author: PER CURIAM. WOODALL, Justice

text:
    Larry FLUKER v. Pete WOLFF III.
    1081708.
    Supreme Court of Alabama.
    March 19, 2010.
    Rehearing Denied April 20, 2010.

      William Pompey of Pompey & Pompey, Camden; and Collins Pettaway, Jr., of Chestnut, Sanders, Sanders & Pettaway, L.L.C., Selma, for appellant.
    James H. Anderson of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery, for appellee.
    Terry G. Davis of Davis & Hatcher, L.L.C., Montgomery, for amicus curiae Peggy Howell, Evergreen City Clerk, in support of the appellant.
    Kenneth Smith, gen. counsel, Alabama League of Municipalities, for amicus curiae Alabama League of Municipalities, in support of the appellant.

      . Those voters were L.S, N.P, and W.R.

   PER CURIAM.

Larry Fluker appeals from a judgment against him in an election contest filed by Pete Wolff III challenging Fluker’s election to the office of mayor of the City of Evergreen. We affirm.

Facts and Procedural History

On October 7, 2008, a runoff election in the mayor’s race was held in the City of Evergreen (“the City”). The two candidates were Wolff and Fluker, the incumbent. Fluker received 1,028 votes and Wolff received 1,026 votes. On October 14, 2008, the City certified the election results, and Fluker was declared the winner. On October 15, 2008, Wolff filed a contest of the election in the Conecuh Circuit Court. Wolff claimed that legal votes were offered and rejected, which if cast and counted, would have increased the number of legal votes in favor of Wolff to a number that exceeded the number of legal votes in favor of Fluker. Wolff also claimed that illegal votes were cast in favor of Fluker and that if those votes were not counted the number of legal votes in favor of Fluker would be reduced to less than the number of legal votes in favor of Wolff. On October 16, 2008, Fluker responded, claiming that illegal votes were cast in favor of Wolff and that legal votes in Fluker’s favor were rejected and that if both were taken into account his vote tally would still exceed Wolffs.

On October 20, 2008, Wolff filed a motion pursuant to §§ 17-16-45 and -46, Ala. Code 1975, for an examination of the ballots, documents, and election materials, which the circuit court granted. The circuit court set a hearing for December 22, 2008, and December 23, 2008. At the December hearing, Wolffs counsel indicated that he would be challenging persons who voted in the runoff election whose names were not on the list of registered voters maintained by the secretary of state’s office. Wolff had a voter list from the secretary of state’s office dated December 19, 2008. Wolff indicated that he would be challenging voters on several other grounds as well.

Wolff called Peggy Howell, the clerk for the City, as a witness at the hearing. Howell testified regarding the compilation of the voter list used by the City. Howell was asked about absentee-voter information on several voters. Wolff presented the testimony of seven voters who cast votes in person on October 7, 2008, and three voters who voted by absentee ballot:

1. F.D. testified that he was registered to vote but that someone signed an application for him to vote by absentee ballot even though he signed the affidavit affirming that he was voting. F.D. testified that he did not know whom he voted for on his absentee ballot because someone had come to his home and asked him to vote.
2. T.M. testified that he voted in person in the runoff election. He stated that he voted for Fluker. On cross-examination, T.M. testified that he registered to vote on a Sunday but that he did not remember if he registered on September 21, 2008, or September 28, 2008.
3. C.H. testified that he voted in person in the runoff election. He stated that his birth date was correct on the secretary of state’s voter list that was shown to him. He stated that he voted in district four. C.H. testified that his address was on Main Street, but that the City’s list for district four showed a different address.
4. P.C. testified that she voted in person in the runoff election. She stated that the exhibit shown to her by Wolffs counsel and identified as exhibit one (the secretary of state’s voter list) had the correct street for her address but an incorrect number. P.C. stated that she voted for Fluker. Wolffs counsel later stated that P.C.’s name was not on exhibit one.
5. N.G. testified that she voted in person in the runoff election. She stated that when she went to vote, her name was on one list but not on another list so she was told to get an identification card from the board of registrars. N.G. stated that she obtained the card and voted. She stated that her address had changed from when she had originally registered to vote years ago as a result of a new emergency 9-1-1 system. Wolffs counsel stated that N.G.’s name was not on the secretary of state’s voter list.
6. E.R. stated that she voted in person in the runoff election. She stated that she was not on the voter list when she went to vote because she had married and the voter list had her listed under her maiden name. Wolffs counsel stated that neither E.R.’s maiden name nor her married name were on the secretary of state’s voter list.
7. R.T. testified that he voted in person in the runoff election. He stated that he voted for Fluker. Wolffs counsel stated that R.T.’s name did not appear on the secretary of state’s voter list.
8. B.W. testified that she voted in person in the runoff election. Wolffs counsel indicated that B.W.’s name was not on the secretary of state’s voter list.
9. A.S. testified that he voted by absentee ballot and that he voted for Fluker A.S.’s application indicated as his reason for voting absentee that he would be out of town, but his affidavit indicated that he was working a shift that kept him from voting on election day.
10. K.C. testified that he voted by absentee ballot and that he stated on his application that he would be working a shift that would not permit him to vote. K.C. stated in his affidavit that he would be out of the county on election day.

Fluker presented the testimony of two voters regarding their addresses and two voters regarding the date they registered to vote. Next, Wolff challenged 39 absentee voters to whom a subpoena to testify had not been issued. The overwhelming ground for challenging the absentee ballots was that the names of those 39 absentee voters were not on the secretary of state’s voter list dated December 19, 2008. Other reasons for the challenges included, among other things, voting in the wrong district of the City, questionable or incorrect addresses, postmark issues, residency issues, failure to have two witnesses or a notary on an affidavit, improper identification, questions regarding inconsistent signatures on affidavits and applications, and questions regarding inconsistent reasons for voting by absentee ballot. Wolff challenged several votes on more than one ground. Wolff also alleged that 106 additional voters were not on the secretary of state’s voter list.

Fluker challenged 28 absentee ballots that had been cast for Wolff. He challenged 6 absentee voters for using improper identification; he challenged 5 absentee voters for problems with the postmarks on their envelopes; and he challenged 17 absentee voters for failing to state a reason for voting by absentee ballot. Next, Fluker called W.B. to testify regarding his residency. W.B. stated that he voted for Wolff. Fluker also called Patsy Chapman, a member of the Conecuh County Board of Registrars, as a witness. Chapman testified as to the compilation of the voter list for Conecuh County.

On March 26, 2009, the circuit court held a second hearing. At the outset of the hearing, the court indicated that the purpose of the hearing was to determine the duties and responsibilities of the secretary of state’s office in the runoff election.

Ed Packard, who is employed in the elections division of the secretary of state’s office, testified that each of Alabama’s 67 counties has a board of registrars and each of those boards has a computer system that is linked to the statewide voter-registration database in the secretary of state’s office. When a potential voter completes a registration form, the local board first determines if the potential voter is eligible to vote and, if so, that voter’s information is then entered into the computer system. The computer system aids the board in determining in what district a voter lives and where he or she votes. The secretary of state relies upon the local board in each county to maintain and update the list of registered voters.

Packard testified that the certified list of registered voters in a municipal election originates from the municipality, not from the secretary of state’s office. The secretary of state, in creating a statewide list of voters, does not input the records or edit the records; that is the job of each county’s board of registrars. Packard testified that the information input into the state’s computer system by the local board is done in “real time” so that the information is updated as soon as it is input. He stated that the secretary of state’s office did not produce voter lists except by request and that a list for Conecuh County for October 7, 2008, could not be retroactively “created” because any list printed after October 7, 2008, would include any information that was entered into the system after that date. Packard stated that a statewide voter list had been printed by request in August 2008 and that another one had been printed in December 2008. Packard noted that the state’s computer system had an activity log to show when changes and/or updates to a voter’s information were made by a board member. Packard was asked if the secretary of state could extrapolate from the December 2008 and the August 2008 lists to compile a list of registered voters on October 7, 2008. Packard stated in response:

“I have to think about exactly how we can provide it. Because one of the options we would have would be to go back and produce a list of everyone who had a registration date up to October 7, but if there were any changes, you know, it may not necessarily accurately reflect who was eligible for that city election. Theoretically, though, we could go in if we had a base point like the August list, you know, we could try to determine whether someone was changed. Given that there was a lot of heavy registration during that period, there could be a significant amount of clerical work that would need to be done. Although we might be able to talk to the vendor of the software to see if they could help us extract something that would be more on point.”

