author: PITTMAN, Judge.

text:
    David A. HODGES and Donald E. Hodges v. Joseph E. HODGES et al.
    2090610.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Patricia N. Moore, Birmingham, for appellants.
    John A. Tinney, Roanoke, for appellees.
   PITTMAN, Judge.

This appeal concerns the proper jurisdiction, as between a circuit court and a probate court, of a will contest that is initiated in the probate court, along with a contemporaneous request to transfer the contest to the circuit court, after a petition to admit the will to probate has been filed in the probate court (but before the probate court has acted upon the merits of the petition). We conclude that, under such circumstances, a circuit court, not a probate court, has exclusive jurisdiction to consider such a contest; therefore, we reverse the judgment of the Randolph Circuit Court (“the circuit court”) remanding a will contest filed by David A. Hodges and Donald E. Hodges (“the contestants”) in the Randolph Probate Court (“the probate court”) before the probate court had acted upon the petition of Donna Hodges (“the proponent”) seeking, among other things, admission to probate of a purported will executed by Darie T. Hodges (“the decedent”), the mother of the contestants, the proponent, and two other children (Joseph E. Hodges and Clayborn C. Hodges).

The decedent died in March 2008. In April 2008, the proponent filed in the probate court a petition seeking admission of a purported will of the decedent to probate and a petition for the issuance to her of letters testamentary; of the decedent’s five children, only the contestants did not admit that the document offered was the decedent’s will. The probate court scheduled a hearing for May 19, 2008, concerning whether to admit the will to probate, and notice was provided to the contestants that they could appear on that date before the probate court to contest the will.

On May 16, 2008, three days before the scheduled hearing in the probate court, the contestants filed a document in the probate court labeled as a “complaint for contest of last will and testament” and a “petition to remove this case from the probate court to the circuit court” (“the complaint/petition”). The contestants averred in the complaint/petition, in pertinent part, that they were heirs of the decedent; that the decedent, at the time she executed the document offered by the proponent as the decedent’s will (i.e., in August 2007), had been “in a grief stricken state” because of her husband’s death in July 2007; that the decedent had lacked testamentary capacity; that the proponent had unduly influenced the decedent; and that the document had not been properly executed or attested. The complaint/petition requested that the probate court “assume jurisdiction” of the contest, that the probate court “grant the removal” to the circuit court, and that the will offered by the proponent ultimately be deemed invalid; the complaint/petition also demanded a jury trial.

The probate court took no immediate action on the complaint/petition, but it apparently proceeded to hear the merits of the proponent’s petition to admit the will to probate on May 19, 2008; on that date, the probate court entered an order purporting to admit the will to probate. However, three days later, on May 22, 2008, the probate court ordered that the case be transferred to the circuit court upon the motion of the contestants. While the case was pending in the circuit court, the contestants amended their complaint/petition to add additional grounds — fraud and misrepresentation — as bases for their will contest. The proponent sought dismissal of the amendment; she also averred, in her answer in the circuit court to the contestants’ petition/complaint, that the contestants “ha[d] no standing to contest the ... [w]ill ... until the same has been admitted to probate.” Subsequently, the proponent moved for the cause to be remanded to the probate court, contending that the probate court had taken no substantive action on the petition to probate the will at the time the complaint/petition was filed and that the circuit court could not properly have assumed jurisdiction over the administration of the estate of the decedent because the administration had not yet begun as of May 16, 2008. The contestants filed a response opposing the motion to remand, contending that they had properly contested the will pursuant to Ala.Code 1975, §§ 43-8-190 and 43-8-199; they averred that the complaint/petition was properly filed in and transferred from the probate court and that, pursuant to Ala.Code 1975, § 43-8-198, the cause was not due to be remanded. On February 3, 2010, the circuit court entered a judgment remanding the cause to the probate court, a judgment we deem final because it contemplated no further proceedings in the circuit court. See Ex parte Terry, 985 So.2d 400, 402 (Ala.2007) (circuit-court order remanding administration of estate to probate court amounts to a final judgment). Following the denial of their postjudgment motion attacking the propriety of the remand, the contestants appealed; the appeal was transferred to this court pursuant to Ala. Code 1975, § 12-2-7(6).

The contestants posit that the probate court had no jurisdiction to take further action as to whether the purported will offered by the proponent was due to be admitted to probate after the filing of the complaint/petition. The contestants also assert that the circuit court had no authority to remand the will contest after acquiring jurisdiction over it. The proponent argues that the circuit court’s judgment of remand should be affirmed because, she says, the contestants elected to proceed with them will contest in the probate court, the probate court correctly admitted the will to probate in its May 19, 2008, order, the contestants failed to timely appeal from that order, the contestants further failed to file a contest of the will in the circuit court within six months of the entry of the May 19, 2008, order, and the admission of the will to probate is now final under the doctrine of res judicata.

The correctness of the proponent’s position is wholly dependent upon the nature of the contestants’ filing and its legal effect upon the continuing jurisdiction of the probate court. Before considering those crucial issues, however, we note in passing the looseness of the terminology used by practitioners and tribunals with respect to the various means by which issues arising with respect to decedents’ estates — a subject placed by law within the original jurisdiction of the probate courts of this state— may properly be placed instead within the original jurisdiction of the circuit courts of this state.

The Alabama Code provides for two separate and distinct mechanisms in this regard that are pertinent in this case: Ala. Code 1975, § 12-11-41, allows a circuit court to order removal of a pending administration of any estate at any time before final settlement, whereas Ala.Code 1975, § 43-8-198, mandates that a probate comi, must order the transfer of a will contest brought in that probate court upon the demand of any party to the contest at the time of the filing of an initial pleading. See generally DuBose v. Weaver, 68 So.3d 814, 816-18 and nn. 2-4 (Ala.2001). Although certain litigants have loosely referred to the process of transferring a will contest to the circuit court as constituting a “removal” (e.g., Ex parte McLendon, 824 So.2d 700, 701-02 (Ala.2001) (in which heir filed petition in circuit court seeking “removal” of will contest despite her manifest intention to seek a transfer thereof), and although certain appellate opinions have similarly failed to adhere strictly to the distinction between the two mechanisms (Neuman v. Savas, 878 So.2d 1147, 1149 (Ala.2003) (noting that contestant had not “file[d] a petition for removal when she filed her ... notice of the will contest” in the probate court (emphasis added)), the rule in this jurisdiction is that “motions and pleadings are considered according to their substance and not their labels.” McLeod v. White, 45 So.3d 360, 364 (Ala.Civ.App.2010).

The complaint/petition filed by the contestants in the probate court is by no means a model of clarity, especially given that, at various points, it simultaneously beseeches the probate court to assume jurisdiction, purports to give notice that the cause has been “remov[ed]” to the circuit court, requests that the probate court “grant the removal” of the cause, and asks for a determination that the will submitted for probate by the proponent be declared invalid. However, a fair reading of the complaint/petition discloses that the contestants substantially indicated therein not only their desire to contest the will and the substance of alleged grounds therefor (a contest that Ala.Code 1975, § 43-8-190, permits to be asserted, in the first instance, only in the probate court if the will has not yet been admitted to probate), but also their desire to simultaneously invoke their rights under Ala.Code 1975, § 43-8-198, to have the circuit court adjudicate the contest via the transfer mechanism (which requires that a transfer, if desired, be “demanded ... at the time of filing the initial pleading”). We derive support for this conclusion from the propositions of law that (a) a probate court cannot itself cause the “removal” of the administration of an estate as a whole to a circuit court (see DuBose, 68 So.3d at 818 n. 4); and (b) the administration of an estate must have been initiated by the probate court’s appointment of a personal representative of an estate before the circuit court can “remove” the administration of the estate from the probate court (see id., 68 So.3d at 821-22 (citing, among other cases, Ex parte Kelly, 243 Ala. 184, 187, 8 So.2d 855, 857 (1942)). Thus, the complaint/petition is correctly understood as having sought transfer of the contest, not removal of administration.

Because the complaint/petition properly demonstrated the contestants’ interest in the case and properly sought a transfer of the contest, under Alabama law, the probate court in this case lost any authority to adjudicate the contest that it would otherwise have had. Under the holding in Ex parte McLendon, “once a will contestant seeking to remove the contest pursuant to § 43-8-198 makes a pri-ma facie showing that he or she is a person described in § 43 — 8—190[, Ala.Code 1975, which pertains to who may contest a will] as one ‘interested therein,’ the probate court ‘must enter an order transferring the contest to the circuit court.’ ” 824 So.2d at 705 (quoting § 43-8-198; emphasis added in McLendon). Just as a court lacking subject-matter jurisdiction has no authority to do anything other than enter a judgment of dismissal, see Cadle Co. v. Shabani, 4 So.3d 460, 463 (Ala.2008), a probate court confronted with a proper and timely transfer demand accompanying a will contest can do nothing but comply with the mandate of the legislature and refer the contest to the appropriate circuit court. See Summerhill v. Craft, 425 So.2d 1055, 1056 (construing Ala.Code 1975, § 43-1-78, which was repealed and was replaced by § 43-8-198). Therefore, we agree with the contestants that the filing of the complaint/petition triggered a mandatory duty on the part of the probate court to transfer the contest to the circuit court forthwith, and without further action touching on the validity of the will submitted by the proponent; thus, assuming that the May 22, 2008, transfer order does not amount to a sua sponte vacation of the probate court’s May 19, 2008, order purporting to admit the will to probate, we conclude that the May 19, 2008, order was void ab initio (see Summerhill, 425 So.2d at 1056), had no res judicata effect, and could not have supported an appeal in the manner that the proponent suggests in her appellate brief that the contestants should have taken.

