author: PER CURIAM. MURDOCK, Judge, THOMPSON, Judge,

text:
    S.P. v. E.T., V.T., and State Department of Human Resources.
    2040044.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2005.
    Rehearing Denied June 16, 2006.
    Certiorari Denied Nov. 9, 2006 Alabama Supreme Court 1051440.

      Bryant A. Whitmire, Jr., of Whitmire & Coleman, Birmingham; and Albert L. Jordan and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant.
    Joe W. Morgan III, Birmingham, for appellees V.T. and E.T.
    Casandra D. Velarde, Bessemer, guardian ad litem.
   PER CURIAM.

S.P., the former long-term foster parent of A.M.A., appeals from a Jefferson Juvenile Court judgment denying her motion to modify custody; leaving custody of A.M.A. with a paternal aunt and uncle, V.T. and E.T., subject to S.P.’s visitation rights; and relieving the Department of Human Resources (“DHR”) of further supervision as to A.M.A.’s custodial placement.

This is the sixth time that issues related to the custody of A.M.A. have been before this court. See W.T.M. v. Department of Human Res., 736 So.2d 1120 (Ala.Civ.App. 1999) (“W.T.M. I”); W.T.M. v. S.P., 802 So.2d 1091 (Ala.Civ.App.2001) (“W.T.M. II”) (plurality opinion); Ex parte W.T.M., 851 So.2d 55 (Ala.Civ.App.2002) (“W.T.M. III”) (plurality opinion); Ex parte E.T., 895 So.2d 271 (Ala.Civ.App.2003) (“W.T.M. IV”) (plurality opinion); and W.T.M. v. S.P., 889 So.2d 572 (Ala.Civ.App.2003) (“W.T.M. V”) (plurality opinion).

We will not provide a detailed recitation of the background of this case as it can be found in W.T.M. III, W.T.M. IV, and W.T.M. V. It is sufficient to say that in January 2003, on remand from this court’s opinion in W.T.M. III, the Jefferson Juvenile Court entered an order awarding custody of A.M.A. to her paternal aunt and uncle, V.T. and E.T. Before the January 2003 custody award, A.M.A., who was approximately six years old at the time, had been in the physical custody of her foster mother, S.P., for over five years. V.T. and E.T. had visited with A.M.A., as had A.M.A.’s disabled father, W.T.M. However, W.T.M. has never had custody of A.M.A.

In February 2003, the juvenile court entered an order providing for visitation by A.M.A. with S.P. and A.M.A.’s foster siblings. The February 2003 order stated, in part:

“Said visitation is to begin immediately and is ordered by this Court so that the well-being of [A.M.A.] will be protected during her change of custody to [V.T. and E.T.], so that [A.M.A.] will develop a sense of security and stability during the transition. DHR has been ordered to provide counseling for [A.M.A.] under the supervision of a qualified therapist to address any trauma of uprooting [A.M.A.] from her prior foster home. Said DHR is ordered to provide this Court with a copy of said counselor’s report every 60 days regarding the progress of [A.M.A.’s] transition.”

The juvenile court subsequently ordered its “case file ... closed.”

Since January 2003, A.M.A. has been in the custody of V.T. and E.T., subject to supervision by DHR. S.P. and A.M.A.’s foster siblings have maintained visitation with A.M.A. at least two weekends each month at S.P.’s home and for a two-week extended visitation during the summer. W.T.M. has visited with A.M.A. on the weekends that she is not visiting with S.P. and on occasion during the summer months. However, it is apparent from the record that W.T.M.’s visitation routine has changed little since A.M.A. was in S.P.’s custody.

In October 2003, S.P. filed a motion to modify custody; V.T., E.T., and DHR were all served as parties. S.P. alleged, among other things, that a material change of circumstances had occurred since the entry - of the January 2003 order and that custody of A.MA.., “who has been determined to be dependent,” should be “transferred” to S.P. pursuant to Ala.Code 1975, § 12-15-71(a)(3)c., among other things. The alleged changes of circumstances'' included E.T.’s driving under the influence of alcohol and other allegations that reflect on E.T.’s character and A.M.A.’s circumstances. ■ (E.T. had been charged with driving under the influence on at least three separate occasions after the entry of the January 2003 order.) We further note that at the September 2004 trial on S.P.’s motion, S.P. introduced evidence of the severe emotional difficulty A.M.A. has experienced regarding the maintenance of custody by V.T. and E.T. A.M.A. herself testified in camera. S.P. also introduced other evidence relating to problems with V.T. and E.T.’s care of A.M.A.

In December 2003, DHR filed a “Motion to be Relieved of Supervision.” DHR requested that it be relieved of its supervisory obligation as to A.M.A.

In March 2004, over the objection of V.T. and E.T.’s attorney, the juvenile court entered an order stating that DHR was “relieved of providing counseling for [A.M.A.]”; the order did not change DHR’s continuing obligation to supervise A.M.A.’s custody placement. To the contrary, in May 2004 the juvenile court entered an order stating that its March 2004 order was . “amended,. nunc pro tunc, to provide that [DHR] .shall supervise this case, pending the hearing” on S.P.’s motion to modify custody.

In September 2004, the trial court conducted an ore tenus proceeding as to S.P.’s motion to modify custody. DHR participated as a party to the proceeding, as it had in other proceedings in this case after the entry of the January 2003 supervised custody award. At the outset of the trial, the parties’ attorneys and the juvenile court discussed the appropriate standard to be applied by the juvenile court as to S.P.’s motion. S.P. submitted a memorandum in which she argued that the juvenile court should apply the best-interest-of-the-child standard because the case continued to involve the child’s dependency. V.T. and E.T. argued that the juvenile court should apply the standard described in Ex parte McLendon, 455 So.2d 863 (Ala.1984). After considering the parties’ arguments, the juvenile court stated the case was a dependency proceeding and that it would apply the best-interest-of-the-child standard, not the standard described in McLendon.

On the second day of trial, V.T. and E.T. filed a motion for a mistrial because, they alleged, the juvenile court was applying the wrong standard for making its custody determination. The juvenile court responded, “Well, at this time, I’m going to deny the motion for the mistrial. But at the close of the case, I’ll consider, you know, what standard to use and write that in my order.” Thereafter, the juvenile court entered a judgment stating that the appropriate standard to be applied was the standard described in McLendon, “whereby the petitioner must show that a change of custody will materially promote the child’s best interest and welfare and produce evidence to overcome the inherently disruptive effect caused by uprooting the child.” The juvenile court denied S.P.’s motion to modify custody. We note that the judgment also stated that

“[E.T.] is ordered to refrain from any use of alcohol while in the presence of said minor child and shall not transport said child in any vehicle while under the influence of any alcohol or illegal substance .... [S.P.] shall continue to have visitation with the minor child as previously ordered.”

After the entry of the judgment, DHR filed a postjudgment motion requesting that the juvenile court amend its judgment in order to relieve DHR of supervision because DHR “does not feel that continued supervision of the child in the home of the custodians is warranted.” The juvenile court granted DHR’s motion, without conducting any further hearing. S.P. appeals.

The parties raise á number of issues in their appellate briefs. However, we find the dispositive issue to be whether the juvenile court was correct in applying the McLendon standard under the unusual facts of this case.

This court has consistently recognized that trial courts must observe a distinction between the standard to be applied in dependency proceedings (the best-interest standard) (see Ala.Code 1975, § 12-15-71(a)(4); and L.L.M. v. S.F., 919 So.2d 307, 311 (Ala.Civ.App.2005) (“Because this is a dependency case, the juvenile court needed to determine only if transferring legal custody of the child to the father was in the best interest of the child.... The juvenile court’s determination of dependency obviated any necessity to apply the heightened custody-modification standard found in Ex parte McLendon.”)) and the standard to be applied to custody proceedings after a child’s dependency has ceased (the McLendon standard) (see In re F.W., 681 So.2d 208, 211 (Ala.Civ.App.1996) (stating, in a case involving a custody award in a dependency proceeding with no indication of continuing DHR supervision, that “the McLendon standard applies both to custody questions arising in divorce actions and in juvenile dependency cases such as this one”); cf. Ex parte G.C., 924 So.2d 651, 659 (Ala.2005) (stating, in the context of a custody proceeding involving an unfit parent where the court’s custody order placed the child in the custody of the maternal grandparents, that the McLendon standard would be applicable to a future modification proceeding); and Ex parte J.P., 641 So.2d 276, 278 (Ala.1994) (applying the McLendon standard in a custody dispute between two sets of relatives where one set of relatives had been awarded custody under a prior judicial order).

Likewise this court has consistently held that when a case is more in the nature of a custody case than a determination-of-dependency case, the trial court must apply general principles of custody law rather than the provisions of the dependency statutes found in Ala.Code 1975, § 12-15-1 et seq. See, e.g., S.T.S. v. C.T., 746 So.2d 1017, 1021 (Ala.Civ.App.1999).

Thus, our courts have approved the application of the McLendon standard to juvenile court proceedings when the final dispositional order alleviated the child’s dependency and a new pleading is thereafter filed requesting a modification of custody (without allegations and evidence that the child is again a dependent child). See, e.g., S.B.L. v. E.S., 865 So.2d 1214 (Ala.Civ. App.2003) (applying the McLendon standard when a prior custody award was entered in a dependency proceeding and DHR’s supervision in the case had ceased, although the trial court continued to require transitional counseling services); A.H. v. R.M., 793 So.2d 799 (Ala.Civ.App. 2001) (applying the McLendon standard to the mother’s modification proceeding where the prior custody order in the dependency proceeding awarded custody of the children to the father with no mention of continued supervision by DHR); and In re F.W., supra. In other words, our courts have approved of the use of the McLendon standard in a subsequent custody proceeding when the prior custody order had the same characteristics as an initial custody award in a normal custody proceeding.

Unlike the aforementioned cases, however, the current case presents the question whether application of the McLendon standard is appropriate when the “final” dispositional order at issue reflects that DHR’s continued supervision of the custodial placement was necessary. See Ala.Code 1975, § 12-15-1(10)m. and n.; Ala.Code 1975, §§ 12-15-71(a)(1) and (a)(2).

