author: PER CURIAM.

text:
    Lynn GILDERSLEEVE v. Steve YOUNG d/b/a Young’s Towing.
    2090034.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2010.

      E. Russell March III and Bradley E. Dean of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
    J. Charles Wilson, Mobile, for appellee.
   PER CURIAM.

The former owner of various items of tree-service machinery, Lynn Gildersleeve (“the owner”), appeals from a judgment of the Mobile Circuit Court entered, after an ore tenus proceeding, in the owner’s action against the operator of a towing and storage service, Steve Young (“the tower”), who does business under the trade name “Young’s Towing”; in the judgment under review, the trial court, without stating findings of fact, determined that the tower was not liable to the owner on the sole claim asserted by the owner (conversion). This appeal was transferred to this court pursuant to Ala.Code 1975, § 12-2-7(6).

The testimony at trial indicates that the owner was an Illinois resident who operated a business involving tree service and removal; after performing some work in the Mobile area in late 2007 or early 2008, the owner left a number of pieces of machinery on real property owned either by Macadoo Gildersleeve, the owner’s uncle, or by Kenny Gildersleeve, the owner’s cousin, that was located in Mobile. However, the property was apparently occupied by Kenny Gildersleeve.

On January 8, 2008, Kenny Gildersleeve, representing himself to be the owner of the real property, telephoned the tower, stated that he had been unable to persuade the owner to remove the machinery from the property, and requested that the tower come to the property and remove the machinery from the property; the tower complied, immediately hauling away a 10-ton trailer and a 1989 model International brand tandem truck that functioned as a debris loader and later returning for other items, including a John Deere brand “skid steer,” a Caterpillar brand front-end loader, and a boom truck. The tower testified that he had not been informed at that time of the identity of the person who owned the machinery but that he had been informed that the person who owned the machinery was a cousin of Kenny Gilder-sleeve who lived “near” Illinois. Further, the tower testified that the machinery had been in poor condition and he had assumed that the machinery had been abandoned because most of it would not operate properly.

On January 23, 2008, approximately two weeks after the tower had first removed machinery from the property, the owner appeared in person at the tower’s business premises and sought possession of the machinery. The tower informed the owner of the towing and accrued daily storage charges that would need to be paid before the property could be reclaimed, quoting a figure of approximately $2,555, and informed the owner that he would need to prove his ownership of the machinery; according to the tower, such documentation would have shown the owner’s address. However, according to the tower, the owner on this visit “was not in the mood to give any kind of information,” but simply stated that he had proof of his ownership of the machinery. The owner returned to the tower’s business premises several days later with funds equal to the quoted amount, but he was informed that the full amount necessary to reclaim the machinery had increased because several days had elapsed and additional storage fees had accrued. The amount of that new quoted figure is the subject of some dispute, with the owner testifying that it was approximately $7,000 and the tower testifying that it was approximately $4,500 (which would be more consistent with the tower’s testimony to having levied daily storage fees of $200). Further, there is no indication that the owner presented additional documentation revealing his address or demonstrating his ownership of the machinery on that subsequent visit.

Further, according to the trial testimony of the tower and his office manager (his mother), soon after the machinery had been towed at the behest of Kenny Gilder-sleeve, the tower contacted the Alabama Department of Revenue and requested information concerning the ownership of the machinery, at least some items of which had motor-vehicle-identification numbers, but was informed at that time that that department had no information regarding who owned the items of machinery. The tower also testified (contrary to the owner’s trial testimony) that license plates were not present on the items of machinery and denied having been provided a business card with the owner’s identifying information.

The tower caused a notice to be published in a newspaper of general circulation in Mobile County on March 5 and March 12, 2008, stating that the items of machinery, among other items, had been abandoned and that a public auction would be held to sell the property on April 7, 2008. According to the tower, this auction went forward and the items of machinery were sold to third parties; however, the tower also testified that the total sale price for every item had not immediately been paid and that he had retained, as security, possession of several of, and use of at least one of, the items of machinery with the permission of the winning bidders until the entire purchase price was paid.

On appeal, the owner, citing two sections of the Alabama Abandoned Motor Vehicle Act, § 32-13-1 et seq., Ala. Code 1975 (“the AMVA”), contends that the tower is liable under a conversion theory because, the owner says, the tower failed to provide proper notice under the AMVA to the owner before selling the machinery at auction. The owner cites Global Federal Credit Union v. Walker, 679 So.2d 1075, 1078 (Ala.Civ.App.1996), as standing for the proposition that a holder of a motor vehicle under the AMVA has a duty to query out-of-state vehicle registries concerning ownership information they may hold when the holder is on notice that the owner may be a resident of another state. The owner further asserts that the tower himself had used .one of the items of machinery (a “cherry-picker” truck) during an abortive venture operating a tree service. However, in researching the merits of the owner’s appeal, this court has become aware of a fundamental, jurisdictional bar to the owner’s claim.

In Weatherspoon v. Tillery Body Shop, Inc., 44 So.3d 447 (Ala.2010), which was decided after the owner had filed his principal brief in this appeal, a motor vehicle owned by Debra Weatherspoon that had been left by her adult son in a restaurant parking lot for several days was hauled by a towing company to its own lot; the towing company, after having advertised for three consecutive weeks that the vehicle would be sold at a public auction, sold the vehicle to a third party. The owner of the motor vehicle sued the towing company and the auction purchaser, asserting, among other claims, state-law claims of negligence, wantonness, detinue, conversion, purported violations of the AMVA, and fraud. The trial court granted the towing company’s motion to dismiss for lack of subject-matter jurisdiction in which that company had averred that the vehicle owner’s claims were preempted by a federal statute providing that, with limited exceptions, “a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier ... or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.” 49 U.S.C. § 14501(c).

In Weatherspoon, the trial court’s judgment of dismissal was affirmed on appeal. The majority opinion in Weatherspoon noted that § 14501(c) had been held by the United States Supreme Court and other federal and state courts to broadly preempt state regulation of tow-truck operators. 44 So.3d at 456-57. Proceeding from that premise, the Weatherspoon majority held that the state-law tort claims presented in that case, which focused on, among other things, the towing company’s “alleged failure to comply with state requirements regarding [its] tow and handling of abandoned vehicles,” related to the “handling of the vehicles [the towing company] tows, i.e., its service regarding the property it transports,” and expressly sought “the enforcement of state laws related to duties owed stemming from the transportation of property” so as to be preempted by the federal statute. 44 So.3d at 458.

Although the majority in Weatherspoon, by which we are bound (see § 12-3-16, Ala.Code 1975), did not expressly hold that § 14501(c) amounts to a jurisdictional bar to state-law tort claims of conversion stemming from the operations of tow-truck operators such as the tower in this case, Weatherspoon does rely upon a Texas appellate decision, A.J.’s Wrecker Serv. of Dallas, Inc. v. Salazar, 165 S.W.3d 444 (Tex.App.2005), that precisely so holds. In Salazar, a towing company hauled away a motor vehicle that had been parked away from a marked parking place and detained the motor vehicle for approximately 60 days. Although a judgment was entered on a jury verdict in favor of the owner of the motor vehicle on her state-law claims of theft, conversion, and trespass to chattels, a Texas appellate court dismissed the appeal and vacated the trial court’s judgment, concluding that the trial court had been without jurisdiction to render a judgment in the case because of the pre-emp-tive effect of § 14501(c). 165 S.W.3d at 450. The rationale in Salazar is instructive:

“Unlike a negligence action[,] ... trespass to chattel, conversion, and civil theft have elements closely related to AJ’s nonconsensual towing service. Towing cars without the owners[’] consent is one of the services AJ’s provides. Moreover, the regulatory impact of these causes of action could be significant. If these claims are allowed to proceed, AJ’s conceivably could be hauled into court to defend its actions every time it tows a car without the owner’s consent. This constitutes regulation of motor carriers through enforcement of state laws. Allowing these causes of action to proceed against motor carriers has the potential to frustrate the purpose of the preemption statute — economic deregulation. We conclude Salazar’s claims are preempted because they constitute enforcement of state law related to the towing service provided by AJ’s.”

165 S.W.3d at 449.

The state-law conversion claim asserted by the owner in this case against the tower is not materially different from the state-law conversion claims held in Weather-spoon and Salazar to have been preempted by federal law. We thus conclude that, in light of § 14501(c), the trial court lacked subject-matter jurisdiction to entertain the owner’s claim against the tower. Because a lack of subject-matter jurisdiction may not be waived by the parties and must be taken note of by an appellate court ex mero motu, see Riley v. Hughes, 17 So.3d 643, 648 (Ala.2009), and because a trial court’s action taken in the absence of subject-matter jurisdiction is void and will not support an appeal, see id. at 649, we dismiss the owner’s appeal and instruct the Mobile Circuit Court to vacate its judgment and dismiss the case.

APPEAL DISMISSED WITH INSTRUCTIONS TO THE CIRCUIT COURT.

All the judges concur.

      . Although the machinery was in the tower’s possession at the time this action was initiated on April 4, 2008, and although the complaint was denominated as sounding in deti-nue, the machinery was sold at auction on April 7, 2008; thus, although there was no formal amendment to the complaint, conversion was, by the time of trial, the proper legal theory under Alabama law for the owner to assert to seek damages. See generally Barksdale v. Strickland & Hazard, 220 Ala. 86, 124 So. 234(1929).