We similarly agree with the contestants that the circuit court erred in remanding the contest to the probate court after that court’s May 22, 2008, order transferring the contest to the circuit court. Upon a probate court’s transfer of a will contest to the circuit court, “[t]he issues must be made up in the circuit court as if the trial were to be had in the probate court, and the trial had in all other respects as trials in other civil cases in the circuit court.” Ala.Code 1975, § 43-8-198. That Code section further provides that it is only “fajfier a final determination of the contest” that the circuit court’s judgment is certified and the “papers and documents theretofore certified” are to be sent “back to the probate court from which they were first certified.” Id. (emphasis added). A circuit court thus has no authority to remand a will contest that has properly been transferred from a probate court pursuant to § 43-8-198 without having adjudicated the merits of the contest. See Steele v. Sullivan, 484 So.2d 422, 425 (Ala.1986) (circuit court had no authority to strike from its docket a will contest that had been timely filed in the probate court; the probate court’s transfer order was entered before the entry of any judgment admitting the will to probate); cf. State v. SouthTrust Bank of Baldwin County, 634 So.2d 561, 563-64 (Ala.Civ.App.1994) (circuit court could not properly remand to probate court the compensation aspect of a condemnation judgment as to which a proper appeal for a trial de novo had been taken).

Based upon the foregoing facts and authorities, we conclude that the circuit court acquired exclusive subject-matter jurisdiction to adjudicate the merits of the contestants’ timely will contest, as transferred by the probate court, and that the circuit court erred in failing to exercise that jurisdiction. The circuit court’s judgment remanding the case is reversed, and the cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Our conclusion renders unnecessary our consideration of the argument, raised in the contestants’ reply brief, that the proponent, by virtue of her filings in the circuit court, is estopped from asserting on appeal the proposition that the probate court’s May 19, 2008, order purporting to admit the will to probate is valid on the ground that she previously had asserted in the circuit court, in her motion to remand the contest, that the probate court had taken no substantive action on her petition for probate of the will.


source: Caselaw Access Project

author: PITTMAN, Judge. MOORE, Judge,

license: Public Domain

text:
    Antoinette Cahill SMITH v. Shannon CAHILL.
    2090469.
    Court of Civil Appeals of Alabama.
    May 6, 2011.

      Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham, for appellant.
    Jeffrey P. Montgomery, Gadsden, for appellee.
   PITTMAN, Judge.

Antoinette Cahill Smith (“the former wife”) appeals from a judgment that, among other things, denied her request to enforce a claimed marital interest in an investment-equity account held by Shannon Cahill (“the former husband”).

The parties were married in March 1986 and were divorced by a judgment entered on July 30, 1993. That judgment incorporated an agreement of the parties in which custody of the parties’ three minor children were awarded to the former wife, the former husband was ordered to pay child support, and the former husband was ordered to pay the former wife $10,000 “for any interest she has in the farm equipment and the chicken house equipment” and to pay, over 5 years, an additional $20,000 plus 6% interest for the former wife’s interests in both the marital residence and the marital property awarded to the former husband. Beginning in 1988, the former husband had operated a poultry farm for Gold Kist and had participated in a Gold Kist cooperative program, also known as the “patronage equity program”; he continued that work following the parties’ divorce. Around 2004, Gold Kist converted from a cooperative association to a for-profit corporation, eventually notifying the former husband that the account with the patronage equity program (“the equity account”) was worth $337,134.76 and that he was entitled to 36,472 shares of Gold Kist stock.

In 2005, the former husband filed a modification action seeking to lower his monthly child-support obligation; at trial the following year, the parties reached an agreement regarding custody, support, and health-insurance coverage for the children. On June 8, 2006, the trial court entered a modification judgment that incorporated the agreement of the parties on the issues of child custody, support, and health insurance.

In January 2009, the former wife filed an action seeking to obtain (1) previously unpaid child support and (2) a share of the equity account; she asserted that, throughout the parties’ divorce proceedings and the modification litigation, the former husband had suppressed the existence and value of the equity account and had consistently understated his income in order to avoid paying appropriate child support. Subsequently, the former husband filed an answer; he also filed a counterclaim in which he requested custody of the parties’ sole remaining minor child. At a pendente lite hearing in May 2009, that child’s custody was awarded to the former husband. Before trial, the former husband filed a motion for a summary judgment as to the former wife’s claims, but that motion was denied.

The trial court conducted an ore tenus proceeding on all pending matters over two days: October 22-23, 2009. The only witnesses were the parties and the three children, two of whom had reached the age of majority by the time of trial. The bulk of the testimony focused on the former wife’s allegations that the former husband had lied about his income and assets and, therefore, that she had borne a larger share of the children’s expenses than she should have. In addition, she adduced evidence tending to show that the equity account had been an existing marital asset that had not been divided in the parties’ 1993 divorce judgment. Lastly, the parties’ youngest child, who was 17 years old at the time of trial, testified that he was not comfortable around the former wife’s new boyfriend and that he would rather live with the former husband until high-school graduation.

At the conclusion of the second day of trial, the trial court entered a judgment on partial findings as to the issues raised by the former wife. The parties’ agreement regarding future child-custody, child-support, and postminority-support issues was read in open court, and that agreement was incorporated into a final judgment on October 26, 2009. The following day, the trial court entered an amended judgment to correct a clerical error regarding proper payment of child support. On November 20, 2009, the former wife filed a postjudgment motion. In January 2010, the trial court conducted a hearing on that motion and then denied the post-judgment motion. The former wife filed a timely notice of appeal. She challenges the trial court’s judgment to the extent that it precludes her from claiming marital rights as to the equity account and from proceeding to trial against the former husband on claims of fraud and conversion relating to the equity account.

Alabama law is well settled that,

“ ‘when a trial court does not make specific disposition of an asset in a divorce [judgment], the parties are left in the same position relative to that asset as they were in before the divorce.’ Ex parte Davis, 495 So.2d 672, 673 (Ala.1986); McGuire v. Horton, 586 So.2d 9, 9 (Ala.Civ.App.1991); Lacy v. Lacy, 403 So.2d 251, 254 (Ala.Civ.App.1981); and Miller v. Miller, 391 So.2d 119, 120 (Ala.Civ.App.1980). The failure to divide each item of property does not render void an otherwise proper divorce judgment. Miller, 391 So.2d at 120.”

Brown v. Brown, 26 So.3d 1210, 1219 n. 2 (Ala.Civ.App.2007); see also Smith v. Smith, 892 So.2d 384, 389 (Ala.Civ.App.2003), and Hocutt v. Hocutt, 491 So.2d 247, 249 (Ala.Civ.App.1986). However, a divorce judgment dividing marital property between the parties is not subject to modification, except for clerical errors, after the lapse of 30 days from the entry of the judgment. See McGuire, 586 So.2d at 10 (citing Bromley v. Bromley, 449 So.2d 1252, 1254 (Ala.Civ.App.1984)); see also Clements v. Clements, 990 So.2d 383, 395-96 (Ala.Civ.App.2007).

The former husband asserts that the former wife is attempting to improperly modify the property-settlement provisions of the parties’ divorce judgment, that her action is barred by the equitable defense of laches and by the doctrine of res judica-ta, that the former husband never concealed assets from the former wife, and that the equity account is a retirement account and not subject to division pursuant to § 30-2-51(b), Ala.Code 1975. For her part, the former wife insists that she has not improperly attempted to reopen the property-division aspects of the divorce judgment but that she is instead asserting a right to a claimed marital share of the equity that had accrued in the equity account during the parties’ marriage (i e., from 1988-1993). She points out that the divorce judgment was silent as to that marital asset, and she claims that, therefore, her interest in that asset is the same as it was during the marriage. See Ex parte Davis, 495 So.2d at 673, and McGuire, 586 So.2d at 9.

At trial, the former wife adduced evidence indicating that the former husband had concealed the value of the equity account throughout the marriage and during the divorce proceedings; the former husband admitted that in 2004 his years of working with Gold Kist had resulted in an award of 36,472 shares of Gold Kist stock, the proceeds of which he had deposited into a brokerage account in March 2005. Although the trial court did not allow the former husband to testify as to the value of that stock at the time that he liquidated it, the former wife adduced evidence indicating that the market price of Gold Kist stock in May 2005 was $21.81 per share, for a total potential value of $758,951. The former wife used the former husband’s accounting documents to show that, between 1988 and 1993, the equity account had accrued a value of $197,829.21. She offered a financial report that itemized equity earnings received from Gold Kist for the fiscal years of 1988-89 ($66,200.44); 1989-90 ($61,511.69); 1990-91 ($30,383.06); and 1992-93 ($39,734.02). According to a financial statement provided at the time of Gold Kist’s conversion from a nationwide cooperative of farmers to a publicly traded corporation in 2004, the equity account had increased in value to $337,134.76.

Although the former husband contends that the former wife had notice of the equity account during the marriage, he asserts that the equitable defense of laches and the doctrine of res judicata bar her from bringing this action now because her claim to the asset should have been asserted, at the latest, during the previous modification proceeding in 2005-06. In rebuttal, the former wife testified that the former husband had not included the equity account in the asset list he had prepared for the parties’ original divorce proceeding; moreover, she noted that he had failed to accurately disclose his finances during the divorce proceeding or the modification proceeding. She offered as an exhibit a copy of the former husband’s September 27, 2005, responses to discovery requests in that modification litigation in which he listed “every asset,” but that list did not include the brokerage account, the equity account, or the 36,472 shares of Gold Kist stock.