The three members of the Conecuh County Board of Registrars testified. All three members testified as to the process of entering a voter’s information into the computer system linked to the secretary of state’s office. The testimony indicated that the board used its own computer, which was connected to the secretary of state’s computer, to register voters. The testimony indicated that, once the information is entered into the county’s computer, the same information is sent to the secretary of state’s computer. The testimony also indicated that no one may properly register less than 10 days prior to an election and still be eligible to vote in that election. The testimony indicated that the board registers the voter and that the City clerk determines if the voter’s address is within the municipal limits. When a city requests a list of voters for an upcoming municipal election, the county board sends the city a list of all the voters in the precincts that are within the municipal limits. Some of the precincts in Conecuh County include areas that are partially in the City and areas that are partially in the county but outside the City.

We note that one of the registrars was asked specifically about the registration date of T.M., who testified at the December hearing. The registrar indicated that T.M. had timely registered to vote on September 26, 2008. Next, Fluker presented the testimony of C.C. and K.C., both of whom voted by absentee ballot. C.C. stated that he voted by absentee ballot because he worked an 11-hour shift, and K.C. testified as to her residence.

On April 6, 2009, the circuit court entered the following order:

“This case is re-set for further hearing at 9:00 AM on April 17, 2009.
“The office of the Secretary of State of Alabama shall provide a copy of the list of qualified voters of Conecuh County as near as possible to the cutoff date for registration in the October 2008 Mayoral runoff for the City of Evergreen to Ms. Peggy W. Howell, Evergreen City Clerk.
“Ms. Howell will review this list and be prepared to testify at this hearing as to which voters voted in the runoff election and in which District and whether they voted in person or by absentee ballot. She shall also be prepared to testify as to whether they lived within the City limits and whether they lived in the District in which they voted.
“The Office of the Attorney General of Alabama shall provide Ms. Howell with a copy of any documents he had seized from the City following the runoff election which will assist Ms. Howell in making the determination set forth above.
“The Circuit Clerk shall issue a subpoena to Ms. Howell to appear at the hearing on April 17, 2009, duces tecum the above referenced documents.
“The Circuit Clerk shall issue a subpoena duces tecum also to the Office of the Secretary of State for the above referenced documents. This subpoena may be complied with by furnishing said documents to Ms. Howell and reporting to the Clerk that it has done so.
“The Circuit Clerk shall issue a subpoena duces tecum also to the Office of the Attorney General for the above referenced documents. The subpoena may be complied with by furnishing said documents to Ms. Howell and reporting to the Clerk that it has done so.
“In addition to the above subpoenas, the Clerk shall cause a copy of this Order to be served on both of the above offices.”

The hearing set for April 17, 2009, was reset for June 5, 2009. At the June 5, 2009, hearing, Wolff presented Howell’s testimony. Howell testified regarding whether certain voters had voted in the runoff election and whether those voters were on the list the secretary of state’s office had been ordered to create. Howell was asked if she brought the absentee ballots cast in the runoff election with her to the hearing, to which she responded that she did not realize that the subpoena included the ballots. She stated that the ballots could be brought to the courtroom. Nothing in the record indicates that the ballots were ever brought to court, and the ballots were not entered into evidence.

Wolff also presented the testimony of a handwriting expert, Dr. Richard Roper, regarding signatures or “marks” in lieu of signatures on 22 applications for absentee ballots cast for Fluker and supporting affidavits. Those voters were: C.B., R.C., E.D., D.D., V.F., E.G., J.H., S.H., M.I., S.J., H.L., S.L., E.M., S.M., F.M., R.S., M.S., K.T, S.T, M.T, F.T., and N.W. Fluker’s counsel cross-examined Roper and objected to his testimony on the following grounds:

‘Tour Honor, I would move to exclude the testimony of Mr. Roper on the ground that he did not observe and was not present when any of these people gave or made the signatures that he examined. He did not take any sample writings from any of these folks in the usual way that it is done. And he did not examine the original documents and that his testimony for that reason is speculative. [Wolff’s counsel] should be required to call the actual voters and take their testimony about whether or not their signature [is] on those two documents or not before any of them are denied the right of all citizens to cast a vote.”

The circuit court denied the motion to exclude Roper’s testimony. Roper’s testimony indicated that in each instance the application for the absentee ballot and the supporting affidavit had been executed by different writers. Wolff then presented additional evidence regarding absentee voters and the testimony of L.T, who voted by absentee ballot.

On August 24, 2009, the circuit court entered an order finding that 31 illegal votes had been cast for Fluker and that 24 illegal votes had been cast for Wolff, making the vote tally 1,002 in favor of Wolff and 997 in favor of Fluker. The circuit court stated that Wolff had originally alleged that the names of approximately 400 voters who voted in the runoff election did not appear on the secretary of state’s voter list. However, after a list of registered voters produced by the secretary of state’s office dated October 6, 2008, was discovered, Wolff reduced the number of challenges for failure to appear on the secretary of state’s voter list to five. The circuit court noted that it informed that parties that ballots cast by voters who voted in the wrong district of the City and challenged by the parties would not be excluded on that ground. The court also informed the parties that it would not invalidate the ballots of voters who gave inconsistent reasons for voting by absentee ballot nor would it invalidate the ballots of voters who had inconsistent addresses or birth dates on their applications or affidavits.

With regard to the challenges to the absentee ballots brought by Wolff, the circuit court invalidated the ballots of 30 absentee voters who had voted for Fluker on the following grounds: 2 ballots because the voters’ names were not on the secretary of state’s voter list; 18 ballots because a different person had executed the application for the absentee ballot and the supporting affidavit; 1 ballot because the same person not only signed the application and the affidavit, but also signed as a witness; 1 ballot because the voter was “incapacitated”; 1 ballot because there was no witnesses on the affidavit, nor was the affidavit notarized; 2 ballots because the means of identification used to vote absentee was not current; 8 ballots because of insufficient postmarks; 1 ballot because of a homestead exemption claimed outside the City; and 1 ballot because the voter’s residency was outside the City. Additionally, the circuit court excluded the vote of T.M., who voted in person on the day of the election, because he allegedly registered to vote after the 10-day cutoff for registration.

Fluker appeals, arguing that the circuit court erroneously disqualified two voters because their names were not on the voter list maintained by the secretary of state. He further argues that the circuit court wrongfully disqualified voters based on the following: (1) Wolffs failure to submit evidence of a voter’s “incapacity”; (2) the circuit court’s incorrect interpretation of the law of domicile; (3) inconsistent evidence regarding the date a voter registered; and (4) testimony of a handwriting expert in contradiction to the Alabama Rules of Evidence. Lastly, Fluker argues that there were no absentee ballots or copies of those ballots admitted into evidence; that there was nothing in the record to show that the parties entered into a stipulation as to how the absentee voters cast their ballots; and, therefore, that there is nothing to support the circuit court’s findings as to how these voters cast their ballots. Wolff did not cross-appeal.

Standard of Review

“An election contest is a statutory matter, and the statute governing the election must be strictly observed and construed. Watters v. Lyons, 188 Ala. 525, 66 So. 436 (1914).” Long v. Bryant, 992 So.2d 673, 680 (Ala.2008).

“In reviewing a trial court’s findings of fact in an election contest, we apply the same standard used by appellate courts when the trial court in a nonjury case has taken a material part of the evidence through ore tenus testimony; that is, we will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.”

Williams v. Lide, 628 So.2d 531, 534 (Ala.1993).

“The [ore tenus] rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.” Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000) (citing Born v. Clark, 662 So.2d 669, 672 (Ala.1995)).

“ ‘[W]here the evidence had been [presented] ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and this Court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence.’ ”

Reed, 778 So.2d at 795 (quoting Raidt v. Crane, 342 So.2d 358, 360 (Ala.1977)). The ore tenus presumption is based on the trial court’s unique position to directly observe the witnesses and its “better opportunity to pass upon the credibility of their testimony.” Ex parte Pielach, 681 So.2d 154, 155 (Ala.1996).

Discussion

Fluker, who was represented by different counsel at trial than on appeal, contends that nothing in the record shows for whom the absentee ballots were cast voted in the runoff election. He argues that under Rule 1002, Ala. R. Evid., the best evidence of how the absentee voters cast their ballots is the ballots themselves. He contends that under Rule 1003, Ala. R. Evid., photocopies of the ballots would have sufficed. Fluker argues that the attorneys’ recitation of matters not disclosed by the record cannot be considered on appeal. He further argues that, because there is no way to attribute any of the absentee ballots cast, there is nothing to support the circuit court’s invalidation of those votes and that, therefore, those votes subtracted from Fluker’s total vote tally should be returned to Fluker.