      . According to the tower, the newspaper also lists upcoming auctions on its Internet site, and purchasers of certain items of machinery sold at the auction were described as having been residents of north Alabama and having found out about the auction via the Internet.

      . In 2003, seven years after Walker was decided, the Legislature amended the AMVA by enacting Act No. 2003-402, 2003 Ala. Acts, which was titled, in part, "[a]n Act [t]o amend ... [§ ]32 — 13—4 ... relating to abandoned motor vehicles[ j ... to provide that the Department of Revenue would provide the name and address of the owners and lienholders when the vehicle has been towed....” (Emphasis added.) That amendment was reflected in § 32 — 13—4(a)(5); as currently in force, § 32-13-4(a)(5) provides that "[t]he person, firm, or governmental entity giving notice ... shall obtain from” the Department of Revenue "in writing” either "a statement, form, or document listing the name and address of the current ownérs, registrants, secured parties, and lienholders of record, if any, for the motor vehicle” or "a statement, form, or document that the department has no information of record concerning the current owners, registrants, secured parties, or lienholders of record, if any, for the motor vehicle.” Accord Ala. Admin. Code (Dep't of Revenue) Rule 810-5-75-31.02(3) ("Information regarding the name and address of the current owner, secured parties, and lienhold-ers of record shall be obtained only from the [Department” of Revenue (emphasis added)). Our conclusion as to the trial court’s lack of subject-matter jurisdiction, however, obviates the necessity of considering the effect of those provisions of law upon the owner's claim.

      . See Rowe v. New Hampshire Motor Transp. Ass’n, 552 U.S. 364, 370-71, 128 S.Ct. 989, 169 L.Ed.2d 933 (2008), and City of Columbus v. Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 430, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002).

      . See, e.g., Kelley v. United States, 69 F.3d 1503 (10th Cir.1995), Ware v. Tow Pro Custom Towing & Hauling, Inc., 289 Fed.Appx. 852 (6th Cir.2008) (not selected for publication in the Federal Reporter), and A.J.'s Wrecker Serv. of Dallas, Inc. v. Salazar, 165 S.W.3d 444 (Tex.Ct.App.2005).


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    M. Travis LINDENMUTH v. Paula C. LINDENMUTH.
    2090052.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2010.

      Lee F. Knowles, Geneva, for appellant.
    Thomas K. Brantley of Brantley & Haywood, Dothan, for appellee.
   PITTMAN, Judge.

M. Travis Lindenmuth (“the father”) appeals from a judgment modifying his child-support obligation. The father and Paula C. Lindenmuth (“the mother”) were divorced pursuant to an agreement that was incorporated into a divorce judgment entered on December 31, 2001. During the course of the parties’ marriage, they had three children: a daughter (“the eldest child”), who was born in March 1988; another daughter (“the middle child”), who was born in February 1990; and a son (“the youngest child”), who was still a minor at the time of the modification hearing. One of the agreed provisions in that divorce judgment was “[tjhat all reasonable college expenses for the parties’ children shall be equally divided between the parties.” Subsequently, in June 2007, the parties entered into an agreement, which was subsequently incorporated into a modification judgment, modifying the divorce judgment that reduced the father’s monthly child-support obligation to $608.80 because the eldest child had reached the age of majority; the parties also agreed that the father and the mother would “each be responsible for one-half (½) of college books and tuition expenses” for the eldest child after all grants and scholarships had been applied to offset the gross college expenses. In addition, the father agreed to keep the eldest child as a dependent on his medical insurance “as long as [the eldest child wa]s currently enrolled in college as a full-time student.” The language of the agreement specified that the father would be responsible for paying the listed expenses “as long as the child is enrolled as a full-time student in a state, in-state college or university, maintains a ‘C’ average and provides her grades to the [father] within 10 days of ... receipt of same.”

In March 2009, the father filed a modification petition in which he sought a reduction in his child-support obligation because the middle child had reached the age of majority during the previous month. The mother answered and filed a counterclaim in which she requested an award of post-minority support for the middle child and an adjudication that the father should pay the mother for “room and board” because both the eldest child and the middle child had been living at the mother’s home to obviate paying the cost of room and board on campus.

On May 21, 2009, the trial court conducted an ore tenus proceeding during which both parties, the eldest child, the middle child, and the father’s wife testified. The bulk of the mother’s testimony concerned her normal living expenses and the percentage attributable to each of the three children living in that household. The mother’s testimony indicated that, excluding housing and automobile-maintenance costs, she spent between $2,000 and $3,000 per month in food, toiletries, laundry supplies, and the like. The mother, dividing the lower expense amount by four, opined that the father should reimburse her monthly for roughly $1,000 in saved room- and-board costs for the two college-aged children.

The college-aged children testified concerning the colleges they were attending, their courses of study, and the cost of gasoline to commute to and from school four days a week. They also testified that they did not attend college in the summer, but worked summer jobs that helped defray their personal expenses during the school year. In addition, the eldest child admitted that, for the first time since beginning college, she had earned a semester grade-point average (“GPA”) that was below a ‘C’ level during the immediately preceding semester.

The father stated that he had understood the June 2007 agreement to specify his responsibilities for the eldest child’s college expenses; however, he contended that the parties had never entered into a similar arrangement regarding the middle child. In particular, he noted that the agreement omitted room-and-board costs as part of his responsibility and that, now that the eldest child’s most recent semester’s GPA had dropped below a “C,” he was not responsible for any further educational expenses on her behalf. The mother testified that she had understood that the June 2007 agreement specifically related to only the eldest child, but she contended that the provision in the original divorce judgment requiring the mother and the father to “equally divide” the reasonable college expenses for their children had not been modified.

On May 26, 2009, the trial court entered a judgment that modified the father’s monthly child-support obligation to $407 a month for the youngest child. Regarding the parties’ responsibility to pay for the children’s “reasonable college expenses,” the trial court concluded “that a sum of $400 per month per child in college would be a reasonable allocation of living and transportation expenses ... over and above tuition and books.” That amount was to be shared equally by the parents, so that the total amount owed by the father in addition to child support was $400 (one half of each child’s monthly living and transportation expenses). The judgment ordered both parties to contribute those amounts “for the [college-aged children] while they are in college and maintaining a ‘C’ average for up to a four year degree.” In addition, the judgment conditioned the father’s obligation to pay any of the college expenses for the following semester (excluding summer school unless a child was enrolled therein) upon his having received a copy of the children’s grades within 20 days of the end of the previous semester.

The mother filed a postjudgment motion to request that the children be given 30 days to forward their grades to the father in order to allow for school and postal delays in supplying that information. The trial court amended the judgment to so read on May 26, 2009. The father filed a postjudgment motion challenging the entire judgment, and, following a hearing on that motion, the trial court denied the father’s motion and the father timely appealed. The father contends that the trial court modified the judgment that was based upon the parties’ June 2007 agreement without having the jurisdiction to do so, that the trial court erroneously ordered the father to pay for the middle child’s college expenses because the June 2007 agreement did not address postminority support as to that child and because the child had attained the age of majority before postminority support was requested, and that the trial court erred in continuing the father’s obligation to pay for the eldest child’s college expenses in the face of the eldest child’s admission at trial that her grades for the most recent semester had fallen below a “C” average.

Because the trial court entered its judgment in this case after considering evidence presented ore tenus, we presume any factual findings based on that evidence to be correct, unless those findings are unsupported by the evidence so as to be plainly and palpably wrong. Simpkins v. Simpkins, 595 So.2d 493, 495 (Ala.Civ.App.1991). Furthermore, as in all cases in which a trial court fails to make specific findings of fact, we “ “will assume that the trial judge made those findings necessary to support the judgment.’” Fielding v. Fielding, 24 So.3d 468, 472 (Ala.Civ.App.2009) (quoting Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992)).

Initially, we note that

“the principles of Ex parte Bayliss, 550 So.2d 986 (Ala.1989), do not generally apply in the context of a parent’s contractual undertaking to provide postmi-nority support to minor children that is incorporated into a binding judgment. As we ‘specifically pointfed] out’ in Simpkins v. Simpkins, 595 So.2d 493, 495 (Ala.Civ.App.1991), which involved a petition to modify a contractual undertaking similar to that entered into by the parties in this case in 2001, ‘this is not a Bayliss fact situation or proceeding.’”

Thomas v. Campbell, 960 So.2d 694, 697 (Ala.Civ.App.2006). Instead, a trial court’s consideration of a modification request is governed by the principle that “an agreement between the parties fixing child support payments, when incorporated into a judgment, becomes merged into the judgment and thereby loses its contractual nature to the extent that a court of equity has the power to modify the decree when changed circumstances so justify.” Ralls v. Ralls, 383 So.2d 857, 859 (Ala.Civ.App.1980) (overruled on other grounds by Ex parte Bayliss, 550 So.2d at 994); see also Wesley v. Wesley, 627 So.2d 441, 444 (Ala.Civ.App.1993) (postminority-child-support awards may be modified just as any other award of child support may be modified); see also Dunigan v. Bruning, 64 So.3d 645 (Ala.Civ.App.2010).

Thus, the father’s contention that the trial court in this case did not have jurisdiction to modify the 2007 modification judgment incorporating the June 2007 agreement of the parties is without merit. The father himself sought a modification in this case and alleged a change in circumstances, namely that the middle child had reached the age of majority. Because the parties’ June 2007 agreement as it pertained to child support had been incorporated into a modification judgment specifying the father’s child-support obligations and the father’s responsibility to pay one half of the eldest child’s “college books and tuition expenses,” that judgment was subject to further modification upon proof of changed circumstances. See Ralls and Wesley, supra.

