source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte VFJ VENTURES, INC., f/k/a VF Jeanswear, Inc. (In re G. Thomas Surtees, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue v. VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc.).
    1070718.
    Supreme Court of Alabama.
    Sept. 19, 2008.
    Joseph B. Mays, Jr., Bruce P. Ely, Christopher R. Grissom, and Marc James Ayers of Bradley Arant Rose & White, LLP, Birmingham, for petitioner.
    Troy King, atty. gen., and Jeff Patterson, deputy atty. gen., Montgomery, for respondents.
    Bingham D. Edwards, Jr., and Ed R. Haden of Balch & Bingham, LLP, Birmingham; and Eli J. Dicker and Shirley S. Grimmett of Tax Executives Institute, Inc., Washington, D.C., for amicus curiae Tax Executives Institute, Inc., in support of the petitioner.
    Todd A. Lard, Council of State Taxation, Washington, D.C., for amicus curiae Council on State Taxation, in support of the petitioner.
    Susan E. Kennedy of Slate Kennedy, LLC, Montgomery, for amici curiae Alabama Education Association and Board of Trustees of the University of Alabama, in support of the respondents.
    Bruce J. Fort, Multistate Tax Commission, Washington, D.C., for amicus curiae Multistate Tax Commission, in support of the respondents.

      . Although Justice See did not sit for oral argument of this case, he has viewed the video recording of that oral argument.

   LYONS, Justice.

VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc. (“VFJ”), sued in the Montgomery Circuit Court the commissioner of the Alabama Department of Revenue, in his official capacity, and the Alabama Department of Revenue. At the time the complaint was filed, Dwight Carlisle was the commissioner of the Alabama Department of Revenue. During the pendency of the case, G. Thomas Surtees was substituted pursuant to Rule 25(d), Ala. R. Civ. P., as a defendant, in his official capacity, when he became the commissioner of the Alabama Department of Revenue. Tim Russell is now the commissioner of the Alabama Department of Revenue; he is now a defendant, in his official capacity, pursuant to Rule 43(b), Ala. R.App. P. (Russell and the Alabama Department of Revenue will hereinafter be referred to collectively as “the Department.”) The trial court entered a judgment in favor of VFJ. The Department appealed to the Court of Civil Appeals; that court reversed the judgment of the trial court and remanded the case for the entry of a judgment in favor of the Department. Surtees v. VFJ Ventures, Inc., 8 So.3d 950 (Ala.Civ.App.2008). VFJ then filed a petition for certiorari with this Court; we granted certiorari review.

After considering the record in this case, the briefs of the parties and the amici curiae, the oral arguments of the parties, and the opinion of the Court of Civil Appeals, we agree with the views expressed by Presiding Judge Thompson in his thorough and well reasoned opinion. In light of that thoughtful opinion, we see no need to explicate further. We affirm the judgment of the Court of Civil Appeals, and we adopt Presiding Judge Thompson’s opinion in its entirety, as the opinion of this Court.

AFFIRMED.

COBB, C.J., and SEE, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.


author: THOMPSON, Presiding Judge.

text:
    C.T. v. CALHOUN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2070588.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2008.

      Wendy Ghee Draper of Ghee & Draper, Anniston, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette, asst. atty. gen. and gen. counsel, and Kimberly J. Dobbs, asst. atty. gen., Department of Human Resources, for ap-pellee.
   THOMPSON, Presiding Judge.

The Calhoun County Department of Human Resources (“DHR”) filed a complaint seeking to terminate the parental rights of L.S. (“the father”) and C.T. (“the mother”) to their child, M.J.C. The juvenile court conducted an ore tenus hearing. On February 28, 2008, the juvenile court entered an order terminating the mother’s and the father’s parental rights. The mother filed a postjudgment motion, which the juvenile court denied. The mother timely appealed.

The record indicates that DHR first removed the child from the mother’s custody in August 2004. At that time, the mother was using illegal drugs and was involved in an abusive relationship with a man who was not the child’s father. The child was returned to the mother’s home on four separate occasions. The shortest of those reunifications lasted less than one month, and the longest was five months in duration. On each of the four occasions in which the child was returned to her mother’s home, the child was subsequently removed from the mother’s custody either because of domestic-violence concerns or because the mother failed to pass random drug-screen tests. The child has remained in the custody of DHR continuously since September 2006.

DHR attempted to place the child in two separate relative placements. The child was briefly placed with her maternal grandmother. However, DHR social workers learned that in the month before that placement began, the grandmother had been charged with a drug-related crime, and, therefore, the child was removed from her home.

In July 2007, the child was placed in the home of D.C. and P.C., a paternal great-uncle and great-aunt. However, in November 2007, D.C. and P.C. informed DHR social workers that they could not serve as a long-term placement for the child; they were, however, willing to allow the child to remain with them until DHR located a permanent placement for the child. The mother also has twin sons born in August 2005 who are currently in the custody of relatives; those relatives were unwilling to serve as a placement for the child at issue in this case. Since she has been in the home of D.C. and P.C., the child has visited the twins at least monthly.

The record indicates that since August 2004, when she was first placed in DHR’s custody, the child has been moved approximately 20 times; those 20 moves include the instances in which the child was returned to the mother and then removed from her care and the occasions when she was placed with relatives. Dona Crow, the child’s counselor, testified that the child has an adjustment disorder as a result of the frequent changes in her life; the child has exhibited oppositional behavior, tantrums, and moodiness as a result of that disorder. According to Crow, the child regresses and her behaviors worsen when she is relocated to another residence and when she becomes disappointed after having some hope that the situation will change and she will be allowed to return to her mother’s home. Crow opined that the child could suffer irreparable harm if she were not provided a permanent home; Crow expressed concern about the child’s future ability to form lasting bonds and relationships with others if the pattern of frequent upheavals persists. Crow believes that the child’s need for, and the resulting benefit of, a permanent placement will offset the child’s grief at losing a relationship with the twins.

Christina Kilgroe, the DHR social worker who was assigned this case until the end of November 2007, testified that she had requested the names of possible relative resources from the mother, the maternal grandmother, D.C. and P.C., and all relatives of the child to whom she spoke. Most relatives identified by those people were not interested in taking the child. One of D.C.’s brothers, J.C., expressed interest in serving as a relative resource, but DHR did not conduct a home study on his home. Kilgroe explained that J.C. had indicated that he wanted to take the child only if custody was permanently removed from the mother or the mother’s parental rights were terminated. According to D.C., J.C. ultimately decided against serving as a placement for the child.

Lessie Culver, the DHR social worker assigned the case in late November 2007 or early December 2007, testified that she had unsuccessfully attempted to contact the mother after she received the case. Culver testified that in January 2008, in anticipation of the February 2008 termination hearing, she asked the mother’s family members for names of possible resources for the child. Culver stated that D.C. informed her that he would speak to other relatives to see if they would be interested in taking the child. Culver stated that the only names provided to her concerning possible relative placements for the child were J.C. and the couple who had custody of the twins; those relatives were unwilling or unable to take the child.

At the February 20, 2008, termination hearing, D.C. testified that another of his brothers, Jo.C., was willing to take the child. Kilgroe and Culver both testified that Jo.C. had never been mentioned by the mother, D.C., or any family member as a possible relative resource, and each testified that the first time they had heard of Jo.C. was on the morning of the termination hearing.

D.C. explained that although he had spoken with other family members after November 2007 about taking the child, he had not talked to Jo.C. about the possibility of his providing a home for the child. D.C. testified that Jo.C. had expressed interest in serving as a placement for the child approximately one week before the termination hearing. According to D.C., Jo.C. had children close in age to the child; D.C. also stated that, while living in D.C.’s home, the child had seen Jo.C. at least monthly. D.C. explained that Jo.C., who lives in Louisiana, is divorced and visits his children in Alabama every other weekend. During those visits, Jo.C. visits other family as well, including D.C., P.C., and the child. According to D.C., Jo.C. is seeking to purchase a home in Alabama; it is not clear whether he has plans to move to Alabama.

The mother testified that she had talked to Jo.C. about his interest in serving as a placement for the child several times in the months before the termination hearing. According to the mother, Jo.C. had consulted an attorney about the matter. However, Jo.C. had not contacted DHR about his interest in the child, and he did not appear at the termination hearing.

In this case, the juvenile court received ore tenus evidence on DHR’s complaint seeking to terminate the parents’ parental rights. The juvenile court’s judgment based on that ore tenus evidence is presumed to be correct and will not be overturned absent a showing that the judgment is plainly and palpably wrong. S.B.L. v. Cleburne County Dep’t of Human Res., 881 So.2d 1029, 1081-32 (Ala.Civ.App.2003).

“ ‘A parent has a prima facie right to custody of his or her child and this right can be overcome only by clear and convincing evidence that the child’s best interests would be served by permanently terminating the parent’s custody.’ Ex parte State Dep’t of Human Res., 624 So.2d 589, 591 (Ala.1993)(citing R.C.M. v. State Dep’t of Human Res., 601 So.2d 100 (Ala.Civ.App.1991)). When the State is petitioning to terminate a parent’s parental rights, the trial court must first determine if the child is dependent and then must examine whether all viable alternatives to termination have been explored. Ex parte Beasley, 564 So.2d 950 (Ala.1990). On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte State Dep’t of Human Res., supra.”

