text:
    Brandy Lynn MOTLEY v. Gregory Alan MOTLEY.
    2090879.
    Court of Civil Appeals of Alabama.
    March 4, 2011.

      Brandy Lynn Motley, pro se.
    J. Knox Argo, Montgomery, for appel-lee.
   THOMAS, Judge.

Brandy Lynn Motley (“the wife”), a pro se appellant, appeals from the a judgment of Montgomery Circuit Court (“the trial court”) divorcing the her from Gregory Alan Motley (“the husband”). We affirm the judgment in part and reverse it in part.

Facts and Procedural History

The parties were married on August 25, 2001. The parties have one minor child — a son who was born on February 15, 2002 (“the child”). The parties separated in October 2008, and the husband filed a complaint for a divorce and a request for pen-dente lite relief on February 28, 2009. Following a pendente lite hearing before a special master, the special master filed a “report of reference” with the trial court. The special master’s report of reference awarded the parties joint custody of the child. The child was to “reside primarily” with the wife, and the husband was awarded “visitation.” The wife was to maintain health insurance for the child, and the husband was to pay the wife $250 per month in child support. The trial court “approved and affirmed” the report of reference, and neither party filed an objection.

The trial court conducted a trial on December 1, 2009, at which it received ore tenus testimony. The evidence was as follows:

At the time the parties married, the husband was not employed, but he received a monthly $1,000 cash gift from his father. The wife was enrolled in nursing school at Troy State University in Montgomery; she graduated in 2005.

The wife had an affair with another man in 2006. Rather than seeking a divorce at that time, the parties agreed to work things out and purchased a house together in 2007. The parties lived in the house together until October 2008, when the husband moved out. The husband testified that the parties had marital problems from the time the wife had the affair until the time they separated. The husband testified that the reason he left the wife was because the wife had abused prescription pills, specifically Adderall. The wife testified that she had had an Adderall prescription and that she had been taking the recommended dosage. The husband testified that, before the parties separated, the wife “was staying up until the wee hours of the morning and she’d sleep during the day and [the child] was getting to school late.” The husband testified that “he got tired” of the wife’s failure to get the child to school on time and moved out. The husband agreed that his “solution to this problem was to abandon [the] child and move out of the house.” After the parties separated, they sold the marital residence and divided their personal property.

The husband also testified that the wife had “filed a protection from abuse order” against him based on his alleged physical abuse of the wife. The husband denied ever having physically abused the wife. The wife introduced evidence in the form of pictures of bruises on her body that the husband had allegedly inflicted on her on October 16, 2008; the wife testified that the husband had been “on something” when the alleged abuse took place. The wife testified that she had not called the police to report the incident. Further, the wife testified that she did not believe that the husband was a danger to the child and that she was not opposed to the husband’s having visitation with the child.

The husband also testified that, after the parties had separated, he broke out the windows in the wife’s car, a 2006 Honda Accord that the parties had jointly leased during the course of their marriage. The wife indicated that the husband had also “rammed into [the wife’s] car” with his car; the wife filed a police report regarding that incident. The wife paid to repair her car.

The husband testified that, at the time of the trial, he had not been employed for “a couple of years now” but that he was still receiving the $1,000 per month cash gift from his father. The wife testified that the husband worked for his father’s business and that she believed he received approximately $3,000 per month in income; the husband denied that he had been paid for work that he had performed for his father’s business. After the parties separated, the husband apparently lived intermittently at three different properties that his parents owned: his parents’ residence, a house situated next to a pond, and a house “down in the country.” The husband indicated that his parents’ residence had four bedrooms and four bathrooms. The husband testified that the child would have his own bedroom if the husband were living in his parents’ residence. The parties agreed that it was in the child’s best interest to have his own bedroom. At the time of the trial, the husband was living with another woman in the house his parents owned situated next to a pond.

The wife testified that she had lived with another man, who is simply referred to in the record as “Chris,” from January 2009 until September 2009. At the time of the trial, the wife had moved into an apartment with a female friend. The husband testified that the child would not have his own bedroom at the wife’s apartment. In fact, the child had to sleep on the wife’s couch when staying with the wife. The wife’s residence with Chris had been in the Dalraida school district, and the child was enrolled at Dalraida Elementary School. The wife and the child currently reside in the Blount school district; however, both of the parties agreed that it would be in the child’s best interest for him to finish the school year at Dalraida Elementary School.

