text:
    OPINION OF THE JUSTICES.
    No. 385.
    Supreme Court of Alabama.
    May 24, 2011.
   Honorable Robert Bentley

Governor of Alabama

State Capitol

Montgomery, Alabama 36130

Dear Governor Bentley:

We have received your letter requesting an advisory opinion pursuant to § 12-2-10, Ala.Code 1975, as to the constitutionality of Senate Bill 373 (“S.B. 373”), which allows an “approved entity,” as that term is defined in S.B. 373, to retain a percentage of state income taxes withheld from “eligible employees,” “in consideration of §§ 211.01, 211.02, and 212, or other potentially applicable provisions of Alabama’s Constitution.”

Senate Bill 373

S.B. 373 reads as follows:

“BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. The Legislature makes the following findings:
“(1) The economic well-being of the citizens of the state will be enhanced by the increased development and growth of industry within the state and it is in the best interests of the state to provide for certain incentives to allow the state to promote such economic development through the recruitment, retention, and expansion of quality projects within the state.
“(2) The incentives provided in this act will assist the state in encouraging the retention of existing jobs that may otherwise be terminated or displaced, and the creation of new jobs which may not otherwise exist within the state, and the incentives will help retain and create sources of tax revenues for the state and its political subdivisions.
“(3) The Alabama Development Office and the Department of Revenue shall implement this act and exercise all powers as authorized in this act; however, the application of this act or the offering of any of its incentives as to any particular approved entity shall be in the sole discretion of the State Industrial Development Authority upon the written recommendation of the ADO Director, the Commissioner of Revenue, and the Governor.
“(4) The powers to be granted and the purposes to be accomplished by this act are proper governmental and public purposes and the inducement of the recruitment, retention, or expansion of quality projects within the state is of paramount importance.
“(5) Nothing in this act shall be construed to constitute a guarantee or assumption by the state of any debt of any individual, company, corporation, or association nor to authorize the credit of the state to be given, pledged, or loaned to any individual, company, corporation, or association.
“(6) Nothing in this act gives any approved entity any right to the incentives authorized by this act unless the incentives are approved by the State Industrial Development Authority pursuant to this act.
“(7) This act is intended to be revenue-neutral with regard to employee withholdings and potential refunds.
“Section 2. The following words and phrases shall have the following meanings:
“(1) ADO. The Alabama Development Office.
“(2) APPROVED ENTITY. Any company or educational institution recommended by the ADO Director, the Commissioner of Revenue, and the Governor in writing and approved by the State Industrial Development Authority in writing pursuant to this act which undertakes a qualifying project.
“(3) CAPITAL COSTS. All costs and expenses incurred by an approved entity in connection with the acquisition, construction, installation, and equipping of a qualifying project during the period commencing with the date on which such acquisition, construction, installation, and equipping commences and ending on the date on which the qualifying project is placed in service, including, without limitation, all of the following:
“a. The costs of acquiring, constructing, installing, and equipping a qualifying project, including all obligations incurred for labor and to contractors, subcontractors, builders, and materialmen.
“b. The costs of acquiring land or rights in land.
“c. The costs of architectural and engineering services, including test bor-ings, surveys, estimates, plans and specifications, preliminary investigations, environmental mitigation, and supervision of construction, as well as for the performance of all the duties required by or consequent upon the acquisition, construction, and installation of a qualifying project.
“d. The costs associated with installation of fixtures and equipment; surveys, including archaeological and environmental surveys; site tests and inspections; subsurface site work; excavation; removal of structures, roadways, cemeteries, and other surface obstructions; filling, grading, paving and provisions for drainage, storm water retention, installation of utilities, including water, sewer, sewage treatment, gas, electricity, communications, and similar facilities; and off-site construction of utility extensions to the boundaries of the property.
“e. All other costs of a nature comparable to those described.
“f. Costs otherwise defined as capital costs that are incurred by the approved entity where the approved entity is the lessee under a lease that: 1. Has a term of not less than five years, and 2. is characterized as a capital lease for federal income tax purposes; provided, that if the project is a headquarters facility with a lease term of not less than five years, a research and development facility with a lease term of not less than 10 years, or a project at which the predominant trade or business activity conducted is described in the 2007 North American Industry Classification System, promulgated by the Executive Office of the President of the United States, Office of Management and Budget, Sectors 31 (other than National Industry 311811), 32, and 33 with a lease terms of not less than 10 years, the lease may be characterized as an operating lease for federal income tax purposes in which event capital costs shall include the net present value of the payments made by the approved entity under the lease computed using the applicable federal rate for the month in which the qualifying project is placed in service and for the term most closely approximating the term of the lease. Capital costs shall not include property owned or leased by the approved entity or a related entity before the commencement of the acquisition, construction, installation, or equipping of the qualifying project unless such property was physically located outside the state for a period of at least one year prior to the date on which the qualifying project was placed in service.
“g. Costs either paid or incurred by 1. a public entity for the benefit of a qualifying project where such costs are treated as costs paid by an approved entity with respect to the qualifying project for federal income tax purposes, such costs shall not include amounts contributed by a public entity to a qualifying project as a capital contribution or gift except to the extent that an approved entity has cost basis in the contribution or gift for federal income tax purposes; or 2. a related entity to an approved entity to the extent such costs are included in or taken into account in determining the approved entity’s capital expenditures in the qualifying project, whether or not incurred by an approved entity.
“(4) COMPANY. Any corporation, partnership, limited liability company, proprietorship, trust, or other business entity, regardless of form.
“(5) DATA PROCESSING CENTER. An establishment engaged predominantly in the provision of complete processing and specialized reports from data, the provision of automated data processing and data entry services, the provision of an infrastructure for hosting of data processing services, the provision of specialized hosting activities, the provision of application service provisioning, the provision of general time-share mainframe facilities, or some combination of the foregoing.
“(6) EDUCATIONAL INSTITUTION. A college or university in the state, whether the college or university is established or recognized under the Constitution of Alabama of 1901, or by act of the Legislature.
“(7) ELIGIBLE EMPLOYEES. Those persons, as set forth in a qualifying project agreement, a. who are being paid directly by an approved entity for working at a qualifying project for not less than 36 hours per work week, whose workday is fully dedicated to the qualifying project, b. who the approved entity identifies as its employees to the U.S. Internal Revenue Service, the Department of Revenue, or the Department of Industrial Relations on returns or reports filed with the foregoing, including, but not limited to, IRS Form 941, and c. who are eligible to participate under such benefit plans as are generally applicable to employees holding positions of like kind and character within either the approved entity or a related entity whose employee benefits are equivalent to or better than, from an employee perspective, the approved entity’s employee benefits.
“(8) FAVORED GEOGRAPHIC AREA. The definition in Section 40-18-190, Code of Alabama 1975.
“(9) GRANT. A transfer of money or property to a transferee that is not a related entity to or an agent of the transferor. The transfer shall not impose any obligation or condition to directly or indirectly repay any amount to the transferor. Obligations or conditions intended solely to assure expenditure of the transferred money or property in accordance with the purpose of the transfer do not prevent a transfer from being a grant.
“(10) HEADQUARTERS FACILITY. Any trade or business described in the 2007 North American Industry Classification System, promulgated by the Executive Office of the President of the United States, Office of Management and Budget, National Industry 551114.
“(11) INCENTIVE PERIOD. The time period set forth in a qualifying project agreement for which an approved entity may receive withholding incentives.
“(12) INDUSTRIAL, WAREHOUSING, OR RESEARCH ACTIVITY. Any trade or business described in the 2007 North American Industry Classification System, promulgated by the Executive Office of the President of the United States, Office of Management and Budget, Sectors 31 (other than National Industry 311811), 32, and 33; Sub-sectors 423, 424, 493, 511, and 927; Industry Groups 5417, 5415, and 5182, without regard to the premise that data processing and related services be performed in conjunction with a third party; Industries 11331 and 48691; and National Industries 115111, 517110, 541380, and 561422, other than establishments that originate telephone calls, and includes such trades and businesses as may be hereafter reclassified in any subsequent publication of the North American Industry Classification System or other industry classification system developed in conjunction with the United States Department of Commerce, or any process or treatment facility which recycles, reclaims, or converts materials, which include solids, liquids, or gases, to a reusable product.
“(13) NEW OR EXPANSION PROJECT. A project meeting any one of the following requirements:
“a. A headquarters facility at which the predominant trade or business activity conducted will not be the production of electricity.
“b. A data processing center.
“c. A research and development facility.
“d. A qualified educational facility.
“e. A project at which the predominant trade or business activity conducted will constitute industrial, warehousing, or research activity or any other business activity described in Section 40-18-190, Code of Alabama 1975, without regard to whether the minimum capital costs requirement set forth for the business activity is satisfied.
“(14) PROJECT. Any land, building, or other improvement, and all real and personal properties deemed necessary or useful in connection therewith, whether or not previously in existence, located or to be located in the state.
“(15) PUBLIC ENTITY. A public industrial development board or authority, municipality, or county, or other public corporation or political subdivision.
“(16) QUALIFIED GRANT. A competitively awarded grant made to an educational institution by an entity other than the state.
“(17) QUALIFIED EDUCATIONAL FACILITY. A facility at any educational institution.
“(18) QUALIFYING PROJECT. Any new or expansion project or retention project to be undertaken by an approved entity. Any proposed qualifying project shall be characterized, in the sole discretion of the State Industrial Development Authority upon the written recommendation of the ADO Director, the Commissioner of Revenue, and the Governor, as either a new or expansion project or a retention project. In making this characterization, the State Industrial Development Authority may consider any criteria which it considers to be appropriate.
“(19) QUALIFYING PROJECT AGREEMENT. An executed agreement entered into between the state and an approved entity that describes the qualifying project and sets forth the withholding incentives, the incentive period, the number of eligible employees, any termination provisions, or provisions which allow the state to recapture withholding incentives in the event the approved entity fails to meet certain minimum job or capital investment requirements, or both, and any other terms and conditions which the state, in its sole discretion, may require for an approved entity to qualify for and receive withholding incentives.
“(20) RELATED ENTITY. Any company or educational institutional that is under common management or control with an approved entity. No educational institution shall be considered a related entity of another educational institution and no educational institution shall be considered a related entity of the state.
“(21) RESEARCH AND DEVELOPMENT FACILITY. An establishment engaged predominantly in conducting original inyestigations undertaken on a systematic basis to gain new knowledge or applying research findings or other scientific knowledge to create new or significantly improved products or processes, or both.
“(22) RETENTION PROJECT. A project, to be used as part of an existing facility of a company or educational institution located in the state, meeting both of the following requirements:
“a. The project is described in paragraphs a. through e. of subdivision (13).
“b. The capital costs of the project are not less than the following:
“1. Two million dollars ($2,000,000), if the project is not located in a favored geographic area.
“2. Five hundred thousand dollars ($500,000), if the project is located in a favored geographic area.
“(23) WITHHOLDING INCENTIVES. Incentives in the form of the retention by an approved entity of a percentage of state income taxes withheld from eligible employees.
“Section 3. (a) The ADO Director and the Commissioner of Revenue shall determine, upon initial application on a form approved by the ADO and the Department of Revenue, whether to recommend to the Governor, in writing, that a company or educational institution be approved by the State Industrial Development Authority as an approved entity. In making their determination, the ADO Director ánd the Commissioner of Revenue may consider any criteria which they consider, in their sole discretion, to be appropriate. The ADO Director and the Commissioner of Revenue, in making their determination, shall conduct a cost/benefit analysis with respect to a proposed qualifying project and the withholding incentives proposed to be granted by the State Industrial Development Authority with respect thereto.
“(b) After reviewing the recommendation of the ADO Director and the Commissioner of Revenue, the Governor, in his or her. sole discretion, shall determine whether to recommend to the State Industrial Development Authority, in writing, that a company or educational institution be approved by the State Industrial Development Authority as an approved entity.
“(c) After reviewing the recommendations of the ADO Director, the Commissioner of Revenue, and the Governor, the State Industrial Development Authority, in its sole discretion, shall determine whether to approve, in writing, a company or educational institution as an approved entity. In making its determination, the State Industrial Development Authority shall consider whether approving a company or educational institution as an approved entity serves a valid public purpose and is in the best interests of the citizens of the state.
“(d) After the State Industrial Development Authority approves a company or educational institution as an approved entity, the approved entity must enter into a qualifying project agreement with the state in order to qualify for and receive withholding incentives. The authority, in its sole discretion, may require that an approved entity meet minimum job or capital investment requirements, or both, to avoid the state recapturing withholding incentives or terminating the qualifying project agreement.
“Section 4. (a) An approved entity that meets the qualifications specified in this act shall qualify to receive withholding incentives in an amount, determined in the sole discretion of the State Industrial Development Authority, equal to:
“(1) In the case of a new or expansion project, one percent to 90 percent of the amount of state income taxes withheld from eligible employees.
“(2) In the case of a retention project, one percent to 75 percent of the amount of state income taxes withheld from eligible employees.
“(b) The incentive period shall be determined in the sole discretion of the State Industrial Development Authority upon written recommendations by the ADO Director, the Commissioner of Revenue, and the Governor, except that in no event shall the incentive period exceed 20 years after a qualifying project is placed in service.
“(c) Withholding incentives shall be reduced or eliminated with respect to a qualifying project at the time the sum of all withholding incentives received with respect to such qualifying project and capital credits received under Article 7, Chapter 18 of Title 40, Code of Alabama 1975, with respect to such qualifying project equals 100 percent of the capital costs of such qualifying project, all to the end that the aggregate amount of withholding incentives and capital credits shall not exceed 100 percent of the capital costs of the qualifying project.
“(d) An eligible employee is allowed a credit against his or her state income taxes in an amount equal to 100 percent of the withholding incentives retained by an approved entity from his or her wages during the tax year.
“Section 5. (a) Within 90 days after the end of a calendar quarter for which an approved entity has qualified to receive a withholding incentive, the approved entity shall certify to the Department of Revenue, on a form approved by the Department of Revenue, the actual number of eligible employees for the calendar quarter, the payroll of eligible employees for the calendar quarter, and any other information required by the qualifying project agreement. The Department of Industrial Relations shall verify the actual number of eligible employees employed at the qualifying project during the relevant calendar quarter. If the Department of Industrial Relations is not able to provide such verification utilizing all available resources, the Department of Revenue may request such additional information from the approved entity as may be necessary. The Department of Revenue may audit any approved entity periodically to monitor compliance by the approved entity with this act.
“(b) An approved entity may receive withholding incentives only in accordance with a qualifying project agreement. If an approved entity that is receiving withholding incentives expands a qualifying project, it may apply to the ADO and the Department of Revenue for additional withholding incentives based on the new eligible employees.
“Section 6. The ADO, the Department of Revenue, and the State Industrial Development Authority, with the assistance of other agencies, may adopt rules, in accordance with the Administrative Procedure Act, and application forms and other forms necessary to implement their respective duties and responsibilities under this act.
“Section 7. All laws or parts of laws which conflict with this act are repealed.
“Section 8. This act shall become effective immediately following its passage and approval by the Governor or its otherwise becoming law.”