Regarding the father’s contention that the mother, on behalf of the middle child, did not properly seek Bayliss support before the middle child attained the age of majority, we note again that the postminority support in this case does not arise from an application of Bayliss and its progeny. See Thomas and Simpkins, supra. The parties’ 2001 divorce judgment contained the agreed language “[t]hat all reasonable college expenses for the parties’ children shall be equally divided between the parties.” The mother’s counterclaim seeking interpretation of the parties’ duties to divide all the children’s “reasonable college expenses” in light of the fact that the middle child had attained 19 years of age and had become a college student was not subject to the strictures contained in Bayliss. Thus, the father’s reliance on Ex parte Barnard, 581 So.2d 489 (Ala.1991), which involved a Bayliss situation, is misplaced because that case is inapplicable to facts presented here.

The father also tries to avoid an obligation to pay for a portion of the middle child’s college expenses by pointing out that the 2007 modification judgment had addressed postminority support only for the eldest child; however, that fact actually supports the trial court’s conclusion that the 2007 modification judgment dealt only with the eldest child and did not amend or otherwise negate the agreed provision in the original divorce judgment addressing the parties’ responsibilities to defray the “reasonable college expenses for the parties’ children.” Just as the father contends, albeit to convince this court of error below, the parties competently and clearly specified the terms of the divorce judgment just as much as they later specified the provisions regarding the eldest child’s college expenses contained in the modification judgment.

We have previously determined that an agreement between parents to pay postmi-nority support that is entered after a child reaches the age of majority and that is incorporated into a divorce judgment is enforceable even though a modification petition to enforce the agreement was not filed during the child’s minority. See Jackson v. Nelson, 686 So.2d 338, 339 (Ala.Civ.App.1996). In Jackson, the parties jointly filed an agreement to pay postmi-nority support after the child had reached the age of majority, but this court concluded that the agreement was nonetheless enforceable. Jackson, 686 So.2d at 339.

The facts in this case even more strongly support the trial court’s decision to enforce the parties’ postminority-support agreement. In this case, the parties jointly agreed to the postminority-support language well before any of the children had reached the age of majority, and that agreement was incorporated into the parties’ divorce judgment at their mutual request. We think it disingenuous for the father to now assert that the provisions of the parties’ divorce judgment no longer apply, thus relieving him of the obligation to assist in paying for the middle child’s college education. Compare Godwin v. Davis, 56 So.3d 646 (Ala.Civ.App.2010) (trial court erred in ordering father to pay postminority support for child when mother failed to file her petition for postminority support before child attained the age of 19 and father never agreed to make support payments that he was not required to make under the divorce judgment and he did not voluntarily agree to pay postminority support). We cannot conclude that the trial court erred to reversal in its decision to enforce the parties’ divorce judgment regarding payment of college expenses as to one of the children left unaddressed in the 2007 modification judgment.

The father also contends that the trial court erred in continuing his postminority-support obligation as to the eldest child in light of that child’s admission of having received semester grades below a “C” average. The father relies solely on Taylor v. Taylor, 991 So.2d 228, 235 (Ala.Civ.App.2008), to support his contention that he should not be required to pay any further postminority-educational costs for the eldest child. We disagree.

In cases involving requests to establish or modify a postminority-support award governed by Bayliss, this court has held that a trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. See Manring v. Manring, 744 So.2d 919, 922 (Ala.Civ.App.1999); Hocutt v. Hocutt, 591 So.2d 881, 882 (Ala.Civ.App.1991); and Kent v. Kent, 587 So.2d 409, 412 (Ala.Civ.App.1991). Those limitations have usually included “ ‘ “(1) limiting the support to a reasonable time period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring the child to be enrolled as a fulltime student.” ’ ” Manring, 744 So.2d at 922 (quoting Ullrich v. Ullrich, 736 So.2d 639, 643 (Ala.Civ.App.1999), quoting in turn Bahri v. Bahri, 678 So.2d 1179, 1181 (Ala.Civ.App.1996)); see also Taylor, 991 So.2d at 235; and Penney v. Penney, 785 So.2d 376, 379 (Ala.Civ.App.2000).

In this case, however, as noted previously, the parties’ obligation to pay postmi-nority support was not governed by Bay-liss principles but was stipulated in an agreement that was incorporated into the parties’ divorce judgment. The 2007 modification judgment added the following specific language pertaining only to the eldest child and conditioning the payment of college expenses for “as long as the child is enrolled as a full-time student in a state, in-state college ok university, maintains a ‘C’ average and provides her grades to the [father] within 10 days of ... receipt of same” (emphasis added). The father contends that because the eldest child earned a semester GPA below a “C” average, he is no longer responsible for payment of any further postminority support for that child. Although we can find no cases supporting the father’s premise that once a child in college has suffered one semester of grades below a “C” average a postmi-nority-support award necessarily must terminate, we will not end the inquiry there.

As best we can discern, this is an issue of first impression in Alabama. Although there are numerous cases regarding the enforcement of differently worded agreements to pay, or judgments requiring payment of, postminority support, we can find no definitive statement regarding the definition of the language used by the parties in the agreement at issue in this case. A number of reported cases reference a cumulative GPA of not less than a “C” average in order to receive postminority support. See, e.g., Penney, 785 So.2d at 381; Murrah v. Turnipseed, 578 So.2d 1340, 1341 (Ala.Civ.App.1991); and Thrasher v. Wilburn, 574 So.2d 839, 840 (Ala.Civ.App.1990). Other cases merely use language similar to that used by the parties in this ease, ie., for a student to “maintain a ‘C’ average.” See, e.g., Dunigan v. Bruning, 64 So.3d at 647; Ryland v. Ryland, 12 So.3d 1223, 1236 (Ala.Civ.App.2009); and Waddell v. Waddell, 904 So.2d 1275, 1281 (Ala.Civ.App.2004).

Although this court reversed a trial court’s attempt to interpret an unambiguous postminority-support provision in Amie v. Conrey, 801 So.2d 841 (Ala.Civ.App.2001), the trial court in this case did not state any express findings of fact or conclusions of law but ordered the mother and the father to continue equally splitting the two college-age children’s educational costs. Because we must assume that the trial court made those findings necessary to support its decision, we conclude that the trial court must have determined that the term “maintains a ‘C’ average” in its 2007 modification judgment refers to a cumulative GPA, which the mother stated was above a “C” average. Moreover, trial courts have the power to construe the terms of their judgments. See, e.g., Ex parte Littlepage, 796 So.2d 298, 301 (Ala.2001), and Hammock v. Hammock, 867 So.2d 355, 358 (Ala.Civ.App.2003); see also Long v. Long, 45 So.3d 365, 367-68 (Ala.Civ.App.2010). We cannot conclude that the trial court acted outside its discretion when it interpreted the phrase “maintains a ‘C’ average” to reflect the eldest child’s overall, aggregate, or cumulative success in the chosen college curriculum. We do not perceive justice in the father’s premise that if a child in college has one “bad” semester, all postminority educational support should necessarily end. Further, because we conclude that the trial court in this case could properly read its modification judgment incorporating the parties’ June 2007 agreement to require the eldest child to maintain a GPA of “C” or better as requiring the maintenance of an overall “C” GPA, we decline to reverse the trial court’s judgment on that ground.

The trial court’s judgment is due to be affirmed.

AFFIRMED.

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

      . Because the parties agreed on the record that the youngest child was still a minor, the record does not reflect that child’s birthdate.

      . The father’s wife testified that she had attempted to obtain through her employer a full scholarship for the middle child, but that that effort had failed because the mother had refused to send income information to the father's wife for submission with the application.

      . We note that, to the extent that Ralls held that "a court does not have the power, in the absence of an agreement, to order a parent to support an adult child,” 383 So.2d at 859, Bayliss expressly overruled Ralls. Bayliss, 550 So.2d at 994.

      . We note that Taylor, supra, involved a parent's obligation to provide postminority support pursuant to Bayliss.

      . We note that the eldest child's college transcript was not included as part of the record on appeal.


text:
    Amber Dawn McELHENY v. Leonard John PEPLINSKI.
    2090365.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2010.

      Jerry Wayne Baker, Jr., Albertville, for appellant.
    Joan-Marie Dean, Huntsville, for appel-lee.
   PITTMAN, Judge.

Amber Dawn McElheny (“the mother”) appeals from a judgment of the Marshall Circuit Court modifying a 2001 judgment that had divorced her from Leonard John Peplinski (“the father”), had awarded the parties joint legal custody of the parties’ son (“the child”), and had awarded her primary physical custody of the child. The modification judgment under review awarded the parties joint legal and physical custody of the child. We affirm.

In August 2007, the mother petitioned for a modification of child support, alleging that the father’s income and the child’s needs had increased. Additionally, the mother asked the court to reduce the father’s visitation rights to, essentially, those specified in a standard form order in customary use in the judicial circuit, instead of the Thursday-night-through-Monday-night visitation arrangement that had been ordered by the trial court in 2003. In September 2008, the father asserted a counterclaim seeking primary physical custody of the child or, in the alternative, an award of joint physical custody of the child. In support of his claim, the father alleged that “a material change in circumstances” had occurred and that it was “no longer in the best interest” of the child to live with the mother. Following an ore tenus proceeding, the trial court awarded joint legal and physical custody of the child to the parties. The mother then filed a postjudgment motion to alter, amend, or vacate the judgment, to which motion the father filed a response in opposition. Upon review, the trial court granted the mother’s motion in part and denied it in part, but it did not alter the custody determination. The mother thereafter appealed to this court.