Unlike many other types of cases, dependency proceedings often involve a series of appealable dispositional custody' orders. Eventually the trial court enters an order in a dependency proceeding that is intended to be its “final” dispositional order as to the pending case, i.e., a custodial placement that is intended to be permanent, to the extent custody awards can be permanent. See Ex parte J.P., 641 So.2d at 278 (“by its very nature, custody is always temporary and never permanent” because it is always subject to change based upon an appropriate petition and evidence). Under ideal circumstances, such final dispositional orders coincide with the end of the child’s dependency, i.e., the child'has a proper custodian “and” is no longer “in need of care or supervision” by persons other than the custodian. See Ala.Code 1975, § 12-15-1(10)n. In other words, under ideal circumstances, the final dispositional order results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.

Notwithstanding the foregoing, regardless of whether a dispositional order is the “final” dispositional order in a particular case (meaning that it will not be changed absent the filing of an appropriate pleading, proof of a material change in circumstances, and meeting the applicable legal standard), our legislature has indicated that the appropriate standard to be applied in an ongoing dependency proceeding is the best-interest standard. See Ala. Code 1975, § 12-15-71(a).

The McLendon standard was not articulated in the context of a dependency proceeding, and, as the current case demonstrates, dependency proceedings often involve issues that are not present in normal custody proceedings. In fact, dependency proceedings are sui generis. See Hymes v. State, 209 Ala. 91, 92, 95 So. 383, 384,(1923) (stating, in the context of the precursor to Ala.Code 1975, § 12-15-1 et seq., and in a case involving a delinquent child, “[t]he statute is for the benefit of the unfortunate child, as well as for the public good. The state by its act places its care and protection around him, takes the custody, control and discipline of him, ... makes him its ward and thereby protects society, and looks after the welfare of the child. Such a statute and the proceedings under it are sui generis.”); see also, e.g., In re David L., 54 Conn.App. 185, 733 A.2d 897 (1999).

Even without the added considerations of the McLendon standard, custody cases test the limits of our judiciary to effectively and adequately address legal problems relating to children:

“ ‘Of supreme concern in all child custody cases is the best interest of the child.... This is an easy rule to state, but a difficult rule to apply. This “what is best for the child” rule prevails over presumptions and has probably caused more judges more sleepless nights than any other one legal or equitable principal. It is an awesome responsibility, fraught with difficulty, to determine the best welfare of children. The trial judge observes attitudes, facial expressions, voice tones and all human traits in parties and witnesses testifying and appearing before him, weighs the evidence, wishes for the wisdom of Solomon, and hopefully reaches the correct decision in the case.’ ”

Rodgers v. Hill, 453 So.2d 1057, 1058 (Ala. Civ.App.1984) (a custody-modification case) (quoting Ashley v. Ashley, 383 So.2d 861, 863 (Ala.Civ.App.1980)). Add to the foregoing the distinct concerns that are present in dependency proceedings, and the trial court’s need for flexibility in choosing an appropriate disposition for a dependent child that is also the best disposition, see Ala.Code 1975, § 12-15-71(a)(4), and it appears that a rigid or premature application of the McLendon standard could, in a particular case, prove detrimental to the child and be inimical to the purposes of the dependency statutes, which is the elimination of a child’s dependency and a return as soon as possible to custodial care that is appropriate and that is in the child’s best interest. See Ala. Code 1975, § 12-15-1.1.

To illustrate, we note that the disposition in the current case was only one of several “final” dispositions available under the dependency statute that do not result in a child residing with a parent or other custodian free from state supervision. See Ala.Code 1975, § 12-15-71(a). Suppose the juvenile court’s “final” disposition was made under § 12-15-71(a)(3)a., “[t]rans-fer[ring] legal custody to ... [DHR].” (Unlike normal custody cases, “legal custody” under the dependency statutes includes “the right to have physical custody ... and to determine where and with whom the child shall live within the state....” Ala.Code 1975, § 12-15-1(17); see also Ala.Code 1975, § 30-3-151 (defining “legal custody” as distinct from “physical custody” in the context of custody awards in divorce proceedings).) If, after the entry of the § 12-15-71(a)(3)a. “final” dispositional order, a parent remediated himself or herself, or another fit custodian (perhaps a relative of the child) petitioned the court for custody, would the court be restricted to awarding the fit parent or other fit custodian custody only if it could conclude that a heightened standard — i.e., the McLendon standard — was met? Are we to conclude that the legislature, despite the best-interest language found in § 12-15 — 71(a), intended for the trial court to apply the McLendon standard under such circumstances and to trap a child in the care of a state bureaucracy at taxpayer expense even when placement with a fit and able custodian is available and meets the best-interest test? We think not. Yet, if the “finality” of the prior custody award is the only consideration at issue, 1.e., if all final dispositions in dependency proceedings are the same for purposes of the future application of the McLendon standard, the child would apparently have to remain in DHR’s custody.

To further the best interest of a dependent child, it is not uncommon for a juvenile court to require that DHR remain involved in a case for various reasons and at various levels after the entry of a “final” dispositional order. We do not undertake here to formulate a general rule as to when the level of DHR’s continuing involvement as part of a “final” disposition is sufficient to make the application of the McLendon standard to a future proceeding inappropriate. Based on our review of the record in this particular case, however, including its unique procedural and factual history and the nature of the juvenile court’s January 2003 and February 2003 “final disposition,” we conclude that the application of the McLendon standard was inappropriate in the current case.

The juvenile court’s judgment is reversed, and this ease is remanded for the court to enter a judgment utilizing the best-interest standard.

REVERSED AND REMANDED.

CRAWLEY, P.J., concurs.

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

THOMPSON, J., concurs in the result only, with writing, which PITTMAN, J., joins.

MURDOCK, Judge,

concurring specially.

I write separately to emphatically state that, even if the standard articulated in Ex parte McLendon, 455 So.2d 863 (Ala.1984), were deemed applicable in this case, given the history and the unique facts of this case, I do not see how the trial court reasonably could conclude that the McLen-don standard was not met.

First, although the juvenile court made no explicit finding as to whether a material change of circumstances occurred after the entry of the January 2003 and February 2003 orders, nothing indicates that it did not find there to be a material change of circumstances. In any event, I conclude that it would have been error for the trial court not to so find. After the entry of those orders, A.M.A. experienced emotional trauma. The persons with whom she had lived as her mother and her brothers and sister for over five years (all but the first few months of her life at the time) were suddenly relegated to visitors. Along with the emotional upheaval of the transition, a comparison of “the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each [party] to provide for the emotional, social, moral, material and educational needs of the children,” see Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), offered by S.P., on the one hand, and V.T. and E.T., on the other, reflects that A.M.A.’s situation was worsened in almost all of those categories (and bettered in none) as a result of the custody transition or that things were not as they had been represented at the underlying trial in Ex parte W.T.M., 851 So.2d 55 (Ala.Civ. App.2002) (“W.T.M. III”). It now appears clear that the impact of the decision in W.T.M. Ill, a plurality opinion that simply reversed the judgment at issue without further instruction to the juvenile court, and which the juvenile court incorrectly read as a mandate to award V.T. and E.T. custody of A.M.A., greatly impacted A.M.A. and did not further her best interest but forced her to succumb to a custody placement that was traumatic and that was not “as advertised.”

As to the remaining McLendon-standard criteria, whether the change of custody will materially promote the best interest of the child to offset the inherently disruptive effect of the change, the current case presents a unique circumstance. Based on the record, I must conclude that it would be less disruptive to A.M.A. to transfer custody back to S.P. than it will be to leave her in the custody of V.T. and E.T. Indeed, the concern for disruption reflected in McLendon is nonexistent under the unique facts of this case. See Spears v. Wheeler, 877 So.2d 607, 610-11 (Ala.Civ.App.2003) (Murdock, J., dissenting). It is, so to speak, a legal principle without a home in the facts. Concomitantly, therefore, any promotion of A.M.A.’s interest is, by definition, material; that is, any promotion would more than offset the disruptive effect because there is no appreciable disruptive effect, or at least none remotely approaching the type of disruptive effect with which McLendon was concerned. See Smith v. Smith, 865 So.2d 1207, 1212 (Ala.Civ.App.2003) (Murdock, J., concurring in the result); see also Ex parte J.M.F., 730 So.2d 1190, 1194 (Ala.1998). In contrast, under the unusual facts of this case, the juvenile court could only have concluded that returning A.M.A. to S.P.’s custody would greatly promote A.M.A.’s interest.

BRYAN, J., concurs.

THOMPSON, Judge,

concurring in the result only.

I disagree with much of the rationale behind the main opinion; however, I do agree that this case has been and continues to be factually and procedurally perplexing. It arises out of a set of facts that produces what I sincerely hope is an anomaly among dependency cases. Changes implemented by the Department of Human Resources in the foster-care system have served to alleviate many of the conditions that produced this heart-wrenching matter. Although I concur with the ultimate result reached in the main opinion, I do so only on the basis of the unique facts and circumstances presented in this case. Additionally, I do not agree with the conclusion reached in the special concurrence that the application of the best-interest standard necessarily mandates the return of the child to the foster mother.

PITTMAN, J., concurs.

      . The rights of A.M.A.’s biological mother are not at issue.

      . Our focus on the finality of the prior custody award has been made in the context of custody cases, not dependency cases. However, we are presented with no reason to question the application of the McLendon standard when the “final” disposition in the dependency proceeding is indistinguishable from an initial-custody award in a nondepen-dency setting. See, e.g., A.H., supra. Thus, we are not detracting from such precedents as A.H.