In response to this argument, Wolff states in his brief:

“Finally, Fluker submits that there is no evidence other than the charts submitted by the parties of how the absentee voters cast their votes. That is quite simply because the lawyers for the parties under the supervision of the Court looked at the absentee ballots and that is why the record likewise is devoid of any evidence of any challenge to how a person voted absentee. The voters that voted on site were all called to testify live and were required under statute to state how they voted. Code of Alabama § 17-16-42.”

(Wolffs brief, p. 15.)

Fluker’s trial counsel did not object to the circuit court’s attribution of votes to absentee voters. Instead, it appears that trial counsel stipulated that the absentee ballots in question had been correctly attributed to Fluker and Wolff. It is well settled that this Court will not reverse a trial court’s judgment based on arguments not presented to it. Lloyd Noland Hosp. v. Durham, 906 So.2d 157 (Ala. 2005). Additionally, it is the appellant’s burden to offer the appellate court a record sufficient to support a reversal. Parker v. Williams, 977 So.2d 476 (Ala.2007). Fluker should have amended the record on appeal pursuant to Rule 10, Ala. R.App. P., to include the purported stipulation as to how certain absentee ballots were cast. Then, Fluker would have had to show that the stipulation as to those votes was in error. Accordingly, we cannot .say that the circuit court erred in its attribution of the votes cast by absentee ballots to Fluker and to Wolff.

Fluker argues that the circuit court erred in disqualifying two votes attributed to Fluker on the basis that those voters’ names were not on the secretary of state’s voter list. Fluker argues that the circuit court should have relied upon the City’s list of registered voters in determining who was eligible to vote in the runoff election.

At the outset, we note that municipal elections are held at times different from elections held by the State and counties; that a voter’s eligibility to vote in a municipal election may differ, e.g., concerning length of the voter’s residency in the municipality prior to the election; and that the physical location of the precinct at which the voter votes may be different for a municipal election. The provisions that govern municipal elections are set out at § 11-46-1 et seq., Ala.Code 1975. Title 17 of the Alabama Code governs primary, special, and general elections. Section 17-1-1 provides that in the event of a conflict, the law governing municipal elections applies. In response to the federal legislation entitled the “Help America Vote Act,” the Alabama Legislature amended its election laws, including § 17-4-33, Ala.Code 1975, which now provides that a computerized statewide voter-registration list is to be maintained by the secretary of state.

Section 17-4-88 provides, in pertinent part, as follows:

“The State of Alabama shall provide, through the Secretary of State, a nondiscriminatory, single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered by the Secretary of State, with advice from the Voter Registration Advisory Board and the President of the Alabama Probate Judges Association, which contains the name and registration information of every legally registered voter in the state. The computerized list shall comply with the following requirements:
“(9) It shall serve as the official voter registration list for the conduct of all elections.”

Section 11^46-36 provides:

“(a) The mayor or other chief executive officer of the city or town shall cause to be made a list of the qualified voters who reside within the corporate limits of such city or town and who are registered to vote regular ballots, dividing the same into separate alphabetical lists of the qualified voters of each ward where such city or town has been divided into wards and all qualified voters thereof vote at one box or voting machine, or dividing such list into separate alphabetical lists of voters authorized to vote at each respective box or voting machine if the list of qualified voters has been divided alphabetically and each alphabetical group assigned a box or machine at which to vote. He shall have such lists compared with the official list of electors qualified to vote during the current year on file in the probate office of the county in which the municipality is situated and shall certify on each list prepared pursuant to this section that it is a correct list of the voters who are qualified to vote regular ballots in the municipality, ward, ballot box, or voting machine to which it appertains. He shall have full access to all registration lists of the county for this purpose. A copy of each list so prepared shall be filed with the municipal clerk, who shall file and retain each such list as a public record in his office, on or before the third Tuesday in July before a regular municipal election. The clerk shall prepare a copy of the list of qualified voters authorized to vote at each of the respective polling places in the municipality, and, prior to the opening of the polls on election day, he shall furnish to the inspectors, or one of them, of each ballot box or voting machine at each polling place a copy of the list of qualified voters authorized to vote at the box or voting machine for which he was appointed an inspector. The clerk shall also publish the list of qualified voters authorized to vote at the ensuing election at least five days prior to the election by posting copies thereof in at least three public places in the municipality.”

It is well settled that in determining legislative intent:

“Our inquiry is governed by settled principles of statutory construction:
“ ‘ “The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 891 (1956).” ’ ”

Bright v. Calhoun, 988 So.2d 492, 497 (Ala.2008) (quoting City of Bessemer v. McClain, 957 So.2d 1061, 1074-75 (Ala.2006), quoting in turn Darks Dairy, Inc. v. Alabama Dairy Comm’n, 867 So.2d 1378, 1380 (Ala.1979) (emphasis omitted)).

To determine legislative intent, the Court must first look to the language of the statute. If, giving the statutory language its plain and ordinary meaning, we conclude that the language is unambiguous, then there is no room for judicial construction. Ex parte Waddail, 827 So.2d 789, 794 (Ala.2001). Because § 17-1-1 expressly states that in the event of a conflict between the general-election laws and the municipal-election laws, the provisions of the municipal-election laws control the manner in which a municipality creates its voter list.

Other election statutes also support the legislature’s intent that municipalities create their own voter list. Only persons who have been residents of the municipality for 30 days or more are eligible to vote in municipal elections. § 11-46-38. Although persons can continue to register to vote up to 10 days before the election as provided in § 17-3-50, unless the person has been a resident of the municipality for 30 or more days, he or she may not vote in the municipal election. Additionally, municipalities have the authority to expand their corporate limits through annexation, §§ 11 — 42—1 through -187, and municipalities can reduce their corporate limits through de-annexation, §§ 11-42-200 through -213. The alteration of a municipality’s corporate limits affects eligible voters in a municipal election, and the determination of its corporate limits is peculiarly within a municipality’s control.

In accordance with the language of § 17-4-33, the secretary of state maintains a statewide list of registered voters. The testimony presented at the hearings indicates that the board of registrars in every county has a computer system linked to the statewide voter-registration database in the secretary of state’s office. When a potential voter fills out a registration form, the board of registrars determines if the potential voter is eligible, and that voter’s information is then entered into the computer system. The computer system aids the board in determining in what district a voter lives and the voting location or precinct where the voter votes in primary, special, and general elections. The secretary of state relies upon the board in each county to maintain and update the list. Municipalities in a particular county do not register voters for municipal elections. Citizens wanting to vote must register with the county board of registrars. Using the list provided by the county board of registrars, municipal officials prepare a list of registered voters for each election who reside inside the municipal limits.

Although we agree with Fluker’s argument that the City creates its own list of registered voters, we cannot say that the circuit court erred in disqualifying two votes for the reason that the persons casting the votes were not included on the secretary of state’s voter list. According to the circuit court’s order, the court relied upon a secretary of state’s voter list from October 6, 2008, and the runoff election was held on October 7, 2008. The two voters’ names were on the City’s list, but they were not on the secretary of state’s list created just one day earlier. However, because the genesis of the secretary of state’s voter list is the information input by the county board of registrars, this discrepancy is incongruous unless those two voters (1) were registered voters at the time the City’s list was printed (presumably at some point after the 10-day cutoff for registering to vote in the runoff election), but whose names had, for whatever reason, been deleted from the statewide list of voters before the secretary of state’s list of October 6, 2008, was created, or (2) actually registered to vote on the day of the election and were somehow added to the City’s list. There is no evidence in the record that supports example (1) above at all, much less supporting the argument that the two voters had been -wrongfully deleted, nor does Fluker make such argument, and even if we assume example (2) to be true, it would be of no benefit to Fluker because the two voters would still be ineligible to legally vote in this election based on the 10-day cutoff. It is clear that a person can register to vote less than 10 days prior to an election, including a runoff election, even though that voter would be ineligible to vote in that election. The testimony indicated that the secretary of state’s voter list is maintained by the county board of registrars and that the registrars enter the information on the voter. When a municipal election is held, the board provides the municipality with the list of registered voters in the various precincts, and the municipality determines who among those voters resides within the municipal limits. Based on the record before us, there does not appear to be any reason for the secretary of state’s voter list to vary from the City’s list as to the names on the list. Accordingly, we cannot say that the circuit court erred in excluding the two votes Fluker challenges on that basis.