The mother raises two issues on appeal. First, the mother argues that the trial court erred to reversal by modifying custody. Second, the mother argues that the trial court erred in not awarding her child support based on the alleged difference in the parties’ earning capacities. We address each issue in turn.

The mother asserts that she was initially awarded primary physical custody of the child in the parties’ divorce judgment and that she continued to have primary physical custody after the trial court modified the father’s visitation in 2003. The father contends that because the record on appeal does not contain the divorce judgment or the most recent custody-modification judgment, the fact that the mother had previously been awarded primary physical custody of the child was not established. The father argues that the mother testified only that she had “custody” of the child, which, he claims, is insufficient evidence that she had been awarded primary physical custody. Therefore, he claims, the record does not show that the judgment from which the mother has appealed was, in fact, a modification of a previous award of custody favoring the mother. Notwithstanding the father’s arguments, however, the record shows that the father, in his counterclaim seeking a modification of custody, expressly acknowledged that the mother had previously been awarded and, at that time, had primary physical custody of the child. Additionally, in that counterclaim, the father asked the trial court “to take judicial knowledge of all things had and done in [the] matter.” The father’s statements in his pleadings “constitute judicial admissions” that are conclusive of the issue. See Holway v. Wanschek, 690 So.2d 429, 434 (Ala.Civ.App.1997). We conclude that the record, therefore, reveals that the mother had primary physical custody of the child at the outset of this proceeding.

The record shows that the parties and the child lived in Grant at the time the parties were divorced in 2001. After the divorce, the father continued to reside in the parties’ former home in Grant. The father testified that he had remarried in 2003 and lived with his wife (“the stepmother”) and their son (“the half brother”), who had been diagnosed with cerebral palsy. On the other hand, after the divorce, the mother and the child moved to Scant City, approximately 20 miles from Grant, where they had lived with the mother’s father (“the maternal grandfather”) for approximately one year. The mother and the child had thereafter moved to Arab for approximately 11 months before returning to the maternal grandfather’s home because the mother had experienced financial problems. In May 2008, the mother and the child had moved to Gadsden to live with the mother’s new husband and his mother.

Although the record does not reveal the distance (in miles) between Gadsden and the maternal grandfather’s house, from which the mother and the child had moved, the mother avers that her current residence in Gadsden is 49 miles from Grant and the father avers that the mother’s current residence in Gadsden is between 54 and 67 miles away from his home. Nonetheless, the record shows that the child had spent a total of approximately three hours per day in an automobile when he had commuted back and forth from the mother and child’s new residence in Gadsden and the child’s school in Grant. Both parties testified that the child had been “tired” in the mornings; the mother claimed, however, that the child was always “tired” and “cranky” irrespective of whether he was at the mother’s or the father’s house. The mother testified that their routine, after they had moved to Gadsden, required the child to wake up around 5:45 a.m. and that he had usually gone to bed around 9 or 9:30 p.m.

At trial, the father testified that he was seeking additional custody rights as to the child, either an award of primary physical custody or joint physical custody; he averred that, in his opinion, the child needed to be removed from the “hostile environment” of living with the mother, that “everything [the child] does is in Grant,” and that the child needed paternal guidance because he was maturing. The father explained that he had been prompted to seek additional custody rights after the child had allegedly told the father in August 2008 that he had not been getting along with the mother. He testified that, along with the child’s school, all the child’s friends were located in Grant. He further alleged that the child had asked him questions about male sexual physiology that, the father claimed, only he could fully answer.

The father also testified that, because of the needs of the half brother, he and the stepmother have arranged their work schedules so that one of them is always at home with the half brother. The father stated that he had been an active participant in the child’s life; indeed, both parties testified that the child had been in the father’s care approximately 50 percent of the time since 2003. He testified that he had led the child’s Cub Scout troop; that the stepmother had been the “den mother” of that troop; that he had coached some of the athletic teams on which the child had played; and that the child could no longer play basketball in Grant, as he had done in 2006, because the mother did not have time to accommodate the child’s extracurricular activities. He stated that they had registered the child for scouting activities in Guntersville, a location that was approximately halfway between the parties’ homes at the time. The father testified that they had chosen that location to register the child for scouting so that the father and the mother would equally be able to participate, but he claimed that the mother had accompanied the child to troop meetings only three or four times. The mother, on the other hand, explained that she had not attended the child’s troop meetings because her having not been involved in the way that the father and the stepmother were had made her uncomfortable. The record reveals that the child had also taken karate classes on Tuesday and Thursday nights in Albertville, to which the mother would drive him after school and from which the father would pick him up, on those nights that the father exercised visitation. When asked whether she had prevented the child from participating in other extracurricular activities, the mother stated that she had not. The mother explained that she had let the child choose whether he wanted to enroll in basketball or karate and that he had chosen karate. The father, on the other hand, averred that the mother’s schedule had prevented the child from getting involved in certain unspecified extracurricular activities; he testified that the child had missed parts of his childhood.

The mother testified that she had worked as a dispatcher for a county sheriffs department after the parties’ divorce and had pursued a bachelor’s degree in elementary education at that time. After she had received that degree, the mother began teaching at a school in Grant in August 2006. The child, who had originally attended school in Scant City, had enrolled at the school where the mother was teaching in August 2006 upon the agreement of both parties. At trial, the parties expressed no current plans to enroll the child in another school. The mother testified that she had been granted tenure at that school and that she had no current plans to find work anywhere else. Both parents testified that the child had many friends in Grant and that he often attended spend-the-night parties with those friends on the weekends. The mother testified that she had always driven the child to Grant so that he could visit his friends on the weekends.

The mother testified that she had petitioned to have the father’s visitation reduced because, she claimed, the father’s work schedule was such that the child would routinely spend his visitation time with the stepmother instead of the father. Specifically, the mother testified that the child had recently spent his birthday with his stepmother, rather than the father or the mother, and that it had hurt her feelings. The mother also stated that the child had become confused about the arrangement and, she averred, would often be unsure with whom he was supposed to commute on those days that the parties typically exchanged the child.

Although the exact terms of the father’s preexisting visitation rights are not clear from the record, it appears that the father had originally been awarded visitation for every other Thursday evening at 6 p.m. until the following Monday evening at 6 p.m. Following the modification, in 2003, he had also exercised visitation with the child every Tuesday night. The record further reveals that the parties had shared custody of the child during the summer for rotating, two-week intervals.

The record shows that the mother would drop the child off at the father’s house on those days that the child visited the father. Before 2006, when the child attended school in Scant City, he would ride the bus home on Mondays, even though the father had visitation until 6 p.m. The record shows that, once the child began attending school in Grant, the mother would drop the child off at the father’s house after school, despite the trial court’s order that had instructed the father to pick up the child. However, the record further shows that, at the beginning of the 2008 school year, the mother had driven the child back to Gadsden and had required the father to pick up the child at their home there, which had resulted in the child’s traveling in the car for an additional hour and a half on those nights that the child was scheduled to visit his father; the mother admitted that the additional travel time had likely not been a fair arrangement for the child, but she stated that it had not been her intent to harm the child. The record also shows that the child had consistently made grades of A or B in school; the mother, however, admitted that the child had the potential to do much better. The mother testified that she had tried to avoid communicating with the father about visitation because, she claimed, he had been “condescending” to her in the past. The record shows that the parties primarily communicate by sending text messages to one another and through e-mail.

After the trial court ordered the parties to share joint physical custody of the child on an rotating week-to-week basis, the mother argued, in her postjudgment motion, that the trial court had had no basis on which to divest her of primary physical custody. Additionally, she contended that the trial court had erred in denying her claim for modification of child support; that it had acted outside its discretion in not setting forth custody arrangements for holidays and school vacations; that it had erred in not allocating responsibility for providing health-insurance coverage or for defraying other medical, dental, and pharmaceutical expenses not covered by insurance; and that the trial court had erred in not awarding the mother an attorney fee.

In response to the mother’s motion, the father argued that the trial court’s award of joint physical custody was supported by the evidence. In further opposition to the mother’s motion, the father contended that the trial court’s award of joint physical custody rendered the matter of whether to award child support to either parent discretionary with the trial court and that the trial court had properly exercised that discretion. However, the father conceded that it might be “prudent” for the trial court to amend its order to address how the parties should exercise custody during certain times of the year and in making certain decisions for the child. Additionally, the father proposed a plan allocating decision-making authority regarding various aspects of the child’s life between the parties. Upon its review of the filings, the trial court denied the mother’s requests to vacate its ruling on the custody and child-support issues. However, the trial court provided, in its order, that the child was to continue attending the school he had been attending and that the father would be responsible for providing health-care insurance for the child.

