text:
    Corey DUBOSE, Sr. v. Barbara J. DUBOSE.
    2050592.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      William G. Barnes, Birmingham, for appellant.
    Submitted on appellant’s brief only.
   THOMAS, Judge.

Corey Dubose, Sr. (“the husband”), and Barbara J. Dubose (“the wife”) were married in December 1988; the parties have two children. The parties separated in November 2005. The wife sought legal advice and proceeded to file the necessary pleadings for an uneontested divorce, including an answer and waiver of service purportedly signed by the husband, on January 31, 2006. On March 8, 2006, after the requisite 30 days had passed, see Ala. Code 1975, § 30-2-8.1(a), the trial court entered a divorce judgment incorporating the purported agreement of the parties.

The husband, however, according to his verified postjudgment motion, believed that he and the wife intended to get a legal separation and denied ever having signed any documents pertaining to a divorce. He admitted that he had received a “docket call notice” on or about March 4, 2006, indicating that he was required to make a court appearance on March 22, 2006. Once he received the notice, the husband sought legal representation. His attorney filed a notice of appearance and an objection to venue on March 17, 2006; the husband was unaware that the judgment of divorce had been entered nine days earlier. At the docket call on March 22, 2006, the husband learned of the divorce judgment. On the following day, he filed his verified postjudgment motion. The allegations in the motion indicate that the husband was unaware that the wife had sought legal advice concerning a divorce, that the husband had not agreed to an uncontested divorce, that the husband had not signed any documents relating to the uncontested divorce, that the signatures upon any documents relating to the uncontested divorce were “a fraud,” and that the husband desired that the divorce be “vacated” on the basis of the wife’s misconduct. The husband specifically requested a hearing in his motion. The husband filed his notice of appeal from the divorce judgment on April 17, 2006, before the trial court had acted on either the husband’s objection to venue or his post-judgment motion. The husband’s post-judgment motion was ultimately denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

On appeal, the husband argues that the trial court erred in relying on the fraudulently obtained documents in entering the divorce judgment. He also argues that the trial court should have held a hearing on his “Rule 60(b)” motion and his motion objecting to venue before the expiration of the 42-day period for appealing the divorce judgment.

We must first decide whether the husband’s postjudgment motion was a motion filed pursuant to Rule 59 or Rule 60(b), Ala. R. Civ. P. The husband entitled his motion as a “Motion to Vacate Judgment Pursuant to Rule 60(b).” The motion does not specifically enumerate which subsection of Rule 60(b) the husband relies on. However, based on the factual assertions he makes in the motion and the arguments he makes in his brief on appeal, the husband is apparently attempting to rely on subsections (3) and (4), arguing in essence that the wife’s fraud in procuring the divorce makes the judgment void. Although the motion refers to Rule 60(b), it was filed within 30 days of the entry of the judgment and requests that the trial court “vacate” the judgment, which mirrors the language used in Rule 59(e). See Ex parte Johnson, 715 So.2d 783, 786 (Ala.1998) (construing as a Rule 59 motion a motion filed within 30 days of the divorce judgment that requested that the divorce judgment be “modified” or “set aside,” which the court commented was consistent with the language of Rule 59(e)). Additionally, a Rule 60(b) motion that is filed before a judgment becomes final, i.e., before the expiration of 30 days after the entry of the judgment or before a timely postjudgment motion is denied, is considered premature; however, a prematurely filed Rule 60(b) motion quickens upon the trial court’s loss of jurisdiction over the judgment at the expiration of the 30-day period after its entry or after the denial of a postjudgment motion filed pursuant to Rule 50, 52, 55, or 59. Ex parte Lang, 500 So.2d 3, 4 (Ala.1986); see also Ex parte Gamble, 709 So.2d 67, 70 (Ala.Civ.App.1998). Because the husband’s motion was filed within 30 days of the entry of the judgment and requested, consistent with Rule 59(e), that the judgment be vacated, we conclude that it should be considered a Rule 59 motion.

The trial court never held a hearing on the husband’s postjudgment motion, and, therefore, on June 21, 2006, the husband’s motion was denied by operation of law. See Rule 59.1. Because we have concluded that the husband’s motion was a Rule 59 motion, the husband’s arguments on appeal concerning Rule 60(b) are inapplicable. As noted above, however, the husband argues that he was entitled to a hearing on his motion; we agree.

Generally, a movant who requests a hearing on his or her post-judgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala.2000). A trial court’s failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221. However, that error may be harmless if “ ‘there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.’ ” Kitchens v. Maye, 623 So.2d 1082, 1088-89 (Ala.1993) (quoting Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989)). When there is probable merit to the motion, the error cannot be considered harmless. Ex parte Evans, 875 So.2d 297, 300 (Ala.2003) (reversing this court’s affir-mance of a trial court’s denial of a Rule 59 motion without a hearing when there was probable merit to the postjudgment motion).

The husband’s allegations that the wife procured the uncontested divorce by fraudulently presenting forged documents, including the answer and waiver of service, to the trial court are serious allegations that, if proven to the trial court’s satisfaction, would entitle the husband to have the divorce judgment vacated. Because the trial court should have considered the husband’s allegations, we cannot hold that the trial court’s denial of the motion by operation of law without a hearing was harmless error. See Ex parte Evans, 875 So.2d at 300. We therefore reverse the judgment of the trial court denying the husband’s motion by operation of law without benefit of a hearing, and we remand the cause with instructions that the trial court hold a hearing on the husband’s postjudgment motion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . " 'A verified pleading may be treated as an affidavit and used in the action in any way in which an affidavit would be suitable!)]’ ” provided that the pleading " 'contain[s] facts that the affiant knows to be true of his or her own knowledge and [has] a certain level of factual specificity.’ " Ex parte Quinlan, 922 So.2d 914, 917 (Ala.2005) (quoting 5A Charles Alan Wright & Arthur K. Miller, Federal Practice and Procedure: Civil 3d % 1339 (2004)).

      . Pursuant to Rule 4(a)(5), Ala. R.App. P., we held the appeal in abeyance until the post-judgment motion was denied by operation of law.

      . Rule 60(b), in pertinent part, reads as follows:
      "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void.... The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.... This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

      . To the extent that it invoked Rule 60(b) and relied on facts that would have established "fraud ..., misrepresentation, or other misconduct of an adverse party,” Rule 60(b)(3), however, the husband’s motion could also be considered in part a Rule 60(b) motion that quickened on June 21, 2006 (i.e., the date the part of the motion filed pursuant to Rule 59 would have been denied by operation of law), and remains pending. Although " ‘the better practice is to file a Rule 60(b) motion only when there is a final judgment in the case,' the rules do not preclude alternative pleadings.” Continental Grain Co. v. Smallwood, 669 So.2d 995, 997 (Ala.Civ.App.1995) (quoting Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989)). As we did in Smallwood, we note here that the husband is not attempting to "avoid the strictures of Rule 59.1 by asking this court to treat a properly filed Rule 5 [9] motion as a Rule 60(b) motion.” Smallwood, 669 So.2d at 997. Because the husband, unlike the movant in Smallwood, did not specifically invoke grounds under both Rule 59 and Rule 60(b) in his motion, we decline to consider his motion as one pleading both motions in the alternative.

      . Because the husband has mischaracterized his motion as a Rule 60(b) motion, his brief contains no citations to authority relevant to whether he was entitled to a hearing on a Rule 59 motion. In some instances, such a failure to cite authority would be fatal to his appeal, resulting in an affirmance on the basis of Rule 28(a)(10), Ala. R.App. P. However, this court may choose to affirm a case on the basis of Rule 28 when an appellant’s brief fails to comply with the rule, but this court is by no means required to do so. See Kirksey v. Roberts, 613 So.2d 352, 353 (Ala.1993); Bishop v. Robinson, 516 So.2d 723, 724 (Ala.Civ.App.1987); and Thoman Eng'rs, Inc. v. McDonald, 57 Ala.App. 287, 289, 328 So.2d 293, 295 (1976). The decision is a matter of discretion, and considerations other than compliance with the rule are integral to the exercise of that discretion. Among those other considerations are whether the argument “has been raised in a manner which is fair to all concerned,” McDonald, 57 Ala.App. at 290, 328 So.2d at 294; whether the appellee adequately responds to the issues raised by the appellant in brief despite the noncompliance, Bishop, 516 So.2d at 724; whether the court is able to adequately discern the issues presented, Kirksey, 613 So.2d at 353; and the emphasis placed by the Rules of Appellate Procedure on reaching the merits of our cases. McDonald, 57 Ala.App. at 289, 328 So.2d at 295. In light of these considerations, we choose to address the merits of the husband’s appeal despite the deficiencies of his brief.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    William E. SUMERLIN v. Joy SUMERLIN.
    2050615.
    Court of Civil Appeals of Alabama.
    March 23, 2007.

      Thomas Allen Deas, Mobile, for appellant.
    David S. Conrad of Conrad & Barlar, Mobile, for appellee.
   PITTMAN, Judge.

William E. Sumerlin (“the husband”) appeals from a judgment that divorced him from Joy Sumerlin (“the wife”) and that, among other things, divided the marital assets, ordered the former husband to pay alimony to the wife until he retired, and awarded the wife a portion of the funds in the husband’s individual retirement account (“IRA”).