W.C. v. State Dep’t of Human Res., 887 So.2d 251, 256 (Ala.Civ.App.2003). The paramount consideration in a case involving the termination of parental rights is the best interests of the children. Q.F. v. Madison County Dep’t of Human Res., 891 So.2d 330, 335 (Ala.Civ.App.2004); S.B.L. v. Cleburne County Dep’t of Human Res., 881 So.2d at 1032; and J.L. v. State Dep’t of Human Res., 688 So.2d 868, 869 (Ala.Civ.App.1997).

The mother does not dispute the juvenile court’s determinations that the child is dependent and that she is unwilling or unable to discharge her parental responsibilities to the child. The only issue the mother raises on appeal is her argument that the juvenile court erred in finding that there existed no viable alternatives to the termination of her parental rights. In her brief on appeal, the mother identifies placing the child with Jo.C. as the sole alternative to the termination of her parental rights.

This court has stated that “DHR must present ‘evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least dramatic alternative.’ ” V.M. v. State Dep’t of Human Res., 710 So.2d 915, 921 (Ala.Civ.App.1998) (quoting Bowman v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988)) (emphasis added in V.M.). In V.M., supra, this court held that the trial court had erred in concluding that there were no viable alterna-fives to the termination of the mother’s parental rights. In that case, the children’s grandmother had earlier refused to take custody of them. However, for approximately two years before the termination hearing, the grandmother had expressed a willingness to take the children; DHR rejected her primarily due to her earlier lack of interest. This court, however, held that DHR, which did not conduct a home study or other investigation of the grandmother, had failed to present evidence of “recent ” attempts to find an alternative to the termination of the mother’s parental rights through its failure to investigate the grandmother as a possible relative placement for the child. V.M., 710 So.2d at 921.

In this case, however, DHR presented evidence of its recent attempts to locate relative placements for the child as an alternative to the termination of the mother’s parental rights. The DHR social workers had investigated all the potential resources identified by the mother or members of her family before the termination hearing. Culver testified that in January 2008, the month before the termination hearing, she had again asked for names of potential relative resources and that she had been given the same names DHR had already been provided; those potential resources were either unwilling or unable to serve as a placement for the child. Thus, DHR presented evidence of its recent attempts to locate an alternative to the termination of the mother’s parental rights. It is undisputed, however, that before the date of the termination hearing, neither the mother nor any member of her family had mentioned Jo.C. to the DHR social workers and that they had not indicated that Jo.C. might be willing to serve as a relative placement for the child. The mother does not explain how she believes DHR could have investigated Jo.C. as a possible relative resource.

Rather, the mother contends that DHR offered no evidence concerning Jo.C. or his home that would prevent a finding that Jo.C. could serve as a relative placement for the child. The mother cites Ex parte J.R., 896 So.2d 416 (Ala.2004), for the proposition that DHR had the burden of investigating Jo.C. and proving that he was not a viable placement alternative for the child. See also D.S.S. v. Clay County Dep’t of Human Res., 755 So.2d 584, 591 (Ala.Civ.App.1999) (“[W]e now explicitly hold, DHR — not the prospective custodian — has the burden of initiating investigations, and it is DHR’s burden to prove the unsuitability of one who seeks to be considered as the custodian of a dependent child.”).

In Ex parte J.R., supra, a dependent child’s aunt and uncle were interested in serving as a relative placement for the child and had “pursued that interest through two levels of court proceedings.” 896 So.2d at 428. The trial court concluded, among other things, that there were no viable alternatives to the termination of the mother’s parental rights. This court reversed, concluding that because DHR had failed to present evidence indicating that the aunt and uncle would not be an appropriate relative placement for the child, the trial court had erred in finding that no viable alternatives to termination existed. Id.

The facts of this case are clearly distinguishable from those of Ex parte J.R., supra. In that case, the potential relative resources had been made known to DHR and had actively sought to become a relative placement for the child. In this case, however, it is undisputed that the mother and her family members first named Jo.C. as a possible relative resource on the morning of the termination hearing. Thus, DHR had no knowledge of the existence of this purported possible relative resource, and, therefore, it had no opportunity to investigate him. The mother has identified no caselaw indicating that the courts must delay consideration of the termination of a parent’s parental rights because a parent has, immediately before or during a termination hearing, identified a new possible relative resource for the child. In fact, our caselaw indicates otherwise. In B.S. v. Cullman County Department of Human Resources, 865 So.2d 1188 (Ala.Civ.App.2003), the mother questioned a possible relative resource about her willingness to serve as a placement for the child for the first time during the termination hearing. This court held that the last-minute mentioning of a possible relative resource “was not sufficient” to establish “a truly viable alternative to the termination of the mother’s parental rights.” B.S. v. Cullman County Dep’t of Human Res., 865 So.2d at 1197. Similarly, in this case, the mother’s identifying for the first time during the termination hearing Jo.C. as a possible relative resource for the child does not constitute the advancement of a viable alternative to the termination of her parental rights.

We also note that, in this case, there is no direct evidence that Jo.C. is actually willing to be considered as a relative resource or that he might be a suitable placement. Jo.C. did not contact DHR or appear at the termination hearing to provide information on those issues. Given the facts of this case, we find the mother’s argument that DHR failed to meet its burden of presenting evidence of Jo.C.’s unsuitability as a potential relative resource for the child to be unpersuasive.

We cannot say that the mother has demonstrated that the juvenile court erred in concluding, based on the evidence presented to it at the termination hearing, that there were no viable alternatives to the termination of her parental rights. Accordingly, we affirm the juvenile court’s judgment.

AFFIRMED.

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

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

      . The father did not appear at the termination hearing, and he did not appeal the juvenile court's February 28, 2008, judgment.

      . The mother also asserts that DHR erred in failing to present evidence that her home was not a suitable placement for the child. The mother has conceded, however, that the child is dependent and that she is unable to provide a suitable home for the child or to meet the child's needs.


author: PER CURIAM. BRYAN, Judge,

text:
    John McCALL v. ALABAMA STATE PERSONNEL BOARD.
    2070450.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.

      Norbert H. Williams, Alabama State Employees Association, for appellant.
    Joana S. Ellis and Alice Ann Byrne, Alabama State Personnel Board, for appel-lee.
   PER CURIAM.

In February 2006, John McCall (“the employee”), who had been charged in August 2005 with having committed the crimes of sodomy in the first degree and sexual abuse in the first degree, was dismissed from his employment with the Alabama Department of Corrections (“DOC”), a state agency. After the employee had sought review by the Alabama State Personnel Board (“the Board”) of his dismissal, he agreed to enter a plea of guilty to a lesser charge of harassing communications with the understanding that all criminal charges would be dropped upon his having undergone sex-offender evaluation and treatment, a condition that was subsequently satisfied. Before the date scheduled by the Board’s administrative law judge (“ALJ”) for a hearing on the propriety of the dismissal, counsel for DOC notified the ALJ that DOC’s commissioner had decided to “reinstate” the employee and that DOC’s counsel would be calling upon counsel for the employee to prepare and submit a stipulation of dismissal of the administrative-review proceedings. The employee resumed working for DOC in mid-August 2006, approximately six months after his dismissal.

On October 17, 2006, the Board’s ALJ issued an order acknowledging that the matter had apparently been “resolved” by the parties, but directing that “[t]he parties should file the proper documentation to indicate that [the] matter has been resolved no later than October 25, 2006.” October 25, counsel for DOC filed a response to the ALJ’s order stating that DOC’s commissioner had requested that the Board “authorize payment of back pay to” the employee. The issue of the employee’s entitlement to backpay was initially considered by the Board at its November 2006 meeting, but was it remanded to the ALJ for her consideration because, the Board believed, the evidence before the Board was insufficient for it to decide the matter.

The ALJ then called for the parties to submit “stipulations” regarding the facts tending to show the existence of an agreement that the employee should receive backpay. In response to the ALJ’s direction, DOC filed a “Stipulation of Back Pay” in which it summarized, among other things, the pay that would have accrued to the employee during the period of his dismissal but also stated that it was “unaware of any offsetting wages received by [the employee] and would respectfully request a signed statement from [the employee] concerning any offsetting wages received” (emphasis added). DOC subsequently filed with the Board a “Stipulation of the Facts” in which it stated that it had “attempted but [had] been unable to reach an agreement with counsel for the employee so as to file a joint stipulation of facts” and added that it was “still unable to determine if [the employee] had any wages that would off-set the back pay.” In response, counsel for the employee filed his own “Stipulation of Facts” in which he noted that in light of the employee’s having been hired from a “re-employment list,” one of the issues left for decision by the Board was “the matter of back-pay”; the employee posited that his dismissal had been wrongful and that, therefore, any backpay awarded to him should not be offset by any earnings he might have had during the period of his dismissal. DOC responded, averring that, although it would not agree that the employee had been wrongfully dismissed, it agreed to pay the employee backpay “as offset by the wages earned during [the employee’s] displacement from [his] employment” with DOC.