It is well settled that, to modify a previous custody award, “[t]he parent seeking the custody change must show not only that [he or] she is fit, but also that the change of custody ‘materially promotes’ the child’s best interest and welfare,” a standard most notably articulated and adopted in Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984). That case further states:

“ ‘[The McLendon standard] is a rule of
repose, allowing the child, whose welfare
is paramount, the valuable benefit of
stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent [judgment] demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.’ ”

McLendon, 455 So.2d at 865-66 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)); see also Ex parte Cleghorn, 993 So.2d 462, 469 (Ala.2008) (holding that a party seeking a modification of custody need not establish that a material change in circumstances has occurred such that it is overwhelmingly necessary to modify custody). Because the record, as we have discussed, reflects that the mother retained primary physical custody of the child at the commencement of the proceedings in the trial court, the father’s request for a change in custody was due to be considered by the trial court in light of McLendon. See Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994) (“If one parent has previously been granted primary physical custody or if one parent has ‘given up’ legal custody, then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the child.”); Berrey v. Berrey, 622 So.2d 1316, 1318 (Ala.Civ.App.1993) (holding that McLendon governed when the parties shared joint legal custody but the mother had primary physical custody subject to the father’s visitation).

The mother contends that the trial court’s modification judgment should be reversed because, she claims, the father failed to meet the McLendon standard, as a matter of law. The mother alternatively contends that the cause should be remanded because, she avers, the trial court did not expressly state the custody-modification standard that it had applied in its judgment. In asserting that second argument, the mother relies on C.A.M. v. B.G.H., 869 So.2d 507 (Ala.Civ.App.2003), in which a trial court had modified its previous award of primary physical custody to the mother to award primary physical custody to the father in response to the father’s claim that the mother was sexually abusing the child in that case. In its modification judgment, however, the trial court did not identify the custody-modification standard that it had applied, nor did it set forth the factors that it had considered in reaching its determination. As a result of this court’s “inability to determine the standard” that the trial court had applied in that case, combined with “the particularly close facts” of that case, we remanded the case “to allow the trial court to evaluate the evidence in accordance with the standard set forth in Ex parte McLendon." C.A.M., 869 So.2d at 508.

It is well settled, however, that we “will not presume error on the part of the trial court,” Pickett v. Pickett, 792 So.2d 1124, 1128 (Ala.Civ.App.2001), nor do we require a trial court to set forth “conclusions of law in its final order unless a statute specifically requires it to do so,” Taylor v. Taylor, 387 So.2d 849, 852 (Ala.Civ.App.1980); see also Rule 52(a), Ala. R. Civ. P. Moreover, the facts in C.A.M. are distinguishable from the facts in this case because they were “particularly close.” Likewise distinguishable from this case is Wood v. Wood, 29 So.3d 908, 911 (Ala.Civ.App.2009), another case cited by the mother in support of her position. In Wood, we reversed the judgment and remanded the case to the trial court after concluding that the trial court had erred in treating the mother’s agreement to allow the father to exercise visitation in accordance with his work schedule as being a voluntary relinquishment of the mother’s primary physical custody so as to lessen the burden that the father was required to meet. 29 So.3d at 911. Although the trial court’s judgment in Wood was indeed silent as to the modification standard that that court had applied, the findings of fact made by the trial court in that case indicated that the trial court had applied an improper modification standard, and, thus, we had no basis on which to not presume error.

In this case, however, the trial court’s judgment stated that “[hjenceforth, the parties shall share joint physical custody,” which language indicates to us that the trial court undoubtedly treated its decision as a modification of a previous custody arrangement under which a party was entitled to primary physical custody. Accordingly, we must presume that the court applied the McLendon standard. Even if the trial court had applied the wrong standard, “when the standard applied by the trial court in reaching its custody determination is improper, that judgment is due to be reversed and the cause remanded unless the error is harmless.” McCain v. McCain, 895 So.2d 362, 363 (Ala.Civ.App.2004) (citing Rehfeld v. Roth, 885 So.2d 791 (Ala.Civ.App.2004)) (emphasis added); see also West v. Rambo, 786 So.2d 1138, 1141 (Ala.Civ.App.2000) (indicating that, if evidence supports a change of custody under the McLendon standard, a trial court’s application of the standard set out in Ex parte Couch, 521 So.2d 987 (Ala.1988), is harmless). Thus, our next step in analyzing the propriety of the trial court’s judgment is to determine whether the facts of this case satisfy the McLendon standard.

When we review a trial court’s judgment with regard to child custody that is based on ore tenus evidence, we afford a presumption of correctness to that judgment and we will reverse only if “ ‘the evidence ... fails to support the determination [so] that [that judgment] is plainly and palpably wrong....'"'" Gilliam v. Gilliam, 876 So.2d 1135, 1140 (Ala.Civ.App.200S). “ ‘This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility[, which] opportunity ... is especially important in child-custody cases.’ ” Id.

The record reveals undisputed evidence indicating that the mother’s move to Gadsden requires the child to be in the car for approximately three hours everyday, but the record is unclear as to the distance between the mother and the child’s new home in Gadsden and the paternal grandfather’s house in Scant City, where the mother and the child had resided before moving to Gadsden. The record does, however, show that their home in Gadsden is 49 miles from Grant, where the child’s school was located, and between 54 and 67 miles from the father’s house, also in Grant. In Marsh v. Smith, 37 So.3d 174, 178 (Ala.Civ.App.2009), we recognized that a change in the principal residence of the child is “presumed not to be in the best interest of [the] child [and] is necessarily a material change” when that relocation is to a location that is more than 60 miles away or across state lines. 37 So.3d at 178 (citing Toler v. Toler, 947 So.2d 416 (Ala.Civ.App.2006)); cf. Ala.Code 1975, § 30-3-169.4 (addressing relocations of greater distance than 60 miles or across state lines). In this case, the mother and the child’s relocation to Gadsden does not give rise to a presumption that that relocation is a material change and not in the child’s best interest, under Marsh, because the record does not establish that the relocation is more than 60 miles away from the maternal grandfather’s house, though it is likely close. However, the trial court may consider a change in principal residence as a factor in determining whether to modify custody, Marsh, supra, and, especially in light of the increased amount of time that the child is required to travel to school and to his activities, the trial court had ample bases to do so here. The evidence presented also supports the conclusion that the time that the child has had to do his homework is necessarily compromised by the commuting time to and from school everyday from the mother’s Gadsden home and that the long drive is the reason why, as both parents testified, the child is “tired.” Although the record shows that the child had performed well in school, the mother testified that the child actually had the potential to perform better. Because the evidence supported the propositions that a change in the principal residence of the child had occurred following the most recent custody judgment and also that that change had detrimentally affected the child, the trial court’s modification of custody did not amount to error.

The record further shows that the trial court could have properly considered the desirability of fostering the child’s relationship with the father, as evidenced by the undisputed testimony that the child had been maturing and had asked sensitive biological questions that would ideally be most comfortably addressed to, and answered by, the father, to be an additional factor favoring modification of custody. See Gilliam, 876 So.2d at 1141 (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)). Moreover, the rotating, week-to-week custody arrangement ordered by the trial court is not ipso facto inconsistent with the emphasis on stability expressed in the McLendon standard. Indeed, the week-to-week arrangement could have been viewed by the trial court as a more stable routine for the child, as compared to the previously ordered arrangement (which had awarded the father visitation for every other Thursday night through Monday night and every Tuesday night), especially in light of the mother’s testimony that the child had been confused by that previous arrangement.

Finally, we acknowledge that “ ‘[t]he joy of companionship and of daily service for one’s children are among the sacred rights of parenthood’ ” and that such “ ‘relations hold the best there is in life.’ ” Statham v. Statham, 282 Ala. 322, 326, 211 So.2d 456, 459-60 (1968) (quoting Sparkman v. Sparkman, 217 Ala. 41, 43, 114 So. 580, 582 (1927)). We agree with the father’s argument that, in this case, the trial court found a way to award both parents that “ ‘joy of companionship’ ” and enabled the child to better adjust to those changes that resulted from the move to Gadsden.

Because we have determined that the record exhibits adequate grounds on which the trial court could have modified custody and properly awarded joint physical custody to the parties, the trial court had no legal obligation to require the father to pay any child support to the mother. Allen v. Allen, 966 So.2d 929, 932-33 (Ala.Civ.App.2007) (quoting Boatfield v. Clough, 895 So.2d 354, 357 (Ala.Civ.App.2004)) (holding that a trial court is not required to provide for a child-support obligation when it orders parents to share joint physical custody of the child). Therefore,- the mother’s second issue concerning the trial court’s decision not to award child support to either party, notwithstanding claimed differences in the parties’ earnings, is without merit.

For the reasons stated above, the trial court’s judgment is due to be affirmed.

AFFIRMED.

BRYAN and MOORE, JJ., concur.

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

      . The mother's motion to supplement the record is thus denied as moot.

      . The father presented evidence in the form of a calendar indicating those days of the week that the child had routinely been in his care, which showed that the child had been in his care approximately 50 percent of the time. The mother testified that the calendar was accurate.


author: PER CURIAM. KELLUM, Judge,

text:
    James E. BAGLEY v. STATE of Alabama.
    CR-09-1410.
    Court of Criminal Appeals of Alabama.
    Nov. 5, 2010.
    Rehearing Denied Nov. 19, 2010.
    Certiorari Denied Jan. 7, 2011 Alabama Supreme Court 1100280.
    James E. Bagley, pro se.
    Troy King, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH and MAIN, JJ., concur. KELLUM, J. concurs specially, with opinion. WISE, P.J., and WINDOM, J., concur in the result.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Bagley’s fifth Rule 32, Ala. R.Crim. P., petition challenging his 1995 guilty-plea conviction. I believe that allowing Bagley to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to adopt sanctions pursuant to Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Bagley. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009), and cases involving other similarly situated inmates.


author:
KELLUM, Judge.
      WELCH, Judge, MAIN, Judge,

text:
    David Christopher MAYE v. STATE of Alabama.
    CR-09-1547.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Leonard F. Mikul, Bay Minette, for appellant.
   KELLUM, Judge.