The parties were married on June 15, 1990; it was the second marriage for both parties. No children were born to the couple. In April 2004, the wife filed a complaint in which she requested that the circuit court grant her a divorce on the grounds of an irretrievable breakdown of the marriage and adultery on the part of the husband. In that pleading, as last amended, the wife also requested an equitable division of the marital property, an award of periodic alimony, and an order that the husband be responsible for payment of all of the parties’ marital debts.

Following numerous continuances, the circuit court conducted an ore tenus proceeding on March 10, 2006, at which both the husband and the wife presented testimony and documentary evidence. Each party attempted to place blame for the breakdown of the marriage on the other. The evidence indicated that the wife had learned of the existence of the husband’s numerous extramarital sexual encounters during the course of the marriage but that she had always reconciled with the husband until his final extramarital romantic liaison. The wife, who was 64 years old at the time of trial, testified that at the time she met the husband she had been a realtor employed by Cooper and Company; she noted that during the early years of the parties’ marriage she had kept her job and that she had secured health-insurance coverage for the parties through her employer. The wife noted that several years before trial the husband had insisted that she quit her job and that, after she did so, the wife had become completely financially dependent on the husband. She also stated that after she had left her full-time job as a realtor she had worked as an unpaid receptionist, bookkeeper, and assistant for the husband at his air-conditioning business.

The husband, who was 57 years old at the time of trial, stated that he had purchased the property that the parties had used as the marital residence more than 28 years before he met the wife. In addition to using the property as the parties’ home during the marriage, the husband had used that location as the business address for his company, Theodore Air Conditioning. Although the wife had helped the husband maintain and manage two rental properties acquired by the husband before the marriage, the husband asserted that the wife had not brought any real property into the marriage and, therefore, that she should not receive any portion of his real estate as part of the divorce judgment.

On March 22, 2006, the trial court entered a divorce judgment that, among other things, awarded the wife the marital residence and ordered the husband to pay $350 in monthly alimony until his retirement. That judgment also ordered the husband to pay the wife $27,500 from his IRA. The divorce judgment also divided the parties’ motor vehicles, other personal property, and marital debt between the parties.

The husband appeals and asserts that the trial court erred in dividing the marital property in what he says is an inequitable manner and in awarding the wife a portion of the funds in his IRA. The husband’s initial assertion is that the trial court improperly awarded the wife the marital residence because, he claims, he had acquired that property before the marriage. Dividing marital property and determining whether to award alimony are matters within the sound discretion of the trial court, and the judgment of the trial court is presumed correct when evidence is heard ore tenus. Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001); and Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993). The law is well settled that “ ‘ “property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App.1995)); see also Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996). When dividing marital property and determining the need for alimony, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. Golden, 681 So.2d at 608; see also Ex parte Elliott, 782 So.2d 308, 311-312 (Ala.2000). In examining whether the trial court’s property division amounts to an abuse of its discretion, the proper question to be resolved is whether the property division was equitable under the facts of the case. See Golden, supra.

We note that § 30-2-51(a), Ala. Code 1975, governs the determination as to what property that is part of a parties’ separate estate may be included in a trial court’s division of marital assets. That section specifically authorizes a trial court to consider dividing property acquired by one party before the marriage if “the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.” Although the husband contends that the property used as the marital residence and as his business location was part of his separate estate and should not have been awarded to the wife as part of the property division, the trial court had ample evidence before it indicating that the subject property had been regularly used “for the common benefit of the parties during their marriage.” After applying the Golden factors cited above, the trial court could properly have concluded that for it to construct an equitable property division the wife was entitled to an award of at least one parcel of the real estate used by the parties during the marriage. The trial court clearly believed that allowing the husband to retain his rental properties and his business, which together had provided the only sources of income for the parties during the final five or six years of the marriage more than balanced its award of the marital residence to the wife. We cannot conclude that the trial court erred in its division of real property between the parties.

The husband also challenges the trial court’s award of $27,500 from his IRA to the wife. Whether certain assets are part of a party’s separate estate or are divisible marital property is a determination based upon the facts in each case; such a determination is largely in the trial court’s discretion. See Ex parte Drummond, 785 So.2d at 361; see also Kaufman v. Kaufman, 934 So.2d 1073, 1080 (Ala.Civ.App.2005). The wife produced evidence indicating that the husband’s IRA had totaled only $15,000 when the parties had married in 1990 but that by September 2005 the husband’s IRA had a balance in excess of $70,000. However, the wife did not offer any evidence indicating that the husband had contributed any moneys to the IRA during the parties’ marriage, nor did she levy a claim to any portion of the funds in the IRA during the trial. In fact, when asked what she thought should happen to the IRA in light of the impending divorce, the wife stated, “Give it to him.”

The husband relies on § 30-2-51(b)(2), Ala.Code 1975, which forbids division of a spouse’s retirement benefits acquired before marriage or the interest on such benefits, to support his contention that the award to the wife of $27,500 from his IRA was improper. Although the testimony established the fact that after quitting her realty job, the wife served as an unpaid assistant to the husband, the wife offered no evidence indicating that any moneys had been deposited into the husband’s IRA account during the marriage. Thus, based upon the evidence presented in this case, the trial court could conclude only that the $55,000 increase in the IRA during the marriage simply represented an extraordinary sum of interest and appreciation that had accrued on the premarital account value of $15,000. Without any evidence indicating that a portion of the moneys in the husband’s IRA was divisible under § 30-2 — 51(b)(2), the trial court could not properly award any of the funds in the IRA to the wife. We conclude that the trial court erred when it divided the funds in the husband’s IRA between the parties.

The division of property and the award of alimony are interrelated, and appellate courts review the entire judgment in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996). “A court has no fixed standard to follow in awarding alimony or in dividing marital property[; rjather the award or division need only be equitable and be supported by the particular facts of the case.” Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000). Because we review the award of alimony and the division of marital property together to determine whether the trial court abused its discretion, and because we are reversing the trial court’s judgment insofar as it awards the wife a portion of the funds in the husband’s IRA, we must also reverse the trial court’s judgment as to the property division and alimony award in its entirety. Upon remand, the trial court may adjust those awards so as to create an equitable property division between the parties.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: THOMAS, Judge.

text:
    KING DEVELOPMENT & REALTY, INC. v. Shahrokh ESLAMI.
    2050543.
    Court of Civil Appeals of Alabama.
    March 23, 2007.

      Carl S. Burkhalter and Joshua D. Jones of Maynard, Cooper & Gale, P.C., Birmingham, for appellant.
    Ferris S. Ritchey, Jr., and Nicholas J. Ritchey of Ritchey & Ritchey, P.A., Birmingham, for appellee.
   THOMAS, Judge.

Bang Development & Realty, Inc., filed an unlawful-detainer action in Jefferson District Court against Shahrokh Eslami, demanding to recover the possession of real property it had leased to Eslami because, it alleged, Eslami had failed to pay rent. Eslami answered, denying that he had failed to pay rent, denying that King Development had a right to terminate the lease, and denying that King Development had a right to possession of the property.

The district court entered a judgment in favor of King Development; Eslami appealed to the Jefferson Circuit Court. The circuit court began a bench trial on August 31, 2005, during which the parties informed the court that they thought the matter could be settled. The court continued the case, and Eslami remained in possession of the premises while the parties worked toward a settlement.

After a dispute regarding the terms of a proposed settlement, Eslami filed a motion on October 21, 2005, to enforce a settlement agreement that, he said, had been reached by the parties. On October 31, 2005, King Development filed a motion in opposition, claiming that the parties had not reached a settlement agreement. On November 4, 2005, King Development filed a motion for a writ of restitution, seeking to be restored to possession of the leased premises.

At a hearing on all pending motions, Eslami argued that the parties had entered a binding settlement agreement whereby Eslami agreed that, by September 30, 2005, he would remove all furniture, inventory, and equipment from the premises — with the exception of certain refrigeration equipment that, he said, King Development had agreed to purchase — at which time Eslami would vacate the premises and owe no further rent. Eslami claimed that, in reliance upon the agreement, he had closed his business, sold off his inventory, and removed all furniture and equipment except the refrigeration equipment, but, he asserted, King Development had repudiated the agreement. Eslami sought damages for expenses incurred and profits lost, as well as an attorney fee. In response, King Development argued that the parties had not reached a settlement agreement. On December 9, 2005, the circuit court denied Eslami’s motion to enforce settlement, denied King Development’s motion to issue a writ of restitution, and, concluding that there were “several remaining unresolved issues between the parties,” set the case for a bench trial on February 21, 2006.

The evidence at trial established that on March 1, 2004, the parties had entered into a five-year lease by which King Development leased to Eslami commercial property on which Eslami planned to operate a grocery store and delicatessen known as Ivy’s Market. Eslami testified that, in preparation for opening the market, he spent over $150,000 installing commercial refrigeration equipment — consisting of five refrigeration boxes, a 10-foot refrigerated drink box, a walk-in cooler, and several heavy compressors — that required specialized plumbing and wiring connections on the leased premises. The evidence established that the refrigeration equipment was not “the plug-in type,” but was attached to the realty through “refrigeration lines and hard-wire electrical conduits.” Eslami explained that, after he had installed his refrigeration equipment, King Development installed a new tile floor around, but not underneath, the equipment. In addition, King Development had a wall and some shelving built above the equipment.