At the time the parties separated, the wife was working at a “cancer care center”; she was subsequently laid off. At the time of the pendente lite hearing, the wife had been working at Jackson Hospital as a “floor nurse.” Pursuant to the pen-dente lite order, the wife had obtained health insurance for the child through her job with Jackson Hospital. However, the wife was subsequently laid off from her employment with Jackson Hospital. The •wife then obtained employment with a doctor’s office, but obtaining health insurance for the child through her employment with the doctor’s office would have cost approximately $800 per month. As a result, the wife asked the husband to obtain health insurance for the child, which he did. At the time of the trial, the husband was paying approximately $862 per month in health-insurance expenses for the child; the wife testified that the deductible was $1,000. The wife testified that she had incurred approximately $400 in health-care expenses for the child in 2009. By the time of the trial, the -wife had been laid off from her employment with the doctor’s office.

At the time of the trial, the wife had found a new job but had not started working yet. The wife testified that she anticipated being paid $125 for every patient she saw and expected to see six to seven patients per week; such estimations would put the wife’s estimated income anywhere from $8,000 to $3,500 per month. The wife testified that she had been paying $200 per month in day-care expenses.

The parties were indebted to numerous creditors at the time of the trial. The types of debt included the wife’s student-loan debt as well as numerous credit accounts; the total indebtedness of the parties amounted to $50,343.98. The wife’s exhibit four, which was admitted at trial, indicates that the wife had incurred $6,125 in student-loan debt before the parties were wed and $21,500 after the parties were wed. The husband testified, and the wife agreed, that he was employed during the period that the wife had incurred the student-loan debt; the wife testified that, during that period, the husband had earned $800 every two weeks. The wife testified that the parties had used the money from the student loans “on food, on groceries, on taking care of [the] child, on paying bills”; the husband disputed that the student-loan money had been used on anything but the wife’s education. When the wife began working for Baptist Hospital after she completed her nursing degree, Baptist Hospital paid $7,000 toward her student-loan debt. The wife introduced evidence at trial indicating that the remaining balance on her student-loan debt was $27,456.35.

The parties also owed $22,887.63 to other creditors at the time of the trial. The wife testified that most of the accounts were in her name but that they had been used for the benefit of the parties and the child, i.e., for purchasing groceries, clothes, and gas for their vehicles. The parties agreed that they owed approximately $3,200 on furniture purchased from Rooms-to-Go, a furniture store. The parties also agreed that the wife had possession of the furniture. The wife testified that the husband had incurred $1,824.70 in debt at a Best Buy electronics store and that the items purchased from Best Buy, except for a camera, had been solely for the husband’s use and enjoyment. The wife also testified that the debt in the amount of $2,074 owed to American General was solely the husband’s obligation. The wife testified that the husband’s mother had “paid any debts that were in [the husband’s] name off.” The wife’s exhibit delineating the parties’ credit-card debts indicates that the parties had a balance of $7,565.30 on a Discover credit card. The wife testified that she had charged $3,000 on the Discover card as soon as she got it in 2003 but that that charge had been paid off.

At the time of the trial, the parties owed $11,635.85 on the car lease. The wife had continued to drive the car after the parties had separated. According to the husband, the wife was to make the payments on the car lease and was to maintain insurance on the car. The wife agreed that she was to make the car payments, but she testified that the husband had agreed to make the insurance payments. After the parties separated, the wife wrecked and totaled the car in May or April of 2009. At that time, the wife discovered that the car insurance had not been paid since January or February of 2009 and, as a result, had been canceled.

Based on the ore tenus evidence, the trial court entered a judgment on January 20, 2010. The trial court’s judgment purported to award the parties joint custody of the child. The trial court ordered that the child was to reside with the wife and set forth specific visitation rights for the husband, ordering that the husband have physical custody of the child “every other weekend commencing on Friday at 3:00 p.m. and continuing until the following Sunday at 5:00 p.m.,” “for thirty (30) consecutive days during the summer,” and for other specified holidays. The trial court’s judgment also ordered as follows:

“6. MEDICAL/DENTAL EXPENSES: The Husband shall continue to maintain health insurance for the benefit of the minor child as he is presently doing. The Parties shall equally be responsible for and shall each pay one-half of all medical/dental expenses not covered by insurance including, but not limited to, all deductibles, co-payments, medical, dental, optical, orthodontic, counseling and prescription drug expenses incurred on behalf of the minor child.
“7. CHILD SUPPORT:
“a. Child support has been computed in accordance with the Child Support Guidelines, Rule 32, Alabama Rules of Judicial Administration, based on the income of the Parties as stated in their respective CS-41’s filed herein and their testimony at the Hearing. According to the computation, beginning on December 1, 2009 the Wife shall pay to the Husband child support in the sum of One Hundred Forty-Four and 45/100 ($144.45) Dollars per month for the support and maintenance of the minor child of the Parties. Said payments shall be paid by wage withholding and an order shall issue immediately to the employer. Such child support shall continue until the minor child becomes nineteen (19) years of age, graduates from high school, marries, or becomes otherwise self supporting, whichever shall first occur.[]
“b. As stated above, the Wife was ordered to provide health insurance for the minor child beginning April 1, 2009 and has failed to do so. The Husband has provided such insurance at a cost of $310.11 for April through July 2009 (4 x $310.11 = $1,240.44) and at the current rate of $362.00 per month from August through November 2009 (4 x $362 = $1,448) for a total of $2,688.44. A judgment is hereby given to the Husband in the amount of $2,688.44.
“9. That as stated previously, the Wife shall be responsible for the ‘Rooms to Go’ debt.
“10. That as stated previously, the Husband shall be responsible for the ‘Best Buy’ debt.
“11. That as stated previously, the Wife shall be responsible for her ‘student loans.’
“12. That as stated previously, the Wife shall be responsible for the [car] debt.
“13. That the Parties shall be equally responsible for paying all other marital debt not specifically named herein.”

