text:
    Karen HARRIS v. RUSSELL PETROLEUM CORPORATION.
    2090243.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.

      Lawrence T. King of King Lyons, LLC, Birmingham, for appellant.
    James H. McFerrin of McFerrin Law Firm, Birmingham, for appellee.
   PER CURIAM.

Karen Harris (“the dependent”) appeals from the judgment of the Montgomery Circuit Court in favor of Russell Petroleum Corporation (“the employer”), denying the dependent’s claim for death benefits that she had brought pursuant to the provisions of the Workers’ Compensation Act (“the Act”), codified at Ala.Code 1975, § 25-5-1 et seq. We reverse and remand.

Facts and Procedural History

Eddie Harris (“the employee”) worked for the employer as a fuel-delivery driver from the late 1980s until his death in 2008. In 2001, the employee injured his right knee, and, in 2002, the employee injured his left knee — both injuries were the result of work-related accidents. The employee received workers’ compensation benefits for both injuries, both of which required surgical intervention. The employee suffered an additional, unspecified work-related knee injury in 2005.

In 2008, the employee underwent bilateral knee-replacement surgery. The employer’s previous workers’ compensation carrier approved and paid for the employee’s knee-replacement surgery. ■ The employee suffered a stroke one day after the surgery, resulting in his death.

Following the employee’s death, the dependent filed a complaint in the trial court, seeking an award of death benefits and funeral expenses. The dependent claimed that the cumulative stress of performing the employee’s job duties had necessitated the employee’s 2008 knee-replacement surgery. The dependent then claimed that the knee-replacement surgery had caused the employee’s stroke and resulting death. The employer denied that the employee’s need for knee-replacement surgery had been caused by the performance of his work duties and denied that the employee’s stroke and subsequent death had been caused by the knee-replacement surgery. The employer also alleged that the employee had not given the employer proper notice of the injury that led to the knee-replacement surgery. The parties submitted the case to the trial court on the stipulations of the parties, trial briefs, deposition testimony, and written affidavits; the trial court did not hear any oral testimony.

The trial court entered a judgment determining that:

“Dr. [Roland] Hest[e]r, who was the orthopedic surgeon for the [employee] testified that there was no way for him to say with a reasonable degree of medical certainty that the knee replacement surgery caused the stroke. Dr. [Rodney] Swill[ie], who is a board certified neurologist also testified that he could not say with a reasonable degree of medical certainty that the bilateral knee replacement surgeries caused the stroke. There is no clear and convincing evidence to establish a causal link between the surgeries and the cause of [the employee’s] death. Even if the court agrees with [the dependent] that the bilateral knee replacement was necessary due to [the employee’s] work related activities, all the medical testimony cannot say with a degree of medical certainty that this surgery caused his death.”

The trial court did not make any findings as to whether the employee’s knee injury was work related or as to whether the employee had properly notified the employer of his injury. The dependent filed a postjudgment motion, pursuant to Rule 59(e), Ala. R. Civ. P. The trial court denied the dependent’s motion, and she appealed to this court.

Issues

The dependent raises two issues in her appeal: (1) whether the trial court erred by requiring her to prove by clear and convincing evidence that the employee’s stroke was caused by his knee-replacement surgery and (2) whether the trial court erred by requiring her to prove to a reasonable degree of medical certainty that the knee-replacement surgery caused the employee’s stroke.

Standard of Review

The issues presented in this appeal involve legal determinations by the trial court. “In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.” Ala.Code 1975, § 25-5-81(e)(l).

Analysis

Under the theory advanced by the dependent in her pleadings, stipulations, and at trial, in order for her to recover death benefits under the Act, the dependent had to prove (1) that cumulative trauma experienced in the course of the employee’s employment with the employer caused, or contributed to, the employee’s need for bilateral knee-replacement surgery and (2) that the surgery caused, or contributed to, the stroke that led to the death of the employee so that the death would be considered a direct and natural consequence of the work-related knee injuries. See Ex parte Pike County Comm’n, 740 So.2d 1080, 1084 (Ala.1999) (quoting 1 Arthur Larson & Lex K Larson, Larson’s Workers’ Compensation Law § 13.00 (1998)) (“ ‘When determining whether a successive injury is compensable, the general rule is that “[w]hen the primary injury is shown to have arisen out of and in the course of employment, every natural consequence that flows from the injury likewise arises out of the employment, unless it is the result of an independent intervening cause attributable to [the] claimant’s own intentional conduct.” ’ ”); Patterson v. Clarke County Motors, Inc., 551 So.2d 412 (Ala.Civ.App.1989) (treating accidental fracture of femur during surgery to repair hip prosthesis damaged in a work-related accident as a compensable injury); and Simpson v. Dallas Selma Cmty. Action Agency, 637 So.2d 1360 (Ala.Civ.App.1994) (affirming judgment finding that accidental severance of nerve during injured worker’s hand surgery resulted in compensable injury). The dependent concedes that, under Ala.Code 1975, § 25-5-81(c), she must prove the first prong of her theory by clear and convincing evidence, but she argues that the trial court erred in requiring her to also prove the second prong of her theory by clear and convincing evidence.

An accidental injury that results as a direct and natural consequence of an earlier compensable injury is itself a separate accident and injury for purposes of the Act. See Gulf States Steel, Inc. v. White, 742 So.2d 1264 (Ala.Civ.App.1999) (claim that worker received injuries as the result of a fall in 1992 did not relate back to claim arising from 1989 accident despite contention that the 1992 fall was caused by weakness in worker’s leg from 1989 accident); Fort James Operating Co. v. Cramp, 947 So.2d 1053 (Ala.Civ.App.2005) (interpreting White as holding that, although a subsequent injury occurring outside of workplace may be compensable under the Act if the injury is a natural consequence of the workplace injury, the subsequent injury is a separate injury for purposes of the statute of limitations). Therefore, the evidentiary standard applicable to that separate injury depends on the manner in which the worker alleges the original compensable injury directly and naturally led to the subsequent injury. See generally V.I. Prewett & Son, Inc. v. Brown, 896 So.2d 564, 568 (Ala.Civ.App.2004) (citing Ex parte USX Corp., 881 So.2d 437 (Ala.2003)) (“[T]he burden of proof the worker must meet in a workers’ compensation action depends not upon the nature of the condition for which the worker claims benefits, but upon the manner in which that condition was purportedly caused.”). If the worker asserts that the original compensable injury caused the worker to gradually acquire a successive injury due to cumulative trauma, then the clear-and-convincing-evidence standard applies to that claim. See Walart Stores, Inc. v. Kennedy, 799 So.2d 188 (Ala.Civ.App.2001) (holding that the clear-and-convincing-evidence standard applied to the claim of an injured worker who asserted that she had acquired carpal tunnel syndrome from repetitively using a cane and walker while convalescing from work-related hip injuries); and Sistrunk v. Sikorsky Support Servs., Inc., 961 So.2d 166 (Ala.Civ.App.2007) (applying clear-and-convincing-evidence standard to claim that worker injured left shoulder due to overuse following work-related right-shoulder injury). On the other hand, if the worker alleges that the original compensable injury caused the worker to suffer a later sudden, traumatic injury, it follows that the clear- and-convincing-evidence standard would not apply to that claim.

In this case, the dependent alleges that, during a 4-hour surgery, bodily stress or the shifting of bodily fluids caused something to dislodge in the circulatory system of the employee, which led approximately 12 hours later to a stroke that, within 3 days, led to respiratory failure and the death of the employee. That claim essentially asserts that the bilateral knee injuries sustained by the employee led to a sudden, traumatic injury that caused the death of the employee. See New River Coal Co. v. Files, 215 Ala. 64, 109 So. 360 (1926) (holding that four-hour exposure to carbon monoxide constituted unexpected and sudden event so as to qualify as a work-related accident). Therefore, the dependent’s claim that the employee’s stroke was caused by his knee-replacement surgery does not fall within the class of claims governed by the elear- and-convincing-evidenee standard, as the trial court erroneously concluded.

The dependent next argues that the trial court erred by requiring the dependent to establish to a reasonable degree of medical certainty that the employee’s surgery caused his stroke. To establish medical causation in cases involving an accidental injury, “ ‘an employee must ... establish medical causation by showing that the accident caused or was a contributing cause of the injury.’” Page v. Cox & Cox, Inc., 892 So.2d 413, 417 (Ala.Civ.App.2004) (quoting Pair v. Jack’s Family Rests., Inc., 765 So.2d 678, 681 (Ala.Civ.App.2000)). When a trial court determines whether a claimant has proven medical causation, “[i]t is in the overall substance and effect of the whole of the evidence, when viewed in the full context of all the lay and expert evidence, and not in the witness’s use of any magical words or phrases, that the test [for medical causation] finds its application.” Ex parte Price, 555 So.2d 1060, 1063 (Ala.1989). Thus, it was not necessary for Dr. Roland Hester or Dr. Rodney Swillie to have used any special words or phases, such as “reasonable degree of medical certainty,” to establish that the knee-replacement surgery caused the employee’s stroke; rather, the trial court should view any such statements in the context of the whole of Dr. Hester’s and Dr. Swillie’s testimony, along with the other evidence, when determining whether medical causation exists. However, the “ ‘evidence presented by a [workers’] compensation claimant must be more than evidence of mere possibilities that would only serve to “guess” the employer into liability.’ ” Ex parte Southern Energy Homes, Inc., 873 So.2d 1116, 1122 (Ala.2003) (quoting Hammons v. Roses Stores, Inc., 547 So.2d 883, 885 (Ala.Civ.App.1989)). Thus, in order for the dependent to prove medical causation, the evidence, when viewed as a whole, must show that there is more than a mere possibility that the knee-replacement surgery caused the employee’s stroke. To the extent that the trial court may have relied solely on the witnesses’ statements that they could not say “with a reasonable degree of medical certainty” that the knee-replacement surgery caused the employee’s stroke, we remind the trial court that on remand it should look to the totality of the evidence in determining whether the dependent has proven medical causation in this case.