Chris King, the president of King Development, operated a laundromat adjacent to Ivy’s Market. Eslami testified that he paid the first three months’ rent by personally taking a check to King at the laundromat next door. After King questioned Eslami’s payment of the May 2004 rent, however, Eslami began paying the rent by taking a check each month to the office of King’s attorney. Eslami continued that practice from June 2004 to November 2004. When Eslami went to the attorney’s office to deliver his check for the December rent, the attorney’s secretary told Es-lami that she had been instructed not to accept the rent payments from Eslami anymore.

On the advice of his counsel, Eslami sent the rent payments for the months of December 2004 and January 2005 by certified mail to Chris King at the office of King Development. At trial, Eslami presented unopened envelopes containing his December and January rent payments that had been returned to him by the United States Postal Service. Each envelope bore a postal service notation indicating that three attempts had been made to deliver the envelope to King before it was eventually returned to Eslami. The trial court admitted the envelopes in evidence and opened them at trial, verifying that they did, in fact, contain the rent payments for December 2004 and January 2005.

On February 10, 2005, King Development filed the unlawful-detainer action. Eslami paid the rents for February and March 2005 by certified mail to Chris King at the office of King Development. Chris King testified that he had received the February and March checks. He stated that, because the unlawful-detainer action against Eslami was pending, he delivered the checks to his attorney to return to Eslami.

The circuit court entered a judgment on February 28, 2006, that states, in pertinent part:

“The Court having heard arguments of counsel, testimony of witnesses and upon review of all of the evidence submitted at trial, finds that [King Development] did not have grounds to terminate [Eslami’s] lease for non-payment of rent when [King Development] refused to accept via certified mail rent sent by [Es-lami].
“This Court recognizes that, a Lessee’s tenancy can be terminated for non-payment of rent. However, this Court does not find that to be the case here. It appears from the evidence presented to this Court that the behavior on the part of [Chris King] by refusing to accept payment for rent when tendered in a timely manner, was deliberate, calculated to lead to the termination of lease for ‘non-payment’ of rent.
“This Court further finds that [Esla-mi] removed his merchandise and ceased doing business at [King Development’s] property in September of 2005.
“It is hereby ordered, adjudged and decreed that:
“1. That the Clerk of Court issue a check in the amount of $36,115.02 plus accrued interest to [King Development]. Said monies are being held pending the outcome of this hearing pursuant to Ala.Code, § 6-6-351.
“2. That [Eslami] pay [King Development] additional monies in the amount of $29,741.36 that should have been paid pursuant to § 6-6-351.
“3. That [Eslami] has 15 days from the date of this Order to remove refrigeration systems and other equipment from premises located at 1401 and 1405 15th Street South, Birmingham, AL without damaging [King Development’s] property.
“4. That the Clerk of Court shall issue a Writ of Restitution to restore possession of the premises in 15 days from the date of this order.
“5. That [King Development] pay [Eslami] $29,741.31 in damages for unlawfully terminating [Eslami’s] lease plus [Eslami’s] attorney fees and costs for defending this action.”

King Development appealed the judgment to the Alabama Supreme Court. The supreme court transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

I.

King Development first argues that the circuit court erred by awarding Eslami damages of $29,741.31 for the unlawful termination of the lease because, it contends, the issue whether it unlawfully terminated the lease was neither pleaded by Eslami nor tried by the express or implied consent of the parties, as contemplated by Rule 15(b), Ala. R. Civ. P.

Rule 54(c), Ala. R. Civ. P., states, in pertinent part:

“[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.”

See also 2 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 54.4 at 159 (4th ed. 2004) (stating that “a judgment shall grant relief to a defending party even though he has not demanded relief in his pleadings where evidence showed an undisputed right to such relief’).

Citing Carden v. Penney, 362 So.2d 266 (Ala.Civ.App.1978), King Development asserts that, because Eslami did not file a counterclaim seeking damages for unlawful termination of the lease, it had no notice that it would be required to defend against such a claim. In Carden, this court held:

“Under the provisions of Rule 54(c) of the Alabama Rules of Civil Procedure it is the duty of the court to grant relief to which a party is entitled irrespective of the request for relief contained in the pleadings. However, Rule 54(c) does not sanction the granting of relief not requested in the pleadings where it appears that a party’s failure to ask for particular relief has substantially prejudiced the opposing party. Moreover, if the relief granted pursuant to Rule 54(c) is not justified by the proof or is justified by proof which the opposing party has not had an opportunity to challenge, the relief granted should not be sustained on appeal. Accordingly, logic dictates that in those situations where an opposing party has no notice, by pleadings or otherwise, regarding the claim upon which relief is granted by means of Rule 54(c) and is thereby denied an opportunity to have challenged or defended against such a claim, the opposing party has suffered substantial prejudice and the judgment granting relief must be reversed. Indeed, such a rule is fundamental to the essentials of due process and fair play.”

362 So.2d at 268-69 (citations omitted).

Although Eslami did not file a counterclaim seeking damages for unlawful termination of the lease, he answered the complaint and specifically “denie[d] that his right to possession of the premises ... ha[d] been lawfully terminated.” In addition, Eslami’s opening statement at trial put King Development on notice that Esla-mi was contesting the lawfulness of the termination of his lease. From the record:

“MR. F. RITCHEY [Eslami’s counsel]: I would just like to say that this is an unlawful proceeding ... brought against Mr. Eslami here, who was renting a piece of property from Mr. King ... for hi[s] failing to pay rent for the months of ... December 2004 and January, February, and March 2005.... We are claiming that rent was paid for those four months, but that [King Development] refused to accept the payment. ... We are claiming that there was no basis for the unlawful-detainer decision [of the district court].”

Moreover, in response to evidence indicating that Eslami had sent his December 2004 and January 2005 rent payments by certified mail to Chris King at the office of King Development but that King had refused to accept the payments, Chris King attempted to refute Eslami’s proof with the following testimony:

“Q. [By King’s counsel] To your knowledge, ... has [Eslami] ever tried to pay December of '04 or January of '05 rent to you at any time?
“A. No, sir.
“Q. And you were seeing him on a daily basis during that time, is that correct?
“A. At least twice a day, yes, sir.”

We conclude that King Development has no basis upon which to argue that the issue whether it unlawfully terminated the lease was not properly presented and tried, thereby allowing the circuit court to rule on the merits of the issue, because the record reveals that, throughout the trial, Eslami argued that Chris King had an “ulterior motive” in seeking to evict Esla-mi and “manufactured” a reason to terminate the lease. For example, Eslami elicited testimony on cross-examination of King that King had been advised by his attorney that certain improvements made by a tenant, such as bathroom fixtures or refrigeration equipment, belonged to the tenant “as long as [the tenant] has a lease in place and pays his rent.” King acknowledged that his attorney had also advised him that such fixtures and equipment “belong to the landlord ... if [the tenant] defaults on the lease.” On more than one occasion during the trial, Eslami argued that the inference to be drawn from such testimony was that Chris King, on behalf of King Development, had deliberately sought to evict Eslami in order to retain possession of the valuable refrigeration equipment that Eslami had installed.

We conclude that the issue of unlawful termination of the lease was raised in Es-lami’s pleading and was tried by the express or implied consent of the parties. In Hawk v. Bavarian Motor Works, 342 So.2d 355 (Ala.1977), the supreme court held that the issues in count seven of the plaintiffs complaint were “properly presented and tried,” 342 So.2d at 358, because “defendants had substantially answered the allegations of that county ... plaintiff introduced the issues ... in his opening statement[, and] both plaintiff and defendants offered evidence directed to those issues,” id.

Because King Development was not denied notice or an opportunity to challenge or defend against the claim that it unlawfully terminated Eslami’s lease, the trial court was authorized to award Eslami relief on that claim pursuant to Rule 54(c).

II.

King Development next maintains that the award of damages to Eslami was contrary to law because, it says, Eslami did not produce sufficient evidence to allow the circuit court to assess damages without resorting to guesswork.

As paragraph 1 of the circuit court’s judgment reflects, Eslami initially paid $36,115.02 in security pursuant to § 6-6-351, Ala.Code 1975. Paragraph 2 of the judgment awards King Development $29,741.36, representing “additional monies ... that should have been paid pursuant to § 6-6-351” after September 30, 2005. The award of $29,741.31 to Eslami in paragraph 5 of the judgment merely offsets the award to King Development in paragraph 2, reflecting the circuit court’s findings that

“[King Development] did not have grounds to terminate [Eslami’s] lease for non-payment of rent when [King Development] refused to accept via certified mail rent sent by [Eslami].”

and

“[Eslami] removed his merchandise and ceased doing business at [King Development’s] property in September of 2005.”

The evidence was undisputed that, by September 30, 2005, Eslami had discontinued his business, had removed his inventory and furniture, and had arranged to sell his refrigeration equipment for its salvage value. The circuit court’s award of $29,741.31 to Eslami did not award Eslami damages for the 16 months’ of lost profits that Eslami undoubtedly experienced between September 30, 2005, and the date of trial, nor did it award Eslami the difference between the fair market value and the salvage value of his refrigeration equipment — damages awards that, had they been made, would have been speculative in light of the evidence presented. Instead, the circuit court’s award to Eslami offset the rents that would have accrued from September 30, 2005, to the date of trial— rents to which King Development would have been entitled pursuant to § 6-6-351 had there been no unlawful termination of the lease.

The circuit court’s award to Eslami did not require the circuit court to resort to “guesswork.” It required only that the circuit court be convinced that King Development had unlawfully terminated Esla-mi’s lease.

III.

Finally, King Development argues that the award of an attorney fee to Eslami was unauthorized by Alabama law.