As mentioned in footnote 2, the husband filed a postjudgment motion on February 4, 2010, requesting that the trial court correct its final judgment insofar as it required the husband rather than the wife to pay child support. The husband also requested in his postjudgment motion that the trial court modify its judgment in order to make the wife solely responsible for the parties’ debt owed to Rooms-to-Go. The wife also filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., on February 8, 2010. In her postjudgment motion, among other things, the wife challenged the trial court’s computation of child support. On May 4, 2010, the trial court granted the husband’s motion and denied the wife’s motion, as follows:

“1. The said Final Decree of Divorce is revised to state that the Wife shall pay to the Husband the child support as stated therein.
“2. The ‘Credit card debts’ shown on the Wife’s Ex. 4 shall be divided as follows: The Husband shall be responsible for the Best Buy and American General (which has been paid in full) [debts]; the Wife shall be responsible for the Discover and Rooms to Go debts; and, all other debts shown in the Credit card debts list shall be the equal responsibility of both parties.”

The wife appealed.

Standard of Review

This court’s well established standard of review in divorce proceedings is that a divorce judgment based on ore tenus evidence is presumed correct, and such a judgment will be reversed only when it is unsupported by the evidence so as to be plainly and palpably wrong. See Harmon v. Harmon, 928 So.2d 295 (Ala.Civ.App.2005) (citing Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ.App.2003)).

Discussion

The wife argues that, “[a]s the custodial parent, she should not be responsible to pay child support to [the husband], who is the non-custodial parent and who only has custody of [the child] every other weekend and on Wednesdays with the exception of certain holidays and for 30 days during summer vacation.” Although the wife does not fully support her argument with legal authority, she does direct this court’s attention to our statutes governing child custody, § 30-3-150 et seq., Ala.Code 1975, and it is clear that this pro se appellant is challenging the trial court’s judgment insofar as it purports to hold that the parties have joint physical custody, as that term is defined in § 30-3-151, Ala.Code 1975. The wife appears to argue that she has been awarded sole physical custody, as that term is defined in § 30-3-151. We agree.

Section 30-3-151 defines the various forms of custody a trial court can award as follows:

“(1) Joint custody. Joint legal custody and joint physical custody.
“(2) Joint legal custody. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
“(3) Joint physical custody. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.
“(4) Sole legal custody. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.
“(5) Sole physical custody. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.”

In New v. McCullar, 955 So.2d 431 (Ala. Civ.App.2006), this court reviewed a trial court’s judgment refusing to modify a custody order. In New, the father had filed a motion to modify the trial court’s judgment establishing custody of the parties’ minor son. In reviewing the father’s modification petition, the trial court applied the Ex parte McLendon, 455 So.2d 863 (Ala.1984), custody-modification standard, apparently concluding that it had previously awarded the mother sole physical custody of the parties’ child. The trial court’s judgment, which the father sought to have modified, ordered that

“ ‘the parties shall share joint legal and joint physical custody of the minor child, and the child’s primary residence shall be with the Defendant-Mother, subject to all rights of visitation on the part of the Plaintiff-Father .... ’
“The father was awarded extensive ‘visitation,’ including (1) alternate weekends from 6:00 p.m. on Thursday until the following Monday at the beginning of school or 8:30 a.m., whichever comes first, (2) two consecutive nights of overnight visitation on alternate weeks, from 6:00 p.m. on Tuesday until Thursday morning at the beginning of school, or 8:30 a.m., (3) six weeks of summer visitation, and (4) designated holidays that alternated annually between the parents. According to the father, he had physical custody of the child at least one half of the time; according to the mother, the father had custody of the child 35 to 40 percent of the time.”