In April 2007, the ALJ entered a proposed order stating findings of fact and conclusions of law regarding the issue of backpay. The ALJ noted that, although the employee would have earned $20,466.05 had he remained employed by DOC between February and August 2006, he had earned $18,624.01 in other employment during that period; the ALJ further noted that DOC had agreed to an award of the difference between those amounts, or $1,842.04. Based upon all the facts of the case, the ALJ recommended that the Board make no award of backpay whatsoever. Counsel for the employee then filed a statement of his exceptions to the ALJ’s recommendations in which he again noted that the matter of backpay remained before the Board and in which he again insisted that any award of backpay not be offset by the employee’s other earnings. After considering the ALJ’s proposals and the parties’ arguments, the Board entered an order granting an award of backpay, albeit offset by the employee’s earnings.

The employee, through counsel, filed a petition for judicial review of the Board’s order in the Montgomery Circuit Court, and the administrative record was then transmitted to that court. After holding a hearing and receiving briefs from both the employee and the Board, the circuit court entered a judgment affirming the Board’s order; that court subsequently denied a motion to alter, amend, or vacate that judgment. The employee filed a notice of appeal in order to obtain review of the circuit court’s judgment of affirmance.

The sole issue raised by the employee on appeal is whether DOC’s decision to rehire him divested the Board of jurisdiction to rule on matters such as his entitlement to backpay. In order to properly resolve that issue, we must consider the basis of the Board’s jurisdiction.

Under Ala.Code 1975, § 36-26-27(a), an “appointing authority” such as DOC is empowered to dismiss an employee from employment in the classified service of the state whenever it is determined by the appointing authority that “the good of the service will be served thereby.” The decision of an appointing authority, however, is subject to the dismissed employee’s right to seek administrative review of that decision by filing a “written answer” to the appointing authority’s charges with the authority and the Board within 10 days after notice. See id. Once that review process is set in motion, the Board is empowered to determine whether the charges stated by the appointing authority are or are not “warranted.” The statute provides that “if the charges are proved unwarranted,” the Board may “order the reinstatement of the employee under such conditions as the [B]oard may determine.” Id. (emphasis added). On the other hand, if the charges are not found unwarranted, the Board, pursuant to a 1983 amendment to the statute, “may impose a punishment other than termination,” such as “reinstatement with forfeiture of back wages and benefits between the date of termination and the date of the [B]oard’s order reinstating the employee” or “a suspension up to and including 30 days.” Id.; see generally Alabama State Pers. Bd. v. Hardeman, 893 So.2d 1173, 1178-79 (Ala.Civ.App.2004) (discussing the effect of the 1983 amendment).

In this case, just before the Board’s ALJ was to consider whether, among other things, the disciplinary sanction imposed upon the employee by DOC should be sustained, DOC notified the ALJ that its commissioner had decided that the employee was entitled to be reinstated. Alabama’s Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975, specifically recognizes the general propriety of “informal dispositions ... of any contested case by stipulation [or] agreed settlement.” Ala.Code 1975, § 41-22-12(f). However, the parties did not file with the ALJ or the Board a joint stipulation or motion seeking the dismissal of, or the entry of an agreed order in, the review proceedings. Rather, to the extent that DOC and the employee remained at odds concerning the extent of back wages payable to the employee (which is evidenced by the contrasting stipulation documents each party filed in response to the ALJ’s call for the filing of stipulations after the Board had remanded the matter to her), the matter remained within the jurisdiction of the Board for a final disposition of the rights and obligations of the parties until the Board entered its order determining that the employee was entitled to backpay as offset by his outside earnings.

Our conclusion draws support from the holding of a Florida appellate court in New v. Department of Banking & Finance, 554 So.2d 1203 (Fla.Dist.Ct.App.1989). In New, an employee of a state agency who had taken an authorized unpaid leave of absence was erroneously paid her biweekly net wage, and federal income taxes were withheld from that erroneous payment. The state comptroller subsequently undertook proceedings to collect the tax payment directly from the state employee, which prompted the employee to seek administrative review of the comptroller’s decision. On the date of the scheduled administrative hearing, the state agency’s representative announced that an agreement had been reached under which it would pay part of the amount at issue and the state employee would pay the remainder; the hearing officer then concluded that a formal hearing was not necessary and “closed [the] file” on the matter. 554 So.2d at 1205. However, after the comptroller and the employee had each refused to execute proposed written stipulations, the comptroller purported to enter an order finally adjudicating the dispute. The Florida appellate court, after noting the availability of informal disposition by agreed settlement under that state’s administrative statutes, which are similar to Alabama’s administrative statutes, concluded that the comptroller had lacked the authority to enter the order at issue and determined that the matter remained to be decided in formal administrative proceedings:

“Here the parties unsuccessfully attempted an informal disposition. The hearing officer closed his file but did not dismiss the proceeding. Jurisdiction terminates upon dismissal. When parties apparently reach a settlement and the hearing officer closes his file the case returns to the agency for the entry of a final order adopting the stipulation or settlement agreement. Unless the stipulation contains an agreement to dismiss any pending jurisdiction the jurisdiction is unaffected. Absent a dismissal which terminates jurisdiction, if informal proceedings which the parties incorrectly expected to satisfactorily terminate the matter fail to do so, then the proper procedure is to resume formal ... proceedings.”

New, 554 So.2d at 1206-07 (emphasis added; citations omitted).

The employee, in his brief on appeal, maintains that DOC “accomplished its objective” of “returning him to work by re-employing him from a re-employment register maintained by the State Personnel Department” (emphasis added); in contrast, he says that the Board took no action to return him to work. We disagree. Although DOC presumably has the authority prospectively to rehire any former classified employee, even one previously dismissed from service, our review of the text of Ala.Code 1975, § 36-26-27(a), indicates that only the Board has the power to reinstate a classified employee’s employment once an appointing authority has decided to dismiss that employee. In this case, the employee has doggedly sought relief consistent with a reinstatement of his former employment, ie., backpay and restoration of retirement and insurance benefits.

DOC’s concession to the Board that reinstatement would be appropriate amounts to a de facto admission to the Board that DOC’s original charges against the employee did not warrant his dismissal; at the very least, it reflects an intent on the part of DOC not to undertake its burden to prove those charges. See generally Goolsby v. Green, 431 So.2d 955, 959 (Ala.1983) (“under the Board’s rules and regulations, the burden is on the appointing authority to prove the charges representing the basis for dismissal”). However, § 36-26-27(a) nonetheless affords the Board discretion to impose conditions upon a reinstatement, including conditions regarding backpay. See Alabama Dep’t of Mental Health & Mental Retardation v. Alabama State Pers. Dep’t, 863 So.2d 1118, 1118 (Ala.Civ.App.2003) (affirming circuit court’s decision that had upheld Board’s decision under which particular employee was ordered “reinstated with full back pay and benefits”; employing agency could not properly seek setoff in judicial-review proceedings). The issue of any award of backpay to the employee as a component of the reinstatement of his former employment by DOC was, therefore, properly before the Board.

The employee similarly contends that DOC’s concession rendered the administrative proceeding moot so as to divest the Board of adjudicatory power. The employee correctly notes that, in a judicial setting, a case is deemed moot when “there is no real controversy” between the parties. American Fed'n of State, County, & Mun. Employees v. Dawkins, 268 Ala. 13, 18, 104 So.2d 827, 831 (1958). The employee seeks to analogize the Board’s jurisdiction to that of a court and to have this court hold that the Board was divested of all jurisdiction upon DOC’s notification that its commissioner had unilaterally decided to reinstate the employee to his employment.

Even if we assume, as the employee would have us assume, that principles of mootness constrain administrative agencies in the precise manner that they constrain judicial bodies, we note that a dismissed employee’s return to work does not, in and of itself, render moot review proceedings concerning that employee’s dismissal. See Adams v. Warden, 422 So.2d 787, 790-91 (Ala.Civ.App.1982) (reaching merits of appeal from trial court’s judgment that had upheld dismissal of classified municipal employees despite those employees’ subsequent retiren to their former work, noting that “our determination of the issue before us would necessarily affect the parties’ collateral rights”); see also Harris v. Department of the Air Force, 96 M.S.P.R. 193, 195-96 (M.S.P.B.2004) (jurisdiction of federal Merit Systems Protection Board is not divested by “an agency’s unilateral modification of its adverse action after an appeal has been filed” unless employee is returned to the status quo ante, i.e., “returned], with back pay, to a position of the same grade, pay, status, and tenure” (emphasis added)). That principle is especially true when, as here, the authority to effect reinstatement of a dismissed classified employee and to specify the conditions of that reinstatement is vested by statute in the Board alone — it was for the Board, not DOC or the employee, to determine whether the employee would be entitled to an award of backpay as an incident of his reinstatement.

The dissent contends that an agency’s unilateral decision to rehire a previously dismissed employee ipso facto renders moot all issues concerning the dismissal, citing Save Our Streams, Inc. v. Pegues, 541 So.2d 546, 548 (Ala.Civ.App.1988). We believe that Save Our Streams is distinguishable. The plaintiff in Save Our Streams sought a judgment declaring a 1985 wastewater permit void as having been unlawfully issued by a state agency; when the agency itself revoked the challenged permit, the plaintiff received, in effect, the same relief that would have been awarded had the plaintiff prevailed in court, and the issue was properly deemed moot. See 541 So.2d at 547-48. That situation is not present in this case; as we have noted, even though DOC has conceded that the employee should prospectively resume his duties, collateral rights of the parties (i.e., the amount of backpay to which the employee was entitled) remained to be determined such that the Board still had a function to fulfill.