Fluker argues that the circuit court erred by relying on guardianship and protective proceeding papers, and letters of guardianship and conservatorship, to exclude the absentee vote of H.M., whose vote was excluded based on incapacity. Wolff challenged H.M.’s vote on several grounds, including that he was mentally incompetent, and H.M.’s vote was attributed to Fluker. Fluker argues that nothing in the papers submitted indicates that H.M. is mentally incompetent. The only indication of mental incapacity is the allegation of Wolffs counsel; the guardianship papers and letters of conservatorship admitted into evidence state only that H.M. is “incapacitated.” At the hearing, Wolff challenged H.M.’s vote on the ground that H.M. was mentally incompetent, on the ground that the same person who signed H.M.’s affidavit as a witness also witnessed the signatures of other persons who voted who may have been incapacitated and whose capacity was questioned, and on the ground that H.M. had inconsistent reasons for voting by absentee. In support of this challenge, Wolff presented guardianship papers and letters of conservatorship for H.M. along with H.M.’s affidavit, all of which were admitted into evidence without objection by Fluker’s trial counsel. In a brief submitted to the circuit court, Wolff’s counsel challenged H.M.’s vote on the grounds that H.M. was represented by a guardian'and that H.M. had inconsistent reasons on his application for an absentee ballot and on his affidavit. In his brief, Fluker’s trial counsel argued that H.M.’s ballot should not be disqualified on the ground that he gave inconsistent reasons on his application for an absentee ballot and on his affidavit. The circuit court excluded H.M.’s vote on the ground that he was incompetent. Because Fluker’s trial counsel did not object to the admission of the guardianship papers and letters of conservatorship at trial or to sufficiency of proof of incompetency as set out in the letters, any error in the circuit court’s reliance on the papers or Wolffs counsel’s statements regarding incapacity was not preserved for appellate review. See Davis v. Southland Corp., 465 So.2d 397 (Ala.1985)(a party seeking to prevent the admission of evidence must object to the offering of that evidence because the failure to object at trial waives that objection).

Next, Fluker contends that the circuit court erred in its determination of the domicile of several voters. Specifically, Fluker argues that the circuit court erred in disqualifying the vote of W.M.H. W.M.H.’s absentee vote was attributed to Fluker, and Wolff challenged her vote on the ground that she resided outside the City. In support of his challenge, Wolff presented evidence indicating that W.M.H. had claimed a homestead exemption outside the City. As the contestant, Wolff had the burden of showing that W.M.H.’s vote was illegally cast. Wattman v. Rowell, 913 So.2d 1083, 1089 (Ala.2005) (“[I]t is the responsibility of a party seeking to have a vote excluded to make a prima facie showing that the vote was illegally east.”). Wolff did so, and the burden then shifted to Fluker to present evidence indicating that W.M.H.’s vote was legally cast. In other words, Fluker had to present evidence of W.M.H.’s intent to make the City her home, which he failed to do. See Harris v. McKenzie, 703 So.2d 309, 313 (Ala.1997)(holding that, in determining domicile in an election case, domicile is that place in which habitation is fixed, without any present intention of removing).

Next, Fluker argues that the circuit court erred in its determination of the residency of C.T., E.T., and J.C., because, he argues, the circuit court erred in accepting the testimony of L.T. as to those voters’ intent to reside in the City. Fluker challenged C.T.’s, E.T.’s, and J.C.’s votes because C.T. claimed a homestead exemption outside the City, and E.T. and J.C. were listed as residing at the same address as C.T. In response to the challenge, Wolff presented the testimony of L.T., C.T.’s wife. On appeal, Fluker argues that L.T. could not testify as to her husband’s, son’s, and stepson’s intent to reside in the City. However, Fluker’s trial counsel failed to object to L.T.’s testimony. Accordingly, we cannot consider whether the admission of L.T.’s testimony constituted error. It is well settled that a reviewing court cannot consider arguments made for the first time on appeal. CSX Transp., Inc. v. Day, 613 So.2d 883 (Ala.1993).

Fluker argues that the circuit court erred in not allowing T.M.’s vote to stand, on the ground that T.M. did not timely register to vote. T.M. testified that he voted in person during the runoff election. He stated that he voted for Fluker. On cross-examination, T.M. testified that he registered to vote on a Sunday, but that he did not remember if he registered on September 21, 2008, or September 28, 2008. Board of registrar members Patsy Chapman and Paula Brock testified that T.M.’s application was dated September 21, 2008, and that an employee “signed off’ on the application on September 26, 2008, but that T.M.’s name was not officially entered into the computer until September 29, 2008. Because there was conflicting evidence as to whether T.M. was registered to vote more than 10 days before the runoff election, we cannot say that the circuit court’s decision to exclude T.M.’s vote was plainly and palpably wrong. See Williams, 628 So.2d at 534 (“In reviewing the trial court’s findings of fact in this election contest, we apply the same standard used by appellate courts when the trial court in a nonjury case has taken a material part of the evidence through ore tenus testimony; that is, we will not disturb those findings unless those findings are plainly and palpably wrong and not supported by the evidence.”).

Fluker argues that the circuit court erred in allowing the testimony of a handwriting expert to disqualify 18 votes cast for him by absentee voters. Specifically, Fluker argues that, in order to make a comparison of handwriting, there must be evidence of a true and genuine signature as set out in Rule 44(j), Ala. R. Civ. P.

At trial, Wolff presented the testimony of Dr. Richard Roper, a handwriting expert. Roper’s testimony indicated that different persons signed the application to vote absentee and the affidavit in support of the application. The 18 votes excluded by the circuit court were attributed to Fluker and ultimately deducted from his total vote count. Fluker’s trial counsel objected to Roper’s testimony on the grounds that Roper did not observe any of the voters give or make the signatures he examined; that he did not take any sample writings from any of the voters; and that he did not examine the original documents. Fluker’s trial counsel also argued that the person contesting the ballots on the ground of handwriting should take the testimony of the voters before their votes are disqualified.

Section 17-11-4 provides that an absentee voter must “manually” sign his application to vote by absentee ballot. Section 17-11-10 sets out the procedure for officials to determine whether the absentee voter signed or marked the affidavit and whether a notary public or two witnesses witnessed the voter’s signature on the affidavit. It is clear that § 17 — 11—4 and § 17-11-10 each require an absentee voter to sign both his or her application to vote by absentee ballot and his or her affidavit. The first rule of statutory construction is to give effect to the intent of the legislature. If the language of the statute is unambiguous, then there is no room for judicial construction, and the clearly expressed intent of the legislature is to be given effect. Taylor v. Cox, 710 So.2d 406 (Ala.1998). Wolff presented expert testimony indicating that the signatures on the applications of these 18 absentee voters differed from the signatures on the supporting affidavits. Once Wolff presented evidence that the signatures differed, Fluker could have presented evidence to rebut the expert’s testimony, such as the testimony of the voters or testimony regarding health conditions that might have impacted the voter’s handwriting, as Fluker’s appellate counsel now suggests. However, Fluker’s trial counsel failed to present any evidence to rebut the testimony. Accordingly, we cannot say that the circuit court exceeded its discretion in disqualifying the 18 votes from Fluker’s tally based on the handwriting expert s testimony. We note that it does not appear that Rule 44, Ala. R. Civ. P., which concerns the validity of a single handwriting analysis, would apply in this case, and the facts in this case concern a comparison of two handwritings, where, by law, both documents had to be signed by the same person. If the handwriting expert had determined that the same person signed both the application and the affidavit, then Rule 44 would apply and an exemplar of the voter’s signature would be necessary to compare it with the signatures on the application and affidavit.

Conclusion

We have reviewed the record, and we cannot say that the circuit court’s decision was plainly and palpably wrong. The judgment is affirmed.

AFFIRMED.

LYONS, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ„ concur.

WOODALL, J., concurs specially.

COBB, C.J., recuses herself.

WOODALL, Justice

(concurring specially).

I concur fully in the majority opinion. I write only to point out another factor that indicates to me that the trial court’s judgment is due to be affirmed.

It is true, as stated in the majority opinion, that there is no evidence in the record indicating that the parties submitted charts to the trial court summarizing how the absentee voters voted. 46 So.3d at 951 n. 6. However, Larry Fluker admits that “the parties examined the [absentee] ballots” and that “charts submitted by the parties [provided the only evidence] of exactly how the absentee voters cast their ballots. Fluker’s brief, at 35-86. Therefore, this Court cannot question the trial court’s allocation of the absentee votes, because “when the record is silent as to evidence considered by the trial court, we must presume that the evidence considered was sufficient to support the trial court’s judgment.” Parker v. Williams, 977 So.2d 476, 482 (Ala.2007).