      . In addition to the other concerns referenced in the main opinion and in this opinion, I note that V.T., who had indicated in W.T.M. Ill that she was "retired” and would care for A.M.A., returned to work shortly after the juvenile court entered the January 2003 and February 2003 orders.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James W. ADKISON, Jr. v. Teresa Ann ADKISON.
    2040542.
    Court of Civil Appeals of Alabama.
    March 3, 2006.
    Rehearing Denied Aug. 11, 2006.
    Certiorari Denied Nov. 9, 2006 Alabama Supreme Court 1051692.
    W. Gregory Hughes, Mobile, for appellant.
    Vader A. (Al) Pennington, Mobile, for appellee.
   PER CURIAM.

James W. Adkison, Jr. (“the husband”), appeals an order purporting to deny a postjudgment motion filed by the husband. For the reasons discussed below, we dismiss the appeal.

On February 20, 2003, Teresa Ann Adki-son (“the wife”) sued the husband for a divorce on the ground of incompatibility. An attorney appeared for the husband and answered the complaint on the husband’s behalf. After the first two trial settings were continued, the case was set for trial on March 10, 2004.

On March 10, 2004, the wife, the wife’s attorney, and the husband’s attorney appeared for trial, but the husband did not. The husband’s attorney made an oral motion to withdraw, and the trial court granted that motion. The trial court then entered a default divorce judgment.

The judgment awarded the wife the marital residence, all household furniture and furnishings, her retirement benefits, one-half of the husband’s retirement benefits, the parties’ 1997 Avalon automobile, periodic alimony in the amount of $500 per month, and $2,500 to reimburse the wife for her attorney’s fee. The judgment awarded the husband one-half of his retirement benefits and the parties’ Chevrolet truck. Since the parties’ children were over the age of 19, the judgment did not address custody or child support.

On April 8, 2004, the attorney who had previously represented the husband and who had withdrawn on March 10, 2004, appeared again for the husband and filed a postjudgment motion seeking relief from the judgment pursuant to Rules 55(c) and 59(e), Ala. R. Civ. P., on the ground that the husband had not received actual notice of the March 10, 2004, trial setting.

Following a hearing, the trial court denied the husband’s postjudgment motion on June 21, 2004. On July 9, 2004, the husband, represented by new counsel, filed another postjudgment motion seeking relief from the default divorce judgment. This motion alleged the same facts as the husband’s previous postjudgment motion but sought relief from the judgment pursuant to Rule 60(b)(1) and (6), Ala. R. Civ. P., instead of Rules 55(c) and 59(e).

However, before the trial court could rule on the husband’s second post-judgment motion, the husband appealed the judgment and the denial of his first postjudgment motion to this court. The trial court then purported to stay further proceedings on the husband’s second post-judgment motion until the appeal was resolved.

Upon the motion of the husband, this court dismissed the husband’s appeal of the divorce judgment and the denial of his first postjudgment motion on November 15, 2004. The trial court then held an evidentiary hearing regarding the husband’s second postjudgment motion on January 31, 2005. On February 5, 2005, the trial court entered an order purporting to deny the husband’s second post-judgment motion. On March 15, 2005, the husband appealed the denial of his second postjudgment motion to this court.

The wife argues that the husband’s appeal of the denial of his second post-judgment motion should be dismissed because it is barred by the doctrine of res judicata and because the husband’s second postjudgment motion was an improper attempt to use a Rule 60(b) motion as a substitute for an appeal. We conclude that the appeal must be dismissed, although our reasoning differs from the arguments advanced by the wife.

Although the husband’s second postjudgment motion sought to invoke Rule 60(b) instead of Rules 55(c) and 59(e), it sought relief from the judgment based on the same set of facts that he had alleged as the basis of his first postjudgment motion. “The ‘character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.” ’ Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969)). Because the husband’s second postjudgment motion asserted as its basis the very same facts as his first post-judgment motion instead of asserting facts that were unknown to the husband when he filed his first postjudgment motion, his second postjudgment motion in reality constituted a motion to reconsider the denial of the husband’s first postjudgment motion rather than a Rule 60(b) motion. Cf. Ex parte Dowling, 477 So.2d 400, 403 (Ala.1985) (holding that, when facts alleged in a second postjudgment motion were known to the movant when he filed his original postjudgment motion, his second post-judgment motion had to be construed as a motion to reconsider the denial of his first postjudgment motion rather than as a Rule 60(b) motion); and Package Express Ctr., Inc. v. Motley, 717 So.2d 378, 379 (Ala.Civ.App.1998) (holding that movant’s second postjudgment motion constituted a motion to reconsider the denial of his earlier Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the judgment).

“[T]he Rules of Civil Procedure do not authorize a movant to file a motion to reconsider the trial judge’s ruling on his own post-judgment motion.” Dowling, 477 So.2d at 404. Indeed, such a motion is a nullity. See Schwadron v. Schwadron, 906 So.2d 948, 951 (Ala.Civ.App.2005) (“[T]he former husband’s June 4, 2004, ‘Motion to Alter, Amend, or Vacate,’ which sought reconsideration of the trial court’s denial of his April 15, 2004, Rule 59 motion, was a nullity .... ”). Moreover, the trial court does not have subject-matter jurisdiction to entertain such a motion. See Ex parte Allstate Life Ins. Co., 741 So.2d 1066, 1071 (Ala.1999); and Package Express, 717 So.2d at 379.

Because the trial court did not have subject-matter jurisdiction to entertain the husband’s second postjudgment motion, the trial court’s order purporting to deny that motion is void. “A void [order] will not support an appeal.” Carter v. Hilliard, 838 So.2d 1062, 1064 (Ala.Civ.App. 2002). Consequently, we must dismiss the appeal.

APPEAL DISMISSED.

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

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


author: PITTMAN, Judge.

text:
    PACKAGE EXPRESS CENTER, INC. v. Doug MAUND et al.
    2040972.
    Court of Civil Appeals of Alabama.
    March 17, 2006.
    Rehearing Denied Sept. 1, 2006.
    Certiorari Denied Nov. 9, 2006 Alabama Supreme Court 1051789.

      Donald L. Christian, Jr., Huntsville, for appellant.
    James M. Corder of Alexander, Corder, Plunk & Shelly, P.C., Athens; and Albert L. Jordan of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellees.
   PITTMAN, Judge.

This appeal arises from a judgment of the Limestone Circuit Court granting a motion for relief from a domesticated judgment registered under the Uniform Enforcement of Foreign Judgments Act (“UEFJA”), Ala.Code 1975, § 6-9-230 et seq. Because we conclude, after consideration of the circumstances of this particular case and full-faith-and-credit principles, that the rendering court’s personal jurisdiction could not properly be reexamined, we reverse.

In March 1995, Package Express Center, Inc. (“Package Express”), sued “Doug Maund, d/b/a Athens Pharmacy” in the Tennessee Chancery Court, Third Judicial District (“the Tennessee trial court”), seeking relief based upon an alleged breach of a noncompetition provision in a particular business agreement. In the complaint, Package Express alleged that the Tennessee trial court had jurisdiction over the subject matter and the parties based upon a clause in the business agreement specifying that the parties to the agreement consented to the exercise of personal jurisdiction by Tennessee courts. Maund filed a motion to dismiss the action, alleging that the Tennessee trial court lacked personal jurisdiction over Maund because he had allegedly not conducted business in Tennessee so as to have sufficient contacts with that state; he also alleged that he did not own Athens Pharmacy. Package Express sought, and was granted, leave to amend its complaint to name both Maund and EMM-DEE Drug Company, Inc. (“EMM-DEE”), d/b/a Athens Pharmacy, as defendants; the amended complaint again alleged the propriety of personal jurisdiction as to the defendants. Maund and EMM-DEE then filed an answer to the amended complaint alleging that the Tennessee trial court lacked personal and subject-matter jurisdiction.

In December 1997, Maund and EMM-DEE filed a summary-judgment motion in the Tennessee trial court; that motion was denied. Later, in November 1999, Maund filed a summary-judgment motion in the Tennessee trial court as to the claims asserted against him, although no ruling was entered as to that motion before trial. Neither of those motions asserted a defect as to the Tennessee trial court’s subject-matter or personal jurisdiction. The case was then tried in March 2000, and in May 2000, the Tennessee trial court issued a memorandum opinion in support of its judgment. In that opinion, the Tennessee trial court stated, in pertinent part:

“Following the hearing on the merits, counsel were granted an opportunity to file post trial briefs regarding the issues joined. No issue remains as to the validity of the written agreement between [Package Express] and Athens Pharmacy. The primary issues presented for adjudication include (1) whether the subject covenant not to compete contained within said agreement constitutes an unlawful restraint on trade, (2) whether said covenant may be applied prospectively for a period of 18 months from the judgment to be entered in this action, (3) the measure of damages claimed by [Package Express] and (4) whether any judgment should be entered against Mr. Maund individually.”

The Tennessee trial court concluded, among other things, that injunctive relief should be awarded against both defendants and found that EMM-DEE was responsible for paying money damages to Package Express, noting that the parties had “stipulate^] that if a Judgment is entered against Athens Pharmacy, EMM-DEE Drug Company, Inc. is a legally responsible party.” In addition, Package Express was expressly permitted to seek compensation from Maund should EMM-DEE be unable to satisfy the damages aspect of the judgment. Significantly, there is no indication from the appellate record in this case that the defendants had contested the issue of the Tennessee trial court’s jurisdiction during the trial despite their having pleaded the absence of personal and subject-matter jurisdiction.

Maund and EMM-DEE appéaled from the Tennessee trial court’s judgment, and the Tennessee Court of Appeals affirmed that judgment in part and reversed it in part. Package Express Ctr., Inc. v. Maund, No. E2000-02059-COA-R3-CV (Tenn.Ct.App. May 30, 2001) (not reported in S.W.3d). The opinion of the Tennessee Court of Appeals states that, on appeal, the defendants had argued that “the covenant was not enforceable, the [Tennessee] Trial Court erred in applying the covenant not to compete prospectively for 18 months from the date of judgment, and erred in awarding money damages in addition to injunctive relief.” There is no indication from the appellate court’s opinion that that court was asked to reverse or vacate the Tennessee trial court’s judgment on the basis that it was void for lack of jurisdiction. On remand, the Tennessee trial court issued a second memorandum opinion and entered a new judgment awarding Package Express nominal and incidental damages and attorney fees. No appeal was apparently taken from that judgment.