Relevant Constitutional Provisions

Section 211.01 of the Alabama Constitution of 1901 provides:

“The legislature shall have the power to levy and collect taxes for state purposes on net incomes from whatever source derived within this state, including the incomes derived from salaries, fees and compensation paid from the state, county, municipality, and any agency or creature thereof, for the calendar year, 1933, and thereafter and to designate and define the incomes to be taxed and to fix the rates of taxes, provided that the rate shall not exceed 5 percent nor 3 percent on corporations. Income shall not be deemed property for purposes of ad valorem taxes. From net income an exemption of not less than fifteen hundred dollars ($1,500.00) shall be allowed to unmarried persons and an exemption of not less than three thousand dollars ($3,000.00) shall be allowed to the head of a family, provided that only one exemption shall be allowed to husband and wife where they are living together and make separate returns for income tax. An exemption of not less than three hundred dollars ($300.00) shall be allowed for each dependent member of the family of an income tax payer under the age of 18 years. The legislature shall reduce the ad valorem tax from time to time when and to such an amount as the revenue derived from the income tax will justify. In the event the legislature levies an income tax, such tax must be levied upon the salaries, income, fees, or other compensation of state, county and municipal officers and employees, on the same basis as such income taxes are levied upon other persons. All income derived from such tax shall be held in trust for the payment of the floating debt of Alabama until all debts due on Oct. 1st, 1932, are paid and thereafter used exclusively for the reduction of state ad valorem taxes.”

Section 211.02 of the Alabama Constitution of 1901 provides:

“Section A. The entire proceeds of the income tax in the treasury of the state of Alabama on September 30,1947, including cash and investments and the interest thereon, shall be used for the following purposes and in the following manner: 1st. The sum of $12,249,860.00 shall be and is hereby set aside and shall be and is hereby constituted an irrevocable trust fund for the purpose of paying the principal of and interest on the bonds issued by the state of Alabama commonly known as ‘income tax bonds,’ being the warrant refunding bonds issued to fund the floating debt existing October 1, 1932, which bonds were issued under the authority of Act No. 14 approved February 5, 1935 [Acts 1935, p. 27], and Act No. 50 approved February 8, 1935 [Acts 1935, p. 118]. 2nd. An amount (approximately $6,700,000.00) which, when added to the sinking fund (approximately $1,857,000.00) heretofore created to pay the bonds issued by the state of Alabama, commonly known as the ‘old bonded debt’ and as ‘carpet bag bonds’ together with the interest on said sinking fund accrued on September 30, 1947, shall equal the principal of said bonds in the sum of $8,557,000.00, shall be and is hereby set aside, and together with said sinking fund and the interest thereon, shall be and is hereby constituted an irrevocable trust fund for the purpose of paying the principal of said bonds upon their maturity, said bonds being the class A renewal bonds, class C renewal bonds and funding renewal bonds. That both of the irrevocable trust funds herein created shall be invested in United States government se-eurities by the treasurer of the state of Alabama with the approval of the governor. 3rd. The residue shall be paid over to the building commission created by Act 128 of 1945 General Acts [p. 116] to be expended by said building commission for capital outlay only for educational purposes, provided, however, that not more than twelve per centum of such amount shall be allocated to the institutions of higher learning including the state teachers colleges, and not less than eighty-eight per centum shall be allocated to county and city boards of education on an actual teacher unit basis in accordance with the minimum school program.
“Section B. Beginning October 1, 1947, and thereafter, all net proceeds of such tax, plus the earnings from investment of the trust funds, must be used only in the manner and in the order following: (1) To replace the revenue lost to the several funds of the state by reason of the exemption of homesteads from the state ad valorem tax. All homesteads in Alabama are hereby declared to be exempt from all state ad valorem tax to the extent of at least $2,000.00 in assessed value and a sufficient amount is hereby appropriated from the proceeds of the income tax in each fiscal year to replace the revenue lost to the several funds of the state by reason of the homestead exemption herein declared; (2) The residue shall be placed in the state treasury to the credit of the Alabama special education trust fund to be used for the payment of public school teachers salaries only.
“Section C. This amendment supersedes the provisions of amendment XXV [25] (article XXII) [Article XI, § 211.01] relating to the disposition of the income tax proceeds insofar as the same are in conflict herewith. All laws relating to the income tax, not in conflict herewith and valid on the date of the ratification of this amendment, are hereby validated and confirmed. The provisions hereof with respect to the creation of funds and the use thereof are declared to be self-executing.”