      . Section 17-11-15, Ala.Code 1975, provides:
      “In any municipal election that is held at a time different from a primary or general election, the duties with reference to the handling of absentee ballots which are required of the circuit clerk shall be performed by the town clerk, city clerk, or other officer performing the duties of the clerk. If such clerk or other officer is also a candidate in such election, the governing body of the city or town shall appoint a qualified elector of the city or town to perform the duties. Such person so appointed shall have all the powers, duties, and responsibilities of the circuit clerk under this chapter and shall be entitled to the compensation provided by Section 17-11-14.”
      The absentee voters as to whom Howell was questioned were: A.A., I.G., S.L., B.E., P.L., E.Z.T., and E.T.

      . Following P.C.’s testimony, J.J. was called to testify. Wolff's counsel indicated that J.J. was not available but stated that J.J.’s name was handwritten in on the district-two voter list and that her name did not appear on the secretary of state’s voter list.

      . At the conclusion of E.R.'s testimony, J.P. was called. However, J.P. was not in the courtroom. Wolff’s counsel indicated that J.P.’s name was handwritten in on the voter list used by the City but that his name also appeared on the secretary of state’s voter list, although his address was different on that list.

      . Nothing in the record indicates that the City and Conecuh County had a contract pursuant to § 11-46-4, Ala.Code 1975, for the county to provide the City a list of voters registered to vote in City elections.

      . Nothing in the record indicates that the parties submitted to the circuit court a table of how the voters voting by absentee ballots voted.

      . Section 17-1-1, Ala.Code 1975, provides in pertinent part: "All of the provisions of this title shall apply to ... elections by ... municipalities held in this state, except in cases where the provisions of this tide are inconsistent or in conflict with the provisions of a law governing ... municipal elections.”

      . The circuit court allowed four of the votes challenged on the basis of Roper’s testimony to stand.

      . "[I]f he or she signs by mark, the name of the witness to his or her signature shall be signed thereon.” § 17-11-4.

      . The information required on the affidavit is: (1) residence information and birth date; (2) the reason for voting by absentee ballot; (3) the voter's oath that the information is correct; and (4) the voter’s signature and required witnessing.

      .Although Fluker’s trial counsel objected to the handwriting expert's testimony on the grounds set out above, it appears that trial counsel did not know that a handwriting expert would be testifying. However, Fluker’s trial counsel did not object to the testimony on the ground that Wolff was presenting a surprise witness.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    A.M. v. J.S.
    2071213.
    Court of Civil Appeals of Alabama.
    Aug. 7, 2009.
    Certiorari Quashed April 16, 2010 Alabama Supreme Court 1081592.

      Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for appellant.
    Stephen S. Weldon of Scarborough & Weldon, LLC, Tallassee, for appellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion issued by this court on June 5, 2009, is withdrawn, and the following opinion is substituted therefor.

A.M. (“the mother”) appeals from a judgment of the Elmore Circuit Court awarding custody of B.N.S. (“the child”) to J.S. (“the father”). We reverse.

The child, a daughter, was born to the parents in 1999. The parents have never been married to each other. In 2001, the Elmore Juvenile Court awarded the parties joint legal custody and the mother sole physical custody of the child. In 2007, the father filed a petition to modify the 2001 judgment, seeking sole physical custody of the child. Following a hearing, the juvenile court denied the father’s petition and maintained sole physical custody of the child with the mother.

The father appealed to the Elmore Circuit Court for a trial de novo. The circuit court conducted ore tenus proceedings and, on September 11, 2008, entered the following judgment:

“This cause coming on before this Court as an appeal case from the Juvenile Court of Elmore County, Alabama and the parties presenting themselves before this Court upon the Petition to Modify Custody as filed by the father, ... and the parties presenting with counsel of record and Guardian ad Li-tem presenting for the minor child, this Court taking testimony at length, ore tenus, with record on July 2, 2008 and September 3, 2008, this Court does find as follows:
“1. That [the mother] and [the father] are the legal and biological parents of [the child], and the minor’s custody is placed jointly by Order of [the Elmore Juvenile Court] dated April 9, 2001.
“2. That [the mother] has maintained the primary residence for said minor daughter during her life.
“3. That [the mother] testified, without objection, of misrepresentation to Elmore County Department of Human Resources for the purpose of obtaining food stamps at a time when she would not otherwise qualify for the same.
“4. That the parties’ child has Dyslexia and [attention-deficit disorder] and they have obtained treatment for the same.
“5. That [the mother’s] maternal aunt, ... who has been a stable foundation for [the mother] during her life, has maintained a strong interest in the welfare of [the child].
“6. That the parties’ representatives have presented the Court with more than ample information in order for this Court to make its finding of fact. “7. That the best interest of this child is served with her primary residence to be placed with her father, subject to the mother having visitation, at times when her husband, [T.M.,] is not present.
“8. That the mother is granted the same visitation schedule as the father used while the child was in the mother’s primary residence.
“9. That the father shall maintain the minor child in special treatment for Dyslexia for as long as the same is necessary, pending further Order of this Court.
“10. Child support is set at $196.00 per month, to be paid by the mother to the father, the same being in compliance with Rule 32, [Ala. R. Jud. Admin.,] and the same is suspended, pending further Orders of this Court.”

On September 16, 2008, the mother filed a notice of appeal to this court and a motion to stay execution of the judgment pending appellate review. Also on September 16, 2008, the father filed a post-judgment motion, requesting that the circuit court amend its judgment to reflect that the court had applied the standard enunciated in Ex parte McLendon, 455 So.2d 863 (Ala.1984) — rather than the best-interest standard — to the evidence presented and to reflect that the court had concluded that the father had met his burden under McLendon. On the same day, the father filed an objection to the mother’s motion to stay execution of the judgment.

On September 19, 2008, the circuit court entered an order denying the mother’s request to stay execution of the judgment. On September 30, 2008, the father filed a motion to clarify the visitation provisions in the judgment, specifically requesting that the court designate the location at which visitation exchanges should take place. The circuit court never ruled on that motion. On October 9, 2008, the circuit court made and initialed the following entry on the case-action-summary sheet: “Upon motion to amend, granted in that McLendon standard applied to ruling.” On October 10, 2008, the father filed a “Notice of Compliance,” contending that he had complied with paragraph nine of the judgment requiring him to “maintain the minor child in special treatment for Dyslexia for as long as the same is necessary.” The same day, the mother filed an emergency motion alleging that the father had failed to comply with paragraph nine of the judgment and requesting that the court enforce its judgment regarding the child’s dyslexia treatment. The circuit court never ruled on that motion.

Finality of the Judgment

Although neither party has raised an issue concerning this court’s jurisdiction to entertain the mother’s appeal, we first consider whether this court has jurisdiction over the appeal, because “‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). An appeal ordinarily lies only from a final judgment. See § 12-22-2, Ala.Code 1975; Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). An order is generally not final unless it disposes of all claims or the rights or liabilities of all parties. Ex parte Harris, 506 So.2d 1003, 1004 (Ala.Civ.App.1987).

Pursuant to Rule 1(B), Ala. R. Juv. P., the father’s September 16, 2008, post-judgment motion was denied by operation of law on September 30, 2008, 14 days after it was filed, because the circuit court had not ruled on it. When the circuit court purported to rule on the father’s motion by making and initialing an entry on the case-action-summary sheet on October 9, 2008, that action was a nullity. See Ex parte Hornsby, 663 So.2d 966 (Ala.1995). To the extent that the father’s September 30, 2008, “Motion to Clarify” can be characterized as a postjudgment motion, it was untimely because it was not filed within 14 days of the entry of the circuit court’s September 11, 2008, order, see Rule 1(B), Ala. R. Juv. P., and, therefore, the circuit court had no jurisdiction to act on it, see Pitts v. Means, 571 So.2d 1138, 1139 (Ala.Civ.App.1990).

The mother’s notice of appeal to this court, which had been held in abeyance pending the disposition of the father’s September 16, 2008, postjudgment motion, see Rule 4(a)(5), Ala. R.App. P., “quickened” on September 30, 2008, the date the judgment became final, see J.L.W. v. E.O.J., 992 So.2d 727 (Ala.Civ.App.2008). The mother’s October 10, 2008, emergency motion alleging that the father had failed to comply with paragraph nine of the judgment and requesting that the court enforce its judgment regarding the child’s dyslexia treatment is akin to a contempt motion alleging that the father had violated the circuit court’s previously entered custody-modification order. The mother’s filing of that motion initiated a proceeding separate and independent from the action in which the custody-modification order had been entered and does not affect the finality of the custody-modification order. See Decker v. Decker, 984 So.2d 1216, 1220 (Ala.Civ.App.2007)(distinguishing Wilcoxen v. Wilcoxen, 907 So.2d 447 (Ala.Civ.App.2005), from Heaston v. Nabors, 889 So.2d 588 (Ala.Civ.App.2004)). This appeal is, therefore, taken from a final judgment.