In Eagerton v. Williams, 433 So.2d 436, 450 (Ala.1983), the supreme court stated:

“In Alabama, attorneys’ fees are recoverable only where authorized by statute, when provided in a contract, or by special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be paid.”

This rule is known as “the American rule.” Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So.2d 1238, 1240 (Ala. 1985). Because Eslami is not entitled by a statute or a contract to receive an attorney fee, the circuit court’s award must be justified, if at all, by the equitable exception.

In Reynolds, supra, the court reversed a trial court’s judgment declining to shift the litigation costs, including attorneys fees, to the party that caused the plaintiffs’ loss and created the necessity for the litigation. The court discussed the equitable exception to the American rule at length:

“In the United States Supreme Court case of Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), the Court explained in no uncertain terms that the [American] rule may be overridden if the equities justify it. Justice Brennan, speaking for the Court, said:
“ ‘Although the traditional American rule ordinarily disfavors the allowance of attorneys fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys fees when the interests of justice so require. Indeed, the power to award such fees “is part of the original authority of the chancellor to do equity in a particular situation,” and federal courts do not hesitate to exercise this inherent equitable power whenever “overriding considerations indicate the need for such a recovery.”
“ ‘Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted “in bad faith, vexatiously, wantonly, or for oppressive reasons.... In this class of cases, the underlying rationale of “fee shifting” is, of course, punitive, and the essential element in triggering the award of fees is therefore the existence of “bad faith” on the part of the unsuccessful litigant.
“[Hall v. Cole,] 412 U.S. at 4-5, 93 S.Ct. at 1945. (Footnotes omitted).”

Reynolds, 471 So.2d at 1242 (internal citations in Hall omitted). After reviewing other federal and Alabama state court decisions, the Reynolds court quoted from Corpus Juris as follows:

“ ‘ “Apart from the sums allowable and taxed as costs, there can, as a general rule, be no recovery as damages for the costs and expenses of litigation or expenditures for counsel fees. In cases of civil injury or breach of contract, in which there is no fraud, willful negligence, or malice, the courts have considered that an award of costs in the action is sufficient to cover the expenses of litigation and make no allowance for the time, indirect loss and annoyance.’ ”

Reynolds, 471 So.2d at 1243 (quoting Moss v. Winston, 223 Ala. 515, 517, 137 So. 303, 304-05 (1931), quoting, in turn 17 C.J. 807). The court summarized its holding:

“The obvious conclusion to be reached from this quote is that Alabama recognizes exceptions to the American Rule where fraud, willful negligence or malice has been practiced.”

Reynolds, 471 So.2d at 1243.

We conclude that the facts presented to the circuit court in the instant case fall within the parameters of the “special equity” exception to the American Rule discussed in Reynolds. The circuit court heard evidence from which it was authorized to find that Chris King, acting on behalf of King Development, maliciously and in bad faith refused to accept rent payments from Eslami, its tenant, with the intent to declare Eslami in default and to terminate the lease so as to gain possession of the valuable refrigeration equipment that the tenant had installed on the leased premises. Compare Hall v. Hall, 903 So.2d 78, 82 (Ala.2004) (acknowledging the existence of the special-equity exception to the American rule for cases in which the party sought to be charged with an attorney fee has been guilty of misconduct amounting to fraud, willful negligence, or malice, but holding that the “the trial court implicitly found that [the one against whom a fee was sought to be imposed] was not guilty of misconduct that would require such a sanction”).

The circuit court made the following finding:

“It appears from the evidence presented to this Court that the behavior on the part of [Chris King] by refusing to accept payment for rent when tendered in a timely manner, was deliberate, calculated to lead to the termination of lease for ‘non-payment’ of rent.”

(Emphasis added.) The finding that King’s action was “deliberate [and] calculated to lead to the termination of [the] lease” was tantamount to a finding of malice. See Ex parte Nall, 879 So.2d 541, 546 (Ala.2003)(stating that “malice is defined as ‘[t]he intent, without justification or excuse, to commit a wrongful act ....’” (quoting Black’s Law Dictionary 968 (7th ed. 1999))); Willis v. Parker 814 So.2d 857, 863-64 (Ala.2001)(quoting Dillon v. Nix, 55 Ala.App. 611, 613-14, 318 So.2d 308, 310 (Civ.App.1975)) (stating that “ ‘[m]alice in a malicious prosecution action has been defined as whatever is done willfully and purposely, whether the motive is to [injure the] accused, [or] to gain some advantage to the prosecutor -’”); § 6-ll-20(b), Ala.Code 1975 (defining malice as “[t]he intentional doing of a wrongful act without just cause or excuse, either ... [w]ith an intent to injure the person or property of another person or entity or ... [u]nder such circumstances that the law will imply an evil intent”).

In essence, the circuit court could have determined that there was an equitable basis for awarding Eslami an attorney fee in the present case because King Development’s bad-faith termination of the lease resulted in King Development’s being unjustly enriched. See Humphrey v. Humphrey, 254 Ala. 395, 48 So.2d 424 (1950) (voiding the forfeiture of a lease when the tenant had made substantial valuable improvements to the leased premises, the location of the leased premises was the only one from which the tenant could operate his business, and the loss of that location would end the tenant’s business).

The judgment of the Jefferson Circuit Court is affirmed.

AFFIRMED.

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

      . Rule 15(b) provides, in pertinent part:
      "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”

      . Section 6-6-351 allows a landlord "to execute on a favorable district court judgment during the pendency of an appeal to the circuit court if the appealing [tenant] does not provide adequate security to supersede the judgment .... |T]he security is ... calculated based upon a defendant's actual monthly rent obligation accruing since the filing of a complaint in the district court." Adams v. Birmingham Towers, Ltd., 709 So.2d 1286, 1288 (Ala.Civ.App.1998).

      . The $.05 difference in the two awards is apparently a clerical error.


author: MOORE, Judge.

text:
    Isaiah HOLMES v. Susie Mae JOHNSON.
    2050912.
    Court of Civil Appeals of Alabama.
    March 23, 2007.

      J. Russell Pigott, Foley, for appellant.
    Creóla G. Ruffin, Mobile, for appellee.
   MOORE, Judge.

Isaiah Holmes appeals from the trial court’s denial of his postjudgment motion filed pursuant to Rule 60, Ala. R. Civ. P. We hold that the trial court lacked jurisdiction to determine that motion; thus, we dismiss this appeal.

On May 1, 2003, Susie Mae Holmes, now Susie Mae Johnson, filed a complaint against Holmes. On April 30, 2004, the trial court entered a judgment; it apparently amended that judgment on May 17, 2004. On May 27, 2004, Holmes filed a motion to alter, amend, or vacate the trial court’s judgment. After a hearing, the court denied Holmes’s motion, and Holmes appealed to this court. We transferred the appeal to the Alabama Supreme Court for lack of appellate jurisdiction; that Court affirmed the trial court’s judgment, without a published opinion. See Holmes v. Holmes, (No. 1031836, Aug. 12, 2005) 946 So.2d 540 (Ala.2005) (table).

On September 1, 2005, Holmes filed a motion for relief from the April 30, 2004, judgment, pursuant to Rule 60(b), Ala. R. Civ. P. On September 9, 2005, the trial court denied the September 1, 2005, motion. On October 11, 2005, Holmes filed a motion to reconsider the denial of his Rule 60 motion, which the trial court purported to deny on November 16, 2005.

On January 11, 2006, Holmes filed another Rule 60(b) motion for relief from the April 30, 2004, judgment, citing the same grounds that he had asserted in his September 1, 2005, postjudgment motion. The trial court purported to deny Holmes’s January 11, 2006, motion on April 25, 2006. On May 10, 2006, Holmes appealed the denial of his January 11, 2006, motion.

Even though the issue has not been addressed by either party, this court must first determine whether the trial court had jurisdiction to enter an order on Holmes’s January 11, 2006, motion. “ “We must consider, ex mero motu, questions of jurisdiction; and where a judgment appealed from is void for want of jurisdiction we have no alternative but to dismiss the appeal.’” McLendon v. Hepburn, 876 So.2d 479, 481 (Ala.Civ.App.2003) (quoting City of Huntsville v. Miller, 271 Ala. 687, 689,127 So.2d 606, 608 (1958)).

Our Supreme Court has stated:

“Successive Rule 60(b)[, Ala. R. Civ. P.,] motions brought on the same grounds are impermissible because they are ‘generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).’ Wadsworth v. Market Ins. Co., 906 So.2d 179, 182 (Ala. Civ.App.2005). A motion to reconsider the trial court’s denial of a postjudgment motion is barred because after the denial the trial court loses jurisdiction over the action. Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1070 (Ala.1999); see also Ex parte Jordan, 779 So.2d 183,184 (Ala.2000); Ex parte Vaughan, 539 So.2d 1060, 1061 (Ala.1989); [Ex parte] Dowling, 477 So.2d [400,] 404 [ (Ala.1985) ].”

Pinkerton Sec. & Investigation Servs., Inc. v. Chamblee, 961 So.2d 97, 101-02 (Ala.2006).

Because the trial court lacked jurisdiction to determine Holmes’s January 11, 2006, Rule 60(b) motion, its purported denial of that motion is void. “A void judgment will not support an appeal.” Pinkerton, 961 So.2d at 105. Therefore, we must dismiss this appeal.

APPEAL DISMISSED.