Questions Before this Court

The questions posed by your request are as follows:

1. Does S.B. 373, or any part thereof, violate § 211.01 of the Alabama Constitution of 1901?
2. Does S.B. 373, or any part thereof, violate § 211.02 of the Alabama Constitution of 1901?
3. Does S.B. 373, or any part thereof, violate § 212 of the Alabama Constitution of 1901?

Analysis

S.B. 373 provides withholding incentives for certain approved entities. Those withholding incentives are defined in Section 2 of S.B. 373 as “[ijncentives in the form of the retention by an approved entity of a percentage of state income taxes withheld from eligible employees.” Pursuant to S.B. 373, the State Industrial Development Authority has the sole discretion to allow an approved entity to retain as withholding incentives, in the case of a new or expansion project, 1% to 90%, or, in the case of a retention project, 1% to 75%, of the amount of state income taxes withheld from eligible employees for an incentive period not to exceed 20 years after a qualifying project is placed in service. The withholding incentives are to be reduced or eliminated once the sum of all withholding incentives and certain capital credits equals 100% of the capital costs of the qualifying project.

With regard to the disposition of the proceeds from state income taxes, § 211.02 provides:

“[A]ll net proceeds of such tax, plus the earnings from investment of the trust funds, must be used only in the manner and in the order following: (1) To replace the revenue lost to the several funds of the state by reason of the exemption of homesteads from the state ad valorem tax. All homesteads in Alabama are hereby declared to be exempt from all state ad valorem tax to the extent of at least $2,000.00 in assessed value and a sufficient amount is hereby appropriated from the proceeds of the income tax in each fiscal year to replace the revenue lost to the several funds of the state by reason of the homestead exemption herein declared; (2) The residue shall be placed in the state treasury to the credit of the Alabama special education trust fund to be used for the payment of public school teachers salaries only.”

(Emphasis added.) Section 211.02 clearly and unequivocally provides that all net proceeds of the state income tax must be used only for the two specific purposes designated therein. First, the proceeds must be used “[t]o replace the revenue lost to the several funds of the state by reason of the exemption of homesteads from the state ad valorem tax.” Second, the “residue shall be placed in the state treasury to the credit of the Alabama special education trust fund to be used for the payment of public school teachers salaries only.” (Emphasis added.)

S.B. 373 permits certain approved entities to retain a percentage of state income taxes withheld from the pay of eligible employees. However, § 211.02 requires that “all net proceeds of [the state income] tax” be used for the specific purposes set forth in § 211.02. Therefore, for S.B. 373 not to be violative of § 211.02, the percentage withheld by the approved entities must not constitute “net proceeds of [the state income] tax.”

The Constitution of Alabama of 1901 does not define the phrase “all net proceeds of such tax” as used in § 211.02. Black’s Law Dictionary defines “net proceeds” as “[g]ross proceeds, less charges which may be rightly deducted.” Black’s Law Dictionary 1041 (6th ed.1990). S.B. 373 allows an approved entity to retain a percentage of state income taxes withheld from eligible employees. If an approved entity collects state income taxes due from its employees but does not remit those taxes in their entirety to the State, is it possible that such retained amounts would constitute “charges which may be rightly deducted,” rather than “net proceeds of the tax,” so that the Act would not run afoul of § 211.02? The answer to that question is “no.”

In Opinion of the Justices No. 346, 665 So.2d 1357, 1358-59 (Ala.1995), this Court addressed the constitutionality of House Bill 586 in light of § 5(a) of Amendment No. 450 to the Constitution of Alabama of 1901 (now § 219.02, Ala. Const. 1901 (Off.Recomp.)) and held:

“Our response to the first question of this Resolution [requesting the opinion] is that the appropriation that would be made by Section 11 of House Bill 586 would be contrary to § 5(a) of Amendment No. 450 of the Alabama Constitution, 1901. Section 5(a) of Amendment No. 450 states:
‘“The trust capital shall be held in perpetual trust and shall not be appropriated by the legislature or expended or disbursed for any purpose other than to acquire eligible investments in accordance with the provisions of this amendment.... [But] any trust income derived therefrom shall be paid directly into the general fund as it is received by the board, subject to appropriation and withdrawal by the legislature.’
“(Emphasis added.) In the Amendment, ‘trust income’ is defined as ‘the net income received by the state, subsequent to the transfer of the initial trust capital by the state, treasurer to the board, from the investment and reinvestment of all assets of the trust fund, determined in accordance with the provisions of this amendment.’
“Under this Bill, the legislature provides for a continuing appropriation over a period of 30 years, beginning in 1995, from the annual interest earned on investments of the Alabama Trust Fund to the Alabama Incentives Financing Authority. While the legislature’s broad governmental power is plenary in character, it is not absolute and is subject to the express restrictions of the state constitution. Van Hart v. deGraffenried, 388 So.2d 1196, 1198 (Ala.1980); see also, e.g., City of Birmingham v. City of Vestavia Hills, 654 So.2d 532 (Ala.1995). Amendment No. 450, by express language, requires that the interest earnings on investments be paid into the state’s General Fund upon receipt. After the trust income has been paid into the General Fund, the legislature may appropriate it as it sees fit, subject to constitutional restrictions. Article IV, § 71, of the Alabama Constitution, 1901, is one such constitutional restriction on the legislature’s power to appropriate funds. According to § 71:
“ ‘The general appropriations bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative, and judicial departments of the state, for interest on the public debt, and for public schools.... All other appropriations shall be made by separate bills, each embracing but one subject.’
“(Emphasis added.)
“The legislature declares in § 11(a) of the Bill that the appropriation ‘is made pursuant to and in accordance with [Amendment No. 450] and that the interest income on investments in the Alabama Trust Fund is not a part of the General Fund of the State until deposited in the General Fund.’ The Governor, in his brief argues that the appropriation of specified, annual installments of income from the Alabama Trust Fund for SO years, made by Section 11 ofH.B. 586,. does not constitute an appropriation of money in the state’s General Fund because the money is appropriated before it reaches the state’s General Fund. The simple answer to this contention is: The constitution itself states that the income from investments of the Alabama Trust Fund shall be paid directly to the state’s General Fund. The legislature is without power to ovemde this express constitutional provision by the subterfuge of diverting such funds before they are actually paid into the General Fund. House Bill 586 is invalid, because it is in direct conflict with the constitutional provisions of Amendment No. 450. The constitution has ‘earmarked’ these funds for the General Fund.
“The Governor states in his brief that, because under H.B. 586 the legislature would be powerless to control the interest income earned by the Alabama Trust Fund, a fact in contrast to its ability to increase a special tax to service a debt, the scheme authorized by the Bill is not a debt of the state. He asserts it is the economic and legal equivalent of an annual appropriation. We cannot agree. The inescapable fact is: by constitutional mandate these funds are required to be paid into the General Fund as received, and the legislature is bound by the constitution to appropriate those funds only as permitted by express provisions of the constitution.
“The legislature may not avoid constitutional restrictions on its authority to appropriate state funds by ‘diverting’ such funds from the General Fund before they are received by the General Fund. ”

(Emphasis, other than as indicated, added.) In that same opinion, this Court also stated: “No constitutional distinction exists between money the state already has and that which it will receive.” 665 So.2d at 1362.

Based on this Court’s reasoning in Opinion of the Justices No. 3⅛6, the legislature may not prevent any amounts that are withheld from employees’ paychecks pursuant to state-income-tax laws from becoming state-income-tax proceeds to be deposited into the appropriate funds simply by allowing an approved entity to retain those amounts once collected, rather than turning them over to the State. As soon as an employer withholds state income tax from an employee’s paycheck, the amount withheld becomes gross proceeds of the state income tax. We cannot discern, without extensive survey, all the rules and regulations that may govern state income taxes and any charges that may be rightly deducted from such taxes. Therefore, we decline to attempt to define what constitutes “all net proceeds of [the state income] tax.” Nevertheless, we are clear to the conclusion that any attempt to bypass the provisions of § 211.02 by allowing an approved entity to retain a portion of the state income taxes withheld from employees would amount to an unconstitutional diversion of some net proceeds of the state income tax because, even allowing for any otherwise appropriate deductions from the state income taxes withheld, at a minimum, some portion of the percentage of such state income taxes that would be retained by an approved entity would constitute net proceeds of the state income tax.

Therefore, because it allows at least part of the net proceeds of state income taxes to be used for purposes other than those specifically provided in § 211.02 of the Alabama Constitution of 1901, S.B. 373 clearly violates § 211.02 of the Alabama Constitution of 1901. See Opinion of the Justices No. 351, 665 So.2d 1389, 1391 (Ala.1995) (“[B]oth [questions] can be paraphrased as asking whether the revenue derived from the sources described in Amendment 354. [now § 111.06, Ala. Const. 1901 (Off.Re-comp.) ] can be appropriated for any purpose other than the purposes to which Amendment 354 limits the expenditure of those revenues. The answer to this question is obviously ‘no.’ To the extent that H.B. 234 appropriates moneys from the revenue sources described in Amendment 354 for purposes other than the purposes specified in that amendment, H.B. 234 violates Amendment 354.”); Opinion of the Justices No. 337, 613 So.2d 393, 396 (Ala. 1993) (“The tax here imposes a $.003 per gallon tax on all sellers of fuels passing through the first pump in the state; thus, the emphasis is on the fuel, not the pump. A fuel tax can be used only for the limited purposes set forth in Amendment 93, as amended by Amendment 354. Therefore, H.B. 445 would be unconstitutional because it would violate Amendment 93, as amended by Amendment 354.”); Opinion of the Justices No. ,324, 511 So.2d 505, 511 (Ala.1987) (“Our opinion is that H.B. 713, which imposes certain environmental protection fees upon motor fuels to be used to provide environmental protections for polluted groundwater, violates Amendment 93 to the Constitution of Alabama 1901, as amended by Amendment 354 of the Constitution of Aabama 1901[, which provides ‘that no moneys derived from any fees, excises, or license taxes levied by the state relating to fuels ... shall be expended for other than cost of administering such laws, statutory refunds ... cost of construction, reconstruction, maintenance and repair of public highways and bridges, costs of highway rights-of-way, payment of highway obligations, the cost of traffic regulation, and the expense of enforcing state traffic and motor vehicle laws’].”). Any attempt to use the proceeds of the state income tax in a manner other than that set forth in § 211.02 of the Aabama Constitution of 1901 would require a constitutional amendment adopted pursuant to the process set out in §§ 284 through 287 of the Aabama Constitution of 1901. See generally State v. Manley, 441 So.2d 864 (Aa.1983).