New, 955 So.2d at 432. In reviewing the trial court’s decision denying the father’s custody-modification petition, this court stated:

“The central question in this case is which standard — [Ex parte ] McLendon [455 So.2d 863 (Ala.1984),] or [Ex parte ] Couch[, 521 So.2d 987 (Ala.1988)]— should be applied. If the divorce judgment awarded primary or sole physical custody to the mother, the McLendon standard applies. If the divorce judgment awarded joint physical custody, the best-interests standard of Couch applies. In this case, we conclude that the trial court incorrectly required the father to meet the McLendon standard in order to obtain a modification of the divorce judgment as it relates to custody.
“We begin our analysis with Alabama’s joint-custody statute, Ala.Code 1975, §§ 30-3-150 through -157. Section 30-3-151(3) defines ‘joint physical custody’ as
“ ‘[p]hysieal custody ... shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.’
“The custody arrangement set forth in the parties’ agreement and incorporated into the divorce judgment fits within this statutory definition of ‘joint physical custody.’ The agreement provided that the parties would share ‘joint legal and joint physical custody’ of the child. The judgment provided for the child to reside with the father almost one half of every month during the school year and approximately one half of each summer. It also provided that the child would spend approximately one half of certain designated holiday periods with the father. That arrangement clearly ‘assures the child frequent and substantial contact with each parent.’ § 30-3-151(3).
“The evidence in the record also shows that both parties in fact had frequent and substantial contact with the child; both parties lived in the same part of Baldwin County, and the father frequently took the child to, or picked him up from, school and various activities. There is also evidence in the record indicating that the child frequently stayed overnight with the father and that both parties were involved with the child’s school and extracurricular activities.
“In light of the foregoing factors, we do not consider it material that the mother had custody for a majority of the time each month. The statute does not require equal durations of time, and we have previously determined that the allocation to one parent of approximately 50 more days of physical custody per year did not constitute a custodial preference so as to warrant the application of the McLendon standard. Rehfeld v. Roth, 885 So.2d 791 (Ala.Civ.App.2004). See also Reuter v. Neese, 586 So.2d 232 (Ala.Civ.App.1991) (Couch standard applied to an arrangement under which one parent had primary custody during the school year and the other parent had primary custody during the summer).
“Similarly, under the circumstances of this case, we do not find that the express declaration that the parties were awarded joint physical custody was contradicted by the statement in the divorce judgment that ‘the child’s primary residence shall be with [the mother]’ or by the references to the father’s ‘visitation.’ To the extent that the divorce judgment is internally inconsistent, we conclude that it in fact created a joint-physical-custody arrangement, as defined by § 30-3-151(3).”

955 So.2d at 435-36 (footnotes omitted).

The present case is distinguishable from New because, in this case, the child is to “reside with the Wife” and the husband is to see the child only a total of four days and five nights per month, in addition to scheduled visitation during certain holidays. The husband is also to have the child for “thirty (30) consecutive days during the summer.” Under the trial court’s custody order, the wife will have the child for approximately 280 days of the year, more than three quarters of the year, and the husband will have the child for approximately 85 days of the year, less than one quarter of the year. In New, this court found it significant that “the allocation to one parent of approximately 50 more days of physical custody per year did not constitute a custodial preference....” 955 So.2d at 435. However, in the present case, unlike in New, the custody arrangement allocates to the wife approximately 200 more days of physical custody per year. The custody arrangement in the present case simply does not support the trial court’s judgment purporting to award the parties joint physical custody of the child. Rather, it appears that the wife was awarded sole physical custody of the child, subject to the visitation rights of the husband. Cf. Nauditt v. Haddock, 882 So.2d 364, 367 (Ala.Civ.App.2003) (holding that a custody award granting “joint custody” to the parents and ordering that the child spend one third of his time with the mother and two thirds of his time with the father granted “joint physical custody,” as that term is defined in § 30-3-151). In fact, the husband states in his appellate brief that the trial court’s custody award “allocates the time that the child is in the physical custody of each parent in a manner similar to the [wife’s] having sole physical custody....” Therefore, we conclude that the wife was awarded sole physical custody of the child. Based on that holding, we hold that the trial court erred by ordering the wife, the custodial parent, to pay child support to the husband, the noncustodial parent. See Davenport v. Hood, 814 So.2d 268, 276 (Ala.Civ.App.2000) (noting that noncustodial parents have a duty to support their children).

Next, the wife argues that the trial court did not properly consider the evidence of the husband’s physical abuse of the wife in awarding the parties joint physical custody. However, our holding that the trial court’s judgment awarded the wife sole physical custody of the child pretermits discussion of this argument. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue). The wife does not indicate in her appellate brief before this court that she does not want the husband to have visitation with the child, and, at trial, the wife testified that she did not view the husband as a threat to the child and wished for the husband to have visitation. Therefore, this issue will not be discussed further.