In July 2004, Package Express registered the Tennessee trial court’s judgment in the Limestone Circuit Court. Maund and EMM-DEE filed a motion for relief from the registered judgment and sought a stay of proceedings to enforce the registered judgment, asserting that the judgment of the Tennessee trial court was invalid in that that court had, they said, lacked in personam jurisdiction. That motion was supported by affidavits executed by Maund and his Tennessee counsel in which it was averred that the issue of personal jurisdiction had not been finally adjudicated in Tennessee. Copies of the pertinent pleadings, motions, and judgments from the Tennessee action were supplied to the circuit court, and both Package Express and the defendants filed briefs. The circuit court subsequently entered a judgment granting relief from the registered judgment, concluding that the issue of personal jurisdiction had not been fully and fairly litigated and that the Tennessee trial court had acted in the absence of personal jurisdiction. Package Express has appealed from the circuit court’s judgment.

As we noted in Menendez v. COLSA, Inc., 852 So.2d 768 (Ala.Civ.App.2002), the UEFJA provides a mechanism for the domestication of a “foreign judgment” through its filing in the office of any circuit-court clerk in Alabama; a “foreign judgment” under the UEFJA is “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” Ala.Code 1975, § 6-9-231. Men-endez further outlines the principles governing the permissibility of attacks upon the validity of out-of-state judgments registered in Alabama circuit courts:

“While Alabama courts are generally required to give a judgment entitled to full faith and credit at least the res judicata effect accorded in the rendering court’s jurisdiction, Alabama courts are permitted to inquire into the jurisdiction of the rendering court. Feore[ v. Feore], 627 So.2d [411,] 413 [ (Ala.Civ.App.1993) ]; accord, Republic Nat'l Bank v. Howell, 456 So.2d 58, 59 (Ala.1984). However, the appropriate inquiry is limited to ascertaining ‘“(1) whether the issue of jurisdiction was fully and fairly litigated by the foreign court and (2) whether the issue of jurisdiction was finally decided by the foreign court.” ’ Feore, 627 So.2d at 413 (quoting Alston Elec. Supply Co. v. Alabama Elec. Wholesalers, Inc., 586 So.2d 10, 11 (Ala.Civ.App.1991)). In short, if jurisdiction is not lacking, an Alabama court must give full faith and credit to a foreign judgment under the UEFJA. Feore, 627 So.2d at 413. The burden is on a party challenging the validity of the foreign judgment to assert and demonstrate the rendering court’s lack of jurisdiction. Greene v. Connelly, 628 So.2d 346, 351 (Ala.1993).”

852 So.2d at 771. Moreover, the duty to afford full faith and credit to judicial proceedings of our sister states to which we referred in Menendez is one consisting of both constitutional and statutory dimensions. See U.S. Const., art. IV, § 1, and 28 U.S.C. § 1738.

Package Express contends that the circuit court erred in granting relief from the registered judgment on the basis that the issue of personal jurisdiction was not fully and fairly litigated in the Tennessee trial court. We agree.

The United States Supreme Court, in Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), succinctly summarized a number of pertinent principles of law that govern the concept of personal jurisdiction. First, it is clear that a defendant such as Maund or EMM-DEE “is always free to ignore ... judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding,” such as the registration proceeding initiated by Package Express in the circuit court. 456 U.S. at 706, 102 S.Ct. 2099. Alternatively, a defendant may “submit[] to the jurisdiction of the court for the limited purpose of challenging jurisdiction”; however, in that event, “the defendant agrees to abide by that court’s determination on the issue of jurisdiction,” and “[t]hat decision will be res judicata on that issue in any further proceedings.” Id. Finally, “[bjecause the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived.” 456 U.S. at 705, 102 S.Ct. 2099.

As we have noted, both Maund and EMM-DEE appeared through counsel in the action against them in the Tennessee trial court and asserted their objection to personal jurisdiction in that court. In doing so, Maund and EMM-DEE, in the words of the United States Supreme Court, “submitt[ed] to the jurisdiction of the court for the limited purpose of challenging jurisdiction,” thereby vesting in the Tennessee trial court the authority to conclusively determine the validity of that objection. See Wilson v. Lee, 406 So.2d 416, 419 (Ala.Civ.App.1981) (holding that when a defendant filed in a Florida action an answer and a motion to dismiss raising the question of personal jurisdiction, the Florida court had the authority to determine whether the defendant had proper notice of its proceedings).

Rule 12.02, Tenn. R. Civ. P., like its Alabama and federal counterparts (see Rule 12(b)(2), Ala. R. Civ. P., and Rule 12(b)(2), Fed.R.Civ.P.) requires a defending party to raise in its responsive pleading, if that party has not already done so in a motion to dismiss, an objection to personal jurisdiction in order to preserve that potential defense for subsequent litigation. Also, the Tennessee Rules of Civil Procedure, like the Alabama and federal rules, envision that a personal-jurisdiction defense will generally be determined before trial on application of any party to an action. Compare Rule 12.04, Tenn. R. Civ. P., with Rule 12(d), Ala. R. Civ. P., and Rule 12(d), Fed.R.Civ.P. However, the record does not indicate that either Package Express or either defendant filed an application in the Tennessee action requesting a pretrial hearing on the jurisdictional objection. Thus, we can infer that a decision on that issue was, as a matter of law, deferred until trial.

Despite the defendants’ personal-jurisdiction objection, the Tennessee trial court, which is a court of general equity jurisdiction (see Gentry v. Gentry, 924 S.W.2d 678, 680 (Tenn.1996)), entered a judgment adverse to both Maund and EMM-DEE after a trial on the merits. We have not been made privy to the transcript of the trial conducted by the Tennessee trial court so as to enable us to discern the specific issues as to which the parties actually presented evidence during that trial. Nonetheless, based upon the first memorandum opinion in that case, it appears that the issue of personal jurisdiction was not asserted by the defendants during the trial; the contested issues outlined by the Tennessee trial court in that memorandum opinion do not include any reference to the absence or presence of personal jurisdiction.

The parties’ appellate briefs differ on the import of the absence of a clear ruling by the Tennessee trial court on the issue of personal jurisdiction. Package Express contends that the Tennessee trial court, in entering a judgment in favor of Package Express on the merits, implicitly determined that it had jurisdiction to decide the merits of the controversy. In response, Maund and EMM-DEE contend that Package Express has cited no Tennessee appellate opinion that would require a conclusion that the Tennessee trial court made such an implicit determination. Although our research indicates that under Tennessee law jurisdictional facts will be conclusively presumed in collateral attacks upon judgments of that state’s courts of general jurisdiction (see State v. Ritchie, 20 S.W.3d 624, 630 n. 12 (Tenn.2000)), under the particular circumstances of this case we need not accept or reject Package Express’s characterization of the Tennessee trial court’s judgment.

In considering the effect of 28 U.S.C. § 1738, the federal full-faith-and-credit statute, the United States Court of Appeals for the Fifth Circuit, in Hazen Research, Inc. v. Omega Minerals, Inc., 497 F.2d 151 (5th Cir.1974) (an appeal taken from an Alabama district court when Alabama was within the Fifth Circuit), noted that “[w]here the defendant has appeared in the original action, the judgment in that cause is res judicata on the issue of personal jurisdiction, whether the defendant actually litigated the question or merely permitted it to pass without objection.” 497 F.2d at 153 (emphasis added); accord, 18A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 4430 (2002). Here, Maund and EMM-DEE raised the question of personal jurisdiction by appearing in the Tennessee action and objecting to the Tennessee trial court’s personal jurisdiction. That objection was not resolved before trial, and, under Tennessee procedural law, the objection was therefore deferred for decision until trial. Thus, we must conclude that even if Maund and EMM-DEE are correct in contending that the Tennessee trial court’s judgment in favor of Package Express does not amount to an implicit overruling of their personal-jurisdiction objection, the judgment at the least indicates that the defendants waived their personal-jurisdiction objection by failing to present evidence pertinent to that defense. See BVT Lebanon Shopping Ctr., Ltd. v. Wal-Mart Stores, Inc., 48 S.W.3d 132, 135 n. 2 (Tenn.2001) (defense held “waived for failure to raise the issue during the trial of the case”); see also Hennessee v. State ex rel. State of Texas, 650 So.2d 903, 905 (Ala.Civ.App.1994) (affirming decision that Texas judgment was entitled to full faith and credit when defendant objected to Texas court’s jurisdiction by pretrial motion but “did nothing more to pursue the issue of jurisdiction”). Under Hazen Research, either alternative conclusion will warrant affording full faith and credit to the Tennessee trial court’s judgment in the face of a personal-jurisdiction objection.

Based upon the foregoing facts and authorities, we must conclude that the circuit court erred in entertaining the challenge advanced by Maund and EMM-DEE to the Tennessee trial court’s personal jurisdiction and in granting their motion for relief from the registered judgment. The judgment of the circuit court granting relief from the registered judgment is reversed, and the cause is remanded for the entry of an order denying the motion for relief.

REVERSED AND REMANDED.

CRAWLEY, P.J., and THOMPSON and MURDOCK, JJ„ concur.

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

      . Regardless of whether the Tennessee trial court's judgment was a product of an implicit finding of jurisdiction or of waiver, both Maund and EMM-DEE were entitled to raise any error in such a finding on appellate review in Tennessee of that judgment. See Restatement (Second) of Judgments § 10, comment e (1982). However, the opinion of the Tennessee Court of Appeals does not indicate that Maund and EMM-DEE made any argument to that appellate court to the effect that the Tennessee trial court’s judgment should be reversed based upon a lack of personal jurisdiction. Under Tennessee law, even when an issue is otherwise preserved by having been litigated in the trial court, a party may abandon that issue on appeal by failing to argue it. See Walsh v. BA, Inc., 37 S.W.3d 911, 917 (Tenn.Ct.App.2000).


author: BRYAN, Judge. CRAWLEY, Presiding Judge, MURDOCK, Judge,

text:
    Valerie GLASS v. ANNISTON CITY BOARD OF EDUCATION.
    2040725.
    Court of Civil Appeals of Alabama.
    Oct. 27, 2006.