Conclusion

Because the trial court applied the incorrect burden of proof, we must reverse the trial court’s judgment. We note that, because of the manner in which it disposed of the case, the trial court did not make any findings regarding the first part of the theory advanced by the dependent and it also did not make any findings regarding the other issues raised by the parties in the case. Accordingly, we instruct the trial court on remand to analyze the causal connection between the surgery and the stroke under the preponderance-of-the-evidence standard without requiring any medical opinions to be expressed in terms of “a reasonable degree of medical certainty” and to make appropriate findings as to whether the dependent satisfactorily proved her claim. If so, the trial court should make findings regarding all the other issues litigated by the parties, see Francis Powell Enters., Inc. v. Andrews, 990 So.2d 914 (Ala.Civ.App.2008), including whether the dependent proved by clear and convincing evidence that the surgery was necessitated by work-related cumulative trauma.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The parties stipulated that "the workers' compensation insurance carrier or carriers that paid for the bilateral knee replacements is or are previous carriers, and not the carrier for the [employer] as of the time the replacements were performed."

      . In addition to the employer, the dependent also named several fictitiously named defendants in her complaint, but she never subsequently substituted any actual parties for those fictitiously named defendants. Because "[t]he beginning of trial operates as a dismissal of fictitiously named parties,” Ex parte Dyess, 709 So.2d 447, 452 (Ala.1997)(citing Rule 4(f), Ala. R. Civ. P.), the existence of the fictitiously named parties does not affect the finality of the judgment entered by the trial court.

      . In its judgment, the trial court states that the parties agreed to submit trial briefs and allow the trial court to rule on the case without oral testimony. Later in its judgment, the trial court states that it is entering a “summary judgment.” However, it is clear from the record that the parties had submitted the case to the trial court for a trial on the merits, not for a summary judgment.

      . In a workers' compensation action, the trial court "has a duty to make a finding on each issue presented and litigated before the court, and ... failure to do so requires reversal.” Glenn v. Kent Corp., 416 So.2d 1066, 1068 (Ala.Civ.App.1982). However, because the issue whether the employee's knee-replacement surgery caused his stroke was dispositive in this case, we will not reverse the judgment based on the trial court's failure to make any findings related to the other issues presented in this action. Glenn, 416 So.2d at 1068.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    STATE of Alabama ex rel. Christy HARRIS v. William Scott WEAVER.
    2090478.
    Court of Civil Appeals of Alabama.
    Aug. 6, 2010.
    Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, legal counsel, Department of Human Resources, for appellant.

      Lindsay B. Erwin, Phenix City, for ap-pellee.
   THOMAS, Judge.

This is an appeal from a judgment allowing a credit against a child-support arrear-age for direct payments made to adult children.

Facts and Procedural History

Christy Harris (“the mother”) and William Scott Weaver (“the father”) divorced in 1995; they had three children. As part of the settlement agreement incorporated into the divorce judgment, the father was ordered to pay $850 per month in child support. The agreement stated, in pertinent part:

“[The father] shall pay $850 per month as child-support for the minor children which is in compliance with the Alabama Child-support Guidelines.... This child-support shall be in the appropriate amount until the youngest child attains the age of nineteen, marries, or otherwise becomes self-supporting.”

The father made child-support payments for 8 years, with the exception of 1 missed payment in 2001. In 1998, the father lost his job, but he continued to make the payments by using a credit card and by withdrawing cash from his retirement account. The father did not request a modification of child support in 1998, and the mother did not immediately take court action based on the missed payment in 2001.

In 2004, one of the three children reached the age of majority. The father believed the phrase “the appropriate amount” in the parties’ settlement agreement incorporated into the divorce judgment allowed him to pay one-third of his child-support obligation directly to the oldest child for college expenses. In 2007, when the second oldest child reached the age of majority, the father also began paying another one-third of his child-support obligation directly to that child for college expenses. The father paid each child with a check each time and maintained an accurate payment history. In 2004, the mother informed the father that she believed the father could not pay one-third of his child-support obligation directly to their oldest child. The father explained to the mother that, under his interpretation of the divorce judgment, he believed he could. Neither party brought the dispute to the attention of the trial court until 2008. In addition, the mother endorsed many of the cheeks that were paid directly to the children.

On October 1, 2008, the State of Alabama (“the State”), on behalf of the mother, filed a petition for contempt against the father. The petition alleged that the father owed a child-support arrearage in the principal amount of $21,113.00 and interest in the amount of $5,772.51. At the hearing, the father admitted that some payments he had made directly to the adult children were for less than one-third of his child-support obligation. He further admitted that he did not have the authority to unilaterally reduce his child-support payments by one-third each time a child reached the age of majority. The father requested that he be permitted to make a payment sufficient to purge himself of contempt and that he receive a credit against the arrearage amount for the direct payments he had made to his adult children. The State contended that the payments the father made to his adult children were only gifts and that the father was obligated to pay the full arrearage without receiving any credit.

The trial court found, among other things, that the father must pay the ar-rearage but that his payments to the older children would be credited against that amount. The trial court reasoned that the phrase “the appropriate amount” made the agreement incorporated into the parties’ divorce judgment ambiguous. The trial court observed that the mother waited approximately 10 years before filing an action to seek the establishment of an ar-rearage even though she had endorsed many of the checks made out directly to the older children. Similarly, the father had had the same time frame in which to seek a clarification about the ambiguity or to seek a modification of his child-support obligation. Therefore, the trial court reasoned, in pertinent part:

“Lest we forget, those of us who are attorneys recognize the rules of construction for contracts and agreements, but it is the lay people — the subject matter of these agreements and contracts — who have to live it out. As a matter of equity, neither side should benefit from or be penalized for their lack of action.”

The trial court found that the father owed a total arrearage of $23,221.75 and that the father was entitled to a credit for direct payments totaling $16,090.00. The trial court ordered the father to pay the $6,834.75 in remaining arrearage within 30 days.

The State filed a postjudgment motion alleging, among other things, that the father could not be given credit toward the arrearage for money he gave to his adult children. The trial court entered an order that, among other things, denied the State’s motion. The State then appealed to this court.

Issues

The State presents one issue on appeal: whether the trial court erred when it gave the father credit for money given directly to his adult children.

Standard of Review

“The award or denial of a credit against an arrearage is within the sound discretion of the trial court and will not be reversed absent a showing of plain and palpable abuse.” Phillippi v. State ex rel. Burke, 589 So.2d 1303, 1304 (Ala.Civ.App.1991).

Analysis

The father argues that the trial court had the discretion to credit payments made to defray the older children’s college expenses against his child-support arrear-age. The State responds that, although this may be true for minor children, it is not true if the parent is no longer obligated to pay any form of support, as in the case of an emancipated or adult child. This court has held that, when the parent is still obligated to pay for the child, payments made directly to a college on behalf of a minor child can be credited against a child-support arrearage. Wood v. Wood, 434 So.2d 800, 802 (Ala.Civ.App.1983). Also, this court has held that payments made directly to a minor child while that child was attending college can be credited against an arrearage. Grisham v. Johnson, 532 So.2d 1260, 1261-62 (Ala.Civ.App.1988). However, “there is no authority for the court to credit the father with any support furnished [to a child] after [the child has] reached majority.” Weaver v. Weaver, 401 So.2d 77, 78 (Ala.Civ.App.1981). The authority does not exist because once the child has reached majority, the father “ha[s] no legal obligation to [provide support].” Weaver, 401 So.2d at 78. Therefore, the father in the present case “had no legal excuse to claim credits against the ordered amount.” Id. (citing Godec v. Godec, 346 So.2d 459 (Ala.Civ.App.1977)).

The child-support provision in the divorce judgment was ambiguous on whether the father was obligated to pay support to his adult children at the time he began making direct payments to the older children. The divorce judgment did not specify a per-child amount of child support. Also, the father’s obligation to pay child support under the divorce judgment ended only when the youngest child reached the age of majority. From the father’s point of view, he was obligated to pay the same amount of child support for three children for a specified amount of time, i.e., until the youngest child reached the age of majority. It is understandable that he interpreted his obligation to the older children as continuing until the youngest child reached the age of majority. After the father explained to the mother his interpretation of the agreement, the mother, by endorsing the direct-payment checks made payable to the adult children, implied that she accepted the father’s interpretation of the divorce judgment. Therefore, this case is distinguishable from Weaver and Wood because the father had a legal excuse to claim credits against the child-support arrearage.

Conclusion

Because under one reasonable interpretation of the child-support provision of the divorce judgment, the father was obligated to pay support to the older children once they reached the age of majority, he had a legal basis to claim a credit for direct payments to his adult children against his arrearage. Therefore, the trial court’s judgment is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur in the result, without writings.


author: BRYAN, Judge.

text:
    Mary Yolanda SWINDLE v. Jeffrey Lee SWINDLE.
    2090139.
    Court of Civil Appeals of Alabama.
    Aug. 13, 2010.

      Karen D. White-Humphrey, Huntsville, for appellant.
    D. Milburn Gross, Jr., Meridianville, for appellee.
   BRYAN, Judge.