We conclude that the circuit court correctly affirmed the Board’s order. The judgment of the circuit court is itself due to be affirmed.

AFFIRMED.

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

BRYAN, J., dissents, with writing.

BRYAN, Judge,

dissenting.

I respectfully dissent. Section 36-26-27(a), Ala.Code 1975, permits a classified employee to appeal his or her dismissal to the Alabama State Personnel Board (“the Board”). The Board may either uphold an employee’s dismissal or reinstate an employee “under such conditions as the board may determine,” including various degrees of punishment. § 36-26-27(a). If the appointing authority rehires an employee, as in this case, while the appeal to the Board is pending, the issue of that employee’s dismissal is rendered moot. “An action that originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised in it have become moot by subsequent acts or events.” Case v. Alabama State Bar, 939 So.2d 881, 884 (Ala.2006). See, e.g., Save Our Streams, Inc. v. Pegues, 541 So.2d 546, 548 (Ala.Civ.App.1988) (stating that the issue whether an administrative agency failed to comply with notice provisions in issuing a permit was rendered moot when the agency later revoked that permit). I believe that, when the employee was rehired, the Board lost jurisdiction to decide the employee’s appeal of his dismissal. Therefore, I do not believe that the Board had jurisdiction to decide the issue of the employee’s backpay. Accordingly, I would reverse the trial court’s judgment affirming the Board’s order and remand the case.

      . But see Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 451 (10th Cir.1983) (a federal administrative agency is not bound by the federal constitutional requirement of a 'case or controversy' that limits the authority of federal courts to rule on moot issues; rather, such an agency "possesses substantial discretion in determining whether the resolution of an issue before it is precluded by mootness”).

      . In determining that the Board could properly determine the conditions of the employee's reinstatement in this case, we need not today consider the correctness of the view, espoused in an opinion of the attorney general, that "the authority to award back pay to an employee rests exclusively and solely with the ... Board” except as to employees exempt from merit-system provisions. Op. Att’y Gen. No. 2001-083 (Jan. 24, 2001) (emphasis added).


author: PER CURIAM. MOORE, Judge,

text:
    Austin L. HUMBER, Jr. v. Melissa Kay Humber BJORNSON.
    2061076.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2008.

      Lorraine W. Pringle, Bessemer, for appellant.
    Mark Bishop Turner, Jasper, for appel-lee.
   PER CURIAM.

Austin L. Humber, Jr. (“the former husband”), and Melissa Kay Humber Bjorn-son (“the former wife”) were divorced on March 21, 2003, by a judgment of the Walker Circuit Court (hereinafter “the trial court”). The parties’ divorce judgment incorporated an agreement, a copy of which is contained in the record on appeal, that provided, in pertinent part, as follows:

“That the [former wife] shall be the sole owner, free and clear from any claim of the [former husband], of the 2001 Mitsubishi Gallant automobile and the 1997 Chevrolet S-10 Blazer. The [former wife] shall pay all indebtedness thereon and shall indemnify and hold harmless the [former husband] from any loss thereon. The [former husband] shall sign any and all documents necessary or advisable to effectuate this transfer.
“Each party shall execute and deliver all documents of any type that may be necessary or expedient for the consummation of the provisions of this agreement.”

On November 16, 2006, the former husband filed a petition for a rule nisi alleging that the former wife had failed to comply with the provision of the March 21, 2003, divorce judgment requiring her to pay all indebtedness on the Chevrolet S-10 Blazer sport-utility vehicle jointly owned by the parties during the marriage; therefore, he argued, the former wife was in contempt of the trial court’s divorce judgment.

On February 6, 2007, the trial court conducted a final hearing at which it considered ore tenus evidence pertaining to the former husband’s petition for a rule nisi. On June 28, 2007, the trial court entered an order denying the former husband’s petition for a rule nisi and finding that the former husband was the true owner of the S-10 Blazer.

On July 27, 2007, the former husband filed a motion to reconsider or, in the alternative, to alter, amend, or vacate the trial court’s June 28, 2007, order denying the former husband’s petition for a rule nisi. On August 22, 2007, the former husband filed a notice of appeal. The post-judgment motion was denied by operation of law on October 25, 2007.

At the outset, we note that when a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). However, no presumption of correctness is afforded the trial court’s application of the law to the facts. Brown v. Brown, 719 So.2d 228, 230 (Ala.Civ.App.1998).

The evidence presented to the trial court revealed the following pertinent facts. While married, the parties purchased a 1997 Chevrolet S-10 Blazer. The vehicle was paid for by a loan from the former husband’s credit union. The testimony indicates that payment on the loan was automatically withdrawn from the former husband’s paycheck. The former husband testified that the former wife agreed dim-ing their uncontested divorce proceedings to pay the outstanding balance owed on the vehicle. Pursuant to the divorce judgment, the former wife was awarded the vehicle and was ordered to pay the remaining indebtedness thereon. The former husband testified as follows regarding his understanding of the former wife’s repayment of the loan on the vehicle:

“Q. Okay. Now, on the matter of the rule nisi petition that was filed on your behalf, to which I signed, alleging that in the settlement agreement your ex-wife, which at that time had not become your ex-wife, had agreed to take over the payments of the Chevy Blazer.
“A. Yes, ma’am.
“Q. And she knew from discussions between your lawyer and her lawyer that she was supposed to refinance this vehicle in her name?
“A. Well, we used the same lawyer. ... [I]t was in the order that she was supposed to, and when she got it refinanced ... she was supposed to sign the papers to clear me of anything on the Chevrolet Blazer, but it never was — you know, I took care of all — I mean I did. I paid every bit of it. She never even attempted to make a payment on it.
“Q. What was the arrangement between you and [the former wife] as to how the payment was supposed to get to you?
“A. I mean, there was no arrangement. From what I understood, she was just supposed to, you know, make the payment or give me the money to make the payment. That would have been fíne. I could have went and made the payment, you know, put the money in my account because the payment was coming out of my check.”

The former husband testified that during the three months following the parties’ divorce, the vehicle remained parked at the former wife’s mother’s house. According to the former husband, the former wife did not make any payments on the vehicle after the trial court entered its divorce judgment. The former husband explained that he continued to make payments on the vehicle after the parties divorced.

The former husband testified that he repossessed the vehicle after the former wife failed to make payments on the loan. The former husband consulted his attorney (the same attorney that had represented the parties in the uncontested divorce proceedings), and, according to the former husband, the attorney instructed him to “repossess” the vehicle. The former husband testified that, in June 2003, the former wife drove him to her mother’s house so that he could retrieve the vehicle. The former husband testified that, at the time he repossessed the vehicle, he and the former wife had not reached an agreement that he would take the vehicle and the former wife would have no right to possession of the vehicle.

The former husband acknowledged that he had the full benefit of the use of the vehicle after he took possession of it. The former husband testified that he drove the vehicle as needed when his primary vehicle was in the shop for repair. The former husband stated, however, that he had not driven the vehicle during the two years preceding the final hearing.

The former husband estimated that he had paid approximately $500 a month on the loan for the vehicle. In addition to the loan payment, the former husband testified that he had also paid $123.18 a month for insurance on the vehicle. According to the former husband, he had been required to maintain full insurance coverage on the vehicle while his credit union held the title to the vehicle. The former husband testified that he had spent close to $25,000 over a four-year period on loan payments and insurance premiums for the vehicle. The former husband testified that no outstanding indebtedness remained on the vehicle at the time of the final hearing. The former husband stated that he had the title to the vehicle and that the vehicle was registered in his name alone. According to the former husband, the former wife never offered him any money toward the payments on the vehicle.

The former wife testified that she understood that, pursuant to the parties’ agreement, she was supposed to take possession of the vehicle and make the payments on it. However, according to the former wife, before the parties divorced, she and the former husband agreed that the former wife’s brother would take possession of the vehicle and pay $350 a month for the use of the vehicle. At the time the parties divorced, the former wife’s brother was using the vehicle. When asked about her brother’s use of the vehicle, the former wife testified as follows:

“A. Well, before [the former husband] and I divorced, we had allowed my brother to take the Blazer, [the former husband] and myself. And I believe that my brother agreed to pay $350 a month for it and he did for a couple of months.
“Q. Whose brother?
“A. My brother. And at that point [the former husband] and I did get the divorce, and my brother was still driving the Blazer. And I guess maybe three months went by and he didn’t pay anything, and [the former husband] and I talked several times about it and, you know, I would talk to my brother and always get the runaround. So [the former husband] asked me to have the Blazer parked at my mother’s house, and I did, and he asked me to come by and get him so he could pick it up, so I went by and got him and dropped him off, and he took off in [the vehicle].
“Q. And he has had it ever since?
“A. Yes, sir.
“Q. Has he ever — he had it for quite some time. Forty months he made payments on it. He still has it, of course. But did he ever call you, do you recall him calling you and saying, hey, when [are] you going to come pick this thing up, I don’t want to pay for it, or anything like that?
“A. No sir. The only conversations we ever had about the Blazer was when I would ask him to help me financially with the kids, and he would throw up the fact that he was paying for the Blazer and that was his financial payments.”