      Charles F. Norton, Alabama Education Association, Montgomery; William J. Miller of Turner & Miller, LLC, Anniston; and Sam Heldman of Gardner, Middle-brooks, Gibbons, Kittrell, Olsen, Walker & Hill, P.C., Washington, D.C., for appellant.
    James M. Campbell of Campbell & Hopkins, Anniston; and Burgin H. Kent of Bishop, Colvin, Johnson & Kent, Birmingham, for appellee.
   BRYAN, Judge.

Valerie Glass appeals a judgment of the Calhoun Circuit Court affirming a hearing officer’s decision upholding the decision of the Anniston City Board of Education (“the Board”) to terminate Glass’s position as an attendance officer. We affirm.

At the time her position as an attendance officer was eliminated, Glass had been employed with the Board for 21 years. She had held the position of an attendance officer since 1998. Glass’s duties as an attendance officer included maintaining student records regarding attendance, initiating investigations regarding truancy, and filing pleadings in juvenile court.

Dr. Sammy Lee Felton, the superintendent of education of the Anniston City School System (“the school system”), delivered a letter dated May 7, 2003, to Glass notifying her of his recommendation to the Board to terminate her position. Dr. Fel-ton delivered an additional letter to Glass dated May 29, 2003, stating the reasons for his recommendation.

On June 12, 2003, the Board held a hearing to consider whether to dismiss Glass, as well as several other employees, pursuant to Dr. Felton’s recommendation. The pleadings indicate that on June 16, 2003, the Board voted to eliminate Glass’s position as an attendance officer. Glass then requested a hearing pursuant § 36-26-105, Ala.Code 1975, of the Fair Dismissal Act (“FDA”), codified at § 36-26-100 et seq., Ala.Code 1975.

On October 9, 2003, a hearing officer received evidence regarding the Board’s decision to eliminate Glass’s position. On November 3, 2003, the hearing officer issued a decision affirming the Board’s decision. On December 2, 2003, Glass petitioned the trial court for a writ of certiorari to review the hearing officer’s decision, and on January 23, 2004, the trial court granted the writ. On December 15, 2004, the trial court entered a judgment affirming the decision of the hearing officer. Glass moved the trial court pursuant to Rule 59, Ala. R. Civ. P., to “reconsider” its judgment. That motion was denied by operation of law. Glass then timely appealed to this court.

I.

On appeal, Glass first argues that her dismissal as an attendance officer is subject to the provisions of the FDA. We agree.

The FDA sets forth procedures and grounds governing, among other things, the dismissal of certain public employees. “ ‘The purpose of the [Fair Dismissal Act] is to provide nonteacher employees a fair and swift resolution of any disputes regarding employment terminations.’ ” Tatum v. Freeman, 893 So.2d 1213, 1222 (Ala.Civ.App.2004) (quoting Jones v. Kennedy, 890 So.2d 975, 979 (Ala.2004), citing in turn Bolton v. Board of School Comm’rs of Mobile County, 514 So.2d 820, 824 (Ala.1987)).

In 1983, the legislature enacted the FDA. See Act No. 83-644, Ala. Acts 1983. Act No. 83-644, § 1, as codified as 36-26-100, Ala.Code 1975, stated:

“The term ‘employees,’ as used in this article, is deemed to mean and include all persons employed by county and city boards of education, two-year educational institutions under the control and auspices of the State Board of Education, the Alabama Institute for Deaf and Blind not to include production workers at the Alabama Industries for the Blind, [and] educational and correctional institutions under the control and auspices of the Alabama Department of Youth Services, who are so employed as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants supervisors and all other persons not otherwise certified by the State Board of Education. Only full-time employees ivho are not otherwise covered by the state Merit System, the teacher tenure law, or other state statute at the time this article is adopted are intended to be covered by this article. Full-time employees include (a) adult bus drivers and (b) other employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted. Substitute teachers and substitute employees are excluded from the article.”

(Emphasis added.)

In Stephenson v. Lawrence County Board of Education, 782 So.2d 192, 199—200 (Ala.2000), our supreme court held that the FDA did not govern the dismissal of the employee in that case because the dismissal of that employee was covered by some “other state statute” within the meaning of § 36-26-100.

In 2002, the legislature amended § 36-26-100 of the FDA in Act No. 2002-508, Ala. Acts 2002. According to the title of Act No. 2002-508, the stated purpose of that act is

“[t]o amend Section 36-26-100, Code of Alabama 1975, relating to the Fair Dismissal Act, to expressly provide that production workers at the Alabama Industries for the Blind and instructors are included in the definition of employee and to remove certain application exceptions.”

(Emphasis added.) Section 36-26-100, as amended, currently provides:

“The term ‘employees,’ as used in this article, is deemed to mean and include all persons employed by county and city boards of education, two-year educational institutions under the control and auspices of the State Board of Education, the Alabama Institute for Deaf and Blind, including production workers at the Alabama Industries for the Blind, and educational and correctional institutions under the control and auspices of the Alabama Department of Youth Services, who are so employed by any of these employers as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants, full-time instructors as defined by the State Board of Education, supervisors, and all other persons not otherwise certified by the State Board of Education. Only full-time employees who are not otherwise covered by the state Merit System or the teacher tenure law at the time this article is adopted are intended to be covered by this article. Full-time employees include (1) adult bus drivers and (2) other employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted. Substitute teachers and substitute employees are excluded from this article.”

§ 36-26-100, Ala.Code 1975 (emphasis added).

Both parties concede that Glass’s dismissal is not covered under the state Merit System or the Teacher Tenure Act. However, Glass argues that, although other state statutes, namely §§ 16-11-17 and 16-28-19, Ala.Code 1975, address the dismissal of an attendance officer, it was the legislature’s intent in amending § 36-26-100 in 2002 to delete the phrase “other state statute” to include employees such as Glass within the purview of the FDA. Therefore, the issue before this court is whether the legislature, by deleting that phrase in the 2002 amendment to § 36-26-100, intended that the FDA would govern the dismissal of an employee who was once governed by some “other state statute” within the meaning of Act No. 83-644.

“The intent of the Legislature is the polestar of statutory construction.” Siegelman v. Alabama Ass’n of Sch. Bds., 819 So.2d 568, 579 (Ala.2001) (citing Richardson v. PSB Armor, Inc., 682 So.2d 438, 440 (Ala.1996); Jones v. Conradi, 673 So.2d 389, 394 (Ala.1995); and Ex parte Jordan, 592 So.2d 579, 581 (Ala.1992)). We are mindful that “the Legislature will not be presumed to have done a futile thing in enacting a statute; there is a presumption that the Legislature intended a just and reasonable construction and did not enact a statute that has no practical meaning.” Weathers v. City of Oxford, 895 So.2d 305, 309 (Ala.Civ.App.2004) (citing Ex parte Watley, 708 So.2d 890 (Ala.1997), and Ex parte Meeks, 682 So.2d 423 (Ala.1996)).

The Court of Appeals of North Carolina has stated:

“[I]f the legislature deletes specific words or phrases from a statute, it is presumed that the legislature intended that the deleted portion should no longer be the law. See, e.g., Joe v. Lebow, 670 N.E.2d 9, 19 (Ind.Ct.App.1996) (‘When a statute contains language which is deleted by the legislature, we presume that the legislature intended the deletion to represent a change in the law.’); State v. Eversole, 889 S.W.2d 418, 425 (Tex.App. 1994) (‘[W]hen the legislature amends a particular statute and omits certain language of the former statute in its amended version, the legislature specifically intended that the omitted portion is no longer the law. Every word excluded from a statute must be presumed to have been excluded for a reason.’).”

Nello L. Teer Co. v. North Carolina Dep’t of Transp., 175 N.C.App. 705, 710-11, 625 S.E.2d 135, 138 (2006).

In Nello L. Teer Co., the North Carolina Court of Appeals concluded that the North Carolina legislature intended to change a law by deleting a phrase North Carolina courts had previously relied upon. The appellant in Nello L. Teer Co. argued that, according to § 136-29, N.C. Gen.Stat., filing a verified complaint within a specified period of time was a condition precedent to pursuing an action against a certain North Carolina state agency. 175 N.C.App. at 707-11, 625 S.E.2d at 137-38. North Carolina courts had previously held that, pursuant to specific language in § 136-29, filing a verified complaint within the specified period was a condition precedent to pursuing an action against that agency. 175 N.C.App. at 709, 625 S.E.2d at 138. However, the North Carolina legislature had amended § 136-29 by deleting the specific language that the courts had previously relied upon. Id. Thus, the Nello L. Teer Co. court concluded that the legislature, by deleting the phrase previously relied upon, intended to change the law to remove that condition precedent. Id.; see also Grigerik v. Sharpe, 247 Conn. 293, 721 A.2d 526 (1998) (concluding that the Connecticut legislature’s deleting certain statutory language that Connecticut courts had previously relied upon evidenced the legislature’s intent to change the law); Dix v. Superior Court, 53 Cal.3d 442, 461-62, 807 P.2d 1063, 1073, 279 Cal.Rptr. 834, 844 (1991) (“We presume the Legislature intends to change the meaning of a law when it alters the statutory language ..., as for example when it deletes express provisions of the prior version .... Because the Legislature is presumed [to be] aware of prior judicial constructions of a statute, the inference of altered intent is particularly compelling when, as in this case, the omitted word or phrase was significant to such a construction.”); and United States v. NEC Corp., 931 F.2d 1493, 1502 (11th Cir. 1991) (concluding that “[w]here, as here, the legislature deletes language that contained a general prohibition and replaces it with a grant of jurisdiction followed by certain enumerated exceptions, it is logical for a court to conclude that Congress intended to do away with the general prohibition”).