Next, the wife argues that the trial court’s judgment requiring her to repay the husband for the expenses he incurred in providing health insurance for the child is in error. Pursuant to the pendente lite order entered by the trial court, the wife was required to provide health insurance for the child until a final judgment was entered. The wife admittedly violated the pendente lite order and asked the husband to provide health insurance for the child. The husband complied. However, the wife provides no legal authority to support her argument, and, thus, we will not consider that argument on appeal:

“Rule 28(a)(10), Ala. R.App. P., requires that arguments in an appellant’s ... brief contain ‘citations to the cases, statutes, other authorities, and parts of the record relied on.’ The effect of a failure to comply with Rule 28(a)(10) is well established:
“ ‘It is settled that a failure to comply with the requirements of Rule 28(a) ([10]) requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
“ ‘ “When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court’s duty nor its function to perform an appellant’s legal research. Rule 28(a) ([10]); Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala.1993).”
‘City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala.1998). See also McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985); and Ex parte Riley, 464 So.2d 92 (Ala.1985).’
“Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). ‘[W]e cannot create legal arguments for a party based on undeli-neated general propositions unsupported by authority or argument.’ Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992).”

University of South Alabama v. Progressive Ins. Co., 904 So.2d 1242, 1247-48 (Ala. 2004).

Lastly, the wife “requests ... a review of the division of marital debt.” It appears from her appellate brief that she is appealing the trial court’s judgment insofar as it assigns her responsibility for her student-loan debt and for the debt associated with the car. However, once again, the wife fails to provide this court with any legal authority to support her argument, and, thus, we will not consider that argument on appeal. Progressive, 904 So.2d at 1247-48; Rule 28(a)(10), Ala. R. Civ. P.

Conclusion

Based on the foregoing, we reverse the trial court’s judgment insofar as it purported to award the parties joint physical custody and insofar as it ordered the wife to pay child support to the husband, and we remand the matter to the trial court so that it may enter a judgment awarding the wife sole physical custody of the child and eliminating the wife’s child-support obligation to the husband. In all other respects, the trial court’s judgment is affirmed.

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

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

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

      . On her Form CS-41 "Child-Support-Obligation Income Statement/Affidavit,” the wife listed her monthly income as $1,235, which reflected only her unemployment benefits. On the parties' Form CS-42 "Child-Support Guidelines” from, prepared by the husband’s attorney, the wife’s monthly gross income was estimated at $4,225; the wife did not dispute that amount at the trial. That figure was reached by the husband’s attorney by taking the average of $150 per patient multiplied by 6 patients multiplied by 4.333 weeks per month ($3,899.70) and $150 per patient multiplied by 7 patients multiplied by 4.333 weeks per month ($4,549.65). Apparently, the husband’s attorney was attempting to estimate the wife’s income by taking the average of the wife's anticipated salary based on whether she saw six or seven patients in one week. However, there is nothing in the record to support using $150 as the amount the wife would earn per patient. The wife testified that she would earn only $125 per patient.

      . The original judgment of the trial court erroneously ordered that the husband pay to the wife child support in the amount of $144.45 per month. However, the husband filed a postjudgment motion pursuant to Rule 59(e), Ala. R. Civ. P., requesting that the trial court amend its judgment in order to correct the error. The trial court granted the husband’s postjudgment motion and corrected the error, as reflected above.

      . On June 3, 2010, the wife filed another postjudgment motion. The trial court determined that the wife had not properly served her postjudgment motion on the husband and, thus, ordered her to do so before it would consider her postjudgment motion. Instead, the wife filed her notice of appeal on June 14, 2010. The wife then perfected service of her pending postjudgment motion on June 17, 2010. The husband filed a response to the wife's postjudgment motion, asserting that the wife had already filed a postjudgment motion upon which the trial court had ruled and, thus, that no further postjudgment motions were appropriate and that the trial court was without jurisdiction to consider the wife’s postjudgment motion' because the wife had already filed a notice of appeal. The trial court subsequently denied the wife’s post-judgment motion.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    E.G. v. M.P.
    2090640.
    Court of Civil Appeals of Alabama.
    March 4, 2011.

      W. Greg Graham of The Graham Legal Firm, Phenix City, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

E.G. (“the stepfather”) has appealed from a judgment of the Russell Juvenile Court purporting to award custody of M.A.G. (“the child”) to M.P. (“the biological father”).

A brief overview of the pertinent facts is sufficient. The child was born on September 30, 1998, to T.G. (“the mother”), an unmarried woman, who married the stepfather six days after the birth of the child. The record reflects that the stepfather’s name is listed on the child’s birth certificate as the child’s father. The mother and the stepfather had two additional children who are not at issue in this case: E.L.G., who was born in December 1999, and A.G., who was born in December 2000. All three children were held out as siblings and were reared together by the mother and the stepfather until the mother was killed in a motor-vehicle accident in July 2008.