The former wife testified that the former husband never contacted her to inquire as to when she was going to pick up the vehicle. Testimony at the final hearing indicated that the title to the vehicle had remained in the former husband’s name and was never changed to reflect the former wife’s ownership of the vehicle. The former wife testified that she never took possession of the vehicle and that the former husband had always had possession of the vehicle after the former husband had “repossessed” the vehicle following the parties’ divorce. The former wife testified that when the former husband filed his rule nisi petition was the first she knew of his objection to having to pay for the vehicle.

In its June 28, 2007, judgment, the trial court found, in part, as follows:

“From the totality of the circumstances, this court finds that the parties, after the Final Judgment of Divorce was rendered in March 2003, entered into a novation (a new agreement) in regard to this vehicle, whereby [the former husband] re-took possession of the Blazer vehicle awarded to the [former] wife in the divorce, kept the vehicle, used it when and how it suited his needs and paid for the vehicle.
“... [The former husband] is the true owner, by novation, of the 1997 Chevrolet S-10 Blazer originally awarded to the [former] wife in the divorce decree. That pursuant to the novation he has made the payments thereon as tacitly agreed upon by and between the parties.
“That [the former wife] is not in civil or criminal contempt of this court as alleged by [the former husband] in his November 16, 2006, Petition for Rule Nisi.”

On appeal, the former husband contends that the evidence presented to the trial court did not support a finding by the trial court that “he and [the former wife] had entered into a novation.” Specifically, the former husband argues that when he took possession of the vehicle he was merely safeguarding a piece of property that he was financially obligated to pay for until such time as the former wife decided to follow through with her obligations under the divorce judgment.

“[A] settlement agreement which is incorporated into a divorce decree is in the nature of a contract.” Smith v. Smith, 568 So.2d 838, 839 (Ala.Civ.App.1990).

“ ‘A novation is the substitution of one contract for another, which extinguishes the pre-existing obligation and releases those bound thereunder.... In addition, the party alleging a novation has the burden of proving that such was the intention of the parties.’ Pilalas v. Baldwin County Sav. & Loan Ass’n, 549 So.2d 92, 94-95 (Ala.1989) (citations omitted). Whether parties to a contract intended a novation may be deduced from the facts and circumstances. Bledsoe v. Cargill, Inc., 376 So.2d 735, 736 (Ala.Civ.App.1979). ‘This court has held that to establish a novation there must be: (1) a previous valid obligation; (2) an agreement of the parties thereto to a new contract or obligation; (3) an agreement that it is an extinguishment of the old contract or obligation; and (4) the new contract or obligation must be a valid one between the parties thereto.’ Warrior Drilling & Engineering Co. v. King, 446 So.2d 31, 33 (Ala.1984).”

Marvin’s, Inc. v. Robertson, 608 So.2d 391, 393 (Ala.1992). “In order for there to be a novation, the pre-existing obligation must be extinguished.” Smith v. Mid South Fiberglass, Inc., 531 So.2d 649, 652 (Ala.1988) (citing Braswell Wood Co. v. Fussell, 474 So.2d 67 (Ala.1985)).

In order to address the former husband’s contention on appeal, we must determine whether the theory of novation is applicable to situations in which parties purportedly agree to change the property-division provision of a trial court’s divorce judgment. The former husband has cited no caselaw, and our research has revealed none, addressing the application of novation to a trial court’s judgment. Our supreme court, however, has held that a novation is the substitution of one contract for another. See Robertson, supra. Although this court has previously recognized that a settlement agreement incorporated into a divorce judgment is in the nature of a contract, Smith, supra, it has done so in the context of addressing ambiguity within an agreement incorporated into a divorce judgment. However, in this case the parties are seeking a determination regarding a judgment that neither party contends is ambiguous. In the instant case, the property-settlement agreement incorporated into the trial court’s March 21, 2003, divorce judgment was final and not modifiable. The record indicates, and neither party disputes, that the trial court’s divorce judgment was unambiguous. The former wife’s testimony revealed that she understood that she was responsible for paying the outstanding indebtedness on the vehicle. Likewise, the former husband testified that the former wife was required to pay for the vehicle under the terms of the divorce judgment. We have discovered no Alabama law that allows a trial court, under the theory of novation, to substitute a new judgment for one previously entered, and we conclude that the use of that theory to modify a judgment is contrary to established case-law prohibiting modification of a property division in a divorce judgment more than 30 days after the entry of the judgment. See McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala.Civ.App.1995)(“Property settlement provisions of a final judgment of divorce become final and cannot be modified after thirty days from the date of the judgment.”); see also Russell v. Russell, 386 So.2d 758 (Ala.Civ.App.1980)(same). Accordingly, we conclude that the trial court acted outside its authority when it found that a novation had occurred, thereby effectively modifying its otherwise unambiguous March 21, 2003, divorce judgment.

Regardless of the trial court’s improper finding of a novation, our review of the record reveals that the trial court properly enforced the parties’ informal agreement concerning the vehicle. It is well settled that a trial court’s judgment “will be affirmed if it is proper on any legal basis, even if the trial court gives a wrong reason.” Gooch v. Gooch, 643 So.2d 1382, 1384 (Ala.Civ.App.1994); see also D.L. v. R.B.L., 741 So.2d 417 (Ala.Civ.App.1999); Blair v. Murray, 494 So.2d 655 (Ala.Civ.App.1986).

The record indicates that the parties entered into a new agreement after the trial court entered its divorce judgment incorporating the parties’ settlement agreement. Shortly after the parties divorced, the former husband voluntarily repossessed the vehicle and made payments on it. The former husband, whose name alone was on the title to the vehicle, kept the vehicle and maintained it for his personal use. The former husband never objected to his having to take the vehicle and make payments on it until months after he had paid off the outstanding indebtedness on the vehicle. The former wife never asked the former husband to return the vehicle to her after he took possession of it. The former wife’s testimony revealed that the former husband claimed that payments made on the vehicle were in lieu of additional payments of support for the benefit of the parties’ children.

Our supreme court has recognized that parties to a divorce judgment cannot, by subsequent agreement, modify the terms of the trial court’s divorce judgment. Holland v. Holland, 406 So.2d 877, 879 (Ala.l981)(holding that “parties to a divorce decree may not change or modify the decree merely by an agreement between themselves”). This court addressed the application of our supreme court’s decision in Holland in Oliver v. Oliver, 431 So.2d 1271 (Ala.Civ.App.1983). In Oliver, supra, the parties were divorced by a 1975 divorce judgment that incorporated an agreement of the parties. Six years later, the former husband sought to terminate his periodic-alimony obligation due to the remarriage of the former wife. The former wife answered and claimed, among other things, that the former husband owed past-due alimony. Evidence presented to the trial court indicated that the former husband had paid the full amount of periodic alimony as ordered by the parties’ divorce judgment until 1978 and had paid a reduced amount until 1981, when he learned of the former wife’s remarriage. The trial court concluded that, based on the ore tenus evidence presented to the trial court, the parties had mutually agreed to a reduction in the former wife’s periodic alimony in 1978 and declined to award the former wife past-due alimony. The former wife appealed, arguing that the trial court had erred in finding that the provisions for periodic alimony contained in the divorce judgment were modified by the 1978 agreement of the parties. Oliver, 431 So.2d at 1273. This court affirmed the judgment of the trial court on appeal, stating:
“At first impression it may be thought that [the trial court’s judgment] is contrary to the decision of the Alabama Supreme Court in the case of Holland v. Holland, 406 So.2d 877 (Ala.1981) and the yet unpublished decision in the case of Ex parte Eugene Smith, Jr., 429 So.2d 1050 (Ala.1983). The court held in those cases that a final judgment may not be modified or amended by a subsequent agreement between the parties. Of course that holding is the law. Only the court may modify or amend its final judgment. However, we do not understand that holding to mean that the parties by agreement may not waive or release, in part or in entirety, their rights to the benefits granted by such judgment. Such waiver, satisfaction, credit or release of judgment by subsequent contract is common at law or in equity. Any right held by a party, whether by judgment or otherwise, may be the subject of contract to alter, exchange, waive, sell or satisfy. 15A C.J.S. Compromise and Settlement § 23; Winegardner v. Burns, 361 So.2d 1054 (Ala.1978); Watson v. McGee, 348 So.2d 461 (Ala.1977). Whether there was such a contract with consideration was an issue of fact in this case. The finding of the court that by agreement the [former] wife waived or compromised her right to the full amount of alimony and accepted the lesser amount of $700.00 per month is supported by evidence presented. Though referring to the divorce decree as being modified by agreement, the trial court also found that the [former] wife waived the full amount by agreement. The finding of waiver by agreement viewed with a presumption of correctness is affirmed. McGaha v. Steadman, 410 So.2d 420 (Ala.Civ.App.1981).”

Oliver, 431 So.2d at 1274.

In this case, the former wife effectively offered to give the vehicle to the former husband, and the former husband tacitly accepted the offer by taking possession of the vehicle, paying the indebtedness on the vehicle, and insuring it. The judgment of the trial court merely recites what the parties informally agreed to, as demonstrated by the evidence presented to the trial court. In light of the foregoing, we cannot say that the trial court erred in enforcing the parties’ informal agreement, albeit under the wrong theory. Gooch v. Gooch, supra; D.L. v. R.B.L., supra.