Mary Yolanda Swindle (“the former wife”) appeals from a judgment of the Madison Circuit Court that terminated the periodic-alimony obligation of Jeffrey Lee Swindle (“the former husband”) to the former wife, that failed to modify child support, that failed to order the payment of child support and alimony arrearages, and that refused to find the former husband in contempt for failure to pay child support and periodic alimony.

Facts and Procedural History

The parties were divorced by the trial court on February 21, 2008. Pursuant to an agreement reached by the parties that was incorporated into the divorce judgment, the former husband was ordered to pay the former wife $1,600 a month as periodic alimony for a period of 18 months or until the former wife died, remarried, openly cohabitated with a member of the opposite sex, or the former husband retired from the military. The parties had two children: a girl, born in February 1991 (“the older child”), and another girl, born in July 1999 (“the younger child”) (hereinafter collectively referred to as “the children”). The divorce judgment awarded the parties’ joint legal custody of the children, and the former wife was awarded physical custody of the younger child and the former husband was awarded physical custody of the older child. The parties were awarded visitation rights with the child that was not in their physical custody. The divorce judgment ordered the former husband to pay $665 a month to the former wife for child support for the younger child; the judgment stated that the award of child support was a deviation from the Rule 32, Ala. R. Jud. Admin., child-support guidelines.

On March 30, 2009, the former husband filed a petition to modify the divorce judgment. In his petition, the former husband alleged that his obligation to pay the former wife periodic alimony should be terminated because the former wife was cohabi-tating with a member of the opposite sex. The former husband also sought physical custody of the younger child and an award of child support from the former wife. The former husband also filed a separate request for emergency pendente lite relief that alleged that the former wife had “on a regular and frequent basis” begun spending the night with a paramour and leaving the younger child with the former wife’s aunt and uncle (“the aunt and the uncle”) for extended periods.

On April 23, 2009, the former wife filed an answer to the former husband’s petition to modify the divorce judgment. The former wife also filed a counterclaim and a petition seeking to hold the former husband in contempt. In her counterclaim, the former wife alleged that the older child had moved into her home, and she requested an order awarding her physical custody of the older child. The former wife also alleged that the former husband had not paid the full amount of periodic alimony owed to her in the months of March and April 2009 and that the former husband had used funds from the older child’s college fund for his personal use. The former wife sought recalculation of the former husband’s child-support obligation for two children, an income-withholding order for the former husband’s periodic-alimony obligation, a finding of contempt, and an award of her attorney’s fees.

The trial court conducted a pendente lite hearing on May 22, 2009, and the following facts were presented. The former wife testified that she and the younger child lived in the home of the aunt and the uncle, along with two of the aunt and the uncle’s children. The aunt and the uncle’s home was located in Dora, which, according to the former wife, is approximately 45 minutes outside Birmingham. The former wife testified that she provided money to help pay bills at the aunt and the uncle’s home, that she provided food for herself and the younger child, that she received her mail at the aunt and the uncle’s home, and that the aunt and the uncle’s home was her primary residence. The former wife was employed by the Jefferson County Board of Education as a special-education professional, and she was employed at a school in the Birmingham area.

The former wife testified that she had begun dating a man (“the paramour”) in October 2008. The paramour lived in the Huntsville area. According to the former wife, she began staying with the paramour overnight soon after she began dating him and they had a sexual relationship. The former wife stated that she stayed at the paramour’s home when the younger child had visitation with the former husband, who also lived in Huntsville, approximately twice a month. The former wife stated that, on average, she stayed overnight with the paramour four times a month. According to the former wife, she had stayed overnight at the paramour’s home on weekdays when school was not in session, but the paramour had never stayed overnight at the aunt and the uncle’s home in Dora.

The former husband testified that he, his wife, and his two stepchildren lived in Huntsville and that he was an active-duty officer in the United States Army. The former husband testified that he had exercised visitation with the younger child every first, third, and, when applicable, fifth weekend of each month. The former husband testified that he became aware that the former wife was spending time at the paramour’s residence in late 2008 after the former wife requested that he meet her at a gas station across the street from the paramour’s residence and he witnessed the former wife drive into the apartment complex where the paramour lived.

The former wife testified that she had occasionally cooked meals at the paramour’s home and that the paramour had loaned her a key to his residence, but she denied having a key to the paramour’s residence at the time of the pendente lite hearing. The former wife admitted that she had allowed the children to stay overnight at the paramour’s residence despite her knowledge that the divorce judgment prohibited her from doing so. The former wife testified that she had been on a vacation with the paramour to Savannah, Georgia, and that she and the paramour had shared a bedroom on that trip. She stated that she left her vehicle at the paramour’s residence during that trip and that she and the paramour were gone for approximately three days in March 2009. She denied that she was engaged to the paramour, although she admitted that they had discussed marriage. She testified that she did not receive mail at the paramour’s home, that she did not leave any personal items such as toiletries or clothing at the paramour’s home, that the paramour had not asked her to move into his home, and that she did not desire to move into the paramour’s home. The former wife stated that she had a loving relationship with the paramour and that she cared for him.

Will Posey, an owner of Posey Investigations, testified that the former husband had hired him to conduct surveillance on the paramour’s residence. According to Posey, his surveillance team “checked” the paramour’s residence approximately 49 times between February 6, 2009, and March 23, 2009, and, according to Posey, the former wife or her vehicle were seen at the paramour’s residence 35 times. Po-sey’s video surveillance of the former wife at the paramour’s residence revealed that the younger child was with the former wife leaving the paramour’s residence on three occasions on a weekday before 7:00 a.m. However, Posey admitted that he did not take video footage of the younger child entering the paramour’s residence, and he admitted that the paramour’s residence, an apartment, had a separate entrance that was not monitored by his surveillance team. Posey stated that he had confirmed with the former husband that he did not have visitation with the younger child on the days that the younger child was present at the paramour’s residence, indicating that it was unlikely that the child was present at the paramour’s residence because the former husband had dropped her off at the paramour’s residence after exercising visitation with the younger child in Huntsville.

Ryan Gillispie, a private investigator, testified that he had conducted surveillance on the former wife at the paramour’s residence. Gillispie stated that he had been to the paramour’s residence 13 times between February 8, 2009, and March 9, 2009, and that he saw the former wife at the paramour’s home on 12 of those 13 occasions. Gillispie stated that the former wife stayed overnight at the paramour’s home on 7 of the 12 occasions that he saw the former wife. Gillispie also stated that he witnessed the former wife using a key to enter the paramour’s home when the paramour was not at his home and that he had witnessed the former wife shopping for groceries in Huntsville.

At the conclusion of the pendente lite hearing, the trial-court judge stated: “[A]t this time I am not reasonably satisfied that there has been open cohabitation as that is defined in the statute by [the former wife] and [the paramour]. That doesn’t mean that couldn’t change at the final hearing, but right now [the periodic-alimony] provision will [remain] unmodified.” The trial court entered a pendente lite order on May 29, 2009, that awarded the former husband primary “care, custody, and control” of the younger child beginning on the younger child’s last day of school (May 29), subject to the former wife’s visitation rights. The trial court noted that its order provided the former husband with relief that he was already entitled to pursuant to the parties’ divorce judgment, which allowed the former husband to have summer visitation with the younger child beginning on the afternoon of the last day of school until the end of the younger child’s summer vacation. The pendente lite order stated that the provisions of the divorce judgment “shall be followed without exception.”

On June 26, 2009, the former wife filed a second motion for contempt. The former wife alleged that the former husband had not paid his periodic-alimony obligation for the months of March, April, May, or June 2009. She also alleged that the former husband had failed to pay his child-support obligation in the month of June 2009.

The trial court conducted a final hearing on July 16, 2009. Because the pendente lite hearing had been conducted less than two months before the final hearing, and because the former husband had presented a majority of his evidence regarding the former wife’s alleged cohabitation with her paramour during that hearing, the former husband presented little additional testimony in an effort to prove his allegation that the former wife was cohabitating with a member of the opposite sex. However, during the final hearing, the former wife admitted that she had stayed overnight at the paramour’s residence for the first two weeks of June 2009, following the entry of the pendente lite order. The former wife testified that she could not recall how often she had stayed overnight with the paramour after the first two weeks of June, but, she testified, “to the best of [her] knowledge,” she had not stayed with the paramour since the first two weeks of June.

The former wife admitted that the testimony of the private investigators had contradicted the testimony she had presented at the pendente lite hearing, specifically, her testimony regarding the fact that she spent, on average, four nights a month with the paramour. The former wife explained that the paramour had been out of town in January, so she had spent more time than usual at the paramour’s home in February. The former wife maintained that she did not cohabitate with the paramour and that she lived with the aunt and the uncle in Dora.

The former husband testified that he had not paid the former wife alimony for March, April, May, June, or July 2009 and that he had not paid child support for the younger child for June or July 2009 because he had custody of the younger child during those months. The former husband submitted a CS^il Child-Support-Obligation Income Statement/Affidavit, which demonstrated that his monthly gross income was $7,534.44 and that he paid $30.29 a month for health insurance for the children. The former wife presented evidence indicating that her monthly gross income was $1,487.67 a month.

On July 29, 2009, the trial court entered a judgment that denied the former husband’s petition to modify custody of the younger child, and the judgment stated that the parties had agreed that the former wife would have physical custody of the older child as well. The trial court found that the former husband had presented evidence sufficient to require that his periodic-alimony obligation to the former wife be terminated. In its judgment, the trial court stated that it was “clear that the [former wife] ha[d] openly cohabitated with a man. While the living arrangements were not on a permanent basis, their time together overnight was frequent and more than mere occasional dating.” The judgment terminated the former husband’s periodic-alimony obligation effective March 30, 2009. The judgment specifically denied all other relief requested by the parties.