During that modification litigation, the former husband asserted on his CS-41 “Child-Support-Obligation Income Statement/Affidavit” form that his monthly income was $2,582; moreover, he testified at that proceeding that his total remaining assets were: “two homes, four chicken houses, a composter, 72 acres of land, chicken houses [two of which had been destroyed and had been rebuilt] for $70,000 and for $84,000 [respectively].... a new house [constructed] for $84,000 and insured ... for $115,000, [a c]omposter ... and $140,000 that [was] owed on those assets.” He also listed “[a]n RTV, a Rabo-ta RTV, a Toyota pick-up truck, a tiller for cake in the chicken houses [having a] fair market value of $300, and a sprayer for $115.” In response to an interrogatory in the modification litigation, the former husband answered a request to disclose “each and every bank account, savings account, or checking account, maintained or [into which you have] deposited funds into since the day of divorce” with a list of three bank accounts having deposits totaling only $5,500.

During discovery in the instant litigation, the former husband admitted that he had opened a brokerage account on March 22, 2005, and that he had funded that account with funds from the equity account and the proceeds of the sale of the Gold Kist stock. As of July 29, 2005, according to a brokerage-account statement produced during discovery in this action, that account contained $754,751.23. The former wife asserted, and adduced documentation indicating, that the former husband had systematically concealed the equity account, a substantial marital asset, during the previous modification action such that the former wife could not have discovered the truth because the former husband had failed or refused to fully comply with Rule 26(e)(2)(A), Ala. R. Civ. P. See also Barganier v. Barganier, 669 So.2d 933, 937 (Ala.Civ.App.1995), and Wicks v. Wicks, 49 So.3d 700, 702 (Ala.Civ.App.2010).

“The doctrine of res judicata bars relitigation of (1) the same issues (2) previously litigated between substantially identical parties and (3) finally adjudicated on the merits (4) by a court of competent jurisdiction.” Neal v. Neal, 856 So.2d 766, 778-79 (Ala.2002). “If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action.” Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978); see also Ex parte Capstone Dev. Corp., 779 So.2d 1216, 1218 (Ala.2000). The former wife adduced undisputed evidence revealing that the former husband had systematically hidden the existence and value of the equity account from her and the court in the previous two actions between the parties. Because the former wife adduced evidence to the effect that she had not had a full and fair opportunity to litigate the issue of the parties’ relative interests in the equity account, and because the parties’ interests in the equity account have never been adjudicated on the merits, we conclude that the doctrine of res judicata does not apply in this case; as noted below, neither does the equitable defense of laches.

On the record, the trial court opined that in order to address the former wife’s marital interest in the equity account, she needed to produce a signed document indicating that she was a co-owner of that account. Although the former husband may be entitled to argue that the Gold Kist stock, which did not exist until 2004 at the earliest, was his separate property because he obtained that stock following the entry of the parties’ divorce judgment, the same is not true regarding the equity account. The documents produced during discovery in this modification litigation indicate that the equity account began to accumulate value as soon as the parties jointly purchased the poultry farm in 1988. The former wife offered documents indi-eating that the parties had signed a contract to purchase the farm, relying primarily on a down payment from the former husband’s sale of his business and the former wife’s annual nurse’s salary as the collateral for the purchase. Although the parties’ divorce judgment awarded the farm, the poultry, and the related farm equipment to the former husband, the equity account was not mentioned at all. Thus, we agree with the former wife that the equity account remained an undivided joint marital asset following the entry of the divorce judgment. See Ex parte Davis, 495 So.2d at 673, and McGuire v. Horton, 586 So.2d at 9.

In Barganier v. Barganier, supra, this court noted:

“A property agreement may be altered, amended, or vacated if one party procures the agreement by fraud or conceals assets or liabilities. Ex parte Brice, 340 So.2d 792, 794-95 (Ala.1976); Nelson v. Nelson, 408 So.2d 101, 103 (Ala.Civ.App.1981). Our appellate courts have previously sanctioned efforts to set aside or modify divorce judgments that were obtained on the basis of information withheld from one party by the other. See, e.g, Brice, 340 So.2d at 794-95 (the trial court’s modification of the divorce judgnent was affirmed because the wife had concealed several debts from the husband and the court during negotiations regarding the terms of the parties’ separation agreement); Worthey v. Worthey, 491 So.2d 953 (Ala.Civ.App.1986) (a summary judgment entered in the wife’s action to set aside the divorce judgment was reversed and the case was remanded for trial because the husband had induced the wife to sign a separation agreement by misrepresenting to the wife the parties’ net worth, telling her the parties had only debts when they actually had a net worth of approximately $1,000,000). A separation agreement incorporated into a divorce judgment must be fair, reasonable, and just, and free from fraud, duress, or other coercion. Kunkel v. Kunkel, 547 So.2d 555, 556 (Ala.Civ.App.1989).”

669 So.2d at 937-38. This case has similarities to Worthey v. Worthey, 491 So.2d 953 (Ala.Civ.App.1986), in which this court reversed a summary judgment for a former husband in an action in which a former wife had sought to set aside their divorce judgment, which had been based upon an agreement of the parties, because the agreement had been based on misrepresentations regarding assets by the former husband. Here, because the undisclosed asset — the equity account — is still an undivided marital asset, granting relief to the former wife in no way impinges upon the finality of the 1993 or 2006 judgments.

The former husband also asserts that application of Rule 60(b), Ala. R. Civ. P., bars the former wife’s action in this case because, he claims, that rule and Alabama caselaw interpreting it establish that requests for relief from a judgment based upon “fraud” must be made within four months of the entry of that judgment. In this case, however, the former wife specifically asserts that she is not seeking to set aside the parties’ divorce judgment; therefore, Rule 60(b) does not apply. Thus, to the extent the trial court’s judgment on partial findings is referable to the time constraints of Rule 60(b)(2) or 60(b)(3), we conclude that that judgment was entered in error.

The former husband also asserts that § 30 — 2—51(b)(1), Ala.Code 1975, bars a division of his brokerage account because the parties had not been married the 10 years necessary to allow division of that account pursuant to Alabama statutory law. Although it is clear from the record that the parties were not married the requisite 10 years, we can identify no evidence in the record that would tend to establish the fact that the equity account was in the nature of a “retirement” account during the parties’ marriage. The mere fact that the former husband testified that in 2005 he had placed all the equity-account assets and the proceeds from selling the Gold Kist stock into a brokerage “retirement” account in his own name does not overcome the former wife’s assertion that the preexisting equity account, at least insofar as it existed between 1988 and 1993, was an undivided marital asset. Having reviewed the former husband’s defenses and the evidence regarding the equity account adduced at trial, we can only conclude that the trial court erred in precluding the former wife from asserting fraud and conversion claims against the husband and pursuing a division of the undivided marital asset, the equity account.

The trial court’s judgment is reversed, and the cause is remanded for proceedings consistent with this opinion. The former wife’s request for an award of an attorney fee on appeal is granted in the amount of $1,500; the former husband’s request for an award of an attorney fee on appeal is denied.

REVERSED AND REMANDED.

THOMPSON, P.J., concurs.

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

MOORE, J., concurs in the result, with writing, which BRYAN, J., joins.

MOORE, Judge,

concurring in the result.

I agree that the judgment on partial findings entered in favor of Shannon Cahill (“the former husband”) should be reversed, but not for the reasons stated in the main opinion.

The evidence in the record discloses that, in 1988, the former husband and Antoinette Cahill Smith (“the former wife”) used marital funds to purchase a poultry farm that the former husband subsequently operated pursuant to an agreement with Gold Kist, which, at the time, was operating as a nonprofit cooperative. Pursuant to that agreement, Gold Kist assigned certain equity value to the account of the former husband based on the cooperative’s annual earnings. Between 1988 and 1993, while the parties were married, the account accrued a value of $197,829.21. When the parties divorced in 1993, they agreed on an equitable property division; however, that agreement, and the judgment that subsequently incorporated that agreement, failed to dispose of the parties’ interests in the Gold Kist equity account. In January 2009, the former wife filed an action in which, among other things, she requested that the Marshall Circuit Court (“the trial court”) award her the monetary-value of her portion of the Gold Kist equity account. The trial court denied that request after a two-day trial, prompting this appeal.

The main opinion correctly notes that “ ‘ “when a trial court does not make specific disposition of an asset in a divorce [judgment], the parties are left in the same position relative to that asset as they were in before the divorce.” ’ ” 72 So.3d at 695 (quoting Brown v. Brown, 26 So.3d 1210, 1219 n. 2 (Ala.Civ.App.2007), quoting in turn Ex parte Davis, 495 So.2d 672, 673 (Ala.1986)). In this case, before their divorce, the former husband was listed as the sole owner of the Gold Kist equity account; however, under Alabama law, because he acquired that interest during the marriage (and as a result of the contribution of joint marital funds), that interest was actually marital property. See Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001). As such, before the divorce, the former wife retained an inchoate marital property right in the Gold Kist equity account. See Stephens v. Stephens, 472 So.2d 1071, 1072-73 (Ala.Civ.App.1985). By failing to dispose of the parties’ relative interests in the Gold Kist equity account, the 1993 divorce judgment, in effect, kept intact the former wife’s marital property rights in that asset. To the extent that the trial court concluded that the former wife lost that interest because the Gold Kist equity account was titled in the name of the former husband only, the trial court erred to reversal.