We note that the former husband does not contend on appeal that the trial court erred by finding that the former wife was not in civil or criminal contempt as alleged in his petition for a rule nisi. It is well settled that it is not the function of this court to create arguments for an appellant or to search the record on appeal to find evidence that would support the appellant’s argument. McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). However, to the extent that the former husband’s argument implicitly suggests error on the part of the trial court in failing to find the former wife in contempt, we will briefly address the propriety of the trial court’s judgment declining to find the former wife in contempt.

“ ‘ “[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, [the appellate] court will affirm.” Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994).’ ”

Woods v. Woods, 851 So.2d 541, 545 (Ala.Civ.App.2002)(quoting Cavender v. State Mut. Ins. Co., 748 So.2d 863, 868 (Ala.1999)). “To hold a party in contempt under either Rule 70A(a)(2)(C)(ii) or (D), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order.” T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002).

The evidence presented to the trial court indicated that after the divorce neither the former husband nor the former wife complied with the trial court’s judgment. The trial court’s judgment required the former husband to “sign any and all documents necessary or advisable to effectuate” the transfer of the vehicle to the former wife. The record indicates that the former husband, in whose name the loan for the vehicle was listed, did not attempt to execute or deliver the documents necessary to substitute the former wife as the borrower on the loan. The former wife did not pay the remaining indebtedness on the vehicle as she was ordered to do by the trial court.

During the three years after the trial court entered its divorce judgment and before the former husband filed his petition for a rule nisi, the former husband never confronted the former wife regarding her failure to take possession of the vehicle and to pay the outstanding indebtedness on the vehicle as required in the divorce judgment. The former husband admitted that he never asked the former wife to reimburse him for the payments that he had made on the vehicle. The evidence presented to the trial court indicates that the former husband solicited the former wife’s help to take possession of the vehicle. Once the former husband took possession of the vehicle, he drove it and paid the outstanding indebtedness on it.

Based on the evidence presented at the final hearing, the trial court could have concluded that the former husband’s failure to comply with the divorce judgment prevented the former wife from complying with the judgment. The former husband’s failure to execute documents to transfer the loan for the vehicle into the former wife’s name, his decision to take possession of the vehicle, and his decision to continue making payments on the vehicle for over three years after the trial court had entered its divorce judgment contributed to the former wife’s failure to comply with the trial court’s divorce judgment. The evidence supports a conclusion that the former wife did not willfully fail or refuse to comply with the trial court’s judgment. See T.L.D. v. C.G., supra. Given the evidence presented to the trial court, we cannot say that the trial court exceeded its discretion by declining to hold the former wife in contempt of its March 21, 2008, divorce judgment. The judgment of the trial court is due to be affirmed.

AFFIRMED.

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

MOORE, J., concurs in part and concurs in the result in part, with writing, which THOMAS, J., joins.

MOORE, Judge,

concurring in part and concurring in the result in part.

I concur in the result with regard to the main opinion’s affirmance of that part of the trial court’s judgment failing to hold the former wife in contempt. As Judge Crawley noted in his special concurrence to this court’s opinion in Price v. Price, 705 So.2d 488 (Ala.Civ.App.1997), “a court can find that a party is not in contempt when he or she abides by a mutual agreement in derogation of a court order.” 705 So.2d at 490 (Crawley, J., concurring specially) (citing Hollis v. State ex rel. Hollis, 618 So.2d 1350, 1351 (Ala.Civ.App.1992)). Based on that reasoning, I conclude that the trial court did not exceed its discretion in failing to hold the former wife in contempt. As to the remaining issues addressed in the main opinion, I concur.

THOMAS, J., concurs.

      . “A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rule[] ... 59, [Ala. R. Civ. P.], shall be held in abeyance until all post-judgment motions ... are ruled upon” or disposed of by operation of law. Rule 4(a)(5), Ala. R.App. P.

      . "A certificate of title issued by the [DJepartment [of Revenue] is prima facie evidence of the facts appearing on it.” § 32-8-39(d), Ala. Code 1975. "In Alabama, a certificate of title to a motor vehicle establishes prima facie title in favor of the individual ... whose name appears on the certificate.” Auto-Owners Ins. Co. v. DeLude, 827 So.2d 806, 811 (Ala.Civ.App.2001).


author:
PER CURIAM.
      PITTMAN, Judge,

text:
    In the Matter of ANONYMOUS, a minor.
    2080100.
    Court of Civil Appeals of Alabama.
    Nov. 10, 2008.
    Opinion on Return to Remand Nov. 14, 2008.
   PER CURIAM.

An unemancipated minor filed a petition in an Alabama juvenile court pursuant to § 26-21-1 et seq., Ala.Code 1975, seeking a judicial waiver of parental consent for an abortion. The juvenile court appointed a guardian ad litem to represent the minor. Following a hearing, at which only the minor testified, the juvenile court signed a preprinted Form JU-28 judgment stating that the juvenile court found that the minor was not mature and well informed enough to make the abortion decision; found that the performance of the abortion was not in the best interest of the minor; and, therefore, denied the petition. The minor appeals.

Section 26-21-4(g), Ala.Code 1975, requires that a trial court’s order ruling on a petition for a waiver of parental consent for an abortion must contain written, specific factual findings and legal conclusions supporting its ruling. The conclusory statements contained in the preprinted Form JU-28 judgment finding that the minor is not mature and well informed enough to make the abortion decision and that the performance of the abortion is not in the best interest of the minor do not satisfy the requirement of § 26-21^1(g) that the trial court make specific factual findings and legal conclusions. See Ex parte Anonymous, 889 So.2d 518 (Ala.2003) (plurality opinion). Therefore, we remand this case to the juvenile court with instructions to enter a new judgment in conformity with this opinion and to transmit its new judgment to this court no later than 5:00 p.m. on Wednesday, November 12, 2008.

REMANDED WITH INSTRUCTIONS.

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

PITTMAN, J., concurs specially, which THOMAS, J., joins.

PITTMAN, Judge,

concurring specially.

I concur, but I write specially to note that authority other than the plurality opinion of the Alabama Supreme Court in Ex parte Anonymous, 889 So.2d 518 (Ala.2003), which is cited in the main opinion, supports the outcome reached today. See In re Anonymous, 812 So.2d 1221, 1223 (Ala.Civ.App.) (“[a] trial court’s order on a petition for a waiver of parental consent must contain written, specific factual findings and legal conclusions supporting the judgment” (emphasis added)), aff'd, 812 So.2d 1234 (Ala.2001); see also In re Anonymous, 956 So.2d 427 (Ala.Civ.App.) (main opinion and special writings), review denied, 956 So.2d 431 (Ala.2006).

THOMAS, J., concurs.

On Return to Remand

PER CURIAM.

In In re Anonymous, 8 So.3d 1004 (Ala.Civ.App.2008), we remanded this action to the juvenile court with instructions to enter a new judgment containing written, specific factual findings and legal conclusions supporting its decision to deny an unemancipated minor a judicial waiver of parental consent for an abortion and to transmit its new judgment to this court no later than 5:00 p.m. on Wednesday, November 12, 2008. The juvenile court has complied with our instructions.

In pertinent part, the new judgment of the juvenile court states:

“This matter comes before the Court pursuant to the Remand Order of the Alabama Court of Civil Appeals dated November 10, 2008, number 2080100.
“Based on the facts and evidence presented ore tenus, the Court finds the following:
“1) The minor is not sufficiently mature and well-informed enough to make the abortion decision on her own; and that
“2) The performance of the abortion would not be in the minor’s best interest.
“These conclusions are based on the following factors, observations and circumstances:
“a.) The minor already has one child living with her and her mother. The minor gave no indication that her mother, if told about the pregnancy, would abuse, neglect, or in any way fail to care for her and another baby. The minor merely indicated that her mother would be upset and disappointed to find out about another pregnancy. Additionally, she gave no indication that telling her father about the pregnancy would result in abuse or neglect, or whether he might be able to offer assistance, only that she and her father were not close and she did not wish to tell him. It should also be noted that her father did not reside with her and her mother.
“b.) The minor admitted that although she had been on birth control, she stopped it for medical reasons and apparently did not replace it with any other form of birth control. The Court found this to be an indication of poor judgment, poor insight, failure to learn from prior mistakes, and immaturity.
“c.) The minor admitted that she had not spoken with Save-A-Life or any similar agency from which she could have gathered more information about alternatives to abortion. She stated only that she had met with an abortion clinic and been told about adoption and other options by that clinic.
“d.) When asked how she felt about the abortion and what it meant, the minor indicated that she would ask God to ‘forgive’ her for what she was doing. The Court felt this statement, taken in the context of all the evidence and circumstances, indicated a lack of insight into the potential, emotional after-affects of abortion. Additionally, when asked what she. believed she was carrying inside of her, she indicated that she considered it to be ‘a baby.’ None of this testimony relieved the concerns of this Court regarding the minor’s maturity, knowledge and understanding of the abortion process. She appeared to be uncertain, at best, about the emotional/psychological implications of abortion and her own feelings about it. For example, although she indicated that having an abortion was the right thing to do, she also seemed to feel that it was something for which she would require forgiveness.
“e.) The minor has an older brother (20 years old), but she did not tell him about the pregnancy either, although no indication was given that he would not provide assistance to her if asked.
“f.) The minor is not currently working. She and her current baby live with her mother, who helps care for both of them. Given her current circumstances, her failure to consider birth control options indicates impulsivity and lack of judgment. Although it could certainly be argued that most, if not all, minors experience poor judgment and impulsivity, this particular set of facts reveals a pattern of poor decision-making and lack of insight.
“g.) When asked why adoption was not a consideration, the minor voiced her feeling that if she carried the baby to term and saw it, she would not be able to give it up for adoption. This rationale again indicates, at least to this Court, that the minor had not thought this process through, and may have serious emotional conflicts about abortion which she has not faced, has apparently not been counseled about, and has little insight into.
“h.) Lastly, the findings of this Court in this matter were based on and reflect the concerns of the legislature in Section 26-21-1, [Ala.Code 1975,] to wit:
“ ‘(1) immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences,
“‘(2) the medical, emotional and psychological consequences of abortion are serious and can be lasting, particularly when the patient is immature,
“ ‘(3) the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion are not necessarily related,
“ ‘(4) parents ordinarily possess information essential to a physician’s exercise of his best medical judgment concerning the child, and
“‘(5) parents who are aware that their minor daughter has had an abortion may better insure that she receives adequate medical attention after her abortion. The legislature further finds that parental consultation is usually desirable and in the best interests of the minor.’ ”