Answer

We answer question number 2 in the affirmative. Because we find that S.B. 373 violates § 211.02 of the Aabama Constitution of 1901, we need not address whether it violates §§ 211.01 and 212 of the Aa-bama Constitution of 1901, and we therefore respectfully decline to answer questions number 1 and 3.

Respectfully Submitted,

/s/ Sue Bell Cobb

Chief Justice

/s/ Thomas A. Woodall

/s/ Lyn Stuart

/s/ Michael F. Bolin

/s/ Tom Parker

/s/ Glenn Murdock

/s/ Greg Shaw

/s/ James Alen Main

/s/ A. Kelli Wise

Associate Justices

      . Section 12-2-10, Ala.Code 1975, provides: "The Governor, by a request in writing, ... may obtain a written opinion of the justices of the Supreme Court of Alabama or a majority thereof on important constitutional questions.”

      . You also requested our opinion on whether S.B. 373 violates any "other potentially applicable provisions of Alabama’s Constitution.” In Opinion of the Justices No. 382, 907 So.2d 1022, 1025 (Ala.2005), this Court explained:
      "The Justices of the Supreme Court have consistently restricted advisory opinions to questions on the constitutionality of proposed legislation 'arising under a stated section or sections of the Constitution.’ Opinion of the Justices No. 219, 294 Ala. 604, 605, 320 So.2d 622, 623 (1975). Questions addressing whether proposed legislation violates any section of the Constitution are ‘too broad and indefinite' and responding to such questions would 'leave to the Justices the search for all possible avenues of constitutional tests, imposing] a task accompanied with such doubt and uncertainty that even those gifted with unusual ingenuity, would retreat from it.' Opinion of the Justices No. 199, 286 Ala. 156, 158, 238 So.2d 326, 327 (1970).”

        See also Opinion of the Justices No. 370, 756 So.2d 21, 22 (Ala.1999) (“Since the adoption of the 1923 Act authorizing the Justices of this Court to give their opinions (the Act now codified as Ala.Code 1975, § 12-2-10), we have consistently declined to give advisory opinions on the general constitutionality of pending legislation. We have, instead, restricted our opinions to questions that raise the constitutionality of pending legislation under specific provisions of the Alabama Constitution or the United States Constitution. See Opinion of the Justices, 373 So.2d 1050 (Ala.1979); Opinion of the Justices, 692 So.2d 106 (Ala.1997). Therefore, to the extent that your request seeks an advisory opinion on the general constitutionality of H.B. 1, we respectfully decline to answer it.”). Therefore, we respectfully decline to answer your request insofar as it asks this Court to review the constitutionality of S.B. 373 in light of "other potentially applicable provisions of Alabama's Constitution.”


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 386.
    Supreme Court of Alabama.
    June 2, 2011.
   Members of the Senate

State House

Montgomery, Aabama 36130

Dear Senators:

We have received Senate Resolution No. 154 by which you request the opinion of the Justices as to a constitutional question regarding Senate Bill 234 (“S.B. 234”).

The question posed by your resolution is as follows:

“Do the local bingo amendments authorize slot machines for the operation of bingo games such that Senate Bill 234 is in conflict with and superseded by the local bingo amendments in their respective locales with respect to such devices and needs to be a constitutional amendment in order to be enforceable with respect to such devices?”

S.B. 234, if enacted into law, would amend § 13A-12-27, Ala.Code 1975, to provide that possession of a gambling device, which is currently a Class A misdemeanor, would instead be a Class C felony.

Since we have received the resolution asking this question, we have become aware of, and we take judicial notice of, the fact that S.B. 234 has been indefinitely postponed from further consideration. We therefore conclude that S.B. 234 is no longer pending before the Senate. This Court may not issue advisory opinions regarding issues that do not concern pending legislation. Opinion of the Justices No. 350, 665 So.2d 1387 (Ala.1995); Opinion of the Justices No. 242, 356 So.2d 172 (Ala.1978); and Opinion of the Justices No. 193, 281 Ala. 325, 202 So.2d 168 (1967). Accordingly, we respectfully decline to address the question asked in Senate Resolution No. 154.

Respectfully Submitted,

/s/ Sue Bell Cobb

Chief Justice

/s/ Thomas A. Woodall

/s/ Lyn Stuart

/s/ Michael F. Bolin

/s/ Tom Parker

/s/ Glenn Murdock

/s/ Greg Shaw

/s/ James Allen Main

/s/ A. Kelli Wise

Associate Justices


author: THOMPSON, Presiding Judge.

text:
    Sandra MAIDEN v. FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    2090942.
    Court of Civil Appeals of Alabama.
    March 11, 2011.

      Kenneth J. Lay, Legal Services Alabama, Inc., Birmingham, for appellant.
    Greggory M. Deitsch and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Sandra Maiden appeals from the denial of her motion to set aside a default judgment entered by the Jefferson Circuit Court in favor of the Federal National Mortgage Association (“FNMA”). For the reasons set forth herein, we reverse and remand.

On December 16, 2009, FNMA filed an ejectment action against Jerry Hardy and Patricia Hardy. It alleged that Jerry Hardy had executed a mortgage, which, after being assigned to another mortgage company, had been foreclosed. FNMA stated that the real property securing the mortgage (“the property”) had been conveyed to it by a special warranty deed. It asserted that it had served the Hardys with a written demand for possession of the property but that they had failed to vacate the property. FNMA sought an order ejecting the Hardys from the property. It attached to its complaint a foreclosure deed indicating that Everhome Mortgage Company (“Everhome”) had been assigned the mortgage from the original mortgagee, that Everhome had foreclosed on the mortgage because of default in the payment of the debt the mortgage secured, and that Everhome had purchased the property at the foreclosure sale on November 19, 2009. FNMA also attached to its complaint a copy of a special warranty deed, executed on August 14, 2009, conveying the property from Ever-home to FNMA. The Hardys and Sandra Maiden are listed on the deed as “mortgagors.” Finally, FNMA attached to its complaint a copy of an unsigned letter, dated November 19, 2009, sent on behalf of Everhome and addressed to the estate of Jerry Hardy, who had died, Patricia Hardy, and Sandra Maiden. The letter, titled “Demand for Possession,” informed the Hardys and Maiden that Everhome had purchased the property at a foreclosure sale, and it demanded that the Hardys and Maiden vacate the property.

On December 29, 2009, FNMA filed an amended complaint adding Maiden as a defendant on the basis that she currently resided on the property. The record reflects that Maiden was served with process on January 6, 2010.

Maiden did not file an answer to the amended complaint, and, on February 11, 2010, FNMA filed an application for the entry of a default judgment against her. FNMA also filed a motion to dismiss Jerry Hardy and Patricia Hardy on the ground that they no longer occupied the property. On February 23, 2010, the trial court entered the requested default judgment against Maiden, awarding possession of the property to FNMA, and it granted FNMA’s motion to dismiss Jerry Hardy and Patricia Hardy from the action.

On March 22, 2010, Maiden filed a motion to set aside the default judgment. In her motion, she asserted that she had a meritorious defense to FNMA’s action in that “there was an improper foreclosure of the property,” although she stated that, without discovery, she would “not be able to fully discern the exact extent to which the foreclosure was improper.” She also stated that she had a defense on the basis of “estoppel due to misrepresentation.” Maiden asserted that FNMA would not be prejudiced by the setting aside of the default judgment because the judgment had been entered less than 30 days before Maiden filed her motion and, as a result, that the automatic stay of proceedings to enforce the judgment provided by Rule 62, Ala. R. Civ. P., was still in force. Thus, she argued, FNMA had “not wasted any time or resources initiating collections efforts.” Finally, she asserted that the default judgment did not result from culpable conduct on her part. She stated that she had been “under the honest impression that she would be unable to be heard in court because she had been unable to receive or relay any information to the servi-cer of the mortgage account prior to the foreclosure date” and that, once she realized the default judgment had been entered, she retained counsel. Maiden argued that, under Alabama law, cases should be decided on the merits whenever practicable and that, because of her financial situation, failure to set aside the default judgment would leave her “homeless and without any resources.” Maiden supported her motion with an affidavit in which she stated, in pertinent part:

“I have lived at [the property] since March 3, 2003. I was willed the property after my fiance’s death in October 2005. Since that date, I have maintained my monthly mortgage payment. I attempted to speak regularly with [Ev-erhome], but was unable to do so because my name was not on the account. I attempted, numerous times, to send the documents necessary to add me to the account, but I could never get anyone at [Everhome] to verify receipt of documents or let me know what other documents needed to be sent.
“I received notice of the pending lawsuit on January 6, 2010. I sincerely thought that because the mortgage company would not speak to me, neither would the court. I was without legal counsel at that time. After I was given authorization to receive information about the account at [Everhome], I learned that there was a default judgment against me. I notified an attorney and retained counsel immediately.”

The trial court set Maiden’s motion for a hearing.