In her January 2009 complaint, the former wife merely sought an ascertainment and award of the value of her marital property interest in the Gold Kist equity account, which action was contemplated and approved by this court in Lacy v. Lacy, 403 So.2d 251, 254 (Ala.Civ.App.1981), and by our supreme court in Ex parte Davis, 495 So.2d at 674. The action is not one seeking an improper modification of a prior property division or an improper division of “retirement benefits” as the former husband argues. Furthermore, as the former wife made clear to the trial court, and also makes clear in her brief to this court, she was not seeking to set aside the 1993 judgment, so any time limitations applicable under Rule 60, Ala. R. Civ. P., do not bar her action. The action likewise is not barred by the equitable defense of laches because the evidence fails to disclose any prejudice suffered by the former husband based on the timing of the filing of the 2009 complaint. See Mills v. Dailey, 38 So.3d 731, 737 (Ala.Civ.App.2008). The doctrine of res judicata also does not bar the action because the 1993 judgment did not dispose of the marital asset at issue and the former wife did not have to file the action as a compulsory counterclaim to the former husband’s 2005 child-support-modification action, which dealt with an entirely different matter. See Rule 13(a), Ala. R. Civ. P. The former husband makes no other arguments, and the record does not disclose any other valid legal ground for affirming the trial court’s judgment.

On remand, the trial court should allow the former wife to present evidence of the value of her interest in the Gold Kist equity account at the time the 1993 divorce judgment was entered, as well as any interest accruing on that value, and award her the proven amount. Due to the procedural posture of the case, I do not express any opinion as to whether that award would obviate any claims of fraud or conversion based on the former husband’s alleged concealment of the Gold Kist equity account over the years.

BRYAN, J., concurs.

      . Because the former wife did not raise the argument that the former husband’s failure to properly report his income in the previous support-modification action resulted in underpayment of appropriate child support in her brief to this court, we consider that issue to be waived on appeal. See Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003).

      . We cannot determine from the testimony and the other admitted documents regarding the equity account whether the fiscal year 1991-92 was inadvertently omitted, whether no earnings occurred in that year, or whether the parties were separated during that year.

      . Regarding the former husband’s laches argument, we note that " 'one who "seek[s] equity must do equity” and "one that comes into equity must come with clean hands.” Ex parte Parish, 808 So.2d 30, 35 (Ala.2001) (quoting J & M Bail Bonding Co. v. Hayes, 748 So.2d 198, 199 (Ala.1999), quoting in turn Levine v. Levine, 262 Ala. 491, 491, 80 So.2d 235, 237 (1955)). Because we have concluded that the evidence indicated that the former husband had concealed the equity account, we will not apply an equitable principle in favor of the former husband.

      . That statute provides: “The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that,” among other conditions, "[t]he parties have been married for a period of 10 years during which the retirement was being accumulated.”


text:
    Cynthia Lynn LOWERY v. Lilton Cary LOWERY.
    2090849.
    Court of Civil Appeals of Alabama.
    May 13, 2011.

      Jerry Wayne Baker, Jr., Albertville, for appellant.
    Norma A. McCord, Albertville, for ap-pellee.
   PITTMAN, Judge.

Cynthia Lynn Lowery (“the wife”) appeals from a judgment divorcing her from Lilton Cary Lowery (“the husband”) that, among other things, awarded the parties joint legal and physical custody of their children, divided the parties’ marital property, and did not award the wife any type of alimony or an attorney fee.

The parties were married in May 1992; by the time of trial in April 2010, the parties’ two sons and one daughter were 17, 14, and 15 years old, respectively. The parties separated in June 2009, and during the following month the wife filed a divorce complaint seeking, among other things, custody of the children, child support, and alimony. The wife alleged that she had been a “stay at home” mother and the primary caregiver for the children throughout the marriage and that the husband had been the family’s sole breadwinner, and, therefore, she asserted, she needed pendente lite support until a divorce judgment could be entered. The trial court entered a pendente lite order that awarded physical custody of the children to the wife, instructed the husband to continue making all necessary payments to maintain the parties’ status quo until trial, and ordered the parties to refrain from negative behavior and derogatory remarks around the children.

The husband filed an answer in which he admitted most of the wife’s allegations, but he disagreed with the wife’s request that she be awarded primary physical and legal custody of the children; instead, the husband specifically requested that the trial court award joint legal and physical custody of the children to the parties. An initial order divorcing the parties was entered on January 6, 2010; all child-custody, support, and property issues were reserved for trial. The trial court conducted an ore tenus proceeding on April 29, 2010, at which the trial court received evidentia-ry exhibits and heard testimony from the husband and the wife.

The wife testified that she had been a “stay at home” mother and the primary caregiver of the parties’ children, responsible for taking the children to and from school and extracurricular activities, scheduling their medical and dental appointments, and handling the household while the husband worked. She noted that the husband had been employed for many years by his family, who owned a local automobile-sales business, but that in 2003 or 2004 the husband had begun working as a real-estate agent for a local realty company. The wife also testified that, during the marriage, the husband had purchased several parcels of property as investments, and she stated that she wanted a portion of the equity in those parcels.

The wife noted that the husband had failed to abide by the pendente lite order in that he had allowed both the marital residence (where he had been residing during the separation) and the Berkshire residence (where the wife and the children had been residing during the separation) to go into foreclosure because he had not made the applicable mortgage-loan payments; additionally, he had allowed the wife’s motor vehicle to be repossessed because he had not made the car-loan payments for that vehicle. She testified that although the husband had provided her with a replacement motor vehicle, that vehicle had also been repossessed because the husband had failed to make the payments associated with that vehicle. The wife noted that the husband’s father had given her a 1999 model Dodge Stratus automobile so that she would have transportation pending the divorce. The wife testified that, although she had attempted to negotiate with the lending authorities to avoid foreclosure, she had not worked outside the home during the marriage except briefly on two occasions and did not, therefore, have a credit history sufficient to support an extension of credit.

The wife also stated that she had been able to find part-time, minimum-wage employment with the local Department of Human Resources as a case aide. The wife offered a CS-41 “Child-Support-Obligation Income Statement/Affidavit” form indicating that her monthly income was $737, or $8,844 per year. She testified that she had been unable to rent an apartment or to purchase a motor vehicle with her limited income and that she needed support from the husband in order to be able to meet her monthly obligations and to provide a residence for the children.

The wife testified that, during the marriage, the husband had been a daily drinker of alcoholic beverages; she noted that he had regularly become intoxicated at least twice a week. She stated that he had been arrested on two separate occasions for driving under the influence of alcohol, once before and once during the parties’ separation. She testified that, despite his heavy drinking, until the parties had separated he had always paid the family’s bills and had been a good father. Although the husband had been able to move back in with his parents after the foreclosures, the wife testified that she had been forced to rent a room in a friend’s house following her eviction from the Berkshire residence. She stated that because the room she rented on a monthly basis had limited floor space, she had allowed the parties’ two sons to live with the husband. The wife testified that she and the daughter lived and slept together in the room she rented but that she had been trying to find an apartment so all the children could live together as a family again. The wife asked the trial court to award her custody of the children and to order the husband to pay periodic alimony to allow her the opportunity to establish a residence where she and the children could live.

The husband testified that not only had he defaulted on the mortgage secured by the marital residence, he also had suffered foreclosure on the Berkshire residence, an investment property where he had allowed the wife and the children to live during the parties’ separation. The husband also testified that, after foreclosure proceedings had been brought as to both the marital residence and the Berkshire residence, he had offered the wife and the children one of his parents’ properties, but he then admitted that he did not have his parents’ permission to let them live rent-free at that location. He noted that he owned an interest in TTown Properties, LLC (“TTown”), which owned two condominium units in Tuscaloosa. At the time of trial, those units were listed for sale at $65,000 each, but they had remained unsold for the preceding year. In addition, TTown owned two rental houses in Albertville; those properties had been listed for sale at $249,900, but just before trial a tornado had destroyed both houses. The husband insisted that there was no equity in those properties, but he admitted that those properties had been insured for a total of $200,000. The husband testified that he had conveyed his interests in two other real-estate-investment companies, Willow Properties, LLC, and Mountain Group, LLC, back to the other investment members; he testified that he had received no payment for those interests because the properties owned by these companies were already in foreclosure at the time that he relinquished his interests.

Moreover, the husband testified that the parties owed at least $71,000 in federal income taxes that had not been paid during 2007, 2008, and 2009. The husband also stated that he planned to file for bankruptcy protection as soon as he could save the money needed to pay the legal fees associated with doing so. Despite his financial problems, the husband requested that he be awarded joint legal and physical custody of the children.

The trial court entered a judgment the same day as the ore tenus proceeding. In that judgment, the parties were awarded joint legal and physical custody of the three children, with the parties rotating “physical custody and visitation of the children on a weekly basis.” The judgment expressly noted that because the parties had been awarded shared custody of approximately equal time, no child support from either party would be required. The husband was ordered to “immediately” obtain medical-insurance coverage for the children; he was also ordered to pay for 2/3 of all uncovered medical expenses and the wife was instructed to pay the remaining 1/3 of those expenses. The judgment awarded each party the specific personal and real property titled solely in that party’s name or presently in that party’s possession and ordered the title-holder to be responsible for all debt associated with those properties. In addition, the husband was ordered to be solely responsible for paying the parties’ outstanding federal-income-tax debt. The judgment did not award the wife any alimony in gross or periodic alimony; moreover, it did not contain a reservation of the power to award alimony.