In In re Anonymous, 964 So.2d 1239 (Ala.Civ.App.2007), this court stated:

“A juvenile court shall grant a petition for a waiver of parental consent to an abortion if it finds either ‘(1) [t]hat the minor is mature and well-informed enough to make the abortion decision on her own; or (2) [t]hat performance of the abortion would be in the best interest of the minor.’ § 26-21-4(f), Ala.Code 1975 (emphasis added). See Ex parte Anonymous, 595 So.2d 497, 498 (Ala.1992). However, the ‘petition for waiver of parental consent may be denied only if the court specifically finds both [ (1) that] the minor is immature and not well enough informed to make the abortion decision on her own and (2) that performance of the abortion would not be in her best interests.’ Ex parte Anonymous, 595 So.2d at 498. A juvenile court’s order on a petition for a waiver of parental consent must contain written, specific factual findings and legal conclusions supporting its decision. § 26-21-4(g), Ala.Code 1975.

“In Ex parte Anonymous, 808 So.2d 542 (Ala.2001), our supreme court explained the application of the ore tenus rule in cases of this type:

“ ‘We find that in a case where a minor seeks a waiver of parental consent for an abortion and no adverse party cross-examines her or otherwise challenges her testimony, a rule compelling acceptance of undisputed live testimony as true — without affording any deference to the trial court’s ability to observe and assess the demeanor of the witness — is unsound. In such a case — where the trial court has had the opportunity to observe the witness and where assessments of the level of the minor’s maturity are crucial — -the trial court’s findings should be afforded considerable deference. Here, the trial judge had the responsibility of determining the facts. In particular, it was the trial judge’s responsibility to determine whether the petitioner is mature enough and well-informed enough about the abortion procedure to make an independent decision whether to undergo an abortion without parental consent. See § 26-21-4(f), Ala.Code 1975. In addition to hearing the testimony, the trial judge could observe the minor and could consider her demeanor as she testified. That aspect of the evidence is denied an appellate court by a cold record. The trial judge was in a far better position than are we to determine, as a matter of fact, the minor’s maturity and level of knowledge.’ “803 So.2d at 546. Under the ore tenus rule, the juvenile court’s judgment is presumed correct unless its factual findings are plainly erroneous or manifestly unjust. Ex parte Anonymous, 803 So.2d at 546.”

964 So.2d at 1241-42.

In the case now before us, the findings contained in the juvenile court’s judgment satisfy the requirement that it make written, specific findings supporting its decision. Moreover, the minor’s testimony, which was the only evidence presented to the juvenile court, supports the findings contained in the juvenile court’s judgment. Consequently, we affirm the juvenile court’s judgment denying the minor a judicial waiver of parental consent for an abortion.

AFFIRMED.

All the judges concur.


author: BRYAN, Judge.

text:
    Janet McKowen SMITH v. Danny SMITH.
    2070619.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2008.

      Julie Katz Callaway, Birmingham; and William K. Bradford, Birmingham, for ap-pellee.
    Mavanee R. Bear, Birmingham, for ap-pellee.
   BRYAN, Judge.

This is the second time Janet McKowen Smith (“the wife”) and Danny Smith (“the husband”) have been before us. In Smith v. Smith, 959 So.2d 1146 (Ala.Civ.App.2006) (“Smith I ”), the wife appealed from the parties’ divorce judgment, arguing, among other things, that the trial court had erred in failing to award her a portion of a settlement payment (“the settlement payment”) the husband was to receive as a result of injuries he had sustained in an automobile accident. In our opinion in Smith I, after noting that no binding precedent governed our decision regarding whether a personal-injury settlement payment constituted marital property or the separate property of the injured spouse, we stated:

“Courts of other states have utilized three different approaches in determining whether to treat a payment in settlement of a spouse’s personal-injury claim as marital property or as the separate property of the injured spouse. See Golden v. Golden, 681 So.2d [605] at 609 [ (Ala.Civ.App.1996) ] (Crawley, J., dissenting). One approach, sometimes referred to as the mechanistic approach, deems the settlement payment to be marital property if it is acquired during the marriage. See Bladow v. Bladow, 665 N.W.2d 724 (N.D.2003); and In re Marriage of Simon, 856 P.2d 47 (Colo.Ct.App.1993). Another approach, sometimes referred to as the unitary approach, deems the settlement payment to be the injured spouse’s separate property regardless of when the settlement payment is acquired. See, e.g., Fleitz v. Fleitz, 200 A.D.2d 874, 606 N.Y.S.2d 825 (1994). The third approach is sometimes referred to as the analytic approach. See Bollaci v. Nieporte-Bollaci, 863 So.2d 440 (Fla.Dist.Ct.App.2003); Tynes v. Tynes, 860 So.2d 325 (Miss.Ct.App.2003); and Sullivan v. Sullivan, 159 S.W.3d 529 (Mo.Ct.App.2005). Under the analytic approach, ‘to the extent that its purpose is to compensate an individual for pain, suffering, disability, disfigurement, or other debilitation of the mind or body, a personal injury award constitutes the separate nonmari-tal property of an injured spouse.’ Hardy v. Hardy, 186 W.Va. 496, 501, 413 S.E.2d 151, 156 (1991); and Staton v. Staton, 218 W.Va. 201, 206, 624 S.E.2d 548, 553 (2005). Likewise, the portion of a personal-injury settlement intended to compensate the injured spouse for loss of future wages is deemed to be that spouse’s separate property under the analytic approach. Bandow v. Bandow, 794 P.2d 1346, 1348-49 (Alaska 1990). However, ‘economic losses, such as past wages and medical expenses, which diminish the marital estate are distributable as marital property when recovered in a personal injury award or settlement’ under the analytic approach. Hardy, 186 W.Va. at 501, 413 S.E.2d at 156. In Bandow, the Alaska Supreme Court explained the rationale underlying the analytic approach as follows:
“ ‘Damages for pain and suffering, mental anguish, and the like compensate for a loss which is so personal to the claimant spouse that classifying them as marital property would be inequitable.
“ ‘ “Nothing is more personal than the entirely subjective sensations of agonizing pain, mental anguish, embarrassment because of scarring or disfigurement, and outrage attending severe bodily injury. Mental injury, as well, has many of these characteristics. Equally personal are the effects of even mild or moderately severe injury. None of these, including the frustrations of diminution or loss of normal body functions or movements, can be sensed, or need they be borne, by anyone but the injured spouse. Why, then, should the law, seeking to be equitable, coin these factors into money to even partially benefit the uninjured and estranged spouse? In such case the law would literally heap insult upon injury.... The only damages truly shared are ... the diminution of the marital estate by loss of past wages or expenditure of money for medical expenses. Any other apportionment is unfair distribution.” ’
“Bandow v. Bandow, 794 P.2d at 1349 (quoting Amato v. Amato, 180 N.J.Super. 210, 218-19, 434 A.2d 639, 643 (App. Div.1981)).
“We find the rationale underlying the analytic approach persuasive. Accordingly, we adopt that approach for determining whether a spouse’s personal-injury settlement or award is marital property or the separate property of the injured spouse. Under the analytic approach, the spouse claiming that the settlement or award is his or her separate property bears the burden of proving that claim. See Bandow, 794 P.2d at 1350. Likewise, if the other spouse claims that a portion of the settlement or award is compensation for loss of consortium and, therefore, constitutes his or her separate property, he or she shall bear the burden of proof with respect to that claim. Id.
“In the case now before us, the trial court did not have before it any evidence establishing that the settlement payment was the husband’s separate property under the analytic approach. Consequently, we must reverse the divorce judgment insofar as it divided the marital property because the trial court’s omission of the settlement payment from the division of marital property is not supported by the evidence. We remand the case to the trial court for the trial court to reconsider the division of marital property in light of this opinion. However, because the husband was not on notice that he bore the burden of proof with respect to the issue whether the settlement payment was marital property or his separate property, we instruct the trial court, on remand, to allow the husband to introduce additional evidence regarding that issue and to allow the wife to introduce evidence in rebuttal of the husband’s evidence. Because the award of alimony is intertwined with the division of property, we also reverse the trial court’s judgment as to the award of alimony so that, on remand, the trial court may reconsider its award of periodic alimony in conjunction with its reconsideration of its division of the parties’ marital property. See Chambers v. Chambers, 823 So.2d 709, 716 (Ala.Civ.App.2001).”