In October 2008, Jo Anna C. Parker was appointed to be the child’s guardian ad litem. One year later, Parker, acting on the child’s behalf, filed a petition to establish paternity as to the child. In December 2009, the juvenile court conducted an ore tenus proceeding to consider the child’s paternity; at that proceeding, over the stepfather’s objection, the juvenile court admitted genetic-testing results indicating that the biological father was the child’s father. On December 8, 2009, the juvenile court entered an order adjudicating the biological father’s paternity of the child and awarding the biological father alternating weekend and after-school Wednesday visitation with the child. Although custody of the child remained with the stepfather, the local Department of Human Resources (“DHR”) was instructed to conduct home evaluations on the stepfather’s and the biological father’s residences. The home evaluations revealed no identifiable problems with either the stepfather’s or the biological father’s home.

In February 2010, the biological father filed a new petition in the juvenile court seeking full physical and legal custody of the child. The juvenile court conducted another ore tenus proceeding in March 2010, during which the stepfather, the biological father, the biological father’s mother, the stepfather’s sister-in-law, the stepfather’s sister, and a neighbor of the stepfather testified. At the beginning of the hearing, the juvenile court stated in answer to the stepfather’s attorney’s question regarding the standard to be applied in the case that it would consider the “best interests” of the child. At the conclusion of the proceeding, the guardian ad litem recommended that the juvenile court award the child’s custody to the biological father. The juvenile court entered a judgment in March 2010 in which it purported to award physical custody of the child to the biological father and to award the stepfather liberal visitation, including two nights each week and alternating weekends. The stepfather filed a timely appeal and asserts that the juvenile court erroneously awarded custody of the child to the biological father. Rather than addressing the merits, we are required to dismiss this appeal because the juvenile court’s judgment is void for lack of subject-matter jurisdiction.

“[A] lack of subject-matter jurisdiction is not subject to waiver by the parties, and it is our duty to consider a lack of subject-matter jurisdiction ex mero motu.” Ex parte T.C., 63 So.3d 627, 630 (Ala.Civ.App.2010). In Ex parte T.C., we explained the effect of the enactment of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, on a juvenile court’s exercise of retained jurisdiction over child-custody determinations when a child has not been found to be dependent, delinquent, or in need of supervision. We noted that

“under former law, ‘[w]hen a juvenile court ha[d] jurisdiction to make an initial child-custody determination, it re-tainted] jurisdiction over a petition to modify that custody judgment to the exclusion of any other state court until the child reache[d] 21 years of age or the juvenile court terminate[d] its jurisdiction.’ [W.B.G.M. v. P.S.T., 999 So.2d 971,] 974 [ (Ala.Civ.App.2008) ].”

Ex parte T.C., 63 So.3d at 630 (citing former §§ 12-15-32(a) and 26-17-10(e), Ala.Code 1975). However, the statutory provisions of the AJJA, applicable to cases filed after January 1, 2009, limit a juvenile court’s retained jurisdiction to cases in which “a child has been adjudicated dependent, delinquent, or in need of supervision.” Ala.Code 1975, § 12-15-117(a). In conclusion, we stated:

“The clear intent of the Legislature was to provide that the juvenile courts of this state should no longer be deciding custody disputes except insofar as then-resolution is directly incidental to core juvenile-court jurisdiction (such as in original paternity actions, see Ala.Code 1975, § 26-17-104).”

T.C., 63 So.3d at 630-31 (first emphasis in original; second emphasis added); see also K.C. v. R.L.P., 67 So.3d 94 (Ala.Civ.App. 2011).

In the instant case, because the juvenile court had already entered a final adjudication of the child’s paternity and had awarded visitation rights to the biological father in the December 2009 judgment, thereby implicitly awarding primary physical and legal custody to the stepfather (see, e.g., M.R.J. v. D.R.B., 17 So.3d 683 (Ala.Civ.App.2009), and T.B. v. C.D.L., 910 So.2d 794 (Ala.Civ.App.2005)), the juvenile court could not properly hear the biological father’s custody-modification claim. See T.C. and K.C., supra. Because nothing in the record suggests that dependency was an issue below, and because the biological father’s custody request was filed after January 1, 2009, it could only have been properly filed in the circuit court. The juvenile court is directed to vacate its March 2010 judgment and to dismiss the biological father’s custody-modification action.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . The record does not contain any material relating to the substance of any juvenile-court proceedings giving rise to that appointment.