The wife appeals and asserts that the trial court erred in its child-custody award, in declining to award the wife either alimony in gross or periodic alimony, and in failing to award her an attorney fee. In original divorce actions, the parties stand on an equal footing with no presumption of entitlement to custody inuring to either parent. See Ex parte Couch, 521 So.2d 987, 989 (Ala.1988); see also Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998). The primary concern in making an initial determination of child custody incident to a divorce action is the best interests of the children. See Couch, 521 So.2d at 989; see also C.B.B. v. J.S.D., 831 So.2d 620, 621 (Ala.Civ.App.2002). To that end, the trial court is given wide discretion in awarding custody and establishing visitation, and its determination of such matters will not be reversed absent a showing of a clear abuse of discretion. See Kovakas v. Kovakas, 12 So.3d 693, 697 (Ala.Civ.App.2008); see also Kent v. Green, 701 So.2d 4, 5 (Ala.Civ.App.1996).

The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and witnesses and to assess their demean- or and credibility. See Ex parte Fann, 810 So.2d 631, 633 (Ala.2001); see also Kent, 701 So.2d at 5. Additionally, “ ‘[i]n child custody cases especially, the perception of an attentive trial judge is of great importance.’ ” Fann, 810 So.2d at 633 (quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981)). Factors to be considered in making a child-custody award include the age and sex of the children; their emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including their age, character, stability, mental and physical health, and their respective home environments. See Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981).

In this case, both parents sought a favorable child-custody award incident to the parties’ divorce. The wife testified that the husband had regularly abused alcohol during the marriage, but the husband stated that he had stopped abusing alcohol after his last driving-while-intoxicated arrest. He stated that he knew that the wife had been the primary caregiver for the children during their youth, but asserted that the children had become teenagers and that he intended to be more supportive of their activities and interests. Factual determinations based on conflicting evidence are within the sound discretion of the trial court. See C.B.B., 831 So.2d at 622. “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing.” Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). This court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court. See Ex parte Patronas, 693 So.2d 473, 475 (Ala.1997). Besides the testimony of the parents, the trial court had evidence that the parties had managed to develop and establish a shared-custody • arrangement pen-dente lite, such that both parents testified that the children had not been adversely impacted by the pending divorce action. Based upon the record evidence, we cannot conclude that the trial court erred to reversal in awarding joint legal and physical custody of the children to the parents in this case.

The wife next asserts that the trial court erred in its marital-property division and its failure to award any type of alimony to her. Alabama law is well settled that property-division issues are within the trial court’s broad discretion, and a judgment must be plainly and palpably beyond the scope of that discretion before the judgment can be disturbed on appeal. See McClelland v. McClelland, 841 So.2d 1264, 1271 (Ala.Civ.App.2002). When dividing marital property, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. See Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996); see also Ex parte Elliott, 782 So.2d 308, 311-12 (Ala.2000), and Morrison v. Morrison, 540 So.2d 80, 81 (Ala.Civ.App.1989) (affirming division of property under which one spouse was awarded all the marital real property).

“A court has no fixed standard to follow in awarding alimony or in dividing marital property!; rjather the award or division need only be equitable and be supported by the particular facts of the case.” Ex parte Elliott, 782 So.2d at 311; see also Hall v. Hall, 895 So.2d 299, 303 (Ala.Civ.App.2004). In examining whether the trial court acted within its discretion in dividing the parties’ property or determining whether to award alimony, an appellate court reviews the entire judgment. See O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996).

Regarding the parties’ finances, the testimony was clear that the husband had been the primary breadwinner throughout the marriage; after the parties had married, the wife had stayed home to rear the children and the husband had worked for his family business and invested in real estate. After becoming licensed as a realtor, the husband had begun working for a local real-estate company; despite testimony concerning ongoing financial problems, the husband submitted a Form W-2 indicating that he had earned $70,000 from the realty company in 2009. In addition, despite his professed lack of income, the husband’s bank statements from the first two months of 2010 indicate that he had earned $8,562.99 ($3,300.94 + $3,118.50 + $2,143.55) from the realty company during the first 60 days of the year. The wife testified that, the month before trial, the husband had been able to afford to take the children to the Gulf coast for several days during spring break. She also noted that, during the same time the husband allowed her two motor vehicles to be repossessed for nonpayment, he had made all the payments on their eldest son’s motor vehicle and automobile insurance.

The wife, not having worked for a number of years, has no credit history and has been unable to afford to rent an apartment or to pay for a motor vehicle during the pendency of the divorce action. Even if the trial court could properly conclude that the conflicting evidence regarding the husband’s investment properties left no equity to divide between the parties as alimony in gross, the wife’s monthly income of $737 is substantially less than the husband’s monthly earnings. The wide disparity between the husband’s monthly income (ranging at a minimum between $3,000 and $4,400) and that of the wife leads us to the inevitable conclusion that the trial court erred when it failed to award the wife some amount of periodic alimony. It is clear from the record that the wife cannot presently survive without some type of support, and we therefore must reverse the judgment on that issue.

Because we are reversing the judgment for failure to award the wife some amount of spousal support, we pre-termit discussion of the lack of an attorney-fee award to the wife. We simply note that certain “ ‘[factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the sendees performed by the attorney.’ ” Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996) (quoting Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993)). Considering the outcome of the litigation and the wife’s minimal income, an attorney-fee award on remand may be appropriate.

The trial court’s judgment is due to be affirmed as to the child-custody award and reversed as to the failure to award periodic alimony or support to the wife. The wife is awarded $2,000 as an attorney fee on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: WELCH, Judge.

text:
    T.A.P. v. STATE of Alabama.
    CR-09-0727.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.
    Rehearing Denied Dec. 10, 2010.
    Certiorari Denied April 8, 2011 Alabama Supreme Court 1100370.

      Adam Danneman, Birmingham, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   WELCH, Judge.

T.A.P. was adjudicated delinquent, pursuant to a plea of true to the delinquency petition, in the Jefferson Juvenile Court for possession of a controlled substance, specifically heroin, a violation of § 13A-12-212(a)(l), Ala.Code 1975. He was committed to the Alabama Department of Youth Services.

On appeal, T.A.P. argues that the trial court erred in denying his motion to suppress the heroin seized from his shoe because, he says, the police did not have probable cause to search his shoe. Specifically, T.A.P. argues that the only information supporting the search came from an unidentified informant who gave only general information to the police, whose information was not corroborated, and whose identity, reliability, veracity, and basis of knowledge were unknown. Thus, T.A.P. concludes, there was no probable cause for the search. We disagree.

At the suppression hearing, O’Brian Brown, an officer with the Birmingham police department, testified that on January 18, 2010, he responded to a domestic-disturbance call involving a woman, Ebony Smith, who had stated that her boyfriend had pulled a gun on her in an apartment and had threatened to shoot her. When Officer Brown arrived at the scene, Smith was outside the apartment and told him that her boyfriend, who was armed, and three other males, including T.A.P., were still inside the apartment. Other officers also responded to the call, and Officer Brown and several other officers approached the apartment, knocked on the door, and announced themselves as police officers. Because Smith had reported that her boyfriend was armed, Officer Brown said, he approached the door with his weapon drawn. According to Officer Brown, Smith’s boyfriend answered the door and three males and one female were also standing inside the apartment. The officers ordered all five people to step outside of the apartment, which they did, and the officers then placed all five in handcuffs and performed patdown searches of each to check for weapons.

The officers then entered and searched the apartment, where they found four assault rifles, four handguns, and a large amount of cash inside a lady’s purse. Officer Brown then brought the female who had been inside the apartment when he arrived back inside the apartment and questioned her. The female told Officer Brown that the large amount of cash in the purse was not hers but that “they,” meaning the males who were inside the apartment, had put the cash in her purse. (R. 10.) When asked by Officer Brown if there were any drugs in the apartment, the female said no, but she told Officer Brown that “one of the guys had drugs in their shoe.” (R. 10.) The female did not state which of the four males who had been in the apartment had the drugs, nor did she identify the type of drugs. Officer Brown then went back outside, ordered the four males to remove their shoes, searched the shoes, and found what appeared to be heroin in T.A.P.’s shoe.

Officer Brown testified that T.A.P. was not Smith’s boyfriend and was not the renter of the apartment and that no weapons were found on his person when he was patted down. Officer Brown further testified that, at first, he believed the apartment was rented by Smith’s boyfriend, but, Officer Brown stated, Smith’s boyfriend told him that the apartment was actually rented by another friend and that Smith’s boyfriend was just staying there. Officer Brown also testified that he did not know the name of the female who was inside the apartment who had given him the information regarding the drugs in one of the males’ shoes and that he, in fact, knew nothing about her, such as whether she had a criminal record, whether she had a history of telling the truth to police officers, or whether she was a drug dealer.