On appeal, the mother argues that the circuit court’s judgment was unsupported by the evidence because the evidence was not sufficient to meet the standard enunciated in Ex parte McLendon for a modification of custody. Notwithstanding the fact that the circuit court’s October 9, 2008, notation on the case-action-summary sheet — indicating that it had applied the McLendon standard to the facts before it — was a nullity, neither party argues that the circuit court failed to use the proper standard; both parties assume that the court applied the McLendon standard; Therefore, we will review the evidence to determine whether it supports the judgment awarding custody to the father.

Factual Background

The child has lived with the mother since birth. In 2001, the father was awarded liberal visitation with the child, including visitation on alternate weekends, mid-week visitation on Wednesdays, and visitation during five weeks in the summer. The father acknowledged that, between 2001 and 2006, he had not exercised his summer visitation with the child. The father explained that, until he married M.S. (“the stepmother”) in 2006, he did not have a place for the child because he had lived with a roommate. He stated that his parents had exercised his summer visitation during the years before he married the stepmother. The father married the stepmother when she became pregnant by him. In addition to the child that the father and the stepmother have together, the stepmother also has a daughter from a previous relationship who is approximately the same age as the parties’ child.

The mother married T.M. in 2004. The mother testified that T.M. had used illegal drugs and had sold drugs to pay for his motorcycle. The record indicates that T.M. had tested positive for marijuana following a hearing in the juvenile court. At the time of the circuit court trial, the mother and T.M. were separated and the mother had filed for a divorce from T.M.

The child has learning disabilities, as well as vision problems and hearing difficulties. She wears eyeglasses and has hearing aids in both ears. She has been diagnosed with dyslexia and attention-deficit disorder. Until the fall of 2008, the child had been enrolled in the Tallassee public-school system. After her first year in school, the child’s teacher recommended that she repeat kindergarten. The mother followed that recommendation, a course of action to which, the mother said, the father and the child’s paternal grandparents had been opposed because they thought the child should have been promoted to first grade. When the child repeated kindergarten, the mother requested that the school perform testing on the child. The mother was told that the school did not do testing, so she took the child to Auburn University for testing, which proved to be inconclusive for dyslexia. Two years later, the mother had the child tested by the Alabama Scottish Rite Foundation, and that assessment indicated that the child had dyslexia. The Tallassee elementary school attempted to compensate for the child’s learning disabilities by reading tests to her, by allowing her more time to complete tasks, by giving her less homework, and by providing her with after-school tutoring with a Mrs. Hornsby. The father paid for the child’s tutoring with Hornsby. Despite the school’s attempt to accommodate the child’s disabilities and to provide tutoring by Hornsby, the child continued to fall behind in school. At the time of trial, the child was in the third grade but she was reading on a late-kindergarten/early-first-grade level.

The mother testified that she had had dyslexia as a child, and she did not think that the education she had received from the Tallassee public-school system had been adequate. She stated that she and the child’s maternal great-aunt had arranged to have the child tested for vision and hearing problems as well as learning disabilities; she said that one of them had attended all the Individualized Education Program (“I.E.P.”) meetings at the child’s school to plan and monitor the child’s educational progress. The mother stated that she had informed the father of the dates for all the child’s tests, doctor appointments, and I.E.P. meetings but that the father had appeared for very few of those appointments. The father acknowledged that he had not been present for many of the child’s medical and educational assessments, but he explained that the mother had not always given him adequate notice of the tests, appointments, and meetings concerning the child. The father testified that he thought the child had only a slight hearing loss, and, he said, her problems were not paying attention and not trying hard enough. The mother testified that the stepmother had a habit of intruding into the child’s activities. The mother stated that the stepmother and her daughter, the child’s stepsister, came to some of the after-school tutoring sessions the child had with Hornsby. The mother stated that she did not consider their presence beneficial to the child. The mother also testified that the stepmother had visited the child at school on numerous occasions to bring the child a change of clothes or to change her hairdo. In addition, the mother said that the stepmother had attended the child’s Girl Scout meetings and Vacation Bible School sessions and had even approached the mother’s older daughter, the child’s half sister, to make a negative comment about the mother.

Jennifer Holt, the child’s second-grade teacher, testified that sometimes the child’s hair was not “fixed” and her clothes were “a little worn out.” Holt stated that the stepmother had come to the school three times to change the child’s clothes or hairdo and that the child had been pleased and excited to have the stepmother visit her at school. Holt said she doubted that the child’s academic problems were caused by dyslexia. Instead, she attributed the child’s inability to read to what, she said, was the mother’s failure to spend quality time reading with the child at home. Holt testified that she had spent extensive one-on-one time with the child, but, she said, the school had developed no specific intervention to deal with dyslexia.

In March 2007, the child began seeing Sandra Segall, a counselor, in order to address the child’s low self-esteem and incessant lying. Segall testified that the child told different stories, depending upon whom she was talking to and who had influenced her. Segall said the child had told her that the mother spent no time with her, did not help her, and did not have enough food in the house. Segall said those things were not true. She opined that the mother and the child had a good relationship but that the stepmother had coached the child to make negative statements about the mother. Segall did not think the stepmother was a positive influence on the child. She said she thought the father and the stepmother were more interested in “bashing the mother” than in helping the child.

Segall testified that she had been trained in dyslexia testing at Boston University, that she herself has a child with dyslexia, and that she is convinced that the child in this case has dyslexia. Segall recommended that the mother seek tutoring for the child at Churchill Academy in Montgomery, a private school that specializes in helping children with dyslexia and other learning disabilities. Beginning in the fall of 2007, the mother arranged for the child to be tutored by a Mrs. Brown three days a week after school at Churchill Academy. Segall stated that the child was not receiving emotional support in the father’s home for her dyslexia. Segall said that the child was scheduled to be tutored at Churchill Academy on Tuesdays, Wednesdays, and Thursdays but that the father, who has visitation on Wednesdays, did not take the child to her tutoring sessions on that day. The mother testified that the father was opposed to the child’s being tutored at Churchill Academy and continued to take her to Hornsby for tutoring in Tallassee. The mother wrote the father a letter requesting that he come to talk with Brown, the child’s tutor at Churchill Academy, on April 8, 2008, at 3:15 p.m., so that he could understand “everything [that was] going on,” but the father neither replied to the letter nor came to the meeting.

Segall opined that the Tallassee public-school system was compensating for, but not remediating, the child’s learning disabilities. She explained that compensating for a learning disability is “working around it,” while remediating a learning disability is “fixing” it. She further explained that remediation for dyslexia usually requires an intensive two-year effort, but she said that if remediation is not undertaken by the age of 11, it is too late. Segall stated that the “remediation window” for the child was rapidly closing and that, if she did not receive help soon, the child would never be able to overcome her reading difficulties.

Lisa Schroeder, the director of Churchill Academy, testified that dyslexia is a language-processing disorder that is not caused by a lack of quality time with a parent at home. Schroeder stated that, although the child had made a four- to five-month gain on reading proficiency as a result of being tutored at her facility, the child needed something more intensive than tutoring because she is so academically delayed. The mother testified that, because the child had made progress in reading as a consequence of being tutored at Churchill Academy, she had considered enrolling the child as a student at Churchill Academy for the 2007-2008 school year. She said that she had written the father several letters seeking to discuss the issue but that the father had merely stated his opposition to the child’s leaving the Tallas-see school system and had refused to discuss the matter. The mother testified that the tuition at Churchill Academy is $636.36 per month. She stated that she had applied for and had received Supplemental Security Income (“SSI”) benefits for the child in the amount of $428.58 per month.

Jennifer Holt stated that she did not think Churchill Academy had helped the child. In fact, she said, the child had been embarrassed to check out of school early to attend tutoring sessions at Churchill Academy three days a week. The father’s mother testified that she had not heard good things about Churchill Academy; she said she thought the Tallassee public-school system could “deal with” the child. On cross-examination, she acknowledged that the father had had dyslexia as a child and had been home-schooled for three years when he was in the elementary grades.

The father testified that the mother’s home was unclean, that the carpets had to be removed because they were stained by pet urine and feces, and that the child had contracted head lice in the mother’s home. The mother testified that the child had developed head lice after visitation in the father’s home. She presented photographic evidence showing her residence as clean and well furnished and depicting the child as well dressed and appropriately groomed.

