
    CR-05-0691.
    Court of Criminal Appeals of Alabama.
    Dec. 20, 2006.
    Rehearing Denied Feb. 16, 2007.
    Certiorari Denied April 13, 2007 Alabama Supreme Court 1060785.
    Kimberly Griffin Kervin, Prattville, for appellant.
    Troy King, atty. gen., and Jean A. Ther-kelsen, asst. atty. gen., for appellee.
   WISE, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB, J., concur in the result.

COBB, J., dissents, with opinion, which SHAW, J., joins.

COBB, Judge,

dissenting.

John Randall Sides was convicted of first-degree sexual assault, a violation of § 13A-6-66, Ala.Code 1975, for abusing his six-year-old niece. At trial, Sides attempted to present the testimony of his sister, Tammy McGrady, to show that the child had made previous false allegations of sexual abuse. The prosecutor argued that the testimony was hearsay and moved to exclude it; the trial court granted the motion. On appeal, Sides argued that the trial court erred to reversal and that he should have been permitted to present testimony concerning the child’s prior false allegation because it called into question her credibility in this case. In its unpublished memorandum, the majority states, “It would appear that the trial court should have allowed McGrady to testify as to this matter.” The Court then states that, because the child’s prior statement had not been “conclusively proven to be false,” it was unclear whether McGrady’s testimony would have been admissible. Finally, the majority determined that “evidence concerning this incident was already before the jury as a result of questions propounded on direct and cross-examination to [the child], her mother, and her stepfather.” I disagree with the majority’s interpretation of the record and with its interpretation of some of the relevant caselaw. The trial court erred to reversal when it prohibited McGrady from testifying about the child’s prior false allegation. The child herself retracted the claim, so I see no basis for the majority’s assertion that the previous claim “had not been conclusively proven to be false.” Furthermore, the record belies the majority’s assertion that jury had heard other evidence concerning this incident and that McGra-dy’s testimony would have been cumulative.

McGrady testified as follows during voir dire examination:

“A. [McGrady] She sat down in a chair next to me. I asked her how she was liking school. She said good. I asked her how mom and Matt [her stepfather] were doing. She didn’t answer me. She said Matt pinched her booby and put his finger in her butt.
“Q. [Prosecutor] And was that a surprising allegation?
“A. Not really. She’s made statements of that nature in the past before.
“Q. Who did you report this to?
“A. Nobody.
“Q. Why not?
“A. Because I didn’t believe her. I told her, I said, [H.E.], you know that is not true. She said, I know and took off to go play.”

(R. 150-51.) The trial court precluded this testimony.

The majority correctly notes that Alabama law provides that a prosecutrix’s pri- or false allegation of sexual misconduct is relevant and may be introduced to challenge her credibility. The Alabama Supreme Court in Ex parte Loyd, 580 So.2d 1374, 1375 (Ala.1991), held that evidence of prior false allegations of sexual misconduct by persons other than the defendant is admissible because it shows the victim’s “ ‘corrupt state of mind.’ ” (Quoting Phillips v. State, 545 So.2d 221, 223 (Ala.Crim.App.1989).) I disagree with the majority’s assertion that the evidence concerning this incident was already before the jury as a result of questions propounded to the victim, her mother, and her stepfather. The record reflects that the child repeatedly denied making any allegations to McGrady that her stepfather had abused her. (R. 31.) The child’s mother testified that the child had made no allegation that her stepfather had touched her inappropriately. (R. 56.) The child’s stepfather testified that he had never touched the child inappropriately. (R. 103.) None of the witnesses testified that the child had made false allegations of sexual abuse; only McGrady would have testified that the child had made an allegation of sexual abuse and then recanted it. Thus, I disagree with the majority’s assertion that McGrady’s testimony would have been cumulative. The trial court erred when it precluded that testimony.

The majority argues that it is unclear whether McGrady’s testimony about the child’s false allegation would have been admissible pursuant to relevant legal authority because the allegation “had not been conclusively proven false.” I do not believe that the relevant caselaw requires that the allegation be conclusively proven false before it is admissible.