The former wife filed a post-judgment motion that challenged the trial court’s failure to order the former husband to pay child support for the children and its failure to order the former husband to pay child-support arrearage that had accumulated in June and July 2009. The trial court denied the former wife’s post-judgment motion on September 24, 2009. On October 6, 2009, the former wife purported to file a “motion to reconsider,” which requested that the trial court reconsider its denial of her postjudgment motion. The former wife filed a timely notice of appeal on November 4, 2009.

Issues

On appeal, the former wife presents six issues for review by this court: (1) whether the trial court erred by terminating the former husband’s periodic-alimony obligation; (2) whether the trial court erred by failing to recalculate the former husband’s child-support obligation; (3) whether the trial court erred by failing to order the payment of the child-support arrear-age; (4) whether the trial court erred by failing to order the payment of the periodic-alimony arrearage; (5) whether the trial court erred by failing to find the former husband in contempt; and (6) whether the trial court erred by failing to consider the former wife’s allegations regarding the former husband’s use of the older child’s college fund.

Standard of Review
“When ore tenus evidence is presented, a presumption of correctness exists as to the trial court’s findings on issues of fact; its judgment based on these findings of fact will not be disturbed unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. J & M Bail Bonding Co. v. Hayes, 748 So.2d 198 (Ala.1999); Gaston v. Ames, 514 So.2d 877 (Ala.1987). When the trial court in a nonjury case enters a judgment without making specific findings of fact, the appellate court ‘will assume that the trial judge made those findings necessary to support the judgment.’ Transameriea Commercial Fin. Corp. v. AmSouth Bank, 608 So.2d 375, 378 (Ala.1992). Moreover, ‘[ujnder the ore terms rule, the trial court’s judgment and all implicit findings necessary to support it carry a presumption of correctness.’ Transameriea, 608 So.2d at 378. However, when the trial court improperly applies the law to [the] facts, no presumption of correctness exists as to the trial court’s judgment. Allstate Ins. Co. v. Skelton, 675 So.2d 377 (Ala.1996); Marvin’s, Inc. v. Robertson, 608 So.2d 391 (Ala.1992); Gaston, 514 So.2d at 878; Smith v. Style Advertising, Inc., 470 So.2d 1194 (Ala.1985); League v. McDonald, 355 So.2d 695 (Ala.1978).... This court reviews the application of law to facts de novo. Allstate, 675 So.2d at 379 (‘[W]here the facts before the trial court are essentially undisputed and the controversy involves questions of law for the court to consider, the [trial] court’s judgment carries no presumption of correctness.’).”

City of Prattville v. Post, 831 So.2d 622, 627-28 (Ala.Civ.App.2002).

Discussion

On appeal, the former wife first argues that the trial court erred by terminating the former husband’s periodic-alimony obligation.

“ ‘It is a question of fact for the trial court to determine as to whether a former spouse is living openly or cohabiting with a member of the opposite sex in order to authorize a termination of periodic alimony under § 30-2-55, Code of Alabama 1975. The burden of proof as to that matter is upon the party seeking relief under the code section. The trial court’s decision upon that issue will not be revised upon an appeal unless, after considering all the evidence and the reasonable inferences therefrom, the trial court was palpably wrong.’
“Knight v. Knight, 500 So.2d 1113, 1115 (Ala.Civ.App.1986). ‘[C]ohabitation requires some permanency of relationship coupled with more than occasional sexual activity between the cohabitants.’ Hicks v. Hicks, 405 So.2d 31, 33 (Ala.Civ.App.1981); see also Vaughn v. Vaughn, 507 So.2d 960 (Ala.Civ.App.1987). Direct evidence of sexual intercourse is rarely available, but ‘sexual intercourse can be inferred from a chain of circumstances.’ Penn v. Penn, 437 So.2d 1053, 1055 (Ala.Civ.App.1983); see also Kennedy v. Kennedy, 598 So.2d 985 (Ala.Civ.App.1992). To evaluate the permanency of a relationship to determine whether a former spouse is cohabiting with a member of the opposite sex, this court has considered whether the former spouse is sharing a dwelling with a member of the opposite sex; whether the former spouse has ceased to date other members of the opposite sex; payment of the former spouse’s creditors by a member of the opposite sex; and the purchase of clothes for the former spouse by a member of the opposite sex. Knight v. Knight, 500 So.2d at 1115.”

McNatt v. McNatt, 908 So.2d 944, 945-46 (Ala.Civ.App.2005).

On appeal, the former wife argues that because the trial court was not reasonably satisfied following the pendente lite hearing that the former husband had demonstrated that the former wife was openly cohabitating with a member of the opposite sex, and because, the wife alleges, no new evidence was presented by the former husband at the final hearing, the trial court erroneously terminated the former husband’s periodic-alimony obligation. The former wife also argues that the former husband conceded that she was not cohabitating with the paramour because, while questioning the former wife during the final hearing and at the pendente lite hearing, the former husband’s attorney made comments to the effect that the former wife was residing in Dora with the aunt and the uncle. However, our review of the record reveals that the former husband maintained, throughout the proceedings below, that the former wife was coha-bitating with the paramour and that the former husband did present additional evidence at the final hearing that could have supported the trial court’s determination that the former wife was cohabitating with a member of the opposite sex.

As the former wife argues, the evidence reflected that the former wife maintained a residence in Dora at the aunt and the uncle’s home and that that residence was where she paid rent, received mail, and lived with the children. Despite the fact that undisputed evidence indicated that the paramour did not pay the former wife’s creditors and that the former wife did not keep any of her personal belongings at the paramour’s residence, the former husband presented evidence that could have supported a conclusion that the former wife was cohabitating with a member of the opposite sex, within the meaning of § 80-2-55, Ala.Code 1975. It was undisputed that the former wife was engaging in a sexual relationship with the paramour, and the former husband presented other evidence that could have led to a conclusion by the trial court that there was some permanency to the relationship between the former wife and the paramour. For example, from the evidence presented by the former husband, the trial court could have reasonably inferred that the former wife had ceased to date other members of the opposite sex. Furthermore, although the evidence indicated that the former wife did not permanently live with the paramour, the trial court could have reasonable inferred that the former wife’s relationship with the paramour had indicia of permanency because of the frequency and continuity of the former wife’s overnight stays.

“ ‘In giving [§ 30-2-55] a rational, sensible construction, we find the legislature intended to strike a balance between the occasional brief sojourn and the common-law marriage. Thus, while not every occurrence of postmarital un-chastity by a former spouse will bar the right to alimony, a petitioner need not prove the former spouse is habitually living with another and that the couple consider themselves married.’ ”

Ex parte Ward, 782 So.2d 1285, 1287 (Ala.2000) (quoting Parish v. Parish, 374 So.2d 348, 349 (Ala.Civ.App.1979)).

We acknowledge that there is a large “grey” area between an “occasional brief sojourn” and a common-law marriage, as described in Ex parte Ward, supra. This court has declined to set forth a bright-line test that would establish when a former spouse is cohabitating with a member of the opposite sex. Instead, the appellate courts have relied on the broad discretion afforded to trial courts when making a factual determination that a former spouse is or is not cohabitating with a member of the opposite sex. In fact, this court has held that

“[b]ecause the ore tenus rule applies to the trial court’s findings, the trial court’s judgment as to whether the former wife was cohabitating with a member of the opposite sex within the meaning of § 30-2-55 will be affirmed by this court ‘ “if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.” ’ [McNatt v. McNatt, 908 So.2d] at 945 [ (Ala.Civ.App.2005) ] (quoting Trans-america Commercial Fin. Corp. v. Am-South Bank, N.A., 608 So.2d 375, 378 (Ala.1992)).”

Scott v. Scott, 38 So.3d 79, 84 (Ala.Civ.App.2009).

The former husband presented credible evidence indicating that the former wife was engaged in a sexual relationship with the paramour and that their relationship was of a permanent nature. The former wife testified that she had a loving relationship with the paramour; that she had traveled out of state with the paramour and had shared a hotel room; and that the paramour, at least at some point in his relationship with the former wife, had given the former wife a key to his residence. The trial court could have reasonably inferred from this evidence that the former wife’s relationship with the paramour went beyond “occasional” sexual activity.

We recognize that caselaw exists that affirms a determination that a former spouse was not cohabitating despite evidence indicating that the former spouse had a regular social and sexual companion. See Rutland v. Rutland, 494 So.2d 662 (Ala.Civ.App.1986). In Rutland, we held that such evidence does not require a finding that a former spouse was cohabitating within the meaning of § 30-2-55. 494 So.2d at 663-64. However, nothing in Rutland suggests that a trial court, in its discretion, may not conclude that a former spouse is cohabitating when evidence of a regular social and sexual companion exists. Accordingly, because under one reasonable aspect of the testimony the trial court’s judgment was supported by credible evidence, we cannot conclude that the trial court’s determination that the former wife had cohabitated with a member of the opposite sex was palpably wrong.

The former wife next argues that the trial court erred by failing to modify the former husband’s child-support obligation in light of the fact that the July 2009 judgment awarded the former wife physical custody of both the children. We agree. In her pleadings and in her post-judgment motion, the former wife requested recalculation of the former husband’s child-support obligation in the event that the former wife was awarded physical custody of both the children. Pursuant to the parties’ divorce judgment, the former husband was ordered to pay $665 a month for the support of the younger child; the final judgment in the present case did not modify that award. We conclude that the trial court’s judgment is due to be reversed for failing to recalculate the award of child support after the former wife was awarded custody of both the children. On remand, we instruct the trial court to recalculate the former husband’s child-support obligation that would have been due as of the date that the July 2009 judgment was entered.