On April 5, 2010, after the hearing on Maiden’s motion, the trial court entered an order that provided:

“This matter comes before the court on Defendant Maiden’s motion to set aside entry of default judgment. The court, having considered [Maiden]’s motion under the criteria established by the [Supreme] Court in Kirtland v. Fort Morgan Authority Setver Service, Inc., 524 So.2d 600 (Ala.1988), and being satisfied that due to [Maiden]’s not being privy to the real estate mortgage, the foreclosure of which precipitated [FNMA]’s ejectment action, and therefore being satisfied of [Maiden]’s inability to secure evidence with regard to the existence, or not, of a default in the said mortgage prior to the time that [Maiden] came into possession of the said parcel of real property necessary to meet the meritorious defense prong of the Kirtland analysis, the following is hereby ordered:
“1. [Maiden]’s motion to set aside entry of default in this matter is hereby continued;
“2. [FNMA] shall produce for an in camera inspection the account history of the said real estate mortgage for the court’s determination of whether or not the said loan was in default prior to the time that [Maiden] allegedly commenced making monthly installment payments thereunder;
“3. The said in camera inspection shall take place on a date within the next two weeks to be determined by the court and set by separate order to be issued by the court.
“4. Following an in camera inspection, the court shall then rule on [Maiden]’s motion to set aside entry of default.”

Although the record is silent on the issue, the parties agree in their appellate briefs that FNMA did not produce the account. history relative to the foreclosed mortgage for inspection by the trial court. The trial court took no further action on Maiden’s motion. Thus, Maiden’s motion was denied by operation of law on June 21, 2010. See Rule 59.1, Ala. R. Civ. P.

Maiden filed a timely appeal to this court, which transferred the appeal to the supreme court for lack of appellate jurisdiction. The supreme court subsequently transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Maiden contends that the default judgment was void because the trial court was without subject-matter jurisdiction over FNMA’s ejectment action. Specifically, she argues that FNMA’s ejectment action was not ripe for adjudication because FNMA did not have the right to possess the property when it filed its action. FNMA lacked the right to possession of the property, she argues, because FNMA did not give her a written demand for possession. Rather, Maiden points out, it was Everhome, who was not seeking to eject her from the property, that had made the demand for possession of the property.

There is some caselaw from both the supreme court and this court indicating that a purchaser at a mortgage-foreclosure sale must first make a demand of the mortgagor for possession of the property purchased before seeking to have the mortgagor ejected from that property. E.g., Muller v. Seeds, 919 So.2d 1174, 1177 (Ala.2005); Taylor v. Bryars, 602 So.2d 378, 380 (Ala.1992); Thompson v. Wachovia Bank, Nat’l Ass’n, 39 So.3d 1153, 1161-62 (Ala.Civ.App.2009); and Thompson v. First State Bank of Alabama, 503 So.2d 858, 860 (Ala.Civ.App.1987). However, the issue whether the purchaser has made such a demand does not implicate the subject-matter jurisdiction of the court; instead, that issue, at most, involves the question whether the purchaser has stated all the elements necessary to support its ejectment claim. See Steele v. Federal Nat’l Mortgage Assn., 69 So.3d 89, 91 n. 2 (Ala.2010).

[2] Moreover, in Steele, the supreme court overruled prior caselaw, including the cases cited above, and determined, based on the plain language of the ejectment statute, § 6-6-280, Ala.Code 1975, that a purchaser at a foreclosure sale who is seeking to eject the mortgagor from the purchased property is not required to have first demanded possession of the property from the mortgagor before filing an ejectment action. Id. at 92. Thus, we find no merit in Maiden’s first contention.

Maiden also contends that the trial court erred when it entered the default judgment because FNMA had not presented a prima facie case in support of its ejectment claim. Specifically, she argues that FNMA was required to offer into evidence the original mortgage on the property and the foreclosure deed or copies thereof.

Given the supreme court’s recent decision in Steele, discussed above, we have reason to doubt the continuing validity of those cases that have held that a plaintiff must present the original mortgage and the foreclosure deed, or copies thereof, to make a prima facie case in support of its ejectment claim (e.g., Thompson v. First State Bank of Alabama, 503 So.2d 858, 860 (Ala.Civ.App.1987)), given that § 6-6-280 contains no such requirement. We need not resolve that question, however. It is enough to note that Maiden’s contention does not implicate the trial court’s subject-matter jurisdiction, see Steele, 69 So.3d at 91 n. 2, and, as a result, it cannot be raised for the first time on appeal, see Edge v. Edge, 494 So.2d 71, 72 (Ala.Civ.App.1986). Because Maiden did not raise the issue in the trial court, we will not consider it presently. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992).

Maiden next contends that FNMA lacked standing to bring its ejectment action because it had no interest in the property at the time it filed the action. She argues that the special warranty deed by which Everhome conveyed the property to FNMA was executed on August 14, 2009, and that Everhome did not foreclose the mortgage and purchase the property until November 19, 2009. Thus, she argues, at the time Everhome purported to convey the property to FNMA, Everhome was the mortgagee, and it had no ownership interest in the property that it could have conveyed to FNMA. Maiden argues that, as a result, Everhome never properly transferred ownership of the property to FNMA and, thus, that FNMA has no standing to seek her ejection from the property. We disagree.

Alabama is a “title theory” state; thus, when a person mortgages real property, the mortgagee obtains legal title to the real property and the mortgagor retains an equity of redemption. See Baldwin Mut. Ins. Co. v. Henderson, 580 So.2d 574, 575 (Ala.1991). See also Baxter v. SouthTrust Bank of Dothan, 584 So.2d 801, 804 (Ala.1991) (“A mortgage will pass legal title to the mortgagee, leaving the mortgagor with an equity of redemption _”). Thus, even if this court were to assume that the special warranty deed was effective as of the date of its execution (an issue we do not resolve at this time), Ever-home, at the time of the conveyance, held legal title to the property and was free to convey its interest in the property to FNMA. As our supreme court stated in Crabtree v. Davis, 287 Ala. 264, 266, 186 So. 734, 736 (1939): “ ‘It is well settled in this jurisdiction that where a mortgagee sells and conveys the mortgaged property, that such sale and conveyance passes to the vendee all the right and title, legal and equitable, of the mortgagee, including the mortgage debt.’ ” (Quoting First Nat’l Bank v. Haynes, 236 Ala. 133, 137, 181 So. 495, 497 (1938).) We further note that a mortgagee need not foreclose on its mortgage and obtain a deed in foreclosure before seeking to have a mortgagor ejected from the property securing the mortgage. See § 6-6-282, Ala.Code 1975. Thus, we conclude that, even if the special warranty deed effected a conveyance of the property to FNMA before Everhome’s foreclosure of the mortgage, FNMA, as the holder of the legal title of the property, would have had standing to prosecute an ejectment action against Maiden.

Maiden next contends that the trial court erred to reversal by allowing her motion to set aside the default judgment to be denied by operation of law rather than considering the factors, set forth in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.2d 600 (Ala.1988) (“the Kirtland factors”), that a court is required to consider in resolving such a motion. We agree with Maiden that the trial court did not appropriately consider the Kirt-land factors in resolving her motion, and, as a result, the denial of her motion is due to be reversed and the cause remanded for further consideration.

In Sampson v. Cansler, 726 So.2d 632, 633 (Ala.1998), our supreme court discussed the effect of its Kirtland decision:

“In Kirtland v. Fort Morgan Authority ] Sewer Serv[ice ], Inc., 524 So.2d 600 (Ala.1988), this Court held that the trial court has broad discretion in determining whether to grant or to deny a defendant’s motion to set aside a default judgment, but that that discretion is not boundless. The trial court must balance two competing policy interests associated with default judgments — judicial economy and the defendant’s right to defend on the merits. Kirtland, 524 So.2d at 604. These interests must be balanced under the two-step process set out in Kirtland.
“Under Kirtland, the trial court must first presume that cases should be decided on the merits whenever it is practicable to do so. This presumption exists because the right to have a trial on the merits ordinarily outweighs the need for judicial economy. Second, the trial court must apply a three-factor analysis in determining whether to set aside a default judgment: it must consider T) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.’ Kirtland, 524 So.2d at 605.”

Sampson, 726 So.2d at 633 (emphasis added).

In Richardson v. Integrity Bible Church, Inc., 897 So.2d 345 (Ala.Civ.App. 2004), the trial court entered a default judgment in favor of the plaintiff, and the defendant’s motion to set aside that judgment was denied by operation of law. On appeal, this court reversed the trial court’s judgment because the record did not reflect that the trial court had resolved the defendant’s motion by application of the Kirtland factors. This court wrote:

“Under Alabama law, although trial judges must balance two competing policy interests — judicial economy and the litigant’s right to defend on the merits— in determining whether to set aside a default judgment, ‘preserving a litigant’s right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy.’ Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 604 (Ala.1988). ‘In determining whether to set aside a default judgment, a trial court must apply the three-factor analysis set forth by our Supreme Court in Kirtland,’ i.e., ‘(1) whether the defaulting party has a meritorious defense, (2) whether the nonde-faulting party will be unfairly prejudiced if the default judgment is set aside, and (3) whether the default judgment was a result of the defaulting party’s own culpable conduct.’ McCormick v. Congleton, 860 So.2d 1275, 1278 (Ala.Civ.App. 2003) (emphasis added); accord, White v. Westmoreland, 680 So.2d 348, 349 (Ala.Civ.App.1996).
“Richardson contends that consideration of the Kirtland factors is mandatory and that the trial court apparently did not consider those factors. Because of the importance of the interest of preserving a party’s right to a trial on the merits, this court has held that where a trial court does not demonstrate that it has considered the mandatory Kirtland factors in denying a motion to set aside a default judgment, such as where a Rule 55(c)[, Ala. R. Civ. P.,] motion is denied by operation of law, the denial of the motion to set aside the default judgment will be reversed and the cause remanded for the trial court to address the Kirtland factors. White, 680 So.2d at 349; CHO Real Estate Holding, Inc. v. Wyatt, 680 So.2d 372 (Ala.Civ.App. 1996); BankAmerica Hous. Servs. v. Matthews, 718 So.2d 86, 88 (Ala.Civ.App. 1998); Cobb v. Loveless, 807 So.2d 566, 567 (Ala.Civ.App.2001); compare Advance Carpet Sys., Inc. v. Haman, Inc., 716 So.2d 1248, 1249 (Ala.Civ.App.1998) (distinguishing White and CHO because trial court’s express denial of motion to set aside default judgment was not entered by operation of Rule 59.1, Ala. R. Civ. P., and was shown on the record to be based upon application of Kirtland factors).
“In this case, there is nothing to indicate that the trial court considered the three factors specified in Kirtland. We therefore reverse the trial court’s denial of Richardson’s motion to set aside the default judgment entered against him and remand the cause ‘for the trial court to consider the Kirtland factors in determining whether to set aside the default judgment.’ BankAmerica Hous. Servs., 718 So.2d at 88. As in White, however, our mandate in this case ‘is not to be construed to mean that the trial court must set aside the default judgment, [but] only that the trial court must apply the Kirtland factors in deciding whether to set aside the default judgment.’ 680 So.2d at 349.”