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

      . That motion is not in the record on appeal.


author: THOMPSON, Presiding Judge.

text:
    STATE of Alabama v. ONE 1987 TOYOTA TRUCK and Everette Ross Speaks.
    2051036.
    Court of Civil Appeals of Alabama.
    March 23, 2007.

      Troy King, atty. gen., and Marc A. Star-rett, asst. atty. gen., for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

The State appeals from a judgment of the trial court denying the State’s request for the forfeiture of Everette Ross Speaks’s 1987 Toyota truck (“the truck”). We reverse and remand.

On December 17, 2004, the State filed a complaint in the trial court alleging that the truck had been used to facilitate the “transportation, sale, receipt, possession, manufacture or concealment” of a controlled substance and that the truck was subject to forfeiture pursuant to § 20-2-93, Ala.Code 1975. Speaks answered on December, 21, 2004.

On June 26, 2006, the trial court held a bench trial at which it heard ore tenus evidence. Lanny Ransom, an investigator for the Town of Leesburg and for the Cherokee County narcotics unit testified that, on December 3, 2004, he responded to a call regarding Speaks from his fellow law-enforcement agent Jeff Morgan. Morgan informed Ransom that Speaks was behaving in an irate manner at the Lees-burg Town Hall. When Ransom arrived at the town hall, Speaks was apologizing for “creating a scene.” Speaks denied to Ransom and Morgan that he had been using any kind of narcotics, and Speaks orally consented to a search of the truck. Upon searching the truck, Morgan found a purple bag containing eight pills and two bags of a substance that appeared to be methamphetamine, a schedule III controlled substance. See § 20-2-27, Ala.Code 1975. Morgan took all three bags to a lab for testing. The substance in one of the bags tested positive for approximately three grams of methamphetamine.

Ransom testified that three grams of methamphetamine is a large amount for personal use and that that amount could be consistent with distribution activities. Ransom stated, however, that he did not think that Speaks was illegally selling drugs and that, other than the amount of the drug seized, he had no reason to think that Speaks was involved in distribution. Ransom also stated that Speaks had been charged with a possession offense as a result of the substances found in his vehicle but that he had not been charged with a distribution offense. Ransom testified that the approximate street value of methamphetamine is $100 per gram.

Ransom further testified that he has had some experience selling motor vehicles and that he has owned several Toyota trucks, including a model similar to Speaks’s truck from the same model year as Speaks’s truck. Ransom stated that, based on his experience, he would estimate the value of the truck to be approximately $5,000.

After the trial, on July 12, 2006, the trial court entered a final judgment, which stated, in part:

“The arresting officer testified that the street value of the methamphetamine was approximately $100. He estimated the Toyota truck to be valued at $5,000.
“The defendant was charged with possession of a controlled substance, pleaded guilty pursuant to a plea agreement and is serving probation for a period of three years upon recommendation of the state.
“Counsel for Everett Ross Speaks maintains that the forfeiture of his client’s vehicle would be disproportionate to the gravity of the offense.
“Given the small quantity of controlled substances found in the vehicle compared to the substantial value of the vehicle, the court agrees and finds that forfeiture would be sufficiently disproportional to the gravity of the offense to make forfeiture unconstitutionally excessive. See Ex parte Kelley, 766 So.2d 837 (Ala.1999).
“Accordingly, IT IS ADJUDGED that the State’s request for condemnation and forfeiture of the subject vehicle is denied, and the vehicle shall be returned to Everett Ross Speaks.”

The State subsequently filed a motion to alter, amend, or vacate the trial court’s judgment. In its motion, the State claimed that the trial court misunderstood the evidence, because the court stated that the value of the methamphetamine taken from the truck was $100 rather than, as Ransom testified, $100 per gram. The State also argued that the trial court improperly applied the relevant law regarding excessive fines.

On September 6, 2006, the trial court held a hearing on the State’s postjudgment motion, and on September 15, 2006, the trial court entered another order in which it stated, in part:

“The basis for the court’s refusal to condemn and forfeit the subject vehicle was that the forfeiture would be disproportionate to the gravity of the offense committed by Speaks. The State’s motion to alter, amend or vacate asserts 1) that the court misunderstood the evidence in that it misstated the street value of the methamphetamine seized from the vehicle; 2) that the court misunderstood the law; and 3) that the court’s order is contrary to the great weight of the evidence and the law.
“The State’s motion is correct in asserting that the court misstated in its order that the street value of the methamphetamine seized was $100, when, in fact, the evidence was that the street value was $100 per gram. It follows that the substance identified as three grams of methamphetamine had a street value of $300.
“The State’s complaint seeking condemnation and forfeiture of the subject vehicle was filed on December 17, 2004. Speaks was indicted for unlawful possession of a controlled substance on November 15, 2005, and entered a plea of ‘guilty’ pursuant to a plea agreement on May 12, 2006. Under the terms of the plea agreement, Speaks was sentenced to ten years in the state penitentiary, assessed court costs of $892, and required to pay a drug demand reduction assessment of $1,000. No fine was assessed, and pursuant to the State’s recommendation, Speaks’[s] sentence was suspended and he was placed on probation for a period of three years.
“In determining whether the forfeiture of property is grossly disproportionate to the gravity of the offense and, therefore, excessive, there is no definitive checklist of relative factors. The State urges the court to look primarily at the fact that the court could have assessed a fine of up to $10,000 in this case. The maximum fine that the court could have assessed was enhanced from $5,000 to $10,000 because Speaks had a prior conviction in 1989 for theft of property, second degree. Indeed, this is one relative factor. It has been recognized, however, that relevant factors will vary from case to case, and that it may be appropriate in some circumstances to examine both the punishment available as well as the punishment actually imposed. It is also relevant to examine the culpability of the claimant. See United States v. One 1992 Isuzu Trooper, 51 F.Supp.2d 1268 (M.D. Alabama 1999); Ex Parte Kelley, 766 So.2d 837 (Ala.1999). In Kelley, supra, the Alabama Supreme Court considered the fact that the claimant was adjudged a youthful offender, assessed no fine, and placed in drug court as relevant factors in reaching the conclusion that the forfeiture of his automobile was excessive.
“If the available punishment is to be the controlling factor in this inquiry, then the forfeiture of Speaks’[s] vehicle does not constitute an excessive fine. It appears to the court, however, that in the circumstances of this case, the available punishment is not the most instructive factor in judging the gravity of the offense, and that it should not be controlling. The relatively small quantity of drugs seized and the fact that there is no evidence or other indication that the claimant possessed the drugs for sale or distribution appear much more instructive in judging the gravity of the offense than the available punishment. The proof established the substances seized were three grams of methamphetamine and eight tablets containing Oxycodone [a prescription pain-relief medication]. There were no sums of cash found in Speaks’[s] possession nor other indicia to indicate that he was dealing in drugs. Although mere possession of unlawful drugs in a vehicle can justify forfeiture of the vehicle, the fact that the evidence in this case points toward possession for personal use bears on the gravity-of-the-offense issue.
“Also instructive in judging the gravity of the offense in this case is the fact that the State recommended to the court that the claimant’s sentence be suspended and that he be placed on probation.
“For the reasons stated, the court reaffirms its finding that a forfeiture of the subject vehicle would be unconstitutionally excessive, and it is adjudged that the State’s motion to alter, amend or vacate is denied.”

Following the entry of the trial court’s September 15, 2006, order, the State timely appealed to this court. On appeal, the State argues that the trial court erred in holding that the forfeiture of the truck would be constitutionally excessive. Speaks did not file a brief on appeal with this court.

As the United States Supreme Court has held, the prohibition against excessive fines found in the Eighth Amendment to the United States Constitution applies to limit the severity of the penalty in civil-forfeiture actions. Austin v. United States, 509 U.S. 602, 604, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). Also, due to incorporation through the Fourteenth Amendment, the Excessive Fines Clause applies to the states as well as to the federal government. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-34, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). The “question whether a fine is constitutionally excessive calls for the application of a constitutional standard to the facts of a particular case, and in this context de novo review of that question is appropriate.” United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998).

A forfeiture violates the Excessive Fines Clause of the Eighth Amendment if it is “grossly disproportional to the gravity of the defendant’s offense.” Id. at 334,118 S.Ct. 2028. As the trial court noted, Speaks pleaded guilty to unlawful possession of controlled substances, which is a cláss C felony as codified at § 13A-12-212, Ala.Code 1975. At the time Speaks pleaded guilty, a class C felon could receive a sentence of up to 10 years in prison and a fine of up to $5,000. See § 13A-5-6, Ala. Code 1975; and § 13A-5-11, Ala.Code 1975. The State argues that, because the crime to which Speaks pleaded guilty could have subjected him to a fine of $5,000, the forfeiture of his truck worth $5,000 would not be grossly disproportional to the gravity of his offense.

Alabama courts have consistently upheld the constitutionality of, forfeitures of property when the value of such property was below or reasonably proportional to the maximum applicable criminal fine. See Harris v. State, 821 So.2d 177, 186 (Ala.2001); Spears v. State, 929 So.2d 477, 479-80 (Ala.Civ.App.2005); and Alexander v. State, 925 So.2d 214, 216 (Ala.Civ.App.2005).