Teresa Minnifield, a Department of Human Resources (“DHR”) food-assistance supervisor who determines food-stamp eligibility, testified that the mother had signed an application for food stamps in 2005 and 2006. The mother had sworn under penalty of perjury that she was single and that there were only two children in the household. Minnifield testified that, when she verified an anonymous tip that the mother was married and there were three children in the household, she referred the matter to the DHR claims unit for a fraud investigation. At trial, the mother admitted that her application had misrepresented her marital status and the number of children living with her.

Standard of Review

In Ex parte McLendon, supra, the Alabama Supreme Court held that a parent seeking a change of custody must prove not only that he or she is a fit parent, but also that a change in custody “ ‘will materially promote [the] child’s welfare,”’ 455 So.2d at 866 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947)). The court explained that the material-promotion 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 decree 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.’ ”

455 So.2d at 865-66 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

This court’s standard of review in custody matters when the evidence is presented ore tenus is limited. Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993).

“Modification of child custody is a matter which falls within the discretion of the trial court. Hester v. Hester, 460 So.2d 1305 (Ala.Civ.App.1984). A trial court is afforded great discretion when determining matters of child custody. Its judgment is presumed correct and will not be disturbed on appeal absent an abuse of discretion or where it is shown to be plainly and palpably wrong. Benton v. Benton, 520 So.2d 534 (Ala.Civ.App.1988).”

Id. See also Ex parte Cleghorn, 993 So.2d 462, 465 (Ala.2008). The trial court’s opportunity to observe witness demeanor is especially important in child-custody cases, see Ex parte Fann, 810 So.2d 631, 636 (Ala.2001). “However, even under the ore tenus rule, ‘[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed.’ ” B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979)).

Analysis

The circuit court’s judgment contains five numbered paragraphs that recount the facts of the case. All five paragraphs, however, recite evidence that was undisputed, namely: (1) that the mother and the father are the biological parents of the child; (2) that the child has always resided with the mother; (3) that the mother admitted to misrepresenting her eligibility for food stamps to the Elmore County DHR; (4) that the child has dyslexia and attention-deficit disorder and has received treatment for those conditions; and (5) that the mother’s aunt has been a stable foundation for the mother and maintains a strong interest in the child’s welfare. The judgment does not include any witness-credibility determinations, nor does it specifically resolve any disputed questions of fact.

“ ‘It is ... well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ ” Ex parte Roberts, 796 So.2d 349, 352 (Ala.2001) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996)). Notwithstanding the deference due the circuit court’s judgment under the ore tenus rule, we agree with the mother that the father failed to meet the burden imposed by McLendon and that the circuit court’s judgment is plainly and palpably wrong. The evidence in the record does not support the conclusion that a change of custody would materially promote the child’s best interests and welfare and that the “‘positive good brought about by the modification [would] more than offset the inherently disruptive effect caused by uprooting the child.’ ” McLendon, 455 So.2d at 865.

The circuit court heard undisputed testimony demonstrating that the mother— without support from the father, and often in the face of antagonism by the father— had arranged for medical and educational testing for the child; that the mother had followed the recommendations of those she considered more knowledgeable than she was; and that the mother, in an effort to cover a part of the child’s tuition at a private school specializing in learning disabilities, had applied for SSI benefits for the child in an attempt to address the child’s academic problems. The court also heard undisputed testimony demonstrating that the father, the stepmother, and the child’s paternal grandparents had either denied the existence or minimized the impact of the child’s learning disabilities, specifically her dyslexia, and had attributed her academic deficiencies to the child’s failure to pay attention and try harder or to what, they thought, was poor parenting by the mother.

As this court stated in Bishop v. Knight, 949 So.2d 160,167 (Ala.Civ.App.2006):

“We readily acknowledge that the trial court was in the best position to evaluate the credibility of the witnesses. See Fell v. Fell, 869 So.2d 486, 494 (Ala.Civ.App.2003) (noting that the trial court is in the unique position to directly observe the witnesses and to assess their demeanor and credibility). Although it was certainly within the province of the trial court to determine the credibility of the witnesses and to shape its judgment accordingly, that judgment must be supported by the evidence. See Judah v. Gilmore, [804 So.2d 1092 (Ala.Civ.App.2000) ].”

This court cannot and will not undertake to resolve the question of what school the child should attend or what educational program the child should follow in order to remediate her learning disabilities. Nor do we condone the mother’s admitted misrepresentation of the facts concerning her eligibility for food stamps. However, we cannot affirm a trial court’s custody-modification judgment that is not supported by sufficient evidence to conclude that a change in custody will materially promote the child’s best interests and that the positive good brought about by a change in custody will more than offset the inherently disruptive effect caused by uprooting the child.

The judgment of the Elmore Circuit Court is reversed.

APPLICATION OVERRULED; OPINION OF JUNE 5, 2009, WITHDRAWN; OPINION SUBSTITUTED; REVERSED.

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

      . Rule 1(B) provides, in pertinent part:
      "Procedure shall be uniform in all juvenile courts, whether at the circuit of district court level or in the circuit court by trial de novo. All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days. A postjudgment motion is deemed denied if not ruled on within 14 days of filing.”

      . Rule 4(a)(5) provides:
      "A notice of appeal filed after the entry of the judgment but before the disposition of all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59, Alabama Rules of Civil Procedure, shall be held in abeyance until all post-judgment motions filed pursuant to Rules 50, 52, 55, and 59 are ruled upon; such a notice of appeal shall become effective upon the disposition of the last of all such motions.”


author: THOMPSON, Presiding Judge.

text:
    Bobby D. LUCKY v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Quest Trust Series 2006-X1 under the Pooling & Servicing Agreement Dated as of March 1, 2006, without Recourse.
    2080836.
    Court of Civil Appeals of Alabama.
    Dec. 4, 2009.
    Rehearing Denied April 2, 2010.
    Curtis L. Whitmore, Huntsville, for appellant.
    Greggory M. Deitsch, Kerry P. Mclner-ney, Robin L. Beardsley, and Marcus M. Maples of Sirote & Permutt, P.C., Birmingham, for appellee.
   THOMPSON, Presiding Judge.

Bobby D. Lucky appeals from the trial court’s summary judgment in favor of Deutsche Bank National Trust Company, as trustee of Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Quest Trust Series 2006-X1 under the Pooling & Servicing Agreement Dated as of March 1, 2006, without Recourse. Lucky had executed a mortgage on certain real property in Limestone County (“the property”) in favor of Ameri-quest Mortgage Company, but the mortgage was subsequently transferred and assigned to Deutsche Bank. After Lucky failed to make several payments on the mortgage, Deutsche Bank foreclosed on the property securing the mortgage. Lucky refused to vacate the property, and Deutsche Bank filed an action for ejectment against Lucky. In its complaint, Deutsche Bank also sought money damages resulting from Lucky’s alleged wrongful retention of the property and an order declaring that Lucky had forfeited his right of redemption. Lucky answered and filed a counterclaim.

Deutsche Bank moved for a summary judgment. Lucky did not file any materials in opposition to the motion. The trial court entered a summary judgment in favor of Deutsche Bank and against Lucky on all Deutsche Bank’s claims in its complaint and on Lucky’s counterclaim. The judgment went on to describe the parcel of property from which Lucky was being ejected, and it ordered that Deutsche Bank was to take immediate possession of that parcel. The judgment did not, however, determine money damages owed to Deutsche Bank for Lucky’s wrongful retention of the property, as Deutsche Bank had requested in its complaint.

“ ‘An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.’ Palughi v. Dow, 659 So.2d 112, 113 (Ala.1995). For a judgment to be final, it must put an end to the proceedings and leave nothing for further adjudication. Ex parte Wharfhouse Rest. & Oyster Bar, Inc., 796 So.2d 316, 320 (Ala.2001). ‘[WJithout a final judgment, this Court is without jurisdiction to hear an appeal.’ Cates v. Bush, 293 Ala. 535, 537, 307 So.2d 6, 8 (1975).”

Hamilton v. Connally, 959 So.2d 640, 642 (Ala.2006). “That a judgment is not final when the amount of damages has not been fixed by [that judgment] is unquestionable. Moody v. State ex rel. Payne, 351 So.2d 547 (Ala.1977).” “Automatic” Sprinkler Corp. of America v. B.F. Goodrich Co., 351 So.2d 555, 557 (Ala.1977).

Because the amount of damages resulting from Lucky’s wrongful retention of the property has not been determined, the judgment in this case is not final; therefore this court is without jurisdiction to hear Lucky’s appeal. Accordingly, this appeal is due to be dismissed.

APPEAL DISMISSED.

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


author: BRYAN, Judge.

text:
    M.H. v. H.N.M.
    2080686.
    Court of Civil Appeals of Alabama.
    Dec. 4, 2009.
    Rehearing Denied Feb. 12, 2010.
    Certiorari Denied April 9, 2010 Alabama Supreme Court 1090707.

      Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellant.
    Charles R. Stephens, Jr., of Stephens, Stephens & Williams, L.L.C., Jasper, for appellee.
   BRYAN, Judge.

M.H. (“the father”) appeals from a judgment of the Walker Juvenile Court (“the juvenile court”) granting custody of his daughter, M.J.H. (“the child”), born in December 2004, to H.N.M. (“the maternal aunt”).

On December 5, 2007, the maternal aunt filed a verified petition for custody and sought ex parte “temporary” custody of the child “during the pendency of this action.” In her verified petition, the maternal aunt alleged that E.D., the child’s mother (“the mother”), was vested with custody of the child, that the mother’s whereabouts were unknown, and that the child’s two half siblings were also in her custody. The maternal aunt also alleged that the father had “had virtually no relationship with th[e] child,” that the child was not aware that the father was her father, and that the father had at one time contemplated terminating his parental rights to the child. The maternal aunt averred that it was contrary to the best interest of the maternal aunt and the child to notify the father regarding the issuance of a temporary order. The maternal aunt further sought a temporary restraining order to be issued against the father. The juvenile court granted the maternal aunt’s petition for temporary custody on the same day, citing the potential for immediate and irreparable harm to the maternal aunt and to the child.

The father filed an answer to the maternal aunt’s verified petition for custody on December 12, 2007. The father denied the material allegations made by the maternal aunt and stated that he was the fit and proper person to have custody of the child. The father requested that the juvenile court set the matter for an immediate hearing, set aside the ex parte temporary order granting custody of the child to the maternal aunt, and award custody of the child to the father.

On April 30, 2008, the father filed a motion to dissolve the order granting temporary custody of the child to the maternal aunt or, in the alternative, to schedule visitation between him and the child. In his motion, the father stated that the mother had died on or about December 11, 2007, that the maternal aunt had not allowed the father or his family to visit the child since the entry of the temporary order, and that the maternal aunt’s actions were having a negative impact on the child’s relationship with the father.

On June 13, 2008, the juvenile court held an ore tenus hearing on the father’s motion to dissolve the order awarding temporary custody of the child to the maternal aunt or, in the alternative, to schedule visitation. The juvenile court issued a lengthy final order on April 15, 2009, that found that the father was unfit to have custody of the child, that the father had “voluntarily forfeited his place as the fit and proper person to have custody of the ... child,” and that custody of the child was to remain with the maternal aunt. The juvenile court did not address the father’s alternative request for visitation with the child. The father timely filed a notice of appeal.

On appeal, the father argues that the juvenile court erred by considering his physical appearance in awarding custody of the child to the maternal aunt. He also argues that the juvenile court exceeded its discretion in awarding custody of the child to the maternal aunt because, he alleges, the juvenile court’s findings were not supported by the evidence and the maternal aunt failed to show that the father was unfit to have custody of the child. Finally, the father argues that the juvenile court exceeded its discretion by failing to award him any visitation with the child.

“Although neither party has questioned this court’s jurisdiction, we must consider whether we have jurisdiction over this appeal, because ‘“jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’”” Kelley v. Thomas, 878 So.2d 1168, 1171 (Ala.Civ. App.2003) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). “[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’” Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)).

In the present case, there was not a complete adjudication of all the matters in controversy between the parties because the juvenile court failed to address the father’s request for visitation. Therefore, we conclude that the order entered on April 15, 2009, was not a final judgment and that the father’s appeal must be dismissed as an appeal from a nonfinal judgment. Hubbard v. Hubbard, supra. Cf. Thompson v. Halliwell, 668 So.2d 43, 45 (Ala.Civ.App.1995) (dismissing the father’s appeal as being from a nonfinal judgment because the juvenile court had not finally adjudicated the issues of visitation and child support); see also Kelley v. Thomas, 878 So.2d 1168 (Ala.Civ.App.2003) (appeal dismissed as being from a nonfinal judgment when the trial court’s judgment failed to address the father’s request that the mother be awarded visitation).

APPEAL DISMISSED.

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


author: WISE, Presiding Judge.

text:
    Isaac WILLIAMS v. STATE of Alabama.
    CR-08-1994.
    Court of Criminal Appeals of Alabama.
    March 26, 2010.
    Glenn L. Davidson, Mobile, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Isaac Williams, was convicted of murder, a violation of § 13A-6-2(a)(1), Ala.Code 1975. The trial court sentenced him to serve a term of life in prison. Williams did not file any post-trial motions. This appeal followed.

Williams argues that the trial court erred when it instructed the jury on the issue of self-defense. Specifically, he contends that the trial court’s instruction misstated the law regarding the right to stand one’s ground pursuant to § 13A-3-23(b), Ala.Code 1975.

When it instructed the jury on self-defense, the trial court stated, in part:

“The Defendant is not justified in using deadly physical force upon another person, and cannot prevail on the issue of self-defense if it reasonably appears or the Defendant knows that he can avoid the necessity of using such force with complete safety by retreating, except that the Defendant is not required to retreat if he is in his own dwelling or was not the original aggressor.”

(R. 234.) After the trial court completed its oral charge, the following occurred:

“THE COURT: Okay. Any exceptions from the Defense?
“[DEFENSE COUNSEL]: ... I believe that the stand-your-ground provisions of the self-defense statute would apply. And the — my requested instruction Number 2, the final paragraph is what I believe the Court should instruct the jury on. ‘A person [who] is justified in using physical force[,] including deadly physical force [and] who is not engaged in any unlawful activity and is in a place where he or she has the right to be has no duty to retreat and has the right to stand his ground.’
“I believe that would be the appropriate instruction to the jury in this case.
“THE COURT: I will be glad to bring them back out here and read that.
“[PROSECUTOR]: And, Judge, I thought that part was covered about the duty not to retreat.
“THE COURT: I just got&wkey;
“[DEFENSE COUNSEL]: You said ' it was a dwelling. I think you qualified it and said it was just in his dwelling.
“THE COURT: Well, let me read it again.
“[DEFENSE COUNSEL]: Okay.
“THE COURT: I think there were three areas. Okay. ‘Defendant is not justified in using deadly physical force upon another person and cannot prevail on the issue of self-defense if it reasonably appears or the Defendant knows he can avoid the necessity of using such force with complete safety by retreating, except that the Defendant is not required to retreat if he is in his dwelling or was not the original aggressor.’
“I, you know, don’t know — I could have said or he had to stand — he could stand his ground. But—
“[DEFENSE COUNSEL]: I think if you just supplemented what you did say with the third paragraph of my requested Number 2, we would be satisfied with that.
“[PROSECUTOR]: And, Judge, I would—
“DEFENSE COUNSEL: Well—
“[PROSECUTOR]: The State would contend that that has already been sufficiently covered in what you just stated to the jury.
“THE COURT: Gosh. I thought I really covered self-defense pretty well. I mean, I could sit here and read about self-defense a lot, a long time.
“But I am going to — I’m going to deny your motion.
“[DEFENSE COUNSEL]: All right.
“THE COURT: I think all I would be doing is bringing them out here and highlighting a certain area of my charge, which I don’t think is appropriate.
“[DEFENSE COUNSEL]: Okay. Just note my exception for the record.”

(R. 247-49.)

Section 13A-3-23(b), Ala.Code 1975, as amended effective June 1, 2006, provides:

“A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.”

The trial court’s self-defense instruction did not substantially cover the language set forth in the amended version of § 13A-3-23(b), Ala.Code 1975. Rather, the instruction was similar to the language regarding the duty to retreat as set forth in the pre-amendment version of § 13A-3-23(b), Ala.Code 1975, which provided, in pertinent part:

“(b) ... [A] person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety:
“(1) By retreating, except that the actor is not required to retreat:
“a. If he is in his dwelling or at his place of work and was not the original aggressor....”

Therefore, the instruction was an incorrect statement of law, and the trial court erred when it refused to reinstruct the jury regarding the right to stand one’s ground pursuant to the current version of § 13A-3-23(b), Ala.Code 1975. Cf. Jackson v. State, 993 So.2d 45 (Ala.Crim.App.2007) (holding that the trial court’s incorrect statement of the law regarding the duty to retreat pursuant to the pre-amendment version of § 13A-3-23 (b), Ala.Code 1975, and its failure to instruct the jury regarding the “free from fault” doctrine constituted reversible error). Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

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

      . The offense in this case was committed on February 1, 2008.

      . Because of our disposition of this case, we pretermit discussion of the remaining claims Williams raises in his brief to this court.