      . The stepfather's appointed attorney filed a "no-merit” brief and a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and J.K. v. Lee County Department of Human Resources, 668 So.2d 813 (Ala.Civ.App.1995); although that motion and brief were served upon the stepfather, he did not offer any points or issues to be considered in connection with the appeal. However, in this court's initial review, we determined that certain objections and arguments had been raised by the stepfather during trial regarding his custodial rights as a presumptive father, thereby potentially challenging the juvenile court's paternity judgment. By order, we instructed the stepfather’s attorney to address the potential application of Ex parte Presse, 554 So.2d 406 (Ala. 1989), and subsequent caselaw, to the facts in this case; a minimal supplemental brief was then filed. After a more thorough review of the record, we have determined that, to the extent that this appeal challenges the juvenile court’s judgment adjudicating the paternity of the child, no timely appeal has been taken. The only timely appeal was taken from the juvenile court's custody judgment.

      . Former § 12-15-32 was repealed effective January 1, 2009, the date the AJJA, § 12 — 15— 101 et seq., Ala.Code 1975, became effective. See Act No. 2008-277, Ala. Acts 2008. Former § 26-17-10 also was repealed effective January 1, 2009. See Act No. 2008-376, Ala. Act 2008.


author:
WELCH, Judge.
      KELLUM, Judge, WISE, Presiding Judge,

text:
    STATE of Alabama v. Mitchell ROFFLER and Michelle Roffler.
    CR-08-0045.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rehearing Denied Sept. 25, 2009.
    Troy King, atty. gen., and Joseph L. Fitzpatrick, Jr., deputy atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant.
    Cherlina Pauline Monteiro, Mobile, for appellee Mitchell Roffler.
    Michael R. Kaoui, Mobile, for appellee Michelle Roffler.
   WELCH, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

KELLUM, Judge,

concurring specially.

I reluctantly concur with the majority’s decision to uphold the circuit court’s dismissal of the indictments against Mitchell Roffler and Michelle Roffler, based on the circuit court’s conclusion that the indictments returned against the Rofflers suffered from a fatal variance. I write specially, however, to express my concern regarding the trend in Alabama law to find a fatal variance when the State fails to include in an indictment alleging the theft of funds the particular method by which those funds were received, i.e., by cash, by check, through credit-card transactions, or through debit-card transactions.

In the instant case, the Rofflers were charged in separate 23-count indictments charging each of them with theft of property. Each count of the indictments listed a victim’s name and a dollar amount associated with that count of theft; however, the indictments did not include the means by which the Rofflers received the funds. During a hearing on the Rofflers’ motions to dismiss, the State represented that the evidence would establish that the Rofflers had received some of the funds by cash, some by check, and some by debit-card transactions. Because no distinction was made in the 23-count indictments between theft by cash, check, or debit card, the circuit court dismissed the indictments, with prejudice.

In dismissing the indictments against the Rofflers (C. 74-85; 164-175), the circuit court’s frustration is apparent:

“The Court is presented with a number of citizens, customers of [Mitchell Roffler’s] business, who paid out good money or other funds for the purchase of furniture and never received it. These citizens have waited almost three years for some sort of relief from the criminal courts.
“On the other hand, [Mitchell Roffler] has lived under the heavy weight of a multi-count indictment for theft, presumably waiting for this week to be exonerated for theft.
“The Court is called upon to rule whether this multi-count indictment should be dismissed as being void since it fails to properly describe the property stolen as required by Alabama law.
“Each count in the indictment is identical, except for the amount allegedly taken and the victim’s name. However, the facts surrounding each count are uniquely different. Some victims allege cash was stolen, some allege cash and checks, some allege cash only, some allege electronic payments of some sort were stolen.
“... I have the legal obligation to follow rulings or precedent as handed down by the Alabama Supreme Court and Alabama Court of Criminal Appeals. The appellate courts in Alabama have held for over 100 years that typographical errors such as a misspelling in the indictment, the incorrect date or time, or the wrong address are not fatal mistakes in an indictment and can be corrected.
“But these same courts have also held, back to the 1880’s that when an indictment alleges cash is stolen it must use a term such as ‘$10,000 in lawful United States currency.’ The phrase ‘$10,000’ is not legally insufficient. Shubert v. State, 488 So.2d 44 (AIa.Cr.App.1986). When an indictment alleges that ‘$10,000 in lawful U.S. currency’ has been stolen and in reality a check in that amount had been stolen, the indictment is fatally defective. Delevie v. State, 686 So.2d 1283 (Ala.Cr.App.1996).
“The State urged the Court to let the trial commence and allow them to present their case. The Court was inclined to do this yesterday, until a full analysis of the law could be had. But no amount of testimony can correct a fatally flawed indictment.”