The former wife also argues that the trial court erroneously failed to order the payment of the child-support arrearage that had accumulated in June and July 2009. At the final hearing, the former husband admitted that he had not paid child support to the former wife in June and July 2009. The former husband testified that he did not pay child support to the former wife because he had exercised physical custody of the younger child during those months. However, as noted by the trial court at the conclusion of the pendente lite hearing, the pendente lite award allowed what had already been ordered in the divorce judgment, i.e., that the former husband exercise physical custody of the younger child during her summer vacation. Furthermore, the pendente lite order did not relieve the former husband of his obligation to pay child support pursuant to the divorce judgment but, instead, specifically stated that all provisions of the divorce judgment were required to be followed. It is well settled that monthly installments of child support become final judgments as of the date they are due. Hollen v. Conley, 840 So.2d 921, 924 (Ala.Civ.App.2002). Thus, we conclude that the trial court erred by failing to require the former husband to pay the child-support arrearage that accumulated during June and July 2009. Accordingly, we remand the cause to the trial court for entry of an order requiring the former husband to pay the child-support arrear-age, plus interest, that accumulated during June and July 2009. See Hollen v. Conley, supra.

Finally, the former wife argues that the trial court erroneously failed to order the payment of the alimony arrear-age, erroneously failed to find the husband in contempt, and erroneously failed to rule on the issue regarding the older child’s college fund. In support of the three issues listed above, the former wife cites Ala.Code 1975, § 30-3-5, which sets forth the appropriate venue for an action seeking modification of child support, among other things, and Ala.Code 1975, § 30-3B-106, which is part of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala.Code 1975 (“the UCCJEA”), and sets forth the effect of a child-custody determination made pursuant to the UCCJEA. However, the former wife did not argue below, and she does not argue on appeal, an issue regarding venue or jurisdiction. The former wife also cites Rule 60(b), Ala. R. Civ. P., for the proposition that the trial court had jurisdiction-to correct clerical errors in its judgment. The former wife does not present this court with any analysis as to how Rule 60(b), § 30-3-5, or § 30-3B-106 support reversal of the trial court’s judgment regarding the issues listed above.

“Rule 28(a)(10)[, Ala. R.App. P.,] requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party’s position. If they do not, the arguments are waived. Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 923 (Ala.2002); Arrington v. Mathis, 929 So.2d 468, 470 n. 2 (Ala.Civ.App.2005); Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘This is so, because “ ‘it is not the function of this Court to do a party’s legal research or to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument.’ ” ’ Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 9 (Ala.2007) (quoting Butler v. Town of Argo, 871 So.2d 1, 20 (Ala.2003), quoting in turn Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)).”

White Sands Group, L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala.2008) (emphasis added).

Because the former wife’s brief does not comply with Rule 28(a)(10), Ala. R.App. P., insofar as she argues that the trial court erred by failing to order the former husband to pay the alimony arrear-age, that the trial court erred by failing to find the former husband in contempt, and that the trial court erred by failing to rule on the issue regarding the older child’s college fund, we will not address those arguments. Accordingly, the trial court’s judgment regarding those particular issues is due to be affirmed.

Conclusion

The judgment of the trial court, insofar as it failed to recalculate the former husband’s child-support obligation and failed to order the former husband to pay his child-support arrearage, is due to be reversed; all other aspects of the trial court’s judgment are due to be affirmed. We remand this cause with instructions to enter an order consistent with this opinion. The former wife’s motion to strike the former husband’s brief on appeal is denied, and the former wife’s request for an attorney’s fee on appeal is denied.

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

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

THOMAS and MOORE, JJ., concur in the result, without writings.

      . The former husband presented evidence regarding his allegation that the former wife was cohabitating with a member of the opposite sex during the pendente lite hearing in support of his emergency motion for pendente lite custody. The final hearing, regarding contempt, custody modification, and alimony modification, was conducted less that two months after the pendente lite hearing, and, to avoid repetition, the former husband did not offer the same testimony that he had presented at the pendente lite hearing. Thus, a detailed summary of the evidence presented by the parties at the pendente lite hearing is set forth.

      . The parties’ divorce judgment provided that the former wife would have 10 consecutive days of summer visitation; however, the trial court did not allow the former wife to exercise this specific form of visitation following the entry of the pendente lite order. The former wife was allowed visitation on the second and fourth weekends of each month during the child’s summer vacation.

      .After the trial-court judge adjourned the final hearing, the former wife’s attorney attempted to discuss matters related to a college fund that had been established for the older child. The former wife's attorney pointed out that the former wife had alleged in a counterclaim that the former husband may have been using the fund for his personal use. However, the trial-court judge refused to hear evidence regarding the college fund because the former wife had failed to present any evidence regarding the college fund, or otherwise mention the college fund, during the final hearing.

      . We note that, generally, successive post-judgment motions are not permitted by the Alabama Rules of Civil Procedure. See Kimbrell v. Kimbrell, 965 So.2d 789, 793 (Ala.Civ.App.2007).

      . The former wife's notice of appeal was timely filed because it was filed 41 days after the trial court denied her postjudgment motion on September 24, 2009. See Rule 4(e), Ala. R.App. P.

      . We acknowledge that the older child attained the age of majority in February 2010. However, the former wife properly preserved the issue of child support for appeal, and the record on appeal demonstrates that the trial court erroneously failed to recalculate the former husband's child-support obligation in light of the July 2009 judgment.

      . We note that the former husband did not present any evidence of the actual support he provided to the younger child during June and July 2009, which would have supported a determination that the former husband receive a credit toward his child-support arrear-age. The fact that the former husband exercised physical custody of the younger child during June and July 2009 is insufficient evidence, by itself, to support a credit. See State ex rel. Killingsworth v. Snell, 681 So.2d 620, 621 (Ala.Civ.App.1996) (stating that the award or denial of a child-support credit is within the sound discretion of the trial court, but noting that "the party seeking the credit against an arrearage must present proof as to the amount of the credit sought”).


text:
    Ex parte Carl Colburn CHESHIRE. (In re Sandra Dawn Godbey v. Carl Colburn Cheshire).
    2090672.
    Court of Civil Appeals of Alabama.
    Aug. 13, 2010.

      Braxton Blake Lowe of Alabama Attorneys, L.L.C., Gulf Shores, for petitioner.
    Bert P. Noojin of Noojin & Noojin, Fair-hope, for respondent.
   THOMAS, Judge.

Carl Colburn Cheshire seeks a writ of mandamus directed to the Baldwin Circuit Court ordering that court to vacate its order striking his jury demand on claims asserted against Sandra Dawn Godbey and others in a pleading that Cheshire styled as an “amended counterclaim.” We grant the petition and issue the writ.

In April 2009, in the Circuit Court of Baldwin County, Domestic Relations Division (“the domestic-relations court”), God-bey sued for a divorce from Cheshire. That same month, Cheshire answered the divorce complaint and counterclaimed for a divorce. In September 2009, Cheshire filed an “amended counterclaim” in which he asserted a claim alleging that Godbey had assaulted and battered him and seeking damages as a result; a claim seeking $30,000 plus interest from Godbey based on the fact that a check Godbey had issued to Cheshire had not been honored by God-bey’s bank; and a claim seeking to set aside as void a correction deed naming Godbey Chiropractic, P.C., instead of God-bey as grantee of the property containing the parties’ marital residence, asserting that Godbey had conspired with others in making the correction deed, and seeking damages on the conspiracy claim. Cheshire also sought to add as third-party defendants William D. Godbey and Dorothy H. Godbey, who, he alleged, were the grantors of the property in the challenged correction deed, and Godbey Chiropractic, P.C., which was the grantee in the challenged correction deed; Cheshire alleged that they had conspired with Godbey to make the correction deed so as to defeat Cheshire’s homestead interest in the marital residence. Cheshire demanded a trial by jury on the claims asserted in his “amended counterclaim.”

On October 5, 2009, Godbey moved the trial court to strike Cheshire’s jury demand on the ground that parties to a divorce action were not entitled to a jury trial on that action. See Tyndal v. Howle, 776 So.2d 128, 131 (Ala.Civ.App.1999), rev’d on other grounds, 776 So.2d 133 (Ala.2000) (“[I]n Alabama, parties are not entitled to a trial by jury in a divorce action”). Cheshire then moved to have the counterclaims and the third-party claim raised in his amended counterclaim severed from the divorce action. On October 22, 2009, Godbey moved to dismiss the counterclaims and the third-party claim raised in Cheshire’s amended counterclaim.

The domestic-relations court denied Godbey’s motion to dismiss the counterclaims and the third-party claim. That court also granted Cheshire’s motion to sever the claims raised in the amended counterclaim and, accordingly, transferred those claims to the Circuit Court of Baldwin County, Civil Division (“the civil court”). The domestic-relations court declined to rule on the motion to strike Cheshire’s jury demand, instead transferring that motion to the civil court.

Once the case was transferred to the civil court, Godbey, on December 21, 2009, moved to dismiss the claims raised in the amended counterclaim. She also filed a renewed motion to strike Cheshire’s jury demand, in which she also requested that the civil court remand the cause to the domestic-relations court. Cheshire filed responses in opposition to both motions. On March 2, 2010, the civil court granted Godbey’s motion to strike Cheshire’s jury demand and remanded the cause to the domestic-relations court. Cheshire filed a timely petition for the writ of mandamus in the Alabama Supreme Court. See Rule 21(a)(3), Ala. R.App. P. (stating that the presumptively reasonable time for seeking mandamus review of an interlocutory order is the same as the time for taking an appeal from a final judgment). Our supreme court transferred the petition to this court because that court determined that the petition fell within the appellate jurisdiction of this court. See Ala.Code 1975, § 12-1^1 (permitting any case submitted to the wrong appellate court to be transferred to the proper court), and § 12-3-11 (stating that the courts of appeal have original jurisdiction over extraordinary writs that arise in matters over which those courts have exclusive appellate jurisdiction).