Regarding the case now before us, the legislature in amending § 36-26-100 in 2002 explicitly included within the purview of the FDA employees who had previously been explicitly excluded under that statute, i.e., production workers at the Alabama Industries for the Blind and employees at educational and correctional institutions under the control of the Alabama Department of Youth Services. Furthermore, the title to Act No. 2002-508, which amended § 36-26-100, specifically states that the purpose of the amendment was to include within the purview of the FDA the above-described employees who were previously excluded. Thus, the legislature’s intent is evident both in the title to Act No. 2002-508 and in the language of the amended statute: to broaden the scope of employees who are covered under the FDA.

Moreover, the legislature deleted the phrase “or other state statute,” the very phrase our supreme court relied upon in Stephenson to conclude that the employee in that action was not covered under the FDA. That deletion is not a futile act. See Weathers, supra. It is purposeful. See, e.g., Nello L. Teer Co., supra; Grigerik, supra. It was intended to change the law to eliminate that restriction previously relied upon in Stephenson. Consequently, we conclude that the legislature intended that the FDA would govern dismissals of employees as defined under the FDA even though the dismissal of such employees is covered under some “other state statute.”

II.

Glass also argues that her dismissal was not premised on the grounds enumerated in § 36-26-102, Ala.Code 1975, of the FDA.

This court’s standard of review of the trial court’s judgment affirming the hearing officer’s decision is as follows:

“ ‘In an FDA case that has been appealed to a circuit court, this court employs the following standard of review:
“ ‘ “In reviewing the decision of a hearing [officer], this court’s standard of review is the same as that of the circuit court’s. Colbert County Bd. of Educ. v. Johnson, 652 So.2d 274 (Ala. Civ.App.1994). Our review is limited to questions of whether there was substantial evidence to support the [hearing officer’s] decision, whether the [hearing officer’s] findings were contrary to the uncontradicted evidence, and whether the [hearing officer] improperly applied the law to the findings. Jefferson County Bd. of Educ. v. Moore, 706 So.2d 1147 (Ala.1997).”
‘Bessemer State Tech. Coll. v. Hosea-Studdard, 851 So.2d 46, 51-52 (Ala.Civ. App.2002).’ ”

Ex parte Wade, 957 So.2d 477, 481 (Ala.2006)(quoting Combs v. Wade 957 So.2d 464, 471 (Ala.Civ.App.2005)). Furthermore,

“ ‘[a]s our supreme court stated in Ex parte Beverly Enterprises[-Alabama, Inc.], 812 So.2d [1189] at 1195 [(Ala. 2001)], “[w]hen reviewing the decision of an administrative agency ... an Alabama court will affirm only if the action and the stated basis for the action are correct.” ’ ”

Ex parte Wade, 957 So.2d at 482 (quoting Combs v. Wade, 957 So.2d at 471).

Section 36-26-102 sets forth the grounds on which a nonprobationary employee under the FDA may be dismissed. That section provides:

“Upon the completing by the employee of said probationary period, said employee shall be deemed employed on a nonprobationary status and said employee’s employment shall thereafter not be terminated except for failure to perform his or her duties in a satisfactory manner, incompetency, neglect of duty, insubordination, immorality, justifiable decrease in jobs in the system, or other good and just causes; provided, however, such termination of employment shall not be made for political or personal reasons on the part of any party recommending or voting to approve said termination.”

(Emphasis added.)

It is undisputed that Glass would qualify as a nonprobationary employee under the FDA because she has surpassed the probationary period for such employees. See § 36-26-101(a) (“All employees as defined in Section 36-26-100 shall be deemed employed on a probationary status for a period not to exceed three years from the date of his or her initial employment, or a lesser period which may be fixed by the employing authority.”).

At the proceeding before the hearing officer, the hearing officer received evidence indicating that the Board had implemented a “Restructuring for Improvement Revised Plan” (“the Plan”) that eliminated various positions, including the position of attendance officer, within the school system. Dr. Felton testified that the Board had implemented the Plan, in part, because the Board had received approximately $500,000 to $550,000 less from the City of Anniston than it had received in the prior year. In addition, the Board initially had anticipated receiving fewer funds from the state. However, there was no actual loss in state funds.

Dr. Felton testified that the position of attendance officer could only be paid for with local funds. Dr. Felton further testified that, because the Board had incurred a decrease in local funds, it voted to eliminate the position of attendance officer. In place of the position of attendance officer, the Board created the position of supervisor of maintenance, safety, student services, and transportation and assigned the duties of an attendance officer to the person holding that position. The Board created that new position because the Board could pay for the new position with state and federal funds. However, the Board then transferred the responsibility for fulfilling the duties of the attendance officer from the person holding that new position to Dr. Joan Frazier, the director of federal programs and student services. Dr. Frazier assigned various duties of an attendance officer to parent specialists, who are under her direction. Evidence was introduced indicating that the Board could use federal funds to pay for the position of parent specialist.

Glass received a letter from Dr. Felton dated May 7, 2003, notifying her of the Board’s intent to eliminate the position of attendance officer and informing her of the Board’s intent to dismiss her. That letter stated, in pertinent part:

“The Board of Trustees of the Anniston City School [System] at its meeting May 6, 2003, voted on my recommendation a reduction-in-force for the 2003-2004 school year which influences your current position. The action is not a performance-based decision. The action is based upon Restructuring for Improvement Plan Revised Plan dated April 16, 2003. The action is taken under the school district’s reduction-in-force policy.”

In a letter dated May 29, 2003, Dr. Felton stated the following regarding the termination of Glass’s employment:

“I previously wrote you a letter informing you of the proposed termination of your employment. The reason for the proposed termination is a justifiable decrease in jobs in the system. Specifically!,] the Anniston City School System is anticipating a severe reduction in the amount of funds available for the coming school year.”

Dr. Felton testified that, although he notified Glass in the May 29 letter that he was recommending to the Board that it eliminate her position due to a justifiable decrease in jobs in the system as the result of “anticipating a severe reduction in the amount of funds available for the coming year,” at the time of the proceeding before the hearing officer, the Board was not “anticipating a severe reduction in the amount of funds available for the coming year.” Furthermore, the Board did not implement a reduction-in-force policy. However, Dr. Felton testified that there was a net loss in the total number of jobs within the school system.

Glass introduced a transcript of the termination hearing of another employee, Benjamin Cunningham, who was also employed by the Board as a manager of computer technology. Dr. Felton testified that Cunningham’s position was not eliminated because of a loss of fund but that that position was eliminated due to a restructuring of funds. Dr. Felton further testified that he recommended that the Board eliminate Cunningham’s position for the same reason he recommended that it eliminate Glass’s position: it would be a more efficient use of resources to eliminate certain positions and transfer the remaining duties to employees in existing positions.

In his decision, the hearing officer, relying on the language of § 36-26-100 before it was amended in 2002, concluded that the FDA does not apply because, pursuant to § 36-26-100 before it was amended in 2002, the FDA only applied to “full-time employees who are not otherwise covered by the state Merit System, the teacher tenure law, or other state statute.” He concluded that the FDA was inapplicable to Glass as an attendance officer because her position was governed by some “other state statute” and, therefore, that she was an at-will employee. However, the hearing officer also concluded that, even if the FDA applied to Glass’s dismissal, the Board’s reason for dismissing Glass — i.e., a “justifiable decrease in jobs in the system” — was not arbitrary or unjust. He also concluded that there was evidence tending to establish that the Board had suffered a decrease in local funds, which justified the Board’s decision to terminate Glass’s position. Furthermore, he also concluded that the Board’s elimination of the position of attendance officer and its assignment of those duties to other employees to more efficiently use its current employees also constituted a justifiable decrease in jobs in the system.

In affirming the hearing officer’s decision, the trial court’s judgment states that the FDA does not apply to Glass as an attendance officer and, therefore, that she was an at-will employee pursuant to § 16-28-19. The judgment further states that, even if the FDA applies to Glass, the evidence tended to establish that the school system had received fewer funds from the city than in the prior year and, therefore, that the Board’s decision was warranted due to a justifiable decrease in jobs in the system.

Dr. Felton’s May 7 letter stated that he was recommending terminating Glass’s position due to implementation of a reduction-in-force policy. However, the evidence established that the Board did not implement a reduction-in-force policy. Nevertheless, Dr. Felton stated in his May 29 letter that Glass’s position was being eliminated due to a “justifiable decrease in jobs in the system” because the school system was anticipating “a severe reduction in the amount of funds available for the coming school year.” Although the evidence established that there had not been “a severe reduction in the amount of funds” received from the state, the evidence did establish that the Board had incurred a decrease in local funds. Furthermore, the evidence established that Glass’s position was funded solely by local funds. Thus, the hearing officer’s finding that the Board had incurred a decrease in local funds that constituted a justifiable decrease in jobs in the system is supported by substantial evidence. See Woodham v. Alabama Aviation & Technical Coll., 537 So.2d 934, 935 (Ala.Civ.App.1988)(conclud-ing that the employer could provide a second notice to an employee when the underlying basis of the dismissal continued to be a justifiable decrease in jobs in the system).

Additionally, Dr. Felton testified that, based on the Board’s Plan, Glass’s position was eliminated because it would be more efficient to assign the duties of an attendance officer to parenting specialists. There is no evidence to the contrary. Thus, substantial evidence supports the hearing officer’s finding that the Board assigned the duties of an attendance officer to other employees to more efficiently utilize the Board’s current resources. Consequently, the hearing officer’s decision that Glass’s dismissal was based upon a “justifiable decrease in jobs in the system” is supported by substantial evidence.

III.

Glass also argues that the hearing officer erred in determining that the FDA was inapplicable to her. The hearing officer concluded (1) that the FDA does not apply to Glass because her position was covered by some “other state statute” and (2) that, even if the FDA applies, Glass’s dismissal was in accordance with the FDA. Although the hearing officer applied the version of § 36-26-100 in effect before the 2002 amendment to that section, we conclude that the application of that version was harmless error because the hearing officer correctly concluded that, if the FDA is applicable, substantial evidence supports a determination that Glass’s dismissal was in accordance with the FDA. See Rule 45, Ala. R. App P.