In Harris v. State, our supreme court held that the forfeiture of $165,501 in currency was not constitutionally excessive for conduct potentially subjecting the owners of the currency to a criminal penalty of $250,000. 821 So.2d at 186. The supreme court explained that the trial court had before it evidence indicating that at least one of the owners had been “ ‘involved in a high-profit business of narcotics sales’ ” and that applicable criminal penalties for such activities ranged from $50,000 to $250,000. Id. at 183. Based on that range of penalties, the supreme court held that forfeiture of $165,501 was not a constitutionally excessive fine. Id.

Subsequently, in two cases in which the value of the forfeiture exceeded the applicable criminal penalties, Spears v. State and Alexander v. State, this court held that such forfeitures did not violate the United States Constitution because the forfeitures were not grossly disproportional to the gravity of the offense. In Alexander v. State, we held that the forfeiture of a vehicle valued at $12,000 was not excessive when the owner of the vehicle pleaded guilty to two offenses that could subject him to a maximum total fine of $10,000. 925 So.2d at 216. Similarly, in Spears v. State, we held that the forfeiture of a vehicle worth $30,000 was not excessive even though the value of the vehicle was three times the applicable maximum criminal penalty of $10,000. 929 So.2d at 477.

In cases in which Alabama courts have applied a proportionality test similar to that applied in Bajakajian to hold that a given forfeiture is constitutionally excessive, the courts have based their holdings on facts that showed that the value of the forfeiture was many times greater than the maximum applicable criminal fine. See Ex parte Kelley, 766 So.2d 837, 840 (Ala.1999); and Dent v. State, 714 So.2d 985, 987 (Ala.Civ.App.1997). In Ex parte Kelley, the State sought the forfeiture of a vehicle after a police search of the vehicle revealed several controlled substances. The supreme court compared the $30,000 value of the vehicle to the maximum applicable criminal fine, which was $5,000, and held that the forfeiture of property worth approximately six times the ■ maximum criminal fine was constitutionally excessive. 714 So.2d at 987. Similarly, in Dent v. State, this court held that the forfeiture of a van worth $18,000 was excessive because $18,000 was 9 times greater than the maximum applicable criminal fine of $2,000 and 72 times greater than the $250 fine that the owner actually received.

In this case, the trial court found the value of the truck to be $5,000, which is equal to the maximum criminal penalty Speaks could have faced after pleading guilty to unlawful possession of a controlled substance. Under the facts of this case, we cannot hold that the forfeiture of Speaks’s truck rises to the level of forfeitures our courts have found constitutionally excessive in Ex parte Kelley and Dent v. State.

We also note that the case on which the trial court relied in reaching its judgment is distinguishable from this case. In United States v. One 1992 Isuzu Trooper, 51 F.Supp.2d 1268 (M.D.Ala.1999), the District Court for the Middle District of Alabama held that the forfeiture of a vehicle that was being driven by the owner’s boyfriend when illegal drugs were found in the vehicle was constitutionally excessive considering that the owner did not know or consent to the use of her vehicle to transport illegal drugs. United States v. One 1992 Isuzu Trooper, 51 F.Supp.2d at 1274. The district court noted that “[i]n deciding whether the fine which results from a forfeiture is excessive, there is no definitive checklist of relevant factors. ‘The relevant factors will vary from case to case.’ ” United States v. One 1992 Isuzu Trooper, 51 F.Supp.2d at 1273 (quoting United States v. One Parcel Property Located at 427 and 129 Hall Street, Montgomery, Alabama, 74 F.3d 1165, 1172 (11th Cir.1996)). The district court also mentioned that “other courts have noted that the factors could include (1) the culpability of the claimant; (2) the gravity of the crime; (3) the sentence that could have been imposed on the perpetrator of the offense; and (4) the nature and value of the property forfeited.” Id. at 1273 n. 4. In holding that the forfeiture of the owner’s vehicle would be excessive, the district court emphasized that, despite the federal action for forfeiture, the owner’s boyfriend had not been convicted of a federal offense. The court also emphasized that the owner of the vehicle had no involvement in the illegal activity on which the United States based its action for forfeiture. Id. at 1274.

However, unlike the owner in United States v. One 1992 Isuzu Trooper, supra, Speaks was directly involved in the criminal activity for which the State is seeking the forfeiture of his truck. Also, Speaks pleaded guilty to the Alabama offense of unlawful possession of a controlled substance, and the State now seeks the forfeiture of his vehicle. Because the factors that counseled against forfeiture in United States v. One 1992 Isuzu Trooper do not weigh against forfeiture in this case, and because the value of the truck is exactly the same as the maximum applicable criminal fíne, we hold that the forfeiture of the truck does not violate the Eighth Amendment to the United States Constitution. Accordingly, we reverse the trial court’s judgment holding that the forfeiture of the truck would be constitutionally excessive.

We note that the trial court’s judgment does not state whether it found that the State was otherwise entitled to the forfeiture of the truck. To justify the forfeiture of a vehicle, the trier of fact must be reasonably satisfied that the vehicle was used to illegally transport or to facilitate the sale, receipt, possession, or concealment of a controlled substance. Ex parte Dorough, 773 So.2d 1001, 1003 (Ala.2000). Therefore we remand this case to the trial court so that it may enter a determination as to whether it was reasonably satisfied that the State is entitled to the forfeiture of the truck.

REVERSED AND REMANDED.

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

      . After Speaks entered his guilty plea, § 13A-5-11 was amended by Act No. 2006-197, § 1, Ala. Acts 2006, to allow imposition of a fine of up to $15,000 for conviction of a class C felony.

      . The State points out that because Speaks had a prior conviction for another felony, i.e., theft of property, the maximum fine to which he was potentially subject was increased from $5,000 to $10,000 pursuant to § 13A-5-9, Ala.Code 1975. The State argues, therefore, that $10,000 is the figure that should be used in determining whether the potential forfeiture would be grossly disproportional to the gravity of Speaks’s offense. We are not convinced that it would be proper to compare the potential forfeiture to a potential sentence derived from enhancement due to prior convictions. However, we do not find it necessary to address this issue because, as discussed below, we hold that the fact that a $5,000 fine can be imposed for the basic possession offense to which Speaks pleaded guilty is sufficient to demonstrate that the forfeiture of the truck would not be constitutionally excessive in this case.

      . Dent v. State was decided before the United States Supreme Court’s decision in Bajakaji-an; however, this court applied in Dent a proportionality test similar to that applied by the Bajakajian Court. See Dent v. State, 714 So.2d at 987.


author: THOMAS, Judge. BRYAN, Judge,

text:
    L.L.M. v. J.M.T.
    2050744.
    Court of Civil Appeals of Alabama.
    March 30, 2007.

      D. Milborn Gross, Jr., and Jonathan W. Pippin of Abies Baxter, Parker & Hall, P.C., Huntsville, for appellant.
    Stephanie W. Werdehoff of Werdehoff & Werdehoff, Huntsville, for appellee.
   THOMAS, Judge.

L.L.M. (“the mother”) appeals from a circuit court judgment setting aside as void for lack of subject-matter jurisdiction a juvenile court judgment that adjudicated J.M.T. to be the father of D.L.T. (“the child”), awarded the mother sole physical custody of the child, and ordered J.M.T. to pay child support.

The parties were never married; they lived together from 2002 to 2004. In 2003, the mother gave birth to D.L.T. J.M.T. acknowledged paternity of the child, pursuant to the provisions of the “hospital paternity acknowledgment program,” set forth in § 26-17-22, Ala.Code 1975, and his name appears as the name of the child’s father on the child’s birth certifí-cate.

The parties separated on May 16, 2004. The following day, J.M.T. filed a complaint in the Madison Circuit Court, alleging that he was the legal father of the child, seeking custody of the child, and requesting pendente lite custody and child support from the mother. One week later, the mother filed a petition in the Madison Juvenile Court, requesting that that court establish paternity of the child, award her custody of the child, and order J.M.T. to pay child support.

On June 18, 2004, the parties appeared in the circuit court, stipulated that J.M.T. was the “legal and biological father” of the child, and presented evidence with respect to which party should be awarded custody pendente lite. On June 22, 2004, the circuit court awarded J.M.T. custody pen-dente lite. However, because there were custody proceedings pending in both the circuit court and the juvenile court, the circuit court requested the parties to file briefs with respect to which court had subject-matter jurisdiction of the case. The circuit court also requested the juvenile court judge to make a recommendation concerning subject-matter jurisdiction. Following its receipt of the parties’ briefs and the juvenile judge’s recommendation, the circuit court, on September 13, 2004, entered the following order:

“To the extent allowed by law to do so, this case is transferred to the Juvenile Court Division of the District Court of Madison County, Alabama, for proper adjudication of those claims presented herein.”

On November 4, 2004, the juvenile court entered a judgment adjudicating J.M.T. to be the father of the child, awarding the parties joint legal custody of the child and the mother sole physical custody of the child, and ordering J.M.T. to pay $376 per month in child support. The mother filed a postjudgment motion on November 16, 2004; the juvenile court denied that motion on November 22, 2004. J.M.T. filed an untimely notice of appeal on December 7, 2004; his appeal was subsequently dismissed.