The appellant, David Christopher Maye, appeals from the circuit court’s revocation of his probation. The record indicates that Maye was convicted of the unlawful distribution of a controlled substance, a violation of § 13A-12-211, Ala.Code 1975. The record does not contain details of Maye’s sentence; however, the record does indicate that Maye was sentenced to eight years’ imprisonment and was placed on supervised probation in 2008.

While on probation, Maye violated the terms and conditions of his probation. Maye was subsequently arrested, and on October 7, 2009, he was given notice that he violated the terms and conditions of his probation by failing to pay court-ordered moneys, failing to appear in court in April 2009 and June 2009, failing to enter and complete a treatment program, failing to meet with the court-referral officer, failing to report to his probation officer, and failing to pay supervision fees. While out on bond, Maye was arrested again for alleged probation violations. On June 2, 2010, the circuit court notified Maye that, in addition to the violations alleged in October 2009, Maye had violated the terms and conditions of his probation by failing to do submit to drug screens and by failing to appear in court in January 2010 for his revocation proceedings.

The circuit court conducted a probation-revocation hearing on June 80, 2010. At the probation-revocation hearing, Maye admitted to violating the terms and conditions of his probation. Specifically, Maye admitted to the violations as to which he received notice from the circuit court. Based on Maye’s admission, the circuit court revoked his probation and ordered that Maye serve the balance of his eight year sentence. In its order, the circuit court specifically stated that Maye was not a “technical violator,” for purposes of § 15-22-54, Ala.Code 1975. This appeal followed.

Maye’s appointed counsel has filed a brief in substantial compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel stated that he had reviewed the record in an attempt to find a viable issue on appeal. However, counsel concluded that after reviewing the record, the applicable statutes, and caselaw, there existed no viable issues on appeal.

This court issued an Anders order on September 23, 2010. Maye has failed to file any additional points or issues for consideration by this Court. We have also reviewed the record in this case and have found no error harmful to Maye’s rights.

The dissent, in effect, appears to reweigh the evidence before the circuit court, suggesting that this Court should ex mero motu address the application of § 15-22-54, Ala.Code 1975, as amended effective April 30, 2010, to the particular facts of this case. However, Rule 45B, Ala. R.App. P., states:

“In all cases appealed to the Court of Criminal Appeals, except those in which the death penalty has been imposed, the Court of Criminal Appeals shall consider only questions or issues presented in briefs on appeal.”

Our Supreme Court approved Rule 45B, Ala. R.App. P. (effective January 1, 1982), which abolished the “search the record rule” set out in § 12-22-240, Ala.Code 1975, providing that the Court of Criminal Appeals must consider all questions apparent on the record and reserved in the circuit court. See Hoppins v. State, 451 So.2d 365, 365 (Ala.1983). Rule 45B effectively eliminates this Court’s obligation to search the record for plain error in cases in which the death penalty was not imposed. The suggestion in the dissent that this Court address an issue not raised by Maye on appeal overlooks Rule 45B. To the extent the dissent attempts to couch the application of the Technical Violator Act as a jurisdictional issue, it would appear to run afoul of the Supreme Court’s recent decision in Ex parte Collins, [Ms. 1091310, November 24, 2010] - So.3d - (Ala.2010), in which the Supreme Court reversed a judgment of this Court based on its determination that this Court impermissibly took notice of a defect not raised by either party on appeal. In any event, Maye is not without options. If at some future point Maye believes that he meets the qualifications set out in § 15-22-54.1, Ala.Code 1975, he may file a petition seeking reconsideration of his sentence based on his status as a technical violator under § 15-22-54(d)(l)f.

Based on the foregoing, the judgement of the circuit court is affirmed.

AFFIRMED.

WINDOM, J., concurs. WISE, P.J., concurs in the result. WELCH, J., concurs in the result, with opinion. MAIN, J., dissents, with opinion.

WELCH, Judge,

concurring in the result.

I agree with the Court’s decision to affirm the circuit court’s revocation of David Christopher Maye’s probation and to impose the balance of his eight-year sentence. However, I disagree with the Court’s analysis. Therefore, I respectfully concur in only the result.

Section 15 — 22—54(d)(l)f and -54(2)(a), Ala.Code 1975, provide:

“f. If the probation violation is a technical violation, defined as a violation of a condition of probation other than the commission of a new offense, an eligible offender may be required to serve a term of not more than 90 days imprisonment in a Department of Corrections facility, which may include participation in the restart program, LIFE-Tech program, or a technical violator program or, if no space is available in a Department of Corrections facility, not more than 90 days in the county jail.
“(2)a. An eligible offender subject to paragraph f. of subdivision (1) is a nonviolent felon serving a probationary sentence who has violated a condition or conditions of probation other than by the commission of a new offense and who has performed the conditions of probation, including remaining current on payment of court ordered money, for a consecutive six-month period.”

The record reveals that on October 7, 2009, the circuit court issued an order entitled: “Probation Violation Notice and Commitment to Baldwin County Jail.” In that order the circuit court found that “[Maye] owes $2,715.35 failure to pay” among other violations. (C. 4.)

On June 2, 2010, the circuit court issued another order entitled: “Probation Violation Notice and Commitment to Baldwin County Jail.” In that order, the circuit court found that “[Maye] owes $2,777.35, has pd. 200.00, failure to pay” among other violations. (C. 6.)

In a probation-revocation hearing held on June 30, 2010, Maye admitted that he had violated the terms and conditions of his probation, including the failure to pay court-ordered monies.

After that admission, the circuit court stated:

“All right. Mr. Maye, I’m going to order that you serve your eight-year sentence in the penitentiary. You are not considered a technical violator. And no measure short of confinement will avoid depreciating the seriousness of the violation.”

(R. 7.);(emphasis supplied.)

The record, as reflected in the above quotes, affirmatively shows that the circuit court correctly determined that Maye was not an “eligible offender” as described in § 15 — 22—54(d)(l)f and -54(d)(2), Ala.Code 1975, because at the time of the hearing Maye had not “performed the conditions of probation, including remaining current on payment of court ordered money, for a consecutive six-month period.”

Therefore, the record supports the circuit court’s ruling. For that reason, I would affirm.

MAIN, Judge,

dissenting.

I respectfully dissent from the main opinion affirming the revocation of David Christopher Maye’s probation and the imposition of the balance of his eight-year sentence.

This case was submitted to this Court by the procedure recognized in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Appellate counsel submitted a brief to this Court indicating that he found no viable issues to raise on appeal and requested to withdraw from his appointed representation of Maye. Maye did not avail himself of the opportunity to file pro se issues for this Court’s review. The opinion indicates that the Court has reviewed the record and found no error harmful to Maye’s rights.

Section 15-22-54, Ala.Code 1975, provides the statutory framework for the setting of a probationary period, and the revocation thereof, and was recently amended by the Alabama Legislature to limit incarceration in the penitentiary for technical violations of probation. Section 15-22-54(d), as amended effective April 30, 2010, provides, in pertinent part:

“(1) If the defendant violates a condition of probation or suspension of execution of sentence, the court, after a hearing, may implement one or more of the following options:
“a. Continue the existing probation and suspension of execution of sentence.
“b. Issue a formal or informal warning to the probationer that further violations may, subject to paragraph f., result in revocation of probation or suspension of execution of sentence.
“c. Conduct a formal or. informal conference with the probationer to reemphasize the necessity of compliance with the conditions of probation.
“d. Modify the conditions of probation or suspension of execution of sentence, which conditions may include the addition of short periods of confinement.
“e. If the violation of probation is the commission of a new offense, revoke the probation or suspension of execution of sentence. If the court revokes probation, it may, after a hearing, impose the sentence that was suspended at the original hearing or any lesser sentence.
“f. If the probation violation is a technical violation, defined as a violation of a condition of probation other than the commission of a new offense, an eligible offender may be required to serve a term of not more than 90 days imprisonment in a Department of Corrections facility, which may include participation in the restart program, LIFETech program, or a technical violator program or, if no space is available in a Department of Corrections facility, not more than 90 days in the county jail.
“(2)a. An eligible offender subject to paragraph f of subdivision (1) is anon-violent felon serving a probationary sentence who has violated a condition or conditions of probation other than by the commission of a new offense and who has performed the conditions of probation, including remaining current on payment of court ordered money, for a consecutive six-month period.
“b. Technical violations of conditions of probation shall be subject to the options provided in paragraphs a., b., c., d., and f. of subdivision (1); provided, however, the court may also continue the existing probation and suspension of execution of sentence with the additional condition that the probationer does any of the following:
“1. Participates in a community corrections program.
“2. Participates in a county work release program.
“3. Performs community service.
“4. Undergoes intensive probation supervision.
“5. Participates in a residential or outpatient drug or alcohol treatment program.
“6. Participates and completes a Life Skills Influenced by Freedom and Education Tech (LIFETech) residential program.”

(Emphasis added.)