IV.

Glass also argues that her dismissal was not in accordance with § 36-26-103 of the FDA. Specifically, she argues that the reasons stated in Dr. Felton’s letters regarding Glass’s dismissal were not the basis of her dismissal.

At the time of Glass’s dismissal, § 36-26-103 provided, in pertinent part:

“The employing board of education shall give notice in writing to the employee, stating in detail the reasons for the proposed termination, the facts upon which such reasons are based, and giving notice of the employee’s rights to a hearing as set out herein.”

As previously discussed, Dr. Felton stated the reasons for Glass’s dismissal — a justifiable decrease in jobs in the system — in his May 29 letter. Even though Dr. Felton’s reason for a justifiable decrease in jobs in the system changed, as we have previously discussed, we find this change immaterial. See Woodham, supra.

V.

Last, Glass argues that the trial court erred in affirming the decision of the hearing officer because, she says, the elimination of an attendance officer is in violation of §§ 16-12-18 and 16-28-19, Ala. Code 1975, requiring boards to appoint an attendance officer.

Section 16-12-18 provides:

“The city superintendent of schools shall recommend the employment of one or more attendance officers, subject to the rules of the city board of education, and shall see to it that the provisions of law for school attendance are enforced.”

Furthermore, § 16-28-19 provides:

“The county board of education shall arrange the county, exclusive of cities, into one or more attendance districts, and said board shall appoint an attendance officer for every district created, who shall hold his office at the will of the county board of education, and the board of education of each city having a city board of education shall appoint one or more attendance officers to serve at the pleasure of the appointing board. City and county boards of education and county commissions may jointly employ any person or persons to carry out the provisions of this chapter and such additional duties as may be assigned them by such boards or county commissions.

(Emphasis added.)

In the case now before us, Dr. Felton testified that the Board had eliminated the position of attendance officer. Furthermore, Dr. Felton had assigned the duties of the attendance officer to Dr. Frazier, who, in turn, assigned those duties to parent specialists. Because § 16-28-19 specifically allows school boards to jointly employ other employees to carry out the provisions of Title 16, Chapter 28, Ala.Code 1975, we conclude that the Board could assign the duties of an attendance officer to other employees of the Board. Consequently, the Board did not violate § 16-12-18 or § 16-28-19 by eliminating the position of attendance officer.

VI.

Based on this court’s affirmance of the trial court’s judgment affirming the hearing officer’s decision, we deny Glass’s request to reinstate her position with full back pay and benefits.

AFFIRMED.

THOMPSON and PITTMAN, JJ., concur.

CRAWLEY, P.J., concurs specially, with writing.

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

CRAWLEY, Presiding Judge,

concurring specially.

I agree with the main opinion that the 2002 amendment to § 36-26-100, Ala.Code 1975, extended the procedural safeguards of the FDA to school attendance officers. Before the amendment, attendance officers served “at the pleasure of the appointing board,” see § 16-28-19, Ala.Code 1975, and were, therefore, “at-will” employees, see, e.g., DeWitt v. Gainous, 628 So.2d 418, 420 (Ala.1993) (holding that a junior college president who served at the pleasure of the employing board was an at-will employee).

Now, after the amendment, school attendance officers can be dismissed, pursuant to the FDA, only for certain enumerated causes:

“[AJfter a[n] ... employee attains non-probationary status, the ‘employee’s employment shall thereafter not be terminated except for [1] failure to perform his or her duties in a satisfactory manner, [2] incompetency, [3] neglect of duty, [4] insubordination, [5] immorality, [6] justifiable decrease in jobs in the system, [7] or other good and just causes .... ’ Ala.Code (1975), § 36-26-102.”

Woodham v. Alabama Aviation & Technical Coll, 537 So.2d 934, 936 (Ala.Civ.App. 1988).

Glass argues that because §§ 16-12-18 and 16-28-19 require the Board to appoint an attendance officer, the Board had no authority to eliminate that position. Thus, Glass maintains, there cannot be a “justifiable decrease in [attendance officer] jobs in the system.”

Although, strictly speaking, the Board did “eliminate the position” of attendance officer, it did not eliminate the duties of the attendance officer, opting instead to consolidate positions and to assign attendance-officer duties to other employees as a cost-saving measure. I concur with the main opinion because to hold that such an efficient use of resources violates the will of the legislature would be to elevate form over substance in the extreme.

MURDOCK, Judge,

concurring in part and concurring in the result.

I concur in Part I of the main opinion, and I concur in the result reached by that opinion.

Section 16-28-19, Ala.Code 1975, provides that a city board of education shall appoint “one or more attendance officers” to carry out the duties prescribed by Chapter 28 of Title 16 of the Alabama Code. Section 16-28-19 also expressly contemplates that the “person or persons” employed to carry out those duties simultaneously may be employed to carry out “such additional duties as may be assigned them” by the school board. I see nothing contrary to these provisions in the manner in which the school board in this case has arranged for the performance of the duties prescribed by Chapter 28 for attendance officers.

      . Glass was subsequently rehired as a secretary.

      . The Board voted to eliminate Glass's position as an attendance officer before July 1, 2004, the date certain amendments to the FDA became effective. See Act No. 2004-567, Ala. Acts 2004. Pursuant to § 36-26-116(a), the 2004 amendments to the FDA do not apply to this case; rather, the version of the FDA in effect before July 1, 2004, applies.

      . Section 16-11-17 provides:
      “The city board of education shall fix the salaries of all employees and may suspend or dismiss any principal or teacher or supervisor or attendance officer or other regular employee so appointed on the written recommendation of the city superintendent of schools for immorality, misconduct in office, incompetency, willful neglect of duty or when, in the opinion of the board, the best interests of the schools may require, subject to the provisions of Chapter 24 of this title.”

      . Section 16-28-19 provides:
      "The county board of education shall arrange the county, exclusive of cities, into one or more attendance districts, and said board shall appoint an attendance officer for every district created, who shall hold his office at the will of the county board of education, and the board of education of each city having a city board of education shall appoint one or more attendance officers to serve at the pleasure of the appointing board. City and county boards of education and county commissions may jointly employ any person or persons to carry out the provisions of this chapter and such additional duties as may be assigned them by such boards or county commissions.”

      . Section 36-26-103, Ala.Code 1975, has been amended by Act No. 2004-567, Ala. Act 2004, effective July 1, 2004. The Code section has been substantially rewritten, and § 36-26-103 no longer contains this specific language. See note 2.


author: CRAWLEY, Presiding Judge.

text:
    Malcolm R. NEWMAN v. Marla Y. NEWMAN.
    2050532.
    Court of Civil Appeals of Alabama.
    Nov. 9, 2006.

      Malcolm R. Newman, Dothan, for appellant.
    Marla Y. Newman, pro se.
   CRAWLEY, Presiding Judge.

In January 2004 Marla Y. Newman (“the ex-wife”) sued her former husband Malcolm R. Newman (“the ex-husband”) seeking to modify and enforce the final judgment divorcing the parties, including provisions of that judgment relating to child support. This is, in fact, the second appeal this court has addressed following the parties’ divorce in 1997, and it is the second time we must dismiss the appeal— albeit for different reasons.

In this case the trial court evidently held a hearing on all pending motions on January 7, 2005. Six months after that hearing the ex-wife filed a motion requesting that the trial court enter an order based on the evidence presented at the January 7 hearing. On October 21, 2005, the trial court entered an order in which it reserved ruling on the issue of child support pending the parties’ submission of Rule 32, Ala. R. Jud. Admin., income affidavits. See Appendix to Rule 32, Form CS^ll. The trial court also noted in its order that the case would be set for a status conference in November 2005 so that the court could review the receipt of the information provided pursuant to Rule 32.

The ex-husband filed a “response” to the trial court’s order and a “motion to clarify” the order on November 21, 2005, and the ex-wife filed a motion to alter, amend, or vacate or, in the alternative, a motion for a new trial on November 23, 2005. The phrase “CS forms” appears next to the date November 11, 2005, on the case-action-summary sheet, apparently indicating the receipt by the court of the income affidavits; however, there is no further order or judgment from the trial court in the record on appeal. The ex-husband apparently believed that the parties’ “post-judgment” motions had been denied by operation of law 90 days after he filed his “postjudgment” motion. See Rule 59.1, Ala. R. Civ. P. The ex-husband then filed a notice of appeal from the trial court’s order.

We need not address the merits of the ex-husband’s contentions on appeal because the appeal is not from a final judgment.

“ ‘It is well settled law that “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala.Civ.App.1999) (quoting Singleton v. Graham, 716 So.2d 224, 225 (Ala. Civ.App.1998)).... Additionally, ‘[t]he question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.’ Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App. 2006).”

Parker v. Parker, 946 So.2d 480, 485 (Ala. Civ.App.2006). “An appeal ordinarily will he only from a final judgment — i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990) (citing Taylor v. Taylor, 398 So.2d 267 (Ala.1981)).

In Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001) the trial court’s judgment stated that the amount of child support to be paid by one parent to the other would be determined after the parties submitted child-support income affidavits. The record contained no subsequent order or judgment, and this court dismissed the appeal as being from a nonfinal judgment. Id. Similarly, in Wilson v. Glasheen, 801 So.2d 848, 848-49 (Ala.Civ. App.2001), this court dismissed an appeal as being from a nonfinal judgment when the trial court’s order required the parties to submit documentation regarding their incomes so that it could determine a child-support award.

Therefore, because this is an appeal from a nonfinal judgment, we must dismiss this appeal.

APPEAL DISMISSED.

THOMPSON, PITTMAN, MURDOCK, and BRYAN, JJ., concur.

      . We addressed the first appeal in Newman v. Newman, 773 So.2d 481 (Ala.Civ.App.1999).


author: BASCHAB, Judge.

text:
    Aloysius HENRY v. STATE of Alabama.
    CR-05-0135.
    Court of Criminal Appeals of Alabama.
    May 26, 2006.

      Raymond E. Johnson, Montgomery, for appellant.
    Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.
   BASCHAB, Judge.