“In reviewing a trial court’s ruling on a motion to suppress, this Court reviews the trial court’s findings of fact under an abuse-of-discretion standard of review. “When evidence is presented ore tenus to the trial court, the court’s findings of fact based on that evidence are presumed to be correct,’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); ‘[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,’ Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala.1986); and we make ‘ “all the reasonable inferences and credibility choices supportive of the decision of the trial court.” ’ Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761. ‘[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court.... Absent a gross abuse of discretion, a trial court’s resolution of [such] conflicts] should not be reversed on appeal.’ Sheely v. State, 629 So.2d 28, 29 (Ala.Crim.App.1993) (citations omitted). However, ‘ “[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate] Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.” ’ State v. Hill, 690 So.2d 1201, 1203 (Ala.1996), quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980). ““[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court’s judgment.’ ” ’ Ex parte Jackson, 886 So.2d 155, 159 (Ala.2004), quoting Hill, 690 So.2d at 1203, quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). A trial court’s ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala.Crim.App.2000).”

State v. Hargett, 935 So.2d 1200, 1203-04 (Ala.Crim.App.2005). In this case, the evidence presented at the suppression hearing was undisputed; therefore, our review of the trial court’s denial of T.A.P.’s motion to suppress is de novo.

We begin by noting that, in their appellate briefs, both parties treat the unidentified female who was found inside the apartment and who gave the information regarding the drugs to Officer Brown as an informant or a tipster, and both parties analyze the issue of probable cause to search under that assumption, arguing about her reliability, veracity, and basis of knowledge. See, e.g., Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). However, the female was more akin to a eyewitness than she was to an informant or a tipster. She did not approach or telephone the police to provide the information, nor did she, as T.A.P. recognizes in his brief, provide the normally detailed information that informants and tipsters provide, although she did identify the specific location — a shoe — where the drugs could be found. Rather, as defense counsel admitted at the suppression hearing, the female was simply “the person in the apartment where a crime occurred.” (R. 24.)

“Courts have consistently held that the proof-of-veracity rules applied in informant cases do not apply with respect to other sources of information, such as when an ‘ordinary citizen’ or ‘citizen-informer’ comes forward and reports to the police that he has seen evidence of a crime located at a certain place or that someone has admitted participation in criminal activity to him.” Neal v. State, 731 So.2d 609, 615 (Ala.Crim.App.1997), aff'd, 731 So.2d 621 (Ala.1999). “[W]here, as here, an ordinary citizen informs the police that he has seen evidence of a crime or that someone has admitted involvement in a crime to him, he is presumed to be reliable, and an officer is not required [when requesting a search warrant] to supply the magistrate with information explaining why he believes the citizen-informant to be reliable.” Rutledge v. State, 745 So.2d 912, 918 (Ala.Crim.App.1999) As this Court recognized in Gray v. State, 507 So.2d 1026 (Ala.Crim.App.1987), “[t]he ‘most sound position on the matter’ is that ‘ “if the citizen or victim informant is an eyewitness this will be enough to support probable cause even without specific corroboration of reliability.” ’ ” 507 So.2d at 1028 (quoting 1 [W. LaFave] Search and Seizure at p. 592 [ (1978) ] (quoting in turn Allison v. State, 62 Wis.2d 14, 214 N.W.2d 437 (1974))). See also Yielding v. State, 371 So.2d 951, 957 (Ala.Crim.App.1979) (“The most commonly used allegation for crediting the informant’s story is that the informant has previously furnished information that led to convictions. However, the credibility or reliability of the unidentified informant’s information may be shown in the informant’s statement of facts indicating that he was an eye witness with personal knowledge of the location of the evidence.”); and United States v. Unger, 469 F.2d 1283, 1287 n. 4 (7th Cir.1972) (“Various federal and state courts have distinguished the government informant ... from the eyewitness, victim of a crime or a citizen who provides information of a crime.... The rationale of these holdings is that the concomitant danger of self-interest does not inure to a victim or witness to a crime as easily as it would to a government informant.”).

“ ‘Probable cause exists where all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and that contraband would be found in the place to be searched.’ Sheridan v. State, 591 So.2d 129, 130 (Ala.Cr.App.1991). ‘The requisite probable cause is present “if a reasonably prudent person, based on the facts and circumstances which the officer knows, would be justified in concluding that the items sought are connected with criminal activity and that they will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213 [103 S.Ct. 2317, 76 L.Ed.2d 527] ... (1983).’” Day v. State, 539 So.2d 410, 413-14 (Ala.Cr.App.1988). 1 “The test for probable cause is ‘whether the facts available to the officer at the moment of the seizure or search, would warrant a man of reasonable caution to believe that the action taken was appropriate.’ ” ’ Ivey v. State, 698 So.2d 179, 185-86 (Ala.Cr.App.1995) aff'd 698 So.2d 187 (Ala.1997) (quoting Riley v. State, 583 So.2d 1353, 1355 (Ala.Cr.App.1991)).”

Johnson v. State, 719 So.2d 272, 273 (Ala.Crim.App.1998). “ ‘ “Probable cause is concerned with ‘probabilities,’ that ‘are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.’ ” ’ ” Harris v. State, 948 So.2d 583, 587 (Ala.Crim.App.2006) (quoting Chevere v. State, 607 So.2d 361, 368 (Ala.Crim.App.1992) (quoting in turn Carter v. State, 435 So.2d 137, 139 (Ala.Crim.App.1982) (quoting in turn Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)))).

Here, Officer Brown had probable cause to search T.A.P. After Officer Brown and other officers responded to the domestic-disturbance report and were informed by Smith that her boyfriend was armed and inside an apartment with several other people, the officers approached the apartment, knocked on the door, and removed the four males and one female who were inside, placing them in handcuffs and patting them down for safety. A subsequent search of the apartment revealed four assault rifles, four handguns, and a large amount of cash. “It has been recognized that ‘weapons and violence are frequently associated with drug transactions.’ ” Warren v. State, 783 So.2d 74, 80-81 (Ala.Crim.App.1998), rev’d on other grounds, 783 So.2d 86 (Ala.2000) (quoting United States v. Brown, 913 F.2d 570, 572 (8th Cir.1990)). Indeed, “Alabama case law recognizes that large sums of cash are relevant and material to a charge of .... possession of a controlled substance,” Rowell v. State, 666 So.2d 830, 832 (Ala.1995), and that “[fjirearms and large amounts of cash are ‘routinely found in places where drug dealing occurs.’” Menefee v. State, 592 So.2d 642, 645 (Ala.Crim.App.1991) (quoting Toney v. State, 572 So.2d 1308, 1315 (Ala.Crim.App.1990)). Recognizing the possible link to illegal narcotics, Officer Brown questioned the female, who stated that one of the males had drugs in his shoe. The female was neither an anonymous tipster nor a confidential informant, but, given her presence inside the apartment, she was, as defense counsel admitted, an eyewitness to a crime- — specifically, to the possession of illegal narcotics, and, most likely, to the domestic disturbance that initially brought the officers to the apartment in the first place. The totality of the circumstances known to Officer Brown at the time of the search — the weapons found in the apartment, the large amount of cash found in the apartment, and an eyewitness who was in the apartment who stated that one of the males had drugs in his shoe — were sufficient to warrant a person of reasonable caution to conclude that an offense was being committed and that contraband would be found in the shoe of one of the males who had been in the apartment. Therefore, the juvenile court properly denied T.A.P.’s motion to suppress.

Based on the foregoing, the judgment of the juvenile court is affirmed.

AFFIRMED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.

      . T.A.P. reserved this issue for appeal before pleading true to the petition. (R. 31.)

      . The record reflects that the juvenile court conducted a suppression hearing on T.A.P.’s motion to suppress before T.A.P. pleaded true to the charge and was adjudicated delinquent. Following his plea, but before disposition, T.A.P. filed a motion to reconsider and/or set aside the denial of the motion to suppress and the trial court conducted another hearing, after which it denied the motion.

      .T.A.P. does not challenge the legality of the patdown conducted pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: WISE, Presiding Judge.

text:
    Mark Dwyatt BROWN v. STATE of Alabama.
    CR-08-0805.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 2010.
    Certiorari Denied April 15, 2011 Alabama Supreme Court 1100047.

      Joshua J. Lane, Anniston; and Kristen M. Nelson and Randall S. Susskind, Montgomery, for appellant.
    Troy King, atty. gen., and Hallie Dixon and Henry M. Johnson, asst, attys. gen., for appellee.
   On Application for Rehearing

WISE, Presiding Judge.

The opinion that was released on July 30, 2010, is withdrawn and the following is substituted therefor.

The appellant, Mark Dwyatt Brown, was convicted of seventeen counts of capital murder in connection with the killings of Lena Maye Chandler Benefield (“Lena”), Shable Baxter Benefield (“Shable”), Reo William Benefield (“Reo”), and Durward Tysinger Benefield (“Durward”). Counts I, II, III, and IV charged him with the robbery-murder of Lena, Shable, Reo, and Durward, respectively. See § 13A-5-40(a)(2), Ala.Code 1975. Counts V, VI, VII, and VIII charged Brown with murder made capital because he committed it during the course of a second-degree burglary with regard to Lena, Shable, Reo, and Durward, respectively. See § 13A-5-40(a)(4), Ala.Code 1975. Counts IX, X, XI, and XII charged him with the arson-murder of Lena, Shable, Reo, and Durward, respectively. See § 13A-5^0(a)(9), Ala. Code 1975. Counts XIII, XIV, XV, and XVI charged Brown with murder made capital because he committed it during the course of a first-degree burglary of Lena, Shable, Reo, and Durward, respectively. See § 13A-5-40(a)(4), Ala.Code 1975. Finally, Count XVII charged him with murder made capital because he killed Lena, Shable, Reo, and Durward by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. By a vote of 11-1, the jury recommended that Brown be sentenced to death. The trial court accepted the jury’s recommendation and sentenced him to death. Brown was also convicted of one count of conspiracy to commit capital murder, a violation of §§ 13A-4-3 and 13A-5-40, Ala. Code 1975, and the trial court sentenced him to serve a term of life in prison on that conviction. Brown filed a motion for a new trial, which was denied by operation of law. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

Because this is a case in which the death penalty has been imposed, we have reviewed the record for plain error. See Rule 45A, Ala. RApp. P. Although the lack of an objection at trial will not bar our review of an issue in a case involving the death penalty, it will weigh against any claim of prejudice Brown may raise. See Ex parte Kennedy, 472 So.2d 1106 (Ala.1985). Rule 45A, Ala. R.App. P., provides:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review ... whenever such error has or probably has adversely affected the substantial right of the appellant.”