“A petition for a writ of mandamus is the appropriate method of challenging a trial court’s denial of a demand for a trial by jury. Ex parte Holt, 599 So.2d 12 (Ala.1992). Mandamus is an extraordinary remedy, however, requiring a showing that there is: ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).”

Ex parte Jackson, 737 So.2d 452, 453 (Ala.1999).

Cheshire argues that he had a clear legal right to a jury trial on the claims asserted in his amended counterclaim. To determine whether a jury trial was properly demanded by Cheshire, we first turn to Rule 38(b), Ala. R. Civ. P., which provides:

“Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than thirty (30) days after the service of the last pleading directed to such issue.”

Although Cheshire first demanded a jury trial in his amended counterclaim, which was filed well after both the complaint and the original answer and counterclaim, his jury demand may still be timely because

“ ‘[a]n amended or supplemental pleading sets in motion the thirty-day time period for demanding a jury trial for new issues raised in that pleading. However, the service of an amendment does not breathe new life into a previously waived right to jury trial if the amendment deals with the same issues framed in the original pleadings as to which a waiver has occurred.’ ”

Ex parte Jackson, 737 So.2d at 454 (quoting 1 Champ Lyons, Jr., Alabama Rules of Civil Procedure § 38.6 (3d ed. 1996)).

Godbey argues that the claims asserted by Cheshire in his amended counterclaim were not “new” and, therefore, that Cheshire’s amended counterclaim did not serve to set in motion a new 30-day period in which to timely make a jury demand. She contends first that the assault-and-battery claim is of the same character as claims asserted in her divorce complaint and that it arises from the same set of facts that formed one basis for her divorce complaint: that acts of physical violence had occurred between the parties during the marriage.

Godbey next asserts that Cheshire’s claim arising from the failure of her bank to honor her check “merely restates issues [that are] already part of the underlying action for divorce on the grounds of incompatibility.” Godbey explains, relying on Lipham v. Lipham, 50 Ala.App. 583, 281 So.2d 437 (Ala.Civ.App.1973), that a trial court considering granting a divorce on the ground of incompatibility should consider “whether the marriage is characterized by financial difficulties,” among other things. Thus, according to Godbey, Cheshire’s counterclaim seeking $30,000 plus interest is not a “new” claim because the issue whether the parties suffered financial difficulties was already placed at issue by the divorce complaint.

Finally, concerning Cheshire’s conspiracy claim regarding the correction deed, Godbey does not challenge the “newness” of this particular claim and therefore apparently concedes that, if this claim is a valid claim, the jury demand as to this claim was, in fact, timely. Instead, God-bey asserts that this particular claim is not triable by a jury because, she says, Cheshire is not an Alabama resident and cannot claim a homestead exemption. See James v. Thaggard, 795 So.2d 738, 742 (Ala.Civ.App.2001) (quoting Sims v. Cox, 611 So.2d 339, 340 (Ala.1992)) (stating that “ ‘[t]o qualify for the protection afforded by Alabama’s homestead exemption, one must be a “resident” and must, in fact, occupy a “home” in the state of Alabama’ ”). Godbey’s argument is a factual argument that strikes at the heart of the merits of Cheshire’s claim, not at Cheshire’s right to demand a jury trial on that claim. Thus, we express no opinion on whether Cheshire may prevail on his conspiracy claim or whether he may properly claim a homestead exemption.

We disagree with Godbey’s arguments that Cheshire’s amended counterclaim did not raise “new” issues and, thus, that his amended counterclaim did not begin a new 30-day period in which to demand a jury trial for the issues raised in that amended counterclaim. As our supreme court has explained, “[a] review of the cases wherein this Court has found that an amendment or later pleading raised a ‘new issue’ indicates that a new issue is one of an entirely different character from those already raised, or one based on a set of facts different from those that support the original claims.” Ex parte Twintech Indus., Inc., 558 So.2d 923, 925 (Ala.1990) (emphasis added). Although Godbey focuses on the fact that Cheshire’s claims are based on facts that also underlie the issues to be considered in the divorce action, she fails to recognize that Cheshire’s claims are of a different character than the divorce action itself.

The present case is much like Ex parte Reynolds, 447 So.2d 701 (Ala.1984), in which the plaintiff first requested that a mortgage foreclosure deed be declared void for lack of notice of the foreclosure sale or, in the alternative, that he be permitted to redeem the property. Ex parte Reynolds, 447 So.2d at 702. After he received an affidavit that alerted him to the possibility that a fraud had been perpetrated, Reynolds amended his complaint to allege fraud and deceit. Id. Our supreme court concluded that the amendment of the complaint, which had originally contained only claims seeking equitable relief, to include legal claims seeking damages for fraud and deceit presented “new legal issues” and thus triggered a new 30-day period for making a jury demand under Rule 38(b). Id. at 703.

In the present case, the original complaint and counterclaim, in which each party requested a divorce from the other, contained only equitable claims that did not entitle either party to a trial by jury. See Tyndal, 776 So.2d at 131. Cheshire’s amended counterclaim, however, contains claims that are legal in nature and that entitle Cheshire to a trial by jury. See Finance, Inv. & Rediscount Co. v. Wells, 409 So.2d 1341, 1343 (Ala.1981) (explaining that the right to jury trial is preserved by Ala. Const.1901, Art. I, § 11, “only with respect to those cases which would have been triable by jury at common law” and that, “[a]t common law, purely legal claims were guaranteed the right to a jury trial”). Because we conclude that Cheshire’s amended counterclaim raised new legal issues triable by a jury, Cheshire has demonstrated a clear legal right to a jury trial as to those claims raised in his amended counterclaim. We therefore grant the petition, issue the writ, and order the civil court to vacate its order striking Cheshire’s jury demand and remanding the cause to the domestic-relations court.

PETITION GRANTED; WRIT ISSUED.

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

      . Although the pleading Cheshire styled as an "amended counterclaim” operated both as a counterclaim and a third-party complaint, see Rule 7, Rule 13, and Rule 14, Ala. R. Civ. P., for purposes of this opinion we will refer to that pleading as an "amended counterclaim.”

      . William Godbey, Dorothy Godbey, and God-bey Chiropractic, P.C., did not respond to the claim asserted against them in the amended counterclaim, and they have not filed an answer or brief in response to Cheshire's petition for the writ of mandamus.

      . We do not consider Godbey to be arguing that the fact that the parties’ physical altercations are part of the allegations raised in support of a divorce on the ground of incompatibility precludes a separate action for assault and battery, because that is clearly not the case. See Ex parte Harrington, 450 So.2d 99, 101 (Ala.1984) (holding in a case involving two separate actions, a divorce action and an assault and battery action, that the two actions were not the same cause of action despite the fact that the allegations of physical assault were raised in both).


author: BASCHAB, Presiding Judge. WELCH, Judge,

text:
    Roger DIXON v. STATE of Alabama.
    CR-06-1916.
    Court of Criminal Appeals of Alabama.
    June 27, 2008.
    Rehearing Denied Aug. 15, 2008.
    .Paul M. Harden, Sr., Monroeville, for appellant.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN and SHAW, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I respectfully dissent from the majority’s unpublished memorandum affirming the circuit court’s denial of Roger Dixon’s motion for a new trial. One of Dixon’s grounds for seeking a new trial was that a juror, L.A., deceived the trial court and the parties by remaining mute when the State asked the following question of the venire:

“Have any of you or a member of your immediate family ever been a criminal defendant in a criminal case in either the district court or circuit court in this county where Mr. Kirkland, Mr. Billy or any of the assistant district attorneys prosecuted the case?”

(R. 36.)

The method by which claims of juror misconduct occurring during voir dire are analyzed is set forth in Tomlin v. State, 695 So.2d 157 (Ala.Crim.App.1996).