The appellant, Aloysius Henry, was convicted of first-degree robbery, a violation of § 13A-8-41(a)(l), Ala.Code 1975. The trial court sentenced him, as a habitual offender, to serve a term of life in prison. See § 13A-5-9(c), Ala.Code 1975. The appellant filed a motion for a new trial, which the trial court summarily denied. This appeal followed.

The appellant argues that his trial counsel rendered ineffective assistance. (Issue III in the appellant’s brief.) Specifically, he contends that counsel met with him only one time before his trial began; did not call witnesses who could have testified on his behalf; did not follow up on the court’s order for the State to produce videotapes he had requested; and did not object to inadmissible evidence. The appellant raised several ineffective-assistance-of-counsel allegations in his pro se motion for a new trial. However, the State did not refute any of the appellant’s allegations, and the trial court did not make any findings of fact regarding those allegations.

Because the trial court is in the best position to make findings of fact regarding the appellant’s claims, we remand this case to that court with instructions that it make specific, written findings of fact as to each of the appellant’s ineffective-assistance-of-counsel allegations. See Vinnie v. State, 866 So.2d 1175 (Ala.Crim.App.2002) (remanding for specific findings of fact on ineffective-assistance-of-counsel claims raised in a motion for a new trial); Stallings v. State, 793 So.2d 867 (Ala.Crim.App. 2000) (remanding for specific findings of fact on ineffective-assistance-of-counsel claims raised in a motion for a new trial); Tubbs v. State, 753 So.2d 1209 (Ala.Crim. App.1999) (remanding for specific findings of fact on ineffective-assistance-of-counsel claims raised in a motion for a new trial). On remand, the trial court may order the State to respond to the appellant’s specific allegations and/or may conduct an eviden-tiary hearing on those claims. If the trial court determines that the appellant is entitled to relief, it may order such relief. The trial court shall take all necessary action to see that the circuit clerk makes due return to this court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include the trial court’s specific, written findings of fact; a copy of the State’s response, if any; and a transcript of the remand proceedings, if any, conducted by the trial court.

REMANDED WITH INSTRUCTIONS.

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

      . The State argues that the appellant did not timely file his motion for a new trial. The record indicates that the trial court sentenced the appellant on September 30, 2005, and that the appellant filed his motion on October 31, 2005. Pursuant to Rule 24.1(b), Ala. R.Crim. P., a motion for a new trial must be filed no more than thirty days after the trial court pronounces sentence. However, because the thirtieth day in this case was October 30, 2005, which was on Sunday, the appellant had until Monday, October 31, 2005, to file his motion. Therefore, his motion was timely filed. See Rule 1.3(a), Ala. R.Crim. P.

       Note from the reporter of decisions: On August 18, 2006, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On September 1, 2006, that court denied rehearing, without opinion. On December 8, 2006, the Supreme Court denied certiorari review, without opinion (1051735).


text:
    Wade Robert ADAMS v. STATE of Alabama.
    CR-05-1593.
    Court of Criminal Appeals of Alabama.
    Nov. 3, 2006.
    Terry Lee Dempsey, Russellville, for appellant.
    Troy King, atty. gen., and Cecil G. Bren-dle, asst. atty. gen., .for appellee.
   BASCHAB, Judge.

On February 1, 2006, pursuant to a negotiated agreement, the appellant, Wade Robert Adams, pled guilty to second-degree robbery and first-degree burglary. The trial court sentenced him to serve concurrent terms of twenty years in prison, but split the sentences and ordered him to serve five years followed by five ■years on supervised probation. On April 20, 2006, the State filed a “Motion to Revoke Probation.” After conducting a hearing, the circuit court revoked the appellant’s probation. This appeal followed.

The following facts from the circuit court’s written revocation order are helpful to an understanding of this case:

“On February 01, 2006, Defendant, Robert Wade Adams entered into a plea agreement with the State of Alabama whereby he agreed to plead guilty to the charges of Robbery 2nd Degree in Case Number CC 05-102 and Burglary 1st Degree in Case Number CC 06-008. In exchange the State dismissed of Rape 1st Degree and Theft of Property 2nd Degree in Case Number CC 05-102 and Robbery 1st Degree, Theft 2nd Degree and Assault 2nd Degree in Case Number 06-008. Defendant specifically indicated that hé would ‘testify truthfully in any subsequent proceedings’ involving Co-Defendants in either of the cases. During the course of colloquy with the Court, the Defendant acknowledged that he had provided statements to law enforcement in both cases and that any subsequent testimony would be consistent with those statements.
“Robert Wade Adams was called as a witness by the State of Alabama in the case of State of Alabama v. Wesley Leland Sharp, CC 05-124. Defendant had made the State aware that he intended to invoke his Fifth Amendment privilege against self incrimination alleging that if he testified it would be differently from the statements that he had provided law enforcement and, therefore, he refused to testify on the grounds that he could be charged with perjury. A hearing was conducted outside the presence of the jury at which time the Defendant did refuse[] to answer any questions regarding the involvement of Wesley Leland Sharpe in the alleged Rape. Subsequently, the Court granted Defendant immunity from a perjury charge and Defendant was called as a rebuttal witness to the defense’s position. The Defendant did testify contrary to his original statement.
“The State contends that the Defendant’s behavior violated the terms and conditions of the plea agreement which provided for a five year split on the twenty year sentence followed by five years of probation. The Defendant contends that the appropriate action of the State would be a Motion to set aside the plea agreement and provide the Defendant with a jury trial on the initial charges. It is the finding of the Court that this Court maintain jurisdiction as a result of the issuance of a five year split on the twenty year sentence followed by probation. It is the further finding of the Court that the suspension on the balance of the sentence was also conditioned on testimony provided by Robert Wade Adams that he asserted in his plea agreement would be consistent with his statement. It is the determination of the Court that probation is due to be revoked and it is ORDERED Defendant, Robert Wade Adams, shall serve the twenty year sentence in Case Number CC 05-102 and CC 06-008 straight.”

(C.R. 80-82.)

The appellant argues that the circuit court erroneously revoked his probation based on his failure to comply with the conditions set forth in his plea agreement because compliance with the conditions of the plea agreement was not a condition of his probation. Rule 27.6(e), Ala. R.Crim. P., provides, in pertinent part:

“Probation shall not be revoked for violation of a condition or regulation if the probationer had not received a written copy of the condition or regulation.”

However, this court has recognized that there are certain conditions of probation that are implicit in every probationary sentence. See Hill v. State, 624 So.2d 1102 (Ala.Crim.App.1993) (holding that every probationary sentence includes the implicit condition that a probationer serving a split sentence will comply with prison rules and regulations while on probation); Wilcox v. State, 395 So.2d 1054 (Ala.1981) (holding that every probationary sentence includes the implicit condition that the probationer will not commit another criminal offense while on probation).

In this case, the appellant received a split sentence and a term of probation based on a plea agreement that was conditioned on his future performance. Logically, if he did not perform in accordance with the plea agreement, he would not be entitled to enjoy the benefits of that agreement. Because the appellant received probation pursuant to a conditional plea agreement, compliance with the conditions set forth in the agreement was an implicit condition of the appellant’s probation. Cf. Hill, supra; Wilcox, supra. Therefore, failure to comply with the conditions of his plea agreement constituted a violation of his probation, and the circuit court properly revoked his probation on that ground. Accordingly, we affirm the circuit court’s judgment.

AFFIRMED.

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


author: BASCHAB, Presiding Judge,

text:
    Ronnie FAGAN v. STATE of Alabama.
    CR-06-0209.
    Court of Criminal Appeals of Alabama.
    Feb. 23, 2007.
    Ronnie Fagan, pro se.
    Submitted on appellant’s brief only.
   Note from the reporter of decisions: On February 23, 2007, the Court of Criminal Appeals issued the following order:

“ORDER

“The appellant, Ronnie Fagan, appeals the denial of his ‘Motion for post-conviction DNA testing.’ In 1981, Fagan was convicted of rape and was sentenced to 50 years’ imprisonment. His conviction was affirmed on direct appeal. See Fagan v. State, 511 So.2d 273 (Ma.Crim.App.1987) (table). Fagan filed numerous postconviction petitions attacking his conviction and sentence. In June 2006, Fagan filed a motion in the circuit court entitled ‘Motion for post-conviction DNA testing.’ The circuit court denied that motion; this appeal followed.

“The motion filed in the circuit court was not treated as a Rule 32, Ma.R.Crim. P., petition; no in forma pauperis declaration was filed nor was a filing fee paid.

“As we stated in Hart v. State, 939 So.2d 948, 949 (Ma.Crim.App.2005):

“ ‘ “The right of appeal is wholly statutory. Under our statute an appeal is authorized in criminal cases only from a judgment of conviction.” Dawson v. State, 37 Ma.App. 16, 17, 66 So.2d 567, 568 (1952) (emphasis added).’

“There is no statute authorizing an appeal from the denial of a postconviction motion for DNA testing.

“Moreover, while we have recognized that the need for postconviction DNA testing may be presented in a Rule 32 petition — see Barbour v. State, 903 So.2d 858 (Ma.Crim.App.2004), and Dowdell v. State, 854 So.2d 1195 (Ma.Crim.App.2002)-we have also recognized that Mabama has yet to establish any procedures for defendants to request postconviction DNA testing.

“Accordingly, it is hereby ORDERED that this appeal be DISMISSED as being from a nonappealable order. It is further ORDERED that the certificate of judgment in this case shall be issued forthwith.

“McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

“BASCHAB, P.J., dissents, with opinion.”

BASCHAB, Presiding Judge,

dissenting.

For the reasons set forth in my dissents in Barbour v. State, 903 So.2d 858 (Ala. Crim.App.2004), and Dowdell v: State, 854 So.2d 1195 (Ma.Crim.App.2002), I respectfully dissent. In doing so, I again strongly urge the Legislature to pass statutes and/or the Mabama Supreme Court to establish rules that allow for, and set parameters for, post-conviction DNA testing.