In Peeples v. State, 681 So.2d 236 (Ala.1995)(opinion on application for rehearing), the Alabama Supreme Court discussed Ex parte Loyd, 580 So.2d 1374 (Ala.1991), and Phillips v. State, 545 So.2d 221 (Ala.Crim.App.1989), which the majority cites in its unpublished memorandum. In Peeples v. State, the appellant had been convicted of first-degree sexual abuse of a female under the age of 12 years, J.S. The trial court prevented Peeples from asking J.S. questions about a previous sexual-abuse allegation she had made against her stepbrother. During an investigation by the Department of Human Resources (“DHR”), J.S. recanted the allegation she had made against her stepbrother. The trial court excluded that evidence, and Peeples was convicted. This Court reversed the conviction, concluding that the trial court had erred in excluding evidence of J.S.’s statements regarding the allegation of abuse by her stepbrother. Peeples v. State, 681 So.2d 235 (Ala.Crim.App.1994). The Alabama Supreme Court affirmed and stated:

“As articulated in Loyd and Phillips, demonstrated falsity is the sine qua non of admissibility of this species of evidence. The State attempts to distinguish the facts of this case from those in Loyd, arguing that ‘the defense made no showing that [J.S.’s] allegations against [her] stepbrother were false.’ Brief in Support of Petition for Writ of Certiora-ri, at 8. We disagree with the State’s characterization of J.S.’s testimony.
“J.S.’s statements to the DHR representative that ‘no one had bothered [her] but Mr. Peeples,’ and that no ‘boy was coming into the home pulling down [her] panties and trying to have sex with her,’ expressly refute her earlier allegation, namely, that her stepbrother had ‘pulled her panties down and ... tr[ied] to have sex with her.’ These statements were, in fact, mutually exclusive. In other words, given that J.S. had made allegations of sexual abuse, the denials communicated to the DHR representative were tantamount to admissions that the allegation of sexual abuse was false. J.S.’s denials of the allegation against her stepbrother bring this case, therefore, squarely within the operation of the rule articulated in Ex parte Loyd, 580 So.2d 1374 (Ala.1991).
“Because the allegation against [the stepbrother] was demonstrably false, the trial court erred in excluding reference to it in Peeples’s trial.”

681 So.2d at 238-39 (footnote omitted).

The facts in this case are virtually identical to those in Peeples. McGrady would have testified that the child had made an allegation of sexual abuse against her stepfather and that she had then repudiated the allegation. This is, as in Peeples, tantamount to an admission that the previous allegation that she had been sexually abused by her stepfather was false. Pursuant to Peeples v. State, the trial court erred when it excluded McGrady’s testimony. Testimony about a prior false allegation of sexual abuse was relevant to the issue whether Sides committed the crime or whether the child was making another false allegation of sexual abuse.

To the extent the majority asserts that the child’s prior allegation might not have been admissible because it was not “conclusively proven to be false,” I disagree. The caselaw does not require “conclusive proof,” and I believe that, in most cases involving false prior allegations, it would be difficult or impossible to have conclusive proof. That conclusive proof is not required is reflected by Justice Maddox’s dissenting opinion in Peeples, in which Justice Maddox stated: “The law in Alabama, which this decision will overrule, is clearly that a prosecutrix’s prior charges of sexual misconduct are relevant and may be introduced to impugn her credibility only if they have been conclusively proven to be false. See Phillips v. State, 545 So.2d 221, 223 (Ala.Crim.App.1989), and Ex parte Loyd, 580 So.2d 1374 (Ala.1991).” Peeples v. State, 681 So.2d at 240 (Maddox, J., dissentingXemphasis on “only” in original; other emphasis added). Justice Maddox also stated in his dissent: “A defendant now may merely allege a past inconsistency regarding a statement about a third party, in order to attack a prosecutrix’s credibility, without proof of truthfulness.” 681 So.2d at 242. The majority’s assertion that McGrady’s testimony might not have been admissible because it had not been conclusively proven false is not supported by current Alabama law.

For all of the foregoing reasons, I disagree with the majority’s determination that the trial court correctly precluded McGrady’s testimony about the child’s pri- or false allegation of sexual abuse. The testimony should have been admitted, and its preclusion was not harmless error. Sides’s conviction should be reversed, and the case should be remanded for a new trial. Therefore, I dissent.