“ We start with the basic constitutional premise that every person is entitled to an impartial jury [pursuant to the Sixth Amendment to the United States Constitution].’ Knight v. State, 675 So.2d 487, 493-94 (Ala.Cr.App.1995), cert. denied, 675 So.2d 502 (Ala.1996). ‘It is fundamental to our system of impartial justice that “‘[p]arties have a right to have questions answered truthfully by prospective jurors to enable them to exercise their discretion wisely in exercising their peremptory strikes.’ ” ’ State v. Freeman, 605 So.2d 1258, 1259 (Ala.Cr.App.1992) (quoting Ex parte O’Leary, 438 So.2d 1372, 1373 (Ala.1983), quoting in turn Ex parte O’Leary, 417 So.2d 232, 240 (Ala.1982)). ‘Voir dire’ is an ancient phrase which literally means ‘to speak the truth.’ W. LaFave & J. Israel, Criminal Procedure § 22.3(a) (2d. ed.1992). ‘ “Where the party has examined the jurors concerning their qualifications, and they do not answer truly, it is manifest that he is deprived of his right of challenge for cause, and is deceived into foregoing his right of peremptory challenge.” ’ Ex parte Ledbetter, 404 So.2d 731, 733 (Ala.1981) (quoting Leach v. State, 31 Ala. App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289 (1944)). ‘Failure to enforce the right to elicit from prospective jurors truthful answers to material questions renders hollow the right of peremptory challenge.’ Knight v. State, 675 So.2d at 494 (quoting Mitchell v. State, 458 So.2d 819, 821 (Fla.Dist.Ct.App.1984)).
“In addressing the issue whether a defendant was deprived of the right to exercise peremptory strikes based on truthful answers from prospective jurors, the Alabama Supreme Court recently reiterated the test to be ‘whether the defendant might have been prejudiced by a veniremember’s failure to make a proper response.’ Ex parte Stewart, 659 So.2d 122, 124 (Ala.1993) (emphasis added). This test casts a ‘light burden ’ on the defendant. Cf. Ex parte Lasley, 505 So.2d 1263, 1264 (Ala.1987) (stated in regard to the test of whether juror misconduct might have influenced the verdict).
“ ‘ “Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.” ’
“Johnson v. State, 536 So.2d 957, 958 (Ala.Cr.App.1987), cert. denied, 490 U.S. 1046, 109 S.Ct. 1955, 104 L.Ed.2d 424 (1989) (quoting Smithson v. State, 50 Ala.App. 318, 320-21, 278 So.2d 766 (1973)). See also Campbell v. Williams, 638 So.2d 804, 813 (Ala.1994), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994). ‘Thus, the facts in each case must be considered individually and much will remain in the discretion of the trial judge.’ Parish v. State, 480 So.2d 29, 30 (Ala.Cr.App.1985).”

Tomlin v. State, 695 So.2d at 169-70.

In applying the “might-have-been-prejudiced standard” the Supreme Court of Alabama has stated:

“The form of prejudice that would entitle a party to relief for a juror’s nondisclosure or falsification in voir dire would be its effect, if any, to cause the party to forgo challenging the juror for cause or exercising a peremptory challenge to strike the juror. Ex parte Ledbetter, 404 So.2d 731 (Ala.1981); Warrick v. State, 460 So.2d 320 (Ala.Crim.App.1984); and Leach v. State, 31 Ala.App. 390, 18 So.2d 285 (1944). If the party establishes that the juror’s disclosure of the truth would have caused the party either to (successfully) challenge the juror for cause or to exercise a peremptory challenge to strike the juror, then the party has made a prima facie showing of prejudice. Id. Such prejudice can be established by the obvious tendency of the true facts to bias the juror, as in Ledbetter, supra, or by direct testimony of trial counsel that the true facts would have prompted a challenge against the juror, as in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992).”

Ex parte Dobyne, 805 So.2d 763, 772-73 (Ala.2001).

Dixon asserted at his hearing on his motion for a new trial that had L.A. truthfully disclosed at the time of voir dire that two charges of harassing communications, a violation of § 13A-ll-8(b), Ala.Code 1975, were pending against her in Escam-bia County, he would have exercised a peremptory challenge to remove her from the jury if, in fact, she were not removed for cause on the basis of a truthful answer that she was currently a criminal defendant in the very county where the instant case was being prosecuted.

L.A. testified at the hearing and asserted that she did not understand that she had been prosecuted because in her conversations with the district attorney of Es-cambia County, Steve Billy, and the victims, she had the understanding that the victims were not interested in pursuing the case and that it would be continued indefinitely. In reality, after Dixon’s trial, L.A. was placed in a pretrial diversion program and, according to testimony elicited at the hearing on Dixon’s motion, L.A. was not charged any fees or costs normally associated with placement in the program.

As to the standard of review, I am aware that

“ ‘[i]t is well settled that “[a] decision on a motion for a new trial rests largely within the discretion of the trial court, and [that] in reviewing such a decision this court will indulge every presumption in favor of the correctness thereof.” ... “A trial judge’s denial of a motion for new trial will not be disturbed [on appeal] in the absence of a showing of [an] abuse of discretion.” ’ Sistrunk v. State, 630 So.2d 147, 154 (Ala.Cr.App.1993) (citing Brownlee v. State, 545 So.2d 151, 164 (Ala.Cr.App.1988), aff'd, Ex parte Brownlee, 545 So.2d 166 (Ala.1989), cert. denied, Brownlee v. Alabama, 493 U.S. 874, 110 S.Ct. 208, 107 L.Ed.2d 161 (1989)).”

Lane v. State, 708 So.2d 206, 210 (Ala.Crim.App.1997).

Here, however, I believe that analyzing the failure of the juror to respond utilizing the five factors set out in Smithson, as quoted in Tomlin, reveals that the trial judge did indeed abuse his discretion when he denied Dixon’s motion for a new trial.

Temporal remoteness

L.A. was been arrested on February 27, 2007, for harassing communications pursuant to a complaint signed by her ex-husband. L.A. signed an appearance bond in the amount of $500 that required her to appear in the District Court of Escambia County on April 2, 2007, to defend this charge. (R. 186-190.) ■ On March 26, 2007, L.A. was again arrested for harassing communications pursuant to a complaint signed by her daughter. On that date, L.A. signed a second appearance bond in the amount of $500 that required her to appear in the District Court of Escambia County on May 7, 2007, to defend this charge. (R. 181-85.) L.A. testified that on April 3, 2007, Mr. Billy had her criminal cases continued. On April 9, 2007, voir dire was conducted in this case and L.A. was selected as a juror for Dixon’s trial. On May 3, 2007, L.A. was placed in a pretrial diversion program without paying fees associated with, such placement or court costs or fines. Thus, the matters inquired about had occurred within the six-week period before the voir dire in this case, and, considering the personal impact these cases, brought by her own family members against her, would have engendered, there is no reasonable likelihood that L.A. could have forgotten them.

Ambiguity of the question propounded

The majority places great weight upon the trial judge’s grammatical parsing of the question with the implied result being that the question required an answer only if the case against the prospective juror was concluded. The trial judge denied the motion for a new trial in a written order but did not make any findings of fact nor include any discussion of the law.

However, L.A. did not testify that she did not answer this question because she believed the question referred to a past completed prosecution; rather, she testified that she did not answer the question because she did not know that she had been formally charged in a criminal case. Her testimony at the hearing on the motion for new trial was an obvious attempt to explain away her failure to answer. In testifying, she made dubious and inconsistent statements. Although one way to look at the question could be that it referred only to a completed case, L.A. had been a defendant since the day she was arrested and made bond on the first charge. She was subjected to prosecution by the district attorney before and during the period of jury selection in Dixon’s case. Although the question was in a sense ambiguous, a conscientious prospective juror would have responded.

The prospective juror’s inadvertence or willfulness in failing to answer

L.A. had been arrested in two criminal cases, had twice made bond, and had promised to appear in the District Court of Escambia County for two different court dates. She had also talked to the district attorney of Escambia County, had obtained a continuance of both cases, and apparently had discussed both cases with the complainants. In response to a question as to whether she had contacted her sister-in-law, an assistant district attorney in Tuscaloosa County, to discuss the pending charges, L.A. explained: “No, sir. She represents child support cases. She didn’t have anything to do with criminal cases.” (R. 845.)

To conclude, as the majority concludes, that L.A. did not know she was a defendant in a criminal case following two arrests for criminal charges suspends belief. This conclusion requires that we believe that a prospective juror who twice had to appear at the sheriffs office to sign an appearance bond promising to appear in the district court on criminal charges within the six weeks before jury selection in this case did not understand that she was being arrested and did not understand that she was a defendant in a criminal case.

It further requires that we believe that L.A. discussed this matter with Mr. Billy, the district attorney of Escambia County, several times and never gleaned the fact that they were discussing a criminal case in which she was the defendant. We also must believe that L.A.’s comment regarding her sister-in-law, who served as an assistant district attorney in Tuscaloosa County, that “[s]he represents child support cases. She didn’t have anything to do with criminal cases” (R. 845), does not affirmatively show that L.A. was aware that she had been charged with committing criminal acts. The unmistakable conclusion is that the L.A.’s failure to respond was willful.

The failure of the juror to recollect

L.A. must have recollected that she was a defendant in the District Court of Es-cambia County. Her failure to respond may have been the natural human desire not to reveal to a number of people in open court her contentious familial relationships and to keep the internecine squabble that had erupted in her family life away from public view. Clearly, though, she recollected it.

The materiality of the matter inquired about

The State propounded the question at issue to discover whether any of the prospective jurors harbored prejudice against the State; however, with respect to L.A., this knowledge was already in the State’s possession. District Attorney Billy, who was trying this case, had had, within the month before voir dire, at least one conversation with L.A. about her criminal cases. Thus, the State already knew the answer to their question with regard to L.A. Only Dixon’s trial attorney was in the dark.

L.A.’s failure to respond prevented Dixon from discovering that L.A. was subject to the decisions of the district attorney regarding her two cases. Prosecutorial discretion would have allowed the State to go forward in the case against L.A. even if the complainants had decided that they no longer wished to pursue the cases. The prosecutor could agree to a continuance or not and could offer pretrial diversion or not. The prosecutor could elect to try the cases and, if L.A. was convicted, argue to the district court and ask for a jail sentence, a fíne, probation, or any of the myriad sentences a criminal defendant is subject to receive.

Had L.A. answered truthfully, Dixon’s counsel would have had the opportunity to question L.A. further and to discover whether her relationship with the district attorney’s office was contentious, friendly, or servile. Certainly it would be a serious concern if a prospective juror was subject to the discretionary decisions of the district attorney. Human nature being what it is, it would have been natural for defense counsel to be suspicious about a juror who was beholden to the State, and to be reluctant to take the chance that the juror might be biased and wanting to curry favor with the State by voting to convict. Indeed, trial counsel testified that had L.A. been truthful he would have attempted to strike her for cause, and, failing that, he would have exercised a peremptory challenge and struck her from the venire.