“[This] plain-error exception to the contemporaneous-objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ ” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816 n. 14 (1982)).

The following summary of the relevant facts, as prepared by the trial court, may be helpful to an understanding of this case:

“On February 8, 2005, Lena Maye Chandler Benefield and her sons, Durward Tysinger Benefield, Reo William Bene-field and Shable Baxter Benefield lived together in Cleburne County. Mark Brown was a resident of Calhoun County. He had received money from Reo William Benefield in the past. Mark Brown alleged this was ‘hush money’ for past sexual abuse he received from Reo. An agreement was made between Mark Brown, Shannon Brown and Tim Morris to get money from Reo Benefield and his relatives that lived in the house with him. The morning of February 8, 2005, Mark Brown, Shannon Brown and Tim Morris met at Mark Brown’s residence in Calhoun County. They left the residence around 7a... and went to Wal-Mart in Oxford. Mark Brown took his son’s baseball bat with him when he left. At Wal-Mart, the three purchased 3 rolls of duct tape, 3 ski masks and 3 pail’s of gloves. This was confirmed by video surveillance of the parking lot of the store as well as a camera at the register where the items were purchased. The threesome then traveled to Cleburne County where they made a stop at Tim Morris’ sister’s residence. Mr. Morris got a gun that he had left there. They then prdceeded to the Benefield residence. They hid themselves in an abandoned chicken house that Reo Benefield used as a workshop. The three co-defendants confronted Reo. They bound him and placed a dog food bag over his head. After assaulting Reo while in the chicken house, the defendants took Reo to the residence. Lena Benefield, Shable Benefield and Dur-ward Benefield were present at the residence.
“While inside, Shable Benefield was forced to write two checks (Colonial Bank # 0208 in the amount of $11,480.00 and SouthTrust Bank # 1423 in the amount of $8,590.00) payable to Reo Benefield. Mark Brown took a truck belonging to Shable Benefield. He and Reo Benefield went to both banks and cashed the checks. These transactions were confirmed by witness testimony from personnel from each bank and video surveillance from the banks. Additionally, the check drawn on the Colonial Bank account had body fluids on it which was found to contain the DNA of Reo Benefield and Mark Brown. Mark Brown and Reo Benefield then returned to the residence.
“At some point, all of the victims except 88 year old Lena Benefield were bound with duct tape securing their hands and feet. Additionally, duct tape was placed over their mouth and eyes. All victims were beaten about the head. Reo Benefield died as a result of blunt force trauma. The others were beaten until they were unconscious. Two fires were set in the house and the defendants left the residence. Lena, Shable and Durward Benefield all died from a combination of blunt force trauma and from inhaling particles of combustion from the fire. Signs were found on their faces indicating they inhaled smoke from the fire. Additionally, their blood contained indicators that their lungs had processed the smoke.
“When the defendants left the Bene-field residence, they took Shable Bene-field’s truck that had been used by Mark Brown to drive to the banks. The defendants took part of the money and brought a truck. A description of this truck was relayed to local law enforcement. The truck was spotted by Cle-burne County deputies. The truck was stopped. Shannon Brown was driving. Mark Brown and Tim Morris jumped out of the truck and ran. Shannon Brown was found in possession of $6,800.00 in cash including one stack with a SouthTrust bank wrapper.
“Mark Brown was found a short time later. After he was taken into custody, an amount of currency ($8,000) was turned into the Cleburne County Sheriff’s Office by an individual who lived at the residence where Mark Brown had been hiding.
“Mark Brown was given his constitutional rights and he gave a statement regarding his involvement in the crime.”

(C.R.73-75.)

Brown argues that “[t]he trial court reversibly erred when it instructed the jury that it could convict [him] of capital murder even if he did not possess the specific intent to kill.” (Brown’s brief at p. 11.) Specifically, he contends that “the trial court repeatedly instructed the jury that [he] could be convicted of capital murder as long as one of his co-defendants possessed the specific intent to kill.” (Brown’s brief at p. 12.) Therefore, he concludes that “the jury believed that it could convict [him] of capital murder even if he did not possess the requisite intent to kill.” (Brown’s brief at p. 12.) Because Brown did not present this argument to the trial court, we review it for plain error. See Rule 45A, Ala. R.App. P.

“Alabama appellate courts have repeatedly held that, to be convicted of capital offense and sentenced to death, a defendant must have had a particularized intent to kill and the jury must have been charged on the requirement of specific intent to kill. E.g., Gamble v. State, 791 So.2d 409, 444 (Ala.Crim.App.2000); Flowers v. State, 799 So.2d 966, 984 (Ala.Crim.App.1999); Duncan v. State, 827 So.2d 838, 848 (Ala.Crim.App.1999).”

Ziegler v. State, 886 So.2d 127, 140 (Ala.Crim.App.2003).

“' “[N]o defendant is guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony murder doctrine. Beck v. State, 396 So.2d 645, 662 (Ala. March 6, 1981)”; Carnes, Alabama’s 1981 Capital Punishment Statute, 42 Ala. Law. 456, 468 (1981). See also E[n]mund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982), but see Godbolt v. State, 429 So.2d 1131, 1134 (Ala.Cr.App.1982), holding that E[n]mund is inapplicable to a defendant who does not receive the death penalty However, a non-triggerman can be convicted of a capital offense if he was a knowing accomplice to the intentional killing itself. Ritter v. State, 375 So.2d 270 (Ala.1979). “[T]he accomplice liability doctrine may be used to convict a non-trigger man accomplice if but only if the defendant was an accomplice in the intentional killing as opposed to being an accomplice merely in the “underlying felony.” Ex parte Raines, 429 So.2d 1111, 1112 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983).
“ ‘Alabama’s 1981 capital punishment statute under which [the defendant] was convicted “provides that a defendant who does not personally commit the intentional killing which is part of the capital offense is nonetheless guilty of it and can be convicted of the capital offense, if that defendant intentionally promotes or assists in the commission of the intentional killing which is actually done by another.” Carnes, 42 Ala. Law at 471.
“ ‘Our duty on appeal was stated in Raines, 429 So.2d at 1113. “To affirm a finding of a ‘particularized intent to kill’, the jury must be properly charged on the intent to kill issue, and there must be sufficient evidence from which a rational jury could conclude that the defendant possessed the intent to kill.” ’
“Lewis v. State, 456 So.2d 413, 416-17 (Ala.Cr.App.1984).”

Rowell v. State, 570 So.2d 848, 850-51 (Ala.Crim.App.1990).

When it first instructed the jury regarding intent, the trial court stated:

“Now, ladies and gentlemen, the crime charged in this case, crimes I should say, is a serious crime which requires proof of specific intent before the defendant can be convicted. Specific intent, as the term implies, means more than a general intent to commit the act. To establish specific intent, the State must prove that a defendant knowingly did an act which the law forbids or knowingly — I’m sorry, let me read that again.
“To establish specific intent, the State must prove that the defendant knowingly did an act which the law forbids, purposely intended to violate the law. Such intent may be determined from all the facts and circumstances surrounding the case.”

(R. 2445.) When it instructed the jury regarding accomplice liability, the trial court stated:

“[L]et me talk to you for just a minute because there are allegations and there’s been reference made of aiding and abetting, accomplice, complicity, if you will. A person is legally accountable for the behavior of another person constituting a crime if, with the intent to promote or assist the commission of the crime, he either procures, induces, or causes such other person to commit the crime; or, aids or abets such other person in committing the crime; or, has a legal duty to prevent the commission of the crime and fails to make such effort as he is legally required to make to prevent it.
“Now, a person is not legally accountable for the behavior of another person constituting the crime if either he’s a victim of that crime or the crime is defined in such a way that his conduct is inevitably incidental to its commission; or, before the commission of the crime, he voluntarily terminates his effort to promote or assist its commission and he gives timely and adequate warning to law enforcement authorities; or, gave timely and adequate warning to the intended victim; or, wholly deprived his complicity of its effectiveness in the commission of the crime. And the burden is on the State to prove that the defendant did not voluntarily terminate his effort to promote or assist the commission of the crime charged.”

(R. 2446-47.)

When it instructed the jury regarding Count I of the indictment, i.e., the capital offense of murder during the robbery of Lena, the trial court stated, in part:

“A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real, and it must be specific.”

(R. 2449.) It also stated:

“A person acts intentionally with respect to a result or to conduct when his or her purpose is to cause that result or to engage in that conduct.”

(R. 2450.)