On January 20, 2005, J.M.T. filed in the circuit court a complaint that he designated as a “Collateral Attack on Void Judgment for Lack of Subject Matter Jurisdiction, Petition to Reinstate Action to Court’s Calendar, and Petition for Custody,” alleging that the juvenile court did not have subject-matter jurisdiction to “establish paternity,” pursuant to § 12-15-31(2), Ala.Code 1975, because, he said, his paternity had already been “established” and was not in dispute. The mother answered, asserting, among other defenses, waiver, the doctrine res judicata, and collateral estoppel. On J.M.T.’s motion, the circuit court entered a partial summary judgment, holding that the juvenile court’s November 4, 2004, judgment was void for lack of subject-matter jurisdiction and reinstating J.M.T.’s custody petition to the circuit court’s active docket. The circuit court made that judgment final pursuant to Rule 54(b), Ala. R. Civ. P., on February 17, 2006. The mother filed a post-judgment motion on March 17, 2006, which the circuit court denied on April 25, 2006, with an order that states, in pertinent part:

“The Order of Transfer to the Juvenile Court ... was made by this Court based on what this Court now feels to have been a mistake of law regarding the jurisdiction of this Court to hear the case as originally filed by [J.M.T.]. Said decision was made by this Court based on the fact that the parties were unmarried, and that the issue of paternity was disputed, in that an action had been filed by [the mother] in the Juvenile Court ..., which this Court understood to present a bona fide dispute as to the paternity of the parties’ minor child. However, this court now understands from the representations of counsel that there was no bona fide dispute regarding the issue of paternity of the parties’ minor child, either in the case before this Court (the issue was resolved and stipulated into the record at the penden-te lite hearing held before this Court), nor in the underlying case in the Juvenile Court.... The existence of a disputed issue of paternity between unmarried parties was the sole basis on which this Court’s Order of Transfer was made to the Juvenile Court.... This Court now feels that said Order of Transfer was based on this Court’s mistake of law, and while this Court certainly regrets said mistake, finds that as a result, the Order on Paternity, Custody and Support entered by the Juvenile Court ... was without subject matter jurisdiction; and as a further result, the Order on Paternity, Custody and Support entered by the Juvenile Court on November [4], 2004, is void.”

The mother filed a timely notice of appeal on June 6, 2006.

The mother argues that the circuit court correctly transferred the case to the juvenile court because, she says, the juvenile court had exclusive original jurisdiction to adjudicate the paternity of the child pursuant to § 12-15-31(2), Ala.Code 1975 (providing that the juvenile court shall have exclusive original jurisdiction “[i]n proceedings to establish paternity of a child born out of wedlock”), and, thereafter, to decide the issues of custody and child support pursuant to § 12-15-30(b)(l), Ala. Code 1975 (providing that the juvenile court shall exercise exclusive original jurisdiction of “[proceedings to determine custody ... of a child when the child is otherwise before the court”).

J.M.T. contends that there was no paternity dispute to adjudicate because, he says, his paternity of the child had already been established by virtue of his acknowledgment of paternity. He argues that the acknowledgment itself constituted a determination of paternity sufficient to eliminate the juvenile court’s subject-matter jurisdiction over the case and to activate the circuit court’s general civil subject-matter jurisdiction. In addition, J.M.T. argues that his acknowledgment was “res judica-ta” as to the matter of the child’s paternity. Further, he maintains that when the parties stipulated, in open court during the circuit court’s pendente lite hearing, that there was no factual dispute as to paternity, the circuit court was presented with a basis for determining that there was no issue requiring adjudication in the juvenile court.

Discussion

Because the issue in this appeal turns largely on the effect of J.M.T.’s acknowledgment of paternity in the hospital following the birth of the child, we quote, in its entirety, the statute providing for a “hospital paternity acknowledgment program.” Section 26-17-22 provides:

“(a) The natural mother and father of a child born to a woman who was unmarried at the time of birth and had not been married or attempted to be married within 300 days prior to the birth may, at any time and place prior to the child’s 19th birthday, state and acknowledge that they are the natural parents of the child in an affidavit of paternity signed by both parties before a notary public. Before a mother and a putative father sign an acknowledgment of paternity, the mother and the putative father shall be given notice, orally and in writing, of the alternatives to, the legal consequences of, and, if one parent is a minor, any rights afforded due to minority status, and responsibilities that arise from signing the acknowledgment. The affidavit shall be on a form prescribed by rule of court and shall include the Social Security number and current address of each parent, a listing of the rights and responsibilities of acknowledging paternity, including the duty to financially support the child, and instruction for filing the affidavit with the Office of Vital Statistics.
“(b) The affidavit of paternity shall be a legally sufficient basis for establishing ah obligation for child support and for the expenses of the mother’s pregnancy and confinement. The affidavit may be admitted as evidence of paternity in any action to establish a support order or an adjudication of paternity.
“(c) Hospitals that have a licensed obstetric care unit or are licensed to provide obstetric services or licensed birthing centers associated with a hospital shall provide to the mother and alleged father, if he is present in the hospital, during the period immediately preceding or following the birth of a child to an unmarried woman in the hospital, all of the following: (1) Written materials about paternity establishment. (2) Form affidavits of paternity for the purposes of subsection (a) above. (3) A written description of the rights and responsibilities of acknowledging paternity. (4) An opportunity, prior to discharge from the hospital, to speak with a trained person made available through the Department of Human Resources, either by telephone or in person, who can clarify information and answer questions about paternity establishment. The Department of Human Resources shall make materials available without cost to the hospitals. If the mother and father complete the affidavit in the hospital, the hospital shall send the affidavit of paternity to the Office of Vital Statistics with required birth certificate information within five days of the birth of the child. Hospitals may be reimbursed by the Department of Human Resources up to the amount allowable by federal regulations for each completed affidavit. A hospital shall be immune from civil or criminal liability for actions taken pursuant to the requirements of this section.
“(d) The Office of Vital Statistics shall offer the mother and the alleged father paternity acknowledgment services as specified in this section.
“(e) Notwithstanding any law to the contrary, an affidavit of paternity completed in accordance with this section shall be accepted by the Office of Vital Statistics for purposes of listing the father’s name on the child’s birth certificate.
“(f) If a birth certificate has been filed in the Office of Vital Statistics, listing a father of the child, no new birth certificate can be established by the Office of Vital Statistics based on an affidavit of paternity received subsequently by that office unless a determination of paternity has been made by a court of competent jurisdiction or following adoption.
“(g) The affidavit of paternity shall be considered a confidential record and access shall be available in the same manner as birth records. The affidavit of paternity shall not be subject to the provisions of Section 22-9A-12(c) and shall be released by the Office of Vital Statistics to the Department of Human Resources upon request by the department and payment of any fee required by the Office of Vital Statistics for the purpose of child support enforcement or any other lawful purpose without the necessity of a court order.
“(h) A signed voluntary acknowledgment of paternity completed in accordance with this section shall be considered a legal finding of paternity subject to the right of any signatory to rescind the acknowledgment within the earlier of 60 days or the date of an administrative or judicial proceeding relating to the child including a proceeding to establish a support order in which the signatory is a party.
“(i) After the 60-day period, a signed voluntary acknowledgment of paternity may be challenged in court only on the basis of fraud, duress, or material mistake of fact with the burden of proof upon the challenger, and the legal responsibilities, including child support obligations, of any signatory arising from the acknowledgment may not be suspended during the challenge except for good cause shown.
“(j) An acknowledgment of paternity executed in another state under Title IV-D of the Social Security Act shall be entitled to full faith and credit in this state.”

(Emphasis added.) The statute provides a relatively simple and straightforward procedure for the voluntary acknowledgment of parentage following the birth of a child in a hospital. Pursuant to subsection (e), a man who signs an affidavit of paternity in compliance with the requirements of § 26-17-22 shall be listed as the child’s father on the child’s birth certificate. The acknowledgment also has other legal consequences, namely: pursuant to subsection (b), it is a “legally sufficient basis for establishing an obligation for child support” and may be admitted in evidence in any child-support or paternity proceeding; pursuant to subsection (h), it is “considered a legal finding of paternity”; and, pursuant to subsection (i), it is open to challenge after 60 days “only on the basis of fraud, duress, or material mistake of fact.”

The “Establishment of Paternity” Argument

Relying on the emphasized portions of subsections (b) and (h) of § 26-17-22, J.M.T. argues that his paternity acknowledgment “established” the parent-child relationship between him and the child within the meaning of § 12-15-31(2)(providing that the juvenile court shall have exclusive original jurisdiction “[i]n proceedings to establish paternity of a child born out of wedlock”)(emphasis added), thereby making a judicial determination of paternity by the juvenile court — or by any other court — unnecessary. We disagree.

In interpreting a statute we “must look at the entirety of the pertinent statutory language.” Federal Res. Bank of Atlanta v. Thomas, 220 F.3d 1235, 1239 (11th Cir.2000)(holding that the court must examine “the full phrase ‘all suits of a civil nature at common law or in equity,’ not just the words ‘at common law or in equity’ ”). “ ‘We do not look at one word or term in isolation but instead we look to the entire statutory context.’ ” Id. (quoting United States v. DBB, Inc., 180 F.3d 1277, 1280 (11th Cir.1999)).

Subsection (h) states that “[a] signed voluntary acknowledgment of paternity completed in accordance with this section shall be considered a legal finding of paternity. ” In order to determine the meaning of the phrase “a legal finding of paternity” in subsection (h), we must examine all parts of § 26-17-22 that relate to the legal effect of a signed voluntary acknowledgment of paternity.

“ ‘[0]ur rules of statutory construction direct us to look at the statute as a whole to determine the meaning of certain language that is, when viewed in isolation, susceptible to multiple reasonable interpretations. McRae v. Security Pac. Hous. Servs., Inc., 628 So.2d 429 (Ala.1993).’