Richardson, 897 So.2d at 348-49.

The record in the present case does not reflect that the trial court resolved Maiden’s motion to set aside the default judgment by application of the Kirtland factors. Instead, as in Richardson, the trial court allowed the motion to be denied by operation of law. FNMA argues that the trial court’s order of April 5, 2010, reflects that it had considered the Kirtland factors in resolving Maiden’s motion. We agree that the trial court stated in its order that it was considering the Kirtland factors. However, there is no indication in that order that its consideration of those factors had led it to conclude that Maiden’s motion was due to be denied. To the contrary, the order indicated that the trial court was focused on the question whether Maiden had presented a meritorious defense and that it needed additional information, that FNMA was supposed to provide, in order to reach a conclusion as to that issue. By allowing the motion to be denied by operation of law without FNMA’s having provided the trial court the information it was ordered to produce, it is clear that the trial court did not ultimately resolve Maiden’s motion by reference to the Kirtland factors. For this reason, the denial of the motion is due to be reversed and the cause remanded to the trial court for resolution of Maiden’s motion in light of the Kirtland factors.

We note that both parties argue at some length in their appellate briefs the merits of Maiden’s motion in light of the Kirtland factors. We have reviewed their arguments and conclude that we cannot determine, based on the scant appellate record, that the trial court was required to have exercised its discretion in such a manner as to reach a particular determination regarding the disposition of Maiden’s motion. The parties’ arguments in this regard are therefore left for the trial court’s consideration on remand.

Based on the foregoing, we conclude that the trial court had subject-matter jurisdiction over FNMA’s action but that it erred to reversal when it allowed Maiden’s motion to set aside the default judgment to be denied by operation of law. We remand the cause for the trial court to consider the parties’ arguments and to resolve Maiden’s motion in light of Kirtland v. Fort Morgan Authority Sewer Service, Inc., supra, and its progeny.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Rule 59.1 provides that a postjudgment motion that is not ruled on by the court within 90 days is deemed denied at the expiration of the 90-day period. The 90th day. following Maiden’s filing of her postjudgment motion on March 22, 2010, was Sunday, June 20, 2010. Therefore, Maiden’s postjudgment motion was deemed denied on Monday, June 21, 2010. See First Alabama Bank v. McGowan, 758 So.2d 1116 (Ala.Civ.App.2000), and Richburg v. Cromwell, 428 So.2d 621 (Ala. 1983).

      . She also asserts that FNMA did not present a prima facie case in support of its ejectment action because it did not present some proof with its complaint that it had demanded possession of the property. As previously noted, however, the supreme court has held that such a demand is not necessary to support an ejectment action. Steele, 69 So.3d at 92.

      . To be sure, we will not reverse a trial court’s denial by operation of law of a motion to set aside a default judgment in all circumstances. For example, in Rudolph v. Philyaw, 909 So.2d 200 (Ala.Civ.App.2005), a case on which FNMA relies, this court affirmed the denial by operation of law of a motion to set aside a default judgment because the appellant had failed to allege and argue the existence of the Kirtland factors in its motion to set aside the default judgment. 909 So.2d at 203-04. Rudolph does not control the outcome in this case, however, because Maiden, in support of her motion to set aside the default judgment, provided some argument and evidence to the trial court relative to the three Kirtland factors, and the record is clear that the trial court was attempting to, but ultimately did not, resolve Maiden's motion in light of those factors.


author: MOORE, Judge.

text:
    B.L.R. v. N.M.N. III.
    2091064.
    Court of Civil Appeals of Alabama.
    March 11, 2011.
    Brandi La’Chelle Redding, Killen, for appellant.
    Janice Keeton, Florence, for appellee.
   MOORE, Judge.

B.L.R. (“the mother”) appeals from a judgment of the Lauderdale Juvenile Court (“the juvenile court”) declining to modify custody of C.N. (“the child”). We dismiss the appeal.

Procedural History

This case originated in the juvenile court in 2004 as case number CS-04-48, a child-support action between the mother and N.M.N. Ill (“the father”). See M.C. v. L.J.H., 868 So.2d 465, 467 (Ala.Civ.App. 2003) (“ ‘CS’ number ... indicates a juvenile-court child-support matter.”). Although the judgment in the original action is not in the record on appeal, it appears from the record that the mother was originally awarded custody of the child. Subsequent to the entry of the original judgment, the father filed a petition to modify the custody of the child in case number CS-04-48.02; pursuant to a judgment entered by the juvenile court on September 11, 2007, the father was awarded custody of the child.

On May 26, 2009, the mother filed a petition to modify the custody of the child; that case was assigned case number CS-04-48.05. The mother filed an amended petition on May 27, 2009. On June 11, 2009, the father answered the mother’s petition. On September 30, 2009, the mother filed a second amended petition in which she specifically asserted that the father had custody of the child, that there had been a change in circumstances since the father had been awarded custody of the child, and that it would be in the best interest of the child for custody to be awarded to the mother. The father answered the second amended petition on October 6, 2009. After a trial, the juvenile court entered a judgment on July 13, 2010, stating:

“1. The [mother] shall obtain a psychiatric evaluation at Riverbend Center for Mental Health, ... and comply with any care plan.
“2. The [father] shall retain full custody of the minor child....
“3. The [mother’s] visitation shall be supervised by the North Alabama Visitation Center pending review. All visits shall be at the [mother’s] expense.
“4. This matter is hereby set for review on October 21, 2010 at 9:00 AM, Courtroom Number 4, Third Floor of the Lauderdale County Courthouse, Florence, Alabama. The [mother] shall submit evidence/testimony establishing mental stability and compliance with mental health care plans.
“5. The parties are ordered to use the web calendar at www.Ourfamily wizard.com for the purpose of communication. They shall subscribe to the Our Family Wizard Website for a period of one year. Each party to pay ½ (one/ half) of the costs associated with the use of the website program.”

On July 22, 2010, the mother filed a motion to alter, amend, or vacate, the July 13, 2010, judgment; that motion was denied on July 26, 2010. On August 5, 2010, the mother filed her notice of appeal to this court.

Discussion

On appeal, the mother argues that the juvenile court erred in declining to modify custody of the child. Initially, however, we must address whether the juvenile court had jurisdiction to enter its July 13, 2010, judgment.

“ ‘[A] lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.’ Ex parte T.C. 63 So.3d 627, 630 (Ala.Civ.App.2010) (citing Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 662 n. 1 (Ala.2009)). In Ex parte T.C., supra, we explained the recent change in the law regarding the juvenile court’s exercise of retained jurisdiction over child-custody determinations when a child has not been found to be dependent, delinquent, or in need of supervision:
“ ‘Under former law, “once a juvenile court obtained] jurisdiction in any case involving a child,” ... “that court retained] jurisdiction over that case until the child reache[d] the age of 21 years or until the court, by its own order, terminate[d] that jurisdiction.” W.B.G.M. v. P.S.T., 999 So.2d 971, 973 (Ala.Civ.App.2008) (citing former §§ 12-15-32(a) & 26-17-10(e), Ala.Code 1975). Thus, under former law, “[w]hen a juvenile court ha[d] jurisdiction to make an initial child-custody determination, it retain[ed] jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reache[d] 21 years of age or the juvenile. court terminate[d] its jurisdiction.” Id. at 974....
“ ‘However, ... the Legislature has mandated a contrary rule as to custody cases filed after January 1, 2009:
““‘Act No. 2008-277, Ala. Acts 2008, replaces ... § 12-15-32[ ] with a new Code section, Ala.Code 1975, § 12-15-117, that limits a juvenile court’s retained jurisdiction to cases in which ‘a child has been adjudicated dependent, delinquent, or in need of supenision ’ (emphasis added [in W.B.G.M.])....”
“‘999 So.2d at 975 (Pittman, J., concurring specially). To like effect is § 12-15-114(a), which provides that although a juvenile court has original jurisdiction to decide an action alleging that a child is dependent, “[a] dependency action shall not include a custody dispute between parents.” The clear .intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction (such as in original paternity actions, see Ala. Code 1975, § 26-17-104)....
“ ‘... To the extent that a juvenile court has properly made an initial custody award, or has properly modified a custody judgment under the statutory framework set forth in the main opinion in W.B.G.M., those judgments remain valid and enforceable notwithstanding [Ala. Code 1975, §§ 12-15-114 and 12-15-117], Any such judgments would,- however, be prospectively modifiable in Alabama only by the circuit courts, which are constitutionally constituted as “trial courts of general jurisdiction.” Ala. Const. 1901, § 139(a) (Off. Recomp.).’ ”

K.C. v. R.L.P., 67 So.3d 94, 95-96 (Ala.Civ. App.2011) (quoting Ex parte T.C., 63 So.3d 627, 630-31 (Ala.Civ.App.2010)).