When it instructed the jury regarding Count II of the indictment, i.e., the capital offense of murder during the robbery of Shable, the trial court stated, in part:

“To convict, the State must prove beyond a reasonable doubt each of the following elements of an intentional murder during robbery in the first degree:
“That Shable Benefield is dead.
“That the defendant, Mark Brown, caused the death, or someone else, as he aided and abetted them, that being, to wit, Shannon Wayne Brown or Timothy Patrick Morris, caused the death of Sha-ble Benefield by striking him with a blunt object, to wit, a baseball bat, and by causing him to inhale products of combustion from a fire.
“That in committing these acts which caused the death of Shable Benefield, the defendant intended to kill the deceased, or another person, or another individual who he aided and abetted intended to kill.
“A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real and it must be specific.”

(R. 2458-59) (emphasis added).

When it instructed the jury regarding Count III of the indictment, i.e., the capital offense of murder during the robbery of Reo, the trial court stated, in part:

“To convict, the State must prove beyond a reasonable doubt each of the following elements of an intentional murder during robbery in the first degree:
“That in committing the acts which caused the death of Reo Benefield, the defendant intended — the defendant, or another participant, intended to kill the deceased or another person. A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real and it must be specific.”

(R. 2469-70) (emphasis added).

When it instructed the jury regarding Count V of the indictment, i.e., the capital offense of murder of Lena during a second-degree robbery, the trial court stated, in part:

“The defendant is charged with capital murder. The law states that an intentional murder committed during a burglary in the second degree is capital murder. A person commits an intentional murder if he causes the death of another person in performing the act, or acts, which caused the death of another person, he or another participant intends to kill that person.
“... To convict, the State must prove beyond a reasonable doubt each of the following elements of an intentional murder during a burglary in the second degree:
“That in committing the act which caused the death of Lena Maye Bene-field, the defendant intended to kill, or another participant, intended to kill the deceased or another person. A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real and it must be specific.”

(R. 2487, 2488) (emphasis added).

When it instructed the jury regarding Count VI of the indictment, i.e., the capital offense of murder of Shable during a second-degree robbery, the trial court stated, in part:

“Let me insert something in this one, and it will save me some words.
“Understand, ladies and gentlemen, as the indictment charges, that it’s not just that Mark Brown committed that offense, but that he aided and abetted that offense. So when I say ‘Mark Brown,’ then you can also put into that area those other two individuals being Shannon Brown and Timothy Morris; is that agreeable? Save me from reading that because there is a charge that he aided and abetted, which is an element of the offense that must be satisfied beyond a reasonable doubt.
“So to convict, the State must prove beyond a reasonable doubt each of the following elements of an intentional murder during a burglary in the second degree:
“That in committing the acts which caused the death of Shable Benefield, the defendant intended to kill the deceased, or another person. A person acts intentionally when it is his purpose to cause the death of another person. The intent to kill must be real and it must be specific.”

(R. 2496-97.)

During its instructions with regard to Counts II, III, and V, and during its instructions as to Count VI and subsequent counts, the trial court improperly instructed the jury that it could find Brown guilty of capital murder if it found that he or another participant — namely, Shannon Brown or Timothy Morris — intended to killed the deceased or another person. However,

“[ujnder the accomplice liability doctrine, a nontriggerman accomplice may be convicted of the capital offense of double murder only if he had the particularized intent that both victims be killed. Cf. Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App.1984), aff'd, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985). In addition, ‘[t]o affirm a finding of a “particularized intent to kill” the jury must be properly charged on the intent to kill issue.’ Ex parte Raines, 429 So.2d 1111, 1113 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S.Ct. 1804, 76 L.Ed.2d 368 (1983); see also Bankhead v. State, 585 So.2d 97 (Ala.Cr.App.1989), remanded on rehearing on other grounds, 585 So.2d 112 (Ala.1991).”

Tomlin v. State, 591 So.2d 550, 557 (Ala.Crim.App.1991).

After reviewing the entire instructions in this case, it is clear that the trial court did not adequately inform the jury that Brown could not be convicted of capital murder unless it determined that he had the specific, particularized intent to kill. Rather, the above-referenced instructions would have allowed the jury to find Brown guilty of the capital offense, even if he did not have the particularized intent to kill, as long as one of his codefendants had the particularized intent to kill. Therefore, those instructions were erroneous.

We further note that, during the State’s closing argument, the prosecutor stated:

“Accountability for the behavior of another. You’ll hear this called a lot of things. But in Alabama, as I told you during voir dire, you’re responsible for what other people who are working with you do. That’s called in the indictments aiding and abetting, and we’ll get that definition in a minute.
“A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense, he procures, induces, or causes such other person to commit the offense. Well, who talked these two guys into going up to Reo Benefield’s house? Did you hear anything saying Shannon or Tim Morris had a connection with the Benefields? It’s Mark. He got them into this to start with. He aids or abets, and again, I’ll define that in a minute, such other person in committing the offense, and having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make. That’s the idea of renunciation. He gets into this, and he never tries to get out. Doesn’t show anything in his actions or what we’ve heard in the evidence that indicates he wanted out.
“Aiding or abetting, that’s in the indictment, the judge will talk about it. The words aid and abet encompasses all assistance by acts; words of encouragement; support; presence, actual, or constructive; rendering aid should it become necessary. Again, in my voir dire, I talked about the idea of a lookout, getaway driver, gunman.
“At that point, all of y’all said, everybody that’s on this jury said I could hold all of them responsible for the activities of the gunman because they were all acting in concert with each other, and that’s what aiding and abetting talks about.
“Further, another term that’s used for that same type of conduct is accomplice liability. Any person who aids or abets the completion of a crime through any act of commission or omission, and again, we talk about renunciation, it’s one thing if you help commit the crime, but if you stand by idly and watch it happen, you’re not doing anything to stop it, so you can’t say, look, I didn’t hit that particular person and expect that to be a defense.
“He is responsible for the criminal act as his co-defendant. Rendering aid can take place in planning, strategy, supplying necessary equipment like a car. Mark Brown was the driver that got them there, acting as a henchman, a lookout, or a getaway driver. There is no longer a legal distinction between principals and accessories in Alabama. As I told you in my voir dire, you’re in for a penny, you’re in for a pound, or as Mark Brown said when he talked to Natalie Watkins, you start something together, you finish it together.
“Intent, we heard that, and that is one thing that’s required in the law for you to prove with the majority of crimes we have in Title 13. A person must act with intent. You don’t accidentally rob somebody; you don’t accidentally kill somebody and get charged with Capital Murder.
“The quirk here is Mark Brown’s intent, because of the accomplice liability statute and all the things you’ve just listened to, at times is the intent of his buddies. If you sign on for a robbery and you intend to commit that robbery and you bring two guys with you and you want them to commit that robbery with you and one of them decides I’m going to kill somebody during this robbery and they intended to commit that murder, you got their intent. You’re all in together.
“A person intends the natural consequences of their actions. If you swing a baseball bat at somebody’s head, what do you intend? You may infer intent circumstantially through the actions of the defendant or the co-defendant. And we talked about that in voir dire, what circumstantial evidence is. We have direct evidence in this case, the videos, the statements, different things are available to you. But you can infer certain things, and we’ve talked about the idea of was Mark Brown remorseful for what he did? Watch those videos. See if he seemed upset about it to you.
“The intent of a person aiding or abetting an offense is that of his co-defendants, and his intent is that his co-defendants’ will will be carried out.
“You may infer intent through the possession, brandishing, or use of weapons, restraints and/or starting that fire. What do you intend when you have four people in the house and you light the house on fire?”

(R. 2368-70.) Also, during the State’s rebuttal closing argument, the prosecutor stated:

“What one does, we all do, and we should be held accountable and responsible for what each of us do in concert with one another. And in one of his statement, he said, ‘Once I got my share — part,’ ‘Once I got my share— part.’ He was in it the whole way, and I ask you to find him guilty and I ask you to give him justice and I ask you to bind him to his crime. Complete the tie that binds him to his crime. Thank you.”

(R. 2432.) The State incorrectly argued that Brown could be found guilty of capital murder, even if he did not have the requisite intent to kill, as long as one of his codefendants had the intent to kill the deceased or another person. Therefore, as Brown correctly argues, the prosecutor’s statements during closing argument further undermined the reliability of his convictions.

Based on the trial court’s instructions, the jury could have found Brown guilty of capital murder if he intended to commit another felony, i.e., first-degree robbery, first-degree burglary, second-degree burglary, or arson, but did not intend to kill the deceased or another person. Therefore, the instructions did not clearly distinguish the intent element for the offense of capital murder from the intent element for the offense of felony-murder. Brown argues that the sole issue before the jury was whether he was guilty of capital murder because he intended to kill the victims or whether he was guilty of felony-murder because he did not intend to kill the victims. He also contends that his defense was that he only intended to rob them and that he did not have any reason to kill them. Because the trial court’s instructions effectively abolished any distinction between capital murder and felony-murder, we cannot find that the error in giving those instructions regarding intent was harmless. See Russaw v. State, 572 So.2d 1288, 1293 (Ala.Crim.App.1190) (finding that there was plain error where “the instructions of the trial court [were] highly confusing because of the failure to clearly distinguish the intent element in the crimes of capital murder, felony-murder, and murder in connection with the doctrine of accomplice liability”).

For the above-stated reasons, we conclude that all of Brown’s convictions must be reversed because the trial court gave erroneous instructions regarding intent. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

APPLICATION FOR REHEARING OVERRULED; OPINION OF JULY 30, 2010, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

WELCH, WINDOM, KELLUM, and MAIN, JJ., concur.