959 So.2d at 1149-50 (emphasis added; footnote omitted).

In addition to reversing the trial court’s judgment insofar as it divided the marital property and awarded periodic alimony, we also reversed the trial court’s judgment insofar as it failed to require the husband to pay the wife’s health-insurance premiums for at least the 36 months she was entitled to coverage under the husband’s health-insurance policy pursuant to COBRA. 959 So.2d at 1150; see also 29 U.S.C. §§ 1162(2)(A)(iv) and 1168(3).

On remand, the trial court took additional evidence regarding the issue whether the settlement payment was marital property or the husband’s separate property and entered a judgment stating:

“THIS MATTER came onto be heard on February 11, 2008, in compliance with the Alabama Court of Civil Appeals’ Order on Remand to take additional evidence from the [husband] regarding his personal injury claim and the [wife’s] rebuttal to the [husband’s] evidence. In compliance with said directive, the Court took evidence from the [husband], subject to cross-examination and the [wife] declined to testify on said issue. The Court having considered all evidence in this matter is of the opinion the following Order shall be entered. Accordingly, it is
“ORDERED and ADJUDGED by the Court:
“1. That [the wife] presented no evidence to prove she was entitled to any share of [the husband’s] personal injury claim as the proceeds were paid on his bodily injury claim of which [the wife] does not have a right to a share. Therefore, the division of property made in the Final Judgment of Divorce remains unchanged.
“2. That in further compliance with the Civil Court of Appeals, [the husband] is ordered to pay for Cobra coverage to the [wife] for a period of thirty-six (36) months. If [the wife] acquired other insurance during said time, [the husband’s] obligation for said coverage will terminate. By this Order, [the husband’s] obligation is extended thirty (30) months in addition to the six (6) months ordered in the Final Judgment of Divorce.”

The wife then appealed to this court.

Although neither party has questioned this court’s jurisdiction,

“ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).”

Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). See also § 12-22-2, Ala.Code 1975.

This court has previously stated:

“ ‘ “It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:

“ ‘A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“ ‘... An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” See Rule 54(b), Ala. R. Civ. P.’
“Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002) (citations omitted).”

Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003).

In Smith I, we reversed not only the provisions of the trial court’s judgment dealing with the division of the marital property and the payment of the wife’s health-insurance premiums but also the provision dealing with the award of periodic alimony. In the amended judgment entered by the trial court on remand, although it ruled regarding the division of marital property and the payment of the wife’s health-insurance premiums, the trial court did not rule regarding the award of periodic alimony. Consequently, the amended judgment from which the wife has appealed is not a final judgment, and, therefore, we must dismiss the wife’s appeal. The husband’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

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


text:
    Harold W. DARBY III v. Tom SCHLEY.
    2070027.
    Court of Civil Appeals of Alabama.
    Nov. 14, 2008.

      William R. Justice of Wallace, Ellis, Fowler & Head, Columbiana, for appellant.
    Wm. Randall May of Allison, May & Kimbrough, L.L.C., Birmingham, for ap-pellee.
   BRYAN, Judge.

The plaintiff, Harold W. Darby III, appeals from a summary judgment entered in favor of the defendant, Tom Schley, in an unlawful-detainer action in the Shelby Circuit Court. Because the judgment appealed from is void, we vacate the judgment and dismiss the appeal.

On August 29, 2006, Darby brought this unlawful-detainer action against Schley in the Shelby District Court, seeking to recover possession of a house and a tract of land in Shelby County (“the property”) and damages from Schley. On September 20, 2006, Schley moved the Shelby District Court to dismiss Darby’s unlawful-detainer action on the grounds (1) that Schley allegedly owned an ownership interest in the property pursuant to a lease-purchase agreement between the parties, (2) that Darby allegedly had not given Schley 10 days’ notice of the termination of his tenancy pursuant to § 35-9-6, Ala.Code 1975; and (3) that Darby allegedly had not terminated Schley’s possessory interest in the property because, Schley said, Darby had continued to accept rent payments from Schley. Schley submitted an affidavit and other evidence in support of his motion. Darby did not respond to Schley’s motion. On October 10, 2006, the district-court judge entered an order stating, in pertinent part:

“It appears to the Court that there is at issue in this matter a dispute as to ownership or interest in real estate. This matter is not limited to issues between Landlord and Tenant. Accordingly, under the mandate of Alabama Code, § 12-11-9, this case is ordered transferred to the Circuit Court of Shelby County, Alabama.”

In pertinent part, § 12-11-9, AIa.Code 1975, provides:

“If ... a case filed in the district court is within the exclusive jurisdiction of the circuit court, ... a judge of the court where the case was filed shall transfer the case to the docket of the appropriate court .... ”

(Emphasis added.)

After his unlawful-detainer action was transferred to the Shelby Circuit Court, Darby did not amend his complaint to allege any claim other than his unlawful-detainer claim. Eventually, the Shelby Circuit Court entered a summary judgment in favor of Schley regarding the sole claim that was before it, i.e., Darby’s unlawful-detainer claim, and Darby appealed to this court.

Although neither party has questioned this court’s jurisdiction, “ ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). By statute, original jurisdiction over unlawful-detainer actions lies in the district courts. § 6-6-330, Ala.Code 1975 (“The forcible entry upon and detainer, or the unlawful detain-er, of lands, tenements and hereditaments is cognizable before the district court of the county in which the offense is committed.”). A circuit court may not exercise jurisdiction over an unlawful-detainer action until the district court has adjudicated the unlawful-detainer action and one of the parties has appealed to the circuit court. See § 6-6-350, Ala.Code 1975 (“Any party may appeal from a judgment entered against him or her [in an unlawful-detainer action] by a district court to the circuit court at any time within seven days after the entry thereof, and [the] appeal and the proceedings thereon shall in all respects, except as provided in this article, be governed by this code relating to appeal from district courts.”). Accordingly, Darby’s unlawful-detainer action was not an action “within the exclusive jurisdiction of the circuit court,” § 12-11-9, supra, and, therefore, the Shelby District Court did not have the authority to transfer that action to the Shelby Circuit Court pursuant to § 12-11-9. Moreover, because the Shelby District Court had not adjudicated Darby’s unlawful-detainer action and no appeal from such an adjudication had been taken, the unauthorized transfer of Darby’s unlawful-detainer action could not transfer jurisdiction over that action to the Shelby Circuit Court. Furthermore, after the transfer of the action to the Shelby Circuit Court, Darby did not amend his complaint to assert another claim that was within the circuit court’s original jurisdiction.

Because the Shelby Circuit Court lacked jurisdiction over Darby’s unlawful-detainer action, the purported judgment it entered in that action is void and, therefore, will not support an appeal. See, e.g., State Dep’t of Revenue v. Arnold, 909 So.2d 192, 198 (Ala.2005). Consequently, we must vacate the judgment of the Shelby Circuit Court and dismiss Darby’s appeal from that judgment. Id.

JUDGMENT VACATED; APPEAL DISMISSED.

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

      . Section 6-6-336, Ala.Code 1975, provides:
      "The estate or merits of the title cannot be inquired into on the trial of any complaint filed under this article[, which, among other things, authorizes unlawful-detainer actions], but all legal and equitable defenses may be had against a recovery for damages or for the unlawful detention of the land.”
      In Archer v. Sibley, 201 Ala. 495, 78 So. 849 (1918), the Alabama Supreme Court interpreted the predecessor to that statute to provide that, in an unlawful-detainer action, an inquiry into the title of the land is not permitted for the purpose of defeating the plaintiff’s claim for possession of the land, but such an inquiry is permitted for the purpose of diminishing or defeating the plaintiffs claim for the recovery of damages. Consequently, under Archer, in the case now before us Schley’s assertion of his claim to an ownership interest in the property as a defense to Darby’s claim for possession of the property had no effect on the Shelby District Court's jurisdiction over Darby's unlawful-detainer action. Although § 6-6-336 authorizes Schley to assert his claim to an ownership interest in the property as a defense to Darby’s claim for damages, Schley’s assertion of that defense did not deprive the Shelby District Court of jurisdiction because Schley's claim to an ownership interest is based on equitable principles and §12-12-30, Ala.Code 1975, grants a district court jurisdiction over equitable defenses asserted in an action within its jurisdiction, such as an unlawful-detainer action. In pertinent part, § 12-12-30 provides:
      "The original civil jurisdiction of the district court of Alabama ... shall include ... civil actions based on unlawful detainer; except, that the district court shall not exercise jurisdiction over any of the following matters:
      “(1) Actions seeking equitable relief other than:
      "b. Equitable defenses asserted or compulsory counterclaims filed by any party in any civil action within the jurisdiction of the district court.”

      (Emphasis added.)
      Thus, the Shelby District Court should have retained the action now before us instead of transferring it to the Shelby Circuit Court, which could not exercise original jurisdiction over an unlawful-detainer action despite Schley’s assertion of a claim to ownership of the property as a defense.