Because, in the present case, nothing in the record indicates that the child has ever been found dependent and because this custody dispute between parents was filed after January 1, 2009, we conclude that the juvenile court lacked jurisdiction to enter its July 13, 2010, judgment. K.C., 67 So.3d at 95. Thus, the judgment from which the mother appeals is void. R.T. v. B.N.H., 66 So.3d 807, 812 (Ala.Civ.App.2011). “ ‘This court is required to dismiss an appeal from a void judgment.’” R.T., 66 So.3d at 812 (quoting Owens v. Owens, 51 So.3d 364, 367 (Ala.Civ.App.2010)). Thus, we dismiss the mother’s appeal, albeit with instructions to the juvenile court to vacate its void judgment. R.T., 66 So.3d at 812.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Various other petitions were also filed and ruled upon by the juvenile court in case number CS-04-48.02; however, those petitions and rulings are not pertinent to this appeal.


text:
    J.H. v. J.W.
    2091134.
    Court of Civil Appeals of Alabama.
    March 11, 2011.

      Paul R. Roberts II, Gadsden, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

J.H. (“the father”) appeals from a judgment of the Etowah Juvenile Court modifying the custody of H.H. (“the child”). We dismiss the appeal.

Procedural History

On December 29, 2008, the father filed a petition requesting that the juvenile court establish his paternity of the child, award him and J.W. (“the mother”) joint custody of the child, and award him liberal visitation. That case was assigned case number JU-08-540.01. On April 16, 2009, the juvenile court entered a judgment adopting a settlement agreement that had been entered between the parties. The judgment, among other things, adjudicated the father to be the father of the child and awarded the parties joint legal and physical custody of the child with the mother being designated as the primary physical custodian of the child; the parties were to exchange custody every other week.

Subsequent to the April 16, 2009, initial custody determination, the mother, on July 6, 2009, filed a petition for protection from abuse in the Etowah Circuit Court; that petition was assigned case number DR-09-533.90. In that petition, the mother alleged, among other things, that the father had spanked the child with a belt, leaving bruises. The circuit court entered an ex parte protection order on July 6, 2009, which, among other things, awarded the mother temporary custody of the child and suspended the father’s visitation. That order was entered by the same judge who had presided over the paternity proceedings in the juvenile court.

On July 29, 2009, the juvenile court, sua sponte, entered an order in case number JU-08-540.01, stating, in pertinent part:

“Based upon the events referred to in the Petition for Protection from Abuse and Orders entered therein, [in case number] DR-09-533.90,
“IT IS HEREBY ORDERED, ADJUDGED AND DECREED BY THE COURT AS FOLLOWS:
“1. The father’s visitation or ‘alternate custody’ referred to in Paragraph 4 of the Settlement Agreement dated 03/30/2009 and accompanying Order dated 04/l[6]/2009 is hereby suspended indefinitely, pending an investigation by the Etowah County Department of Human Resources [ (‘DHR’) ].
“2. DHR is hereby given Protective Supervision of the subject child, and this case shall be reviewed on the CIP docket. DHR is ordered and directed to provide services to the mother, the father, and the subject child.”

On October 23, 2009, the juvenile-court referee entered a judicial-review order in case number JU-08-540.01 stating that the Etowah County Department of Human Resources (“DHR”) must continue to provide protective supervision of the child. On April 19, 2010, the juvenile-court referee entered a second judicial-review order terminating DHR’s protective supervision of the child.

On May 13, 2010, the mother filed another petition for protection from abuse in the circuit court; that petition was assigned case number DR-09-533.91. Also, on May 21, 2010, the mother filed in the juvenile court a petition to modify custody alleging, in pertinent part:

“1. That the circumstances of the parties have changed in that the [father’s] violent and abusive temperament has escalated and that the needs of the minor child have changed.
“2. That the [father] is physically, verbally, mentally and emotionally abusive to the minor child and the [mother]. That on July 5, 2009, the [father] physically abused the minor child.... That since said date, the parties attempted to reconcile; however, despite anger management and parenting classes recommended by DHR, the [father’s] abusive and violent temperament has escalated and has resulted in the minor child being afraid of the [father]. That on May 13, 2010, the [father] came to the home of the [mother] and threatened her and that the [mother] was forced to seek a Protection From Abuse Order against the [father].... That the [mother] fears for the safety of the minor child while in the custody of the [father],
“3. That in [April] 2009, the ... father ... was granted joint legal and physical custody of the minor child and was granted alternate custody every other week. [The mother] avers that the [father] has not exercised said custody every other week as granted. That although the [father] was granted [custody] every other week, the [father] usually only has the minor child with him one or two days and then returns the minor child to the [mother] or leaves the minor child with his paternal grandfather.
“4. [The mother] avers that on or about May 11, 2010, the [father] had the minor child in his physical custody. That the [father’s] father called the [mother] to come pick up the minor child at 9:00 A.M. because the [father] was suppose[d] to take the minor child to the doctor, but the [father’s] father could not awaken the [father]. That the [father] did not awaken until 3:00 P.M.
“5. That the [father] routinely has the 10 year old and 16 year old female children of his ex-girlfriend spend the night with him and that the 10 year old female sleeps in the bed with the [father].
“6. That the [father] has taken the minor child with him when he spends the night at his girlfriend’s house.
“7. [The mother] avers that it is in the best interest of the minor child that she be granted full care, control and custody of the minor child. [The mother] further avers that the [father] should be granted supervised standard visitation with the minor child until such time he completes parenting and anger management classes.”

The mother attached to her petition to modify a copy of the petition for protection from abuse that she had filed in case number DR-09-533.90 on July 6, 2009, and a copy of the “Ex Parte Protection Order” that was entered by the circuit court in that case on the same day. She also attached a copy of the petition for protection from abuse that she filed in case number DR-09-533.91 on May 13, 2010, and a copy of the “Ex Parte Protection Order” entered by the circuit court in that case the same day. The mother’s May 21, 2010, petition to modify was assigned case number JU-08-540.02.

On August 3, 2010, the juvenile court entered a judgment in case number JU-08-540.02, stating:

“The subject child was born out of wedlock on September 11, 2005. By agreement dated March 30, 2009, the parties agreed to share joint legal and physical custody of the child. Under this Agreement, the parties alternated physical custody every other week. On or about July 6, 2009, the father administered excessive corporal punishment to the subject child. [The] Etowah County Department of Human Resources [ (‘DHR’) ] became involved. The mother filed a Petition for Protection from Abuse (31 DR2009-533.90). This Court issued an Order in that case. This Court also entered in this JU [juvenile] case, an Order dated July 2[9], 2009 which ‘suspended indefinitely’ the father’s ‘alternating custody’ referred to in Paragraph Four (4) in the Settlement Agreement dated March 30, 2009.... DHR was granted Protective Supervision in this JU case. The father’s visitation was supervised by DHR. On October 19, 2009, the mother agreed to ‘drop’ the PFA [proteetion-from-abuse] Order and the Court acquiesced. While Eto-wah County DHR remained active in the case, the parties re-established a relationship, and the mother moved in with the father in November 2009. The parties cohabitated together with the subject child until March 2010. There is substantial conflict in the evidence about who had the child from March 2010 until May 12, 2010. DHR closed its case on April 19, 2010. On May 12, 2010 a verbal altercation occurred between the parties over physical custody. The next day (May 13, 2010) the mother filed a second Petition for Protection from Abuse (.91). This Court ordered no visitation and set a hearing for June 2, 2010. Both parties were present with counsel. The parties and counsel agreed to continue the PFA Order in effect and set that matter for a full hearing. In the JU case, the mother, through counsel, filed a Petition to Modify. The father was served and employed counsel. That Petition was also set for a full hearing on July 30, 2010. Both parties were present with counsel.
“The mother is seeking a Modification of the Settlement Agreement dated March 30, 2009. Her position is that there has been a material change of circumstances since that date. In fact, there have been several ‘changes of circumstances’ since that date. First was the father’s physical abuse of the child in July 2009. Second was the reconciliation of the parents in November 2009 and their cohabitation until March 2010. Third was the separation of the parents in March 2010. The position of the father is that after the separation of the parties in March 2010, the parties agreed to and in fact did resume the arrangement of alternating weekly physical custody. The mother denies this. The point is simply this: the parties cohabitating together from November 2009 through March 2010 totally nullifies the March 30, 2009 Agreement and the April 1[6, 2009] Order. The mother testified that, after the March 2010 separation, the parties agreed to resume the alternating weeks of physical custody. Her position is that the father was not fulfilling his half of the agreement. The father began a week of his physical custody on Sunday, May 9th, but on Monday, May 10th, the father left the child all day with the paternal grandfather. The father got the child on Monday night. He had agreed to take the child to a doctor’s appointment on Tuesday morning. However, the paternal grandfather called the mother on Tuesday morning to come get the child and take him to the appointment. This reaffirmed in the mother’s mind that the father was not fulfilling his responsibilities. The mother refused to allow the father to have the child after Tuesday, May 11th. The verbal and text messaging altercation began. The mother filed her second Petition for Protection from Abuse. Based upon the evidence presented at this hearing, there was no basis whatsoever for her petition. There was perhaps verbal harassment but absolutely no abuse. Therefore the PFA Order dated May 13, 2010 is vacated and set aside.
“The issue to be decided by this Court now is whether (a) to resume the alternating physical custody arrangement or (b) order something else. The Court has already stated one reason not to resume the alternating physical custody agreement. Other reasons exist why that is not now in the child’s best interest. The mother now lives in the maternal grandmother’s home. The mother is a full-time student. The maternal grandmother can provide assistance to the mother. The mother has plans to enroll the child in five year old kindergarten at Coosa Christian School. The father lives in a separate, rent-free residence on land owned by the paternal grandfather. He is self-employed and cuts grass. He has no regular customers. He does not own a vehicle. He borrows a vehicle from a friend. Comparing and contrasting the two situations, the mother is the better choice.
“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court as follows:
“1. The temporary care, custody and control of the subject child ... is hereby vested in the mother.... The mother shall be responsible for all medical care and treatment of said child, including surgical procedures, as well as being authorized to travel within and [outside] the State of Alabama with said child.
“2. The father ... shall have supervised visitation as follows:
“(a) Every other weekend from Friday at 6:00 p.m. through Sunday at 6:00 p.m. beginning Friday, August 6, 2010. The parties will exchange the child at the Etowah County Sheriffs Office.
“(b) The paternal grandfather shall supervise all visitations for the father. The mother must be able to contact the paternal grandfather at any time to determine the child’s location. The father and the child do not have to be in the physical presence of the paternal grandfather, but the paternal grandfather must know at all times the exact location of the father and [the] child. The father shall not have anyone present during his visitation that is not related by blood to the child.
“(c) The father shall have Thanksgiving from 6:00 p.m. on Thursday through the next day at 6:00 p.m.
“(d) The father shall have Christmas from December 25 at 6:00 p.m. until December 31 at 6:00 p.m.
“(e) The father shall have Father’s Day even if it is not his regular weekend.
“(f) The mother shall have Mother’s Day even if it is the father’s regular weekend.
“3. The parties are Enjoined and Restrained from any and all contact or communication with each other. They shall communicate only through the grandparents.
“4. Both parties and all those in privity with them are Enjoined and Restrained from making any disparaging comments about the other party in the presence of the child.
“5. All parties and all those in privity with them are Enjoined and Restrained from reporting any information about the child or either parent to any law enforcement agency or the Etowah County DHR unless such person immediately reports the identical information by sworn affidavit to this Court.
“6. The father is declared to owe a duty to pay child support to the mother for the benefit of the child, but no specific amount is ordered at this time.
“7. There being no just reason for delay in the entry of a final judgment, this Order is made final and appealable under Rule 54(b)[, Ala. R. Civ. P.].”