In this case, Maye’s probation-revocation hearing was conducted on June 30, 2010, approximately two months after the effective date of the amendment. The circuit court revoked Maye’s probation and ordered that he serve the balance of his eight-year sentence based on Maye’s admission that he had failed to appear in court three times, had failed to pay court-ordered moneys, had failed to report to his probation officer and court referral officer, had failed to enter and to complete treatment programs, and had failed to do drug screens. The circuit court was aware of the recent amendment to the statute, because the circuit court also made the bare finding, both orally at the revocation hearing and in its order revoking probation, that Maye is not a “technical violator.” (C. 2; R. 7.) However, I find no basis in the record for the circuit court’s conclusion that Maye is not a technical violator. None of the grounds for revocation contained in the record are based on the commission of a new offense. Further, the record does not establish that Maye is a violent felon or that he failed to perform “the conditions of his probation, including remaining current on the payment of court ordered money, for a consecutive six-month period.”

I recognize that Maye did not raise this question, either before the circuit court or before this Court when given an opportunity to file pro se issues. I am aware that, as the main opinion discusses, Rule 45B, Ala.R.App.P., effectively eliminated, in cases in which the death penalty was not imposed, the former statutory requirement that this Court search the record and consider all issued apparent on the record and reserved in the circuit court. However, nothing in Rule 45B, to my knowledge, relieves this Court, in Anders cases, of its obligation to review the record for potentially meritorious issues that were preserved for appellate review or for defects that are not subject to the rules of preservation. Here, if Maye is an eligible offender and his revocation was based on technical violations, the circuit court did not have the authority to order Maye to serve the balance of his eight-year sentence, because the execution of that sentence would be illegal. See § 15—22—54(d)(1)f. (an eligible offender may be required to serve not more than 90 days in a DOC facility); Moore v. State, 40 So.3d 750 (Ala.Crim.App.2009) (taking notice of an illegal sentence even though not raised at trial or on appeal); Glass v. State, 14 So.3d 188, 194 (Ala.Crim.App.2008) (recognizing that the issue of the execution of sentences in a manner outside the statutory range of punishment need not be preserved for appellate review because this Court is “required to notice an illegal sentence and remand to the sentencing court for a proper sentence”); and Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994) (“Matters concerning unauthorized sentences are jurisdictional.”). See also Warwick v. State, 843 So.2d 832 (Ala.Crim.App.2002) (sua sponte remanding probation revocation case, submitted via Anders procedure, on the ground that Warwick’s sentence was illegal.).

Additionally, I too am aware of the Alabama Supreme Court’s recent decision in Ex parte Collins, [Ms. 1091310, November 24, 2010] - So.3d - (Ala.2010). In Collins v. State, (No. CR-09-0529, May 7, 2010) — So.3d - (Ala.Crim.App.2010) (table), this Court held that because Collins’s petition for a writ of certiorari was not verified as required by § 6-6-640, Ala.Code 1975, no action was commenced in the circuit court, and, therefore, there was nothing before this Court to review. The Alabama Supreme Court reversed this Court’s judgment, holding that this Court erred in sua sponte affirming the circuit court’s ruling on the basis that the petition was not verified. The Supreme Court stated that verification was “a procedural matter that does not limit the power of the circuit court to adjudicate the petition,” rather than a jurisdictional matter. Ex parte Collins, — So.3d at -. In support of this conclusion, the Supreme Court cited its earlier decision in Ex parte Seymour, 946 So.2d 536 (Ala.2006), in which that Court held that a court’s “subject-matter jurisdiction concerns a court’s power to decide certain types of cases.” and “is derived from the Alabama Constitution and the Alabama Code.” Ex parte Seymour, 946 So.2d at 538. I do not believe that the Alabama Supreme Court’s decisions in Ex paHe Seymour or Ex parte Collins were intended to overrule by implication the line of authority that provides that an illegal sentence is a matter that may be sua sponte recognized by an appellate court. That Court has had opportunities to extend the rationale of Seymour to illegal sentences, but it has not yet done so. For example, in Ex parte Trawick, 972 So.2d 782 (Ala.2007), the Alabama Supreme Court, in addressing a procedural bar in Rule 32.2, Ala.R.Crim.P., stated:

“Trawick’s claim that his sentence is illegal under the HFOA presents a jurisdictional claim. See, e.g., Ex parte Robey, 920 So.2d 1069, 1071-72 (Ala.2004) (holding that because multiple punishments for the same offense constitute a sentence that exceeds the maximum allowed by law and an illegal sentence affects the trial court’s jurisdiction, ‘Ro-bey is not barred from asserting in this successive Rule 32 petition the violation of his double-jeopardy rights’); Ex parte Sanders, 792 So.2d 1087, 1091 (Ala.2001) (‘ “[w]hether a sentence is excessive ... is a jurisdictional issue” that is not precluded by the limitations period of Rule 32, by the rule against successive petitions, or by Rule 32.2(a)(3)’).”

972 So.2d at 783. Ex paHe Trawick was decided after Ex paHe Seymour, and I do not see anything in Ex paHe Seymour or in the recently released Ex paHe Collins opinion as impacting the propriety of this Court’s sua sponte noticing illegal-sentence claims.

It may well be that Maye is not an “eligible offender.” However, given that there is no indication in the record that Maye’s probation was revoked for something other than a technical violation, that he was not a nonviolent felon, or that he did not perform his obligations, including remaining current on the payment of court-order money, for a consecutive six-month penod of time, I believe it premature to attempt to answer that question without first having the parties brief the issue. I recognize that addressing this issue in a case in which I cannot, from the record and lack of argument presently before this Court, state for certain that Maye’s rights were violated in his probation revocation is a step onto a slippery slope. However, given that one of the main reasons for the Anders procedure is to provide an indigent appellant the benefit of an advocate to argue potentially meritorious claims, I believe that the record does raise enough of a question that Maye’s rights may have been violated. That Maye has another avenue to seek relief by filing a petition seeking retroactive application of the technical-violator provision pursuant to § 15-22-54.1, Ala. Code 1975, does not supersede this Court’s review in the present appeal. Thus, I believe that this Court, should, pursuant to the Anders procedure, grant appellate counsel’s motion to withdraw, appoint new appellate counsel, and instruct the parties to brief the issue whether the circuit court’s imposition of the balance of Maye’s eight-year sentence violates § 15-22-54(d)(l)f. For these reasons, I respectfully dissent.

      . The record indicates that Maye’s probation order was dated August 25, 2008, and that his underlying conviction was for distribution of a controlled substance. A probation-violation notice and commitment to jail dated October 7, 2009, contains allegations regarding alleged violations occurring in November 2008 and December 2008, but those dates are marked out. (C. 4.) Those earlier dates do not appear on a later probation-violation notice and commitment to jail dated June 2, 2010. (C. 6.) Nor were those earlier dates mentioned at the revocation hearing or relied on by the circuit court as a basis for revoking Maye’s probation. Another document indicates that Maye had an appearance date of January 27, 2009, for probation violations, but that date appears to be a typographical error, because other dates on that document refer to Maye’s having been arrested on October 2, 2009, and released on November 3, 2009, and the document as having been filed on November 3, 2009 (C. 5); additionally, a number of other documents in the record, and the circuit court at the revocation hearing, refer to Maye’s having failed to appear in court on January 27, 2010, rather than 2009.


author: KELLUM, Judge.

text:
    Frank REESE v. Trey OLIVER, Warden of Mobile County Metro Jail.
    CR-09-1292.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.
    Habib O. Yazdi, Daphne, for appellant.
    Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Frank Reese, appeals from the circuit court’s denial of his petition for a writ of habeas corpus.

On or about September 17, 2008, Reese, a convicted sex offender, was sentenced to 10 years’ imprisonment; that sentence was split to sentence Reese to time served followed by 5 years’ supervised probation. Reese, who was homeless at the time, was subsequently arrested based on his failure to comply with former § 15-20-22(a)(l), Ala.Code 1975 — a part of the Community Notification Act (“the CNA”), § 15-20-20 et seq., Ala.Code 1975 — which required an adult criminal sex offender to provide “the actual address at which he or she will reside or live upon release” to the Alabama Department of Corrections (“DOC”) at least 45 days before the offender’s release from custody. Pursuant to former § 15-20-22(a)(l), Ala.Code 1975, “[a]ny” failure to comply with the requirements of that Code section constituted a Class C felony.

On October 27, 2009, Reese, an inmate incarcerated at the Mobile County Metro Jail, petitioned the Mobile Circuit Court for a writ of habeas corpus, requesting that the circuit court declare unconstitutional that portion of former § 15-20-22(a)(1), Ala.Code 1975, that required him to provide an actual physical address to DOC or otherwise to be subject to incarceration, to dismiss the indictment against him, and to order his immediate release from jail. In his petition, Reese alleged that he was indigent and homeless. On that basis, Reese alleged that former § 15-20-22(a)(l) was unconstitutional because (1) the statute was vague on its face and as applied to homeless sex offenders like himself; (2) the statute constituted cruel and unusual punishment as applied because it penalized him for his status as an indigent, homeless person; (3) the statute violated due-process rights because it punished him for his failure to perform an act when it was impossible for him to comply; and (4) the statute violated his right to equal protection under the law because it caused him to be incarcerated him for his indigence when other offenders who were not indigent would not be punished under the statute.

On November 25, 2009, Oliver, as warden of the Mobile Metro Jail, filed a response to Reese’s petition for a writ of habeas corpus. On May 13, 2010, the circuit court denied Reese’s petition. This appeal followed.

On appeal, Reese reasserts the claims he made in his petition for a writ of habeas corpus, again challenging the constitutionality of former § 15-20-22(a)(1), Ala.Code 1975. This Court recently addressed this issue in State v. Adams, [Ms. CR-08-1728, November 5, 2010] — So.3d - (Ala.Crim.App.2010).