“Ex parte Alfa Fin. Corp., 762 So.2d 850, 853 (Ala.1999).

“ ‘ “When interpreting a statute, [a court] must read the statute as a whole because statutory language depends on context....” ’

“Ex parte USX Corp., 881 So.2d 437, 442 (Ala.2003)(quoting Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 517 (Ala.2003)).”

State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 813-14 (Ala.2005). Subsection (b) states:

“The affidavit of paternity shall be a legally sufficient basis for establishing an obligation for child support and for the expenses of the mother’s pregnancy and confinement. The affidavit may be admitted as evidence of paternity in any action to establish a support order or an adjudication of paternity.”

J.M.T. focuses on the phrase “a legally sufficient basis for establishing an obligation” in the first sentence of subsection (b). He ignores the second sentence, which states that an affidavit of paternity “may be admitted as evidence of paternity in any action to establish a support order or an adjudication of paternity.”

Reading subsections (b) and (h) together, as we must, it is clear to this court that the legislature intended to make a signed voluntary acknowledgment of paternity admissible in evidence and sufficient in itself to support a judgment of paternity. We find no indication, however, that by enacting § 26-17-22, the legislature intended to divest the juvenile court of its jurisdiction to “establish [the] paternity of a child born out of wedlock,” § 12-15-31(2), in those instances in which an alleged, reputed, or presumed father has signed an acknowledgment of paternity in conformity with § 26-17-22.

“Jurisdiction may be divested by a repeal of the statute which conferred jurisdiction. However, for a statute to divest a court of jurisdiction, the legislature must declare its intent to create divestiture explicitly and clearly.”

21 C.J.S. Courts § 97 (2006) (footnotes omitted).

The “Res Judicata” Argument

J.M.T.’s signed voluntary acknowledgment of paternity has no res judicata effect because the doctrine of res judicata applies to a judgment rendered by a court. See Dairyland Ins. Co. v. Jackson, 566 So.2d 723, 725-26 (Ala.l990)(holding that “[t]he elements of res judicata, or claim preclusion, are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits”).

Citing Ex parte K.N.L., 872 So.2d 868, 869 n. 1 (Ala.Civ.App.2003), J.M.T. argues that this court has previously indicated that an acknowledgment of paternity executed in conformity with § 26-17-22 is “res judicata” as to the matter of paternity. In KN.L., the parents of the child had never been married. They lived together for six years and then separated, agreeing that the child would live with W.D.P., the father, in Alabama during the school year and with K.N.L., the mother, in Pennsylvania during the summer. This court’s opinion dealt with the mother’s petition for a writ of mandamus to stay a custody proceeding in the juvenile court, based on the mother’s argument that the Soldiers’ and Sailors’ Civil Relief Act barred further litigation until she returned from an overseas military assignment.

Before we reached the merits of the mother’s petition, this court recounted the procedural history of the case: the father had petitioned the juvenile court for sole physical custody of the child and for child support from the mother, and the mother had filed a “contest of paternity,” alleging that W.D.P. was not the child’s biological father and requesting that the court order paternity testing. This court then made the following statement:

“[T]he juvenile court determined, based on an affidavit of paternity signed by the parties, that the issue of paternity was precluded by the doctrine of res judica-ta; therefore, the court denied the mother’s request for paternity testing.

872 So.2d at 869. Our stating the juvenile court’s rationale for its denial of paternity testing was not a holding, or an implicit approval, of the basis for the juvenile court’s ruling. J.M.T.’s reliance on KN.L. for the proposition that a signed voluntary acknowledgment of paternity bars litigation of the issue of paternity under the doctrine of res judicata is misplaced.

The “Stipulation” Argument

The parties were entitled to stipulate to the fact that there was no dispute that J.M.T. was the child’s father. The circuit court, however, was not entitled to conclude that it had subject-matter jurisdiction of this case because, it thought, the parties’ stipulation had obviated the need for the juvenile court to make a formal adjudication of paternity. By reaching that conclusion, the circuit court, in effect, allowed a stipulation to divest the juvenile court of the subject-matter jurisdiction conferred on it by the legislature.

Whether a court has subject-matter jurisdiction is a question of law, Ex parte Terry, 957 So.2d 455 (Ala.2006), and courts are not bound to accept as controlling stipulations regarding questions of law, Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289-90, 37 S.Ct. 287, 61 L.Ed. 722 (1917)(stating that “[i]f the stipulation is to be treated as an agreement concerning the legal effect of admitted facts, it is obviously inoperative, since the court cannot be controlled by agreement of counsel on a subsidiary question of law”). “ ‘[SJubject-matter jurisdiction ... cannot be waived or conferred by consent.’ ” Haley v. Barbour County, 885 So.2d 783, 788 (Ala.2004)(quoting Patterson v. Gladwin Corp., 835 So.2d 137, 142-43 (Ala.2002)).

We have already held that J.M.T.’s pri- or acknowledgment of paternity neither “established” his paternity within the meaning of § 12-15-31(2) nor had any “res judicata” effect. We now hold that the parties’ stipulation did not provide a basis for the circuit court to exercise jurisdiction of this case.

The Basis of the Juvenile Court’s Subject-Matter Jurisdiction

Section 12-15-31(2) provides that a juvenile court shall have exclusive original jurisdiction “[i]n proceedings to establish paternity of a child born out of wedlock.” Section 12-15-30(b)(l) provides that the juvenile court shall exercise exclusive original jurisdiction of “[proceedings to determine custody ... of a child when the child is otherwise before the court.”

“ ““ “[Sjections of the Code dealing with the same subject matter are in pari materia. As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.” ’ ” State v. Amerada Hess Corp., 788 So.2d 179, 183 (Ala.Civ.App.2000) (quoting New Joy Young Rest., Inc. v. State Dep’t of Revenue, 667 So.2d 1384, 1387 (Ala.Civ.App.1995), quoting in turn Locke v. Wheat, 350 So.2d 451, 453 (Ala.1977)).’ ” Holmes v. Macon County Bd. of Educ., [Ms. 2050967, December 29, 2006] — So.2d -, (Ala. Civ.App.2006)(quoting Gartman v. Limestone County Bd. of Educ., 939 So.2d 926, 929 (Ala.Civ.App.2006)).

Reading § 12-15-31(2) and § 12-15-30(b)(l) in pari materia, it is evident that the legislature intended that the juvenile court have exclusive original subject-matter jurisdiction to make a paternity adjudication with respect to a child born out of wedlock, after which — and as a consequence of which — the juvenile court has subject-matter jurisdiction to decide related issues with respect to the care, custody, and control of the child who is already before the court. In sum, the legislature has provided that the juvenile court is the only court with jurisdiction to adjudicate the paternity of a child born out of wedlock, and it has also provided that a paternity adjudication is the mechanism by which the juvenile court’s jurisdiction to decide other matters relating to the child is triggered. Neither this court nor the circuit court has the power to enlarge or diminish the subject-matter jurisdiction conferred by the legislature on the juvenile court. See C.D.S. v. K.S.S., 963 So.2d 125 (Ala.Civ.App.2007).

In the present case, the juvenile court made a formal determination of paternity, after which it determined issues of custody and support relating to the child who was before it. The juvenile court had subject-matter jurisdiction to render the judgment of November 4, 2004. The circuit court erred when it set aside that judgment as void. We therefore reverse the judgment of the circuit court and remand the cause to that court with instructions to vacate its order setting aside the judgment of the juvenile court.

REVERSED AND REMANDED.

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

BRYAN, J., dissents, with writing, which MOORE, J., joins.

BRYAN, Judge,

dissenting.

I respectfully dissent. The parties’ factual stipulation in the circuit court that J.M.T. was the biological and legal father of the child eliminated any issue of fact regarding paternity. The elimination of any issue of fact regarding paternity, in turn, authorized the circuit court to determine, as a matter of law, that L.L.M.’s claim seeking a determination regarding paternity was moot. Because that claim was moot, it could not confer jurisdiction upon the juvenile court.

“It is well settled that the judiciary of Alabama is not empowered ‘“to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.” ’ Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala.1994) (quoting Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)) (emphasis omitted). ‘ “/77/ a case has become moot, or [if a] judgment would not accomplish an end recognized as sufficient in law, there is no necessity for the judgment, the court will decline to consider the merits, and [the court] will dismiss the case.”’ Hornsby v. Sessions, 703 So.2d 932, 938 (Ala.1997) (quoting Chisolm v. Crook, 272 Ala. 192, 194, 130 So.2d 191, 193 (1961)) (emphasis added).”

Ex parte Connors, 855 So.2d 486, 488 (Ala.2003).

Consequently, I would affirm the circuit court’s determination that the juvenile court did not have subject-matter jurisdiction.

MOORE, J., concurs.

       See § 26-17-22(h), Ala.Code 1975 (‘[a] signed voluntary acknowledgment of paternity completed in accordance with this section [the “hospital paternity acknowledgment program”] shall be considered a legal finding of paternity

      . The exceptions to this rule are that the circuit court has "jurisdiction over issues of paternity within a divorce action,” Ex parte Jones, 896 So.2d 553, 555 (Ala.Civ.App.2004); see also Floyd v. Floyd, 701 So.2d 1151 (Ala. Civ.App.1997), and has jurisdiction over issues of paternity within a wrongful-death action, see Valley Forge Ins. Co. v. Alexander, 640 So.2d 925 (Ala.1994).