Both methods of establishing prejudice set out by Ex parte Dobyne — the obvious tendency of the facts to bias the prospective juror, and testimony by trial counsel that had the facts been known he would have challenged the juror — have been shown to exist in this case.

Based on the above, there is no doubt that L.A.’s failure to answer constituted juror misconduct. The only question is whether that misconduct requires a new trial.

The test used to determine whether the petitioner was prejudiced by the juror’s failure to respond is whether the petitioner might have been prejudiced. See Leach v. State, 31 Ala.App. 390, 18 So.2d 285 (1944); Wallis v. State, 38 Ala.App. 359, 362, 84 So.2d 788, 790 (1955); Beauregard v. State, 372 So.2d 37, 40-41 (Ala.Crim.App.1979); Ex parte Ledbetter, 404 So.2d 731, 732 (Ala.1981); Ex parte Stewart, 659 So.2d 122 (Ala.1993); Tomlin v. State, 695 So.2d 157 (Ala.Crim.App.1996); Ex parte Dobyne, 805 So.2d 763 (Ala.2001).

It would seem to me that it is intellectually dishonest to pretend that Dixon was not prejudiced by L.A.’s silence. The record clearly reflects that at the time of voir dire L.A. was a criminal defendant, who for all practical purposes was in the middle of negotiating a plea agreement with the State. I believe that it would be difficult for a juror in L.A.’s position to be unbiased. I certainly do not believe that we can presume, despite L.A.’s protest to the contrary, that she was unaffected by her relationship with the State.

“ ‘Impartiality, freedom from bias or prejudice, capacity without fear, favor, or affection, a true deliverance to make between the accused and the State, the law demands as the qualification of a juror .... It is not only such (family) relationship, but temporary relations, formed in the course of business, or in the intercourse of life, which may disqualify, whenever they may import a just belief of a want of impartiality— that a juror can not stand indifferent, either from interest, or from the favor springing out of the relation.’ ”

Leach v. State, 31 Ala.App. at 391-92, 18 So.2d at 287 (quoting Brazleton v. State, 66 Ala. 96 (1880)).

The majority bases part of its rationale for finding that the State had rebutted any prejudice to Dixon on L.A.’s answer, “Absolutely not,” when she was asked if the pending charges affected her verdict. (R. 654.)

It is a fundamental concept in the United States of America that criminal defendants are entitled to a jury composed of jurors who are fair. Jurors know that it is their job to be fair and to avoid prejudice and bias. They are so instructed during the court’s oral charge. After a trial, asking a juror if her verdict was affected by anything that would reflect on her ability to be fair, especially after that juror has been thoroughly questioned by defense counsel, is extremely unlikely to elicit a positive response. In essence, the juror would have to admit her misconduct or bias in open court and to testify that she intentionally disregarded her duty to be fair. The juror would be unfamiliar with what would be the personal consequences of such an admission and might very well fear that she would be held in contempt or charged with a crime such as obstruction of justice if she admitted that her verdict was tainted by her bias. For these reasons it is unwise to place great weight on an answer affirming a lack of bias.

Thus, I believe that the circuit court abused its discretion, in denying Dixon’s motion for a new trial, and I would reverse and remand for a new trial.

In addition I would urge the Alabama Supreme Court to revisit its analysis in Dobyne. In Dobyne the Court stated that “probable prejudice” and “might have caused prejudice” are the same standard of review. Ex parte Dobyne, 805 So.2d at 772 n. 1 (quoted infra). I would ask the Alabama Supreme Court to reconsider that conclusion. Bryan A. Garner, author of A Dictionary of Modem Legal Usage (2nd ed.1995), offered the following comparison of “probable, likely, possible”:

“probable; likely; possible. These words — in order of decreasing strength — express gradations of the relative chance that something might happen. With a coin toss, for example, you cannot say that it is probable that it will turn up heads, though you might say this it is likely. (Of course, it would be equally likely to turn up tails.) The word likely, then, as Glanville Williams puts it, is ‘a strong “possible ” but a weak “probable.”’ Glanville Williams, Criminal Law 59 (2nd ed.1961). And the word possible, of course, embraces a wide gamut: everything from the remotest chance to a 100% certainty.”

Id. at 693-94.

I believe that “might,” which is defined as “less probability or possibility than may,” Webster’s Third New International Dictionary 1432 (1976), is a term referencing any possibility that is less than absolute — whether it be probable, likely, or possible. Thus, “might-have-prejudiced” includes the not only the chance of probable prejudice, but also the chances of likely-to-prejudice and possibly prejudice. Nevertheless, it appears that what began as two distinct standards of review — “probable prejudice” and “might-cause-prejudice”— merged when the authority used to analyze a juror’s failure to answer questions on voir dire was applied to analyze cases concerning juror misconduct occurring during deliberations. See Leach v. State, 31 Ala.App. 390, 18 So.2d 285 (1944); Wallis v. State, 38 Ala.App. 359, 362, 84 So.2d 788, 790 (1955); Beauregard v. State, 372 So.2d 37, 40-41 (Ala.Crim.App.1979); Ex parte Ledbetter, 404 So.2d 731, 732 (Ala.1981); Ex parte Troha, 462 So.2d 953, 953-954 (Ala.1984); Ex parte Dobyne, 805 So.2d 763 (Ala.2001). The “might-have-prejudiced” standard of review presented a lighter burden than the “probable prejudice” standard of review.

In a footnote, the Dobyne court stated:

“Two separate standards had previously existed for civil and criminal cases in regard to the standard to be applied, the Roan [v. State, 225 Ala. 428, 143 So. 454 (1932),] test of ‘might have been influenced’ in criminal cases, and the Freeman [v. Hall, 286 Ala. 161, 238 So.2d 330 (Ala.1970) ] test of ‘probable prejudice’ in civil cases. In Ex parte O’Leary, 438 So.2d 1372 (Ala.1983), a criminal case involving a possession-of-marijuana charge, this Court relied upon the discussion in Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982), a civil case, discussing the ‘might-have-been-prejudiced’ standard as employed in Ex parte Ledbetter, 404 So.2d 731 (Ala.1981), 'and the ‘probable-prejudice’ standard advanced by Freeman. This Court then stated that ‘we follow the Freeman standard and opine that the false answers given [on voir dire] resulted in probable prejudice to O’Leary.’ O’Leary, 438 So.2d at 1375. These two standards are arguably different. However, since O’Leary, the standards have become intertwined. See, e.g., Apicella v. State, [809] So.2d [841] (Ala.Crim.App.2000); Travis v. State, 776 So.2d 819, 847 (Ala.Crim.App.1997); Tomlin v. State, 695 So.2d 157, 169 (Ala.Crim.App.1996); Knight v. State, 675 So.2d 487, 494 (Ala.Crim.App.1995); State v. Freeman, 605 So.2d 1258, 1259 (Ala.Crim.App.1992); State v. Gilbert, 568 So.2d 876, 878 (Ala.Crim.App.1990); Washington v. State, 539 So.2d 1089, 1095 (Ala.Crim.App.1988); Clark v. State, 551 So.2d 1081, 1088 (Ala.Crim. App.1986); and Neelley v. State, 494 So.2d 669, 680 (Ala.Crim.App.1985).

Ex parte Dobyne, 805 So.2d at 772 n. 1.

All the cases cited in Dobyne for the proposition that the standards have intertwined are cases of juror misconduct by a member of the trial jury; none involve prospective jurors not responding truthfully during participating voir dire.

A different analysis is required for an inquiry into juror misconduct in responding or failing to respond to questions during voir dire than the analysis required for instances of juror misconduct occurring during the juror’s service as a member of the trial jury, such as performing an experiment, talking with parties or persons related to or employed by parties, or any other improper influence during the trial.

If indeed the two standards have merged and lost their original character to differentially analyze juror misconduct in a criminal or civil case, a more useful method of using the two terms would distinguish between the misconduct of a prospective juror and the misconduct of a trial juror who has already been selected and who is involved in the trial of a case or in deliberations.

It appears to me that the more burdensome “probable-prejudice” standard should be used to protect a defendant’s due-process rights in cases where the juror misconduct occurs during voir dire, whereas the less demanding “might-have-caused-prejudice” standard should apply to protect due-process rights and the sanctity of jury deliberations where the jurors misconduct occurs during a trial. See Freeman v. Hall, 286 Ala. 161, 165-67, 238 So.2d 330, 334-36 (1970); Ex parte O’Leary, 438 So.2d 1372, 1375 (Ala.1983); Union Mortg. Co. v. Barlow, 595 So.2d 1335 (Ala.1992); Campbell v. Williams, 638 So.2d 804, 813 (Ala.1994); Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So.2d 1, 4 (Ala.2007).

For the above reasons, I respectfully dissent.

      . In Dobyne, the Supreme Court interpreted Ex parte O'Leary, 438 So.2d 1372 (Ala.1983), as having established a "probable-prejudice” standard for criminal cases. I question whether it was the intention of the O'Leary Court to signal a complete departure from the "might-have-been-prejudiced” standard in criminal cases. That Court stated no rationale for changing the standard and there was no discussion of why that Court decided to use probable prejudice; moreover, it explicitly limited its holding to that case: "In this case we follow the Freeman standard and opine that the false answers given by Odom resulted in probable prejudice to O'Leary.” O'Leary 438 So.2d at 1374. However, I agree that the practical effect of that case was to blur the distinction between the two standards, and there is no longer any attempt by the appellate courts of this State to apply a criminal case/civil case dichotomy.