In Adams, the defendant was incarcerated at Kilby Correctional Facility and was scheduled for release in 2008, after completing his sentence. However, before his scheduled release date, Adams was unable to provide DOC with an actual address where he would live or reside after his release. The evidence presented to the trial court indicated that Adams was indigent and that he could find no place to live following his release from incarceration. On his scheduled release date, Adams was arrested and was subsequently indicted for violating § 15-20-22(a)(l), Ala.Code 1975. Defense counsel moved to dismiss the indictment on the basis that former § 15-20-22(a)(l) was unconstitutional. Specifically, counsel argued that that portion of § 15-20-22(a)(l) requiring the defendant to provide “the actual address at which he or she will reside or live upon release” was unconstitutional because:

“(1) it did not provide any notice as to how an adult criminal sex offender who is homeless could comply with the statute and, thus, was vague on its face and as applied to the defendant; (2) it constituted cruel and unusual punishment as applied to the defendant because it punished him for his status as a homeless person; (3) it violated the defendant’s rights to due process because it required the defendant to perform an act that he was incapable of performing; and (4) it violated the defendant’s right to equal protection of the law because it incarcerated him for his indigence when other offenders who were not indigent would not be punished under the statute.”

Adams, — So.3d at -. Agreeing with the arguments asserted by defense counsel, the circuit court dismissed the indictment against the defendant.

The State appealed, arguing that § 15-20 — 22(a)(1) was not unconstitutional. This Court disagreed and held that the registration requirement in former § 15-20-22(a)(1) was unconstitutional as applied to the defendant in Adams, who was both indigent and homeless, because it violated both equal-protection principles and constitutional prohibitions against cruel and unusual punishment. Adams, — So.3d at

In the instant case, Reese was arrested after he failed to comply with the registration requirement in § 15-20-22(a)(1), Ala. Code 1975. Reese filed a habeas corpus petition in which he alleged that he was indigent and homeless and therefore unable to comply with § 15-20-22(a)(1), Ala. Code 1975. Like the defendant in Adams, Reese challenged the constitutionality of the registration requirement in former § 15-20-22(a)(1) on the ground that he was unable to comply with the statute because he was indigent and homeless. Given this Court’s holding in Adams and the allegations raised by Reese in his petition for writ of habeas corpus, the judgment of the circuit court dismissing the habeas corpus petition is reversed, and this cause is remanded to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . That section was amended effective May 21, 2009. The amendment provides, among other things, that 180 days before release from incarceration the offender must declare “the actual physical address” at which he or she will reside or live upon release.


text:
    STATE of Alabama v. Jerome Corvisky PERRY.
    CR-09-1329.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 2010.

      Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellant.
    Terry L. Danford, Montgomery, for ap-pellee.
   KELLUM, Judge.

Jerome Corvisky Perry was arrested and charged with unlawful possession of marijuana in the first degree, a violation of § 13A-12-213, Ala.Code 1975. Perry filed a pretrial motion to suppress the evidence seized from him — plastic bags filled with marijuana — by law-enforcement officials during a traffic stop carried out at a driver’s license checkpoint. Following an evi-dentiary hearing, the trial court granted Perry’s motion to suppress. Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the trial court’s ruling.

The following pertinent evidence was presented by the State at the suppression hearing. On August 6, 2009, Officer Stuart Upshaw of the Montgomery Police Department (“MPD”) was assisting a special operations unit in conducting a driver’s license checkpoint at an apartment complex when he encountered Perry at the checkpoint. As Officer Upshaw approached Perry’s vehicle, he could smell the odor of marijuana emanating from Perry’s vehicle. Perry did not have in the vehicle his driver’s license or proof of insurance. Officer Upshaw asked Perry to step out of his vehicle so that he could conduct a patdown search. As Perry stepped out of the vehicle, Officer Upshaw observed that Perry’s left hand remained in his left pant pocket, which Officer Up-shaw found suspicious. While patting Perry down, Officer Upshaw felt a hard object approximately 3 or 4 inches long and removed it from Perry’s left pocket. Officer Upshaw testified that he did not immediately recognize what the object was once he felt it in Perry’s pocket. The object turned out to be a yellow, rectangular sandwich-bag box containing small plastic bags holding what Officer Upshaw believed to be marijuana.

The circuit court questioned Officer Up-shaw extensively as to why the officer believed he needed to conduct a patdown search of Perry for weapons. At one point, Officer Upshaw testified that after smelling marijuana, he did not intend to place Perry under arrest “at that point.” (R. 8.) The circuit court ultimately suppressed the drugs seized as the result of Perry’s traffic stop. Although the circuit court did not issue written findings of fact, it is clear from the record of the suppression hearing that the circuit court suppressed the drug evidence on the grounds that Officer Upshaw did not testify that he believed the object in Perry’s pocket to be a weapon and thus, did not have the requisite reasonable suspicion to seize the object pursuant to a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), “patdown” search. The State appealed.

In State v. Landrum, 18 So.3d 424 (Ala.Crim.App.2009), this Court explained:

“ ‘This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).’ State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In State v. Hill, 690 So.2d 1201 (Ala.1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
“ ‘ “Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme 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.” Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term “reasonable suspicion” as applied to an undisputed set of facts; the proper interpretation is a question of law.’
“State v. Hill, 690 So.2d at 1203-04.”

18 So.3d at 426. Because the evidence presented at the suppression hearing is not in dispute, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court’s ruling.

This Court has recognized that a traffic stop is “ ‘ “more analogous” to the brief investigative detention authorized in Terry [v. Ohio, 392 U.S. 1 (1968) ]’ ” than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala.Crim.App.1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala.Cr.App.1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala.Crim.App.1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). “Under Terry [v. Ohio, 392 U.S. 1 (1968) ], law-enforcement officers may stop a vehicle for investigatory purposes based on a traffic violation. State v. Rodgers, 903 So.2d 176, 178 (Ala.Crim.App.2004).” J.T.C. v. State, 990 So.2d 444, 447 (Ala.Crim.App.2008).

“ ‘Whether there is probable cause to merit a warrantless search and seizure is to be determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “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.Crim.App.1991).’ State v. Stallworth, 645 So.2d 323, 325 (Ala.Cr.App.1994).”

Woods v. State, 695 So.2d 636, 640 (Ala.Crim.App.1996). “Sufficient probability, not certainty ..., is the touchstone under the Fourth Amendment.” Allen v. State, 689 So.2d 212, 216 (Ala.Crim.App.1995).

“Warrantless searches are per se unreasonable, unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485 (Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry ‘stop and frisk’ situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976).”

Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995).

Here, upon confronting Perry during a traffic stop, Officer Upshaw smelled marijuana emanating from Perry’s vehicle. This Court has repeatedly held that a police officer has probable cause to search a vehicle or a suspect after the officer smells the odor of marijuana. See, e.g., Blake v. State, 772 So.2d 1200, 1205 (Ala.Crim.App.2000) (holding that the odor of drugs emanating from a vehicle provides probable cause to search the vehicle and to arrest its occupants); Adams v. State, 815 So.2d 578, 581 (Ala.2001) (“A police officer’s detecting the smell of raw or burned mari juana coming from a particular place or person is sufficient to provide probable cause to search that place or person.”). Thus, after smelling the marijuana coming from Perry’s vehicle, Officer Upshaw had the requisite probable cause to search Perry’s vehicle and person and to seize any contraband found therein. Accordingly, Officer Upshaw was justified in conducting the patdown search and seizing the object he felt in Perry’s pocket.

Furthermore, we observe that the subjective beliefs of Officer Upshaw were irrelevant in determining whether Officer Upshaw conducted a valid search and seizure under the Fourth Amendment. In Ex parte Scarbrough, 621 So.2d 1006 (Ala.1993), the Alabama Supreme Court explained:

“Following the [United States] Supreme Court’s preference for an objective standard, we adopt the objective test for determining whether an arrest was pretextual and therefore unlawful. As long as the police officer is doing only what is objectively authorized and legally permitted, the officer’s subjective intent in doing it is irrelevant.-
“In the instant case, the police officers arrested Scarbrough pursuant to a valid arrest warrant. After advising him of his Miranda rights, they merely inquired whether he wanted to discuss the murder. Their conduct was reasonable under the objective test and did not violate the Fourth Amendment. Therefore, the Court of Criminal Appeals properly affirmed the judgment of the trial court.”

621 So.2d at 1010. Officer Upshaw was objectively authorized to search Perry because Officer Upshaw had the requisite probable cause to search Perry’s person and vehicle once Officer Upshaw smelled marijuana. See, Adams, 815 So.2d at 581. The circuit court’s Terry analysis regarding whether Officer Upshaw believed the object in Perry’s pocket to be a weapon ignores the fact that upon smelling the marijuana, Officer Upshaw had probable cause to search Perry’s vehicle and person. Thus, the circuit court improperly weighed Officer Upshaw’s subjective concerns over what Officer Upshaw was “objectively authorized and legally permitted” to do under the Fourth Amendment, contrary to the Alabama Supreme Court’s holding in Scarbrough. Accordingly, the circuit court erred in granting Perry’s motion to suppress.

Based on the foregoing, we reverse the circuit court’s judgment and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . We also note that the circuit court also suppressed statements allegedly made by Perry once he was in custody. Neither the State nor Perry presented evidence in connection with the statements Perry made in custody, and the State does not raise the issue here on appeal. Therefore, the issue is deemed waived, and we will not address the claim on appeal. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.”).