On August 17, 2010, the father filed a motion to alter, amend, or vacate the judgment; that motion was denied on August 18, 2010. On September 1, 2010, the father filed his notice of appeal to this court.

Discussion

On appeal, the father argues that the juvenile court lacked subject-matter jurisdiction to enter the August 3, 2010, judgment. He also argues that the juvenile court lacked subject-matter jurisdiction to enter the July 29, 2009, judgment.

The record reveals that the custody of the child was initially determined by the juvenile court on April 16, 2009, in case number JU-08-540.01, a paternity action that was initiated by the father on December 29, 2008. At the time the paternity action was initiated,

“only juvenile courts could adjudicate such paternity cases. See former § 12-15-31(2), Ala.Code 1975 (providing that juvenile courts shall have exclusive original jurisdiction ‘[i]n proceedings to establish paternity of a child born out of wedlock’). As part of a paternity proceeding, a juvenile court also could decide custody and child-support issues. See former § 12-15-30(b)(1), Ala.Code 1975 (providing that the juvenile court shall exercise exclusive original jurisdiction of ‘[proceedings to determine custody ... of a child when the child is otherwise before the court’); and C.D.W. v. State ex rel. J.O.S., 852 So.2d 159 (Ala.Civ.App.2002) (holding that an action seeking to establish paternity and for an award of child support is within the juvenile court’s jurisdiction).”

Ex parte L.N.K, 64 So.3d 656, 657 (Ala. Civ.App.2010). Thus, we conclude that the juvenile court had jurisdiction to enter the initial custody judgment on April 16, 2009.

We note, however, that, over two months after the April 16, 2009, judgment was entered, the juvenile court, on July 29, 2009, attempted to enter an order modifying the April 16, 2009, judgment. No petition had been filed in the juvenile court requesting the modification. Moreover, even if a modification petition had been filed, the juvenile court would have lacked subject-matter jurisdiction over that petition.

“Formerly, once a juvenile court decided custody and child-support issues as part of a paternity proceeding, that juvenile court retained continuing exclusive jurisdiction over those issues unless it terminated its own jurisdiction. See former § 12-15-82, Ala.Code 1975 (providing that, once a juvenile court obtains jurisdiction in any case involving a child, that court retains jurisdiction over that case until the child reaches the age of 21 years or until the court, by its own order, terminates that jurisdiction); see also W.B.G.M. v. P.S.T., 999 So.2d 971 (Ala.Civ.App.2008). However, in 2008, the legislature enacted the new Alabama Juvenile Justice Act (‘the new AJJA’), § 12-15-101 et seq., Ala.Code 1975, which amended and renumbered the provisions of former § 12-15-32 as § 12-15-117, Ala.Code 1975. Section 12-15-117 provides, in pertinent part:
“ ‘(a) Once a child has been adjudicated dependent, delinquent, or in need of supervision, jurisdiction of the juvenile court shall terminate when the child becomes 21 years of age unless, prior thereto, the judge of the juvenile court terminates its jurisdiction over the case involving the child.’
“By its plain terms, § 12-15-117(a) does not grant juvenile courts continuing jurisdiction over children unless they have been ‘adjudicated dependent, delinquent, or in need of supervision.’ Thus, this court has held that a juvenile court no longer has continuing jurisdiction over a child based solely on its having made a prior paternity determination. Ex parte T.C., 63 So.3d 627 (Ala.Civ.App.2010).”

L.N.K, 64 So.3d at 658.

Nevertheless, the juvenile court, pursuant to its emergency jurisdiction, could make orders necessary to protect the child. That jurisdiction authorizes a juvenile court, “on an emergency basis, [to] enter an order of protection or restraint to protect the health or safety of a child....” Ala.Code 1975, § 12-15-138. Thus, although we make no comment on the propriety of the procedure employed by the juvenile court in reaching its July 29, 2009, judgment, which altered the custodial and visitation rights of the father without prior notice to the father or his having an opportunity to be heard, compare Ala.Code 1975, § 12-15-139 (requiring notice and a hearing prior to issuance of protection orders), with Ala.Code 1975, § 12-15-141 (authorizing ex parte emergency protection orders to be entered without prior notice and a hearing in certain circumstances), based on evidence gathered in a circuit-court proceeding, see C.D.S. v. K.S.S., 978 So.2d 782 (Ala.Civ.App.2007) (granting a petition for a writ of mandamus directing the circuit court to vacate custody judgment that was based on findings of fact that were made in void juvenile-court proceedings), we hold that the juvenile court had subject-matter jurisdiction to enter the July 29, 2009, judgment.

The record shows that the circuit court entered a second protection-from-abuse order on May 13, 2010, again awarding temporary custody of the child to the mother with no visitation by the father. On May 21, 2010, the mother filed in the juvenile court a petition to modify the original custody and visitation judgment, citing, among other reasons, the need to protect the child from abuse by the father. By agreement of the parties, the juvenile court extended the May 13, 2010, protection-from-abuse order and consolidated a hearing on the continuation of that order with the hearing on the mother’s petition to modify custody. Following that hearing, the juvenile court vacated the May 13, 2010, protection-from-abuse order, finding that there was no evidentiary basis for its entry. The juvenile court then proceeded to address the custody and visitation rights of the parties.

Those proceedings could also be viewed as properly invoking the emergency jurisdiction of the juvenile court. This time, however, the juvenile court determined that no emergency existed warranting an order or judgment for the protection of the child. The juvenile court found that the father was not committing any abuse, and the juvenile court did not order any temporary measures to address any perceived emergency. Having resolved that no emergency existed, the juvenile court effectively ended its jurisdiction under § 12-15-138. Thereafter, the case “evolved into a pure custody and visitation dispute between the parents,” R.T. v. B.N.H., 66 So.3d 807, 812 (Ala.Civ.App. 2011), over which the juvenile court lacked any jurisdiction. “The clear intent of the Legislature [in enacting the new Alabama Juvenile Justice Act, Ala.Code 1975, § 12-15-101 et seq.,] was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as their resolution is directly incidental to core juvenile-court jurisdiction.” Ex parte T.C., 63 So.3d 627, 630-31 (Ala.Civ. App.2010). Accordingly, the juvenile court had no power to modify the custody of the child and the visitation rights of the father based solely on changed circumstances as it purported to do.

We conclude that the juvenile court’s August 3, 2010, judgment is void for lack of subject-matter jurisdiction. Because the judgment from which the father appeals was entered without subject-matter jurisdiction, that judgment is void. R.T., 66 So.3d at 812. A void judgment will not support an appeal. Id. Thus, we dismiss this appeal, albeit with instructions to the juvenile court to vacate its August 3, 2010, judgment. Id. Any further proceedings concerning the custody of the child must be initiated in a circuit court, a “ ‘trial court[ ] of general jurisdiction.’ ” See Ex parte T.C., 63 So.3d at 631 (quoting Ala. Const. 1901, § 139(a) (Off. Recomp.)); see also EC. v. R.L.P., 67 So.3d 94, 96 (Ala.Civ.App.2011).

APPEAL DISMISSED WITH INSTRUCTIONS.

BRYAN, J., concurs.

THOMPSON, P.J., and PITTMAN and THOMAS, JJ., concur in the result, without writings.

      . The father also argues the merits of the August 3, 2010, judgment. Because we conclude that the juvenile court lacked subject-matter jurisdiction to enter that judgment, however, we do not reach that issue.