(C. 75-78.)

Although the circuit court relied upon this Court’s decisions in Shubert v. State, 488 So.2d 44 (Ala.Crim.App.1986), and Delevie v. State, 686 So.2d 1283 (Ala.Crim.App.1996), those decisions — as well as numerous others — were, in turn, based upon the Alabama Supreme Court’s decision in Ex parte Airhart, 477 So.2d 979 (Ala.1985). This Court is bound by decisions of the Alabama Supreme Court, see § 12-3-16, Ala.Code 1975, and “is without authority to overrule the decisions of [that] court.” Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972). Thus, we have no choice; we must uphold the circuit court’s dismissal of the indictments.

In my opinion, the finding of a fatal flaw in an indictment that alleges the theft of specific amounts of money without alleging the method by which those funds were received demonstrates an antiquated approach in the law that fails to take into account the significant changes in banking over the past several decades. Although such a distinction might have been essential in the past, in light of today’s technology, I believe that it should not be necessary for a theft indictment to identify the method by which the funds were received. Such a requirement elevates form over substance and is nonsensical. Because the decisions relied upon to reach the holding in this case predate 21st-century technology, the victims in this ease will forever be deprived of the money or other funds they used to purchase furniture they never received. Likewise, these same decisions prevent the Rofflers from being held accountable for their reprehensible conduct. The Supreme Court should revisit its holding in Ex parte Airhart at its earliest convenience in order to prevent injustices such as this from occurring in future cases.

WISE, Presiding Judge,

dissenting.

I disagree with the conclusion that the trial court properly dismissed the indictments against the Rofflers. For the reasons set forth herein, I also note that it was inappropriate for the trial court to dismiss the indictments against the Rof-flers with prejudice.

Because the matter had not yet been to trial and the State had not yet had an opportunity to present evidence, the indictments were not fatally flawed, as the trial court found. Rather, at that point in time, at most, the indictments were merely voidable because they did not sufficiently identify the property the Rofflers allegedly stole from the victims, and the State could have amended the indictments to properly identify the property the Rofflers allegedly stole from the victims. Also, the Rofflers could have filed a motion for a more definite statement. See Rule 13.2(e), Ala. R.Crim. P.; Sullens v. State, 878 So.2d 1216 (Ala.Crim.App.2003).

With regard to the pretrial dismissal of an indictment, Rule 13.5(c)(1), Ala. R.Crim. P., provides:

“A motion to dismiss the indictment may be based upon objections to the venire, the lack of legal qualifications of an individual grand juror, the legal insufficiency of the indictment, or the failure of the indictment to charge an offense.”

Based on Rule 13.5(c)(1), Ala. R.Crim. P., this court has repeatedly held that a possible lack of evidence is not an appropriate ground for pretrial dismissal of an indictment. See State v. Foster, 935 So.2d 1216 (Ala.Crim.App.2005) (holding that a possible lack of evidence is not an appropriate ground for pretrial dismissal of an indictment); State v. McClain, 911 So.2d 54 (Ala.Crim.App.2005) (holding that a lack of evidence is not a viable basis for a pretrial dismissal of an indictment); State v. Edwards, 590 So.2d 379, 380 (Ala.Crim.App. 1991) (reversing the pretrial dismissal of the indictment and holding that “[ejstab-lishing the corpus delicti requires proof of facts by the state so entwined with the merits of the case that a decision as to whether it had been proved should not be made prior to trial but should be postponed until trial”). Because the matter had not yet been to trial, we do not know if this case is more like Ex parte Brooks, 562 So.2d 604 (Ala.1990), or more akin to Harrison v. State, 13 So.3d 45, 47 (Ala.Crim. App.2009). In Ex parte Brooks, the indictment charged the defendant with theft of currency. At trial, the State presented evidence that the defendant deposited a check into a trust account and subsequently withdrew currency from that account. The supreme court held that, when the defendant withdrew the money from the account, he converted the check to currency. Therefore, the supreme court held that there was not a fatal variance because it was a theft of the client’s money from the trust account rather than a theft of the check itself. However, in Harrison, this court found that there was a fatal variance because the indictment alleged the theft of currency, but the evidence showed merely that the defendant actually exercised unauthorized control over a check. Thus, this Court main opinion erroneously affirms the trial court’s judgment based on a conclusion that there was a fatal variance between the allegations included in the indictments and the evidence.

A lower court has the authority, in limited circumstances, to dismiss an indictment pretrial. However, by making a finding of fact at the pretrial stage and reaching an issue that was not yet properly before it procedurally, the trial court in this case exceeded its authority. When a lower court exceeds its proper judicial function as the trial court did in this case, this court must take notice of the error. Therefore, I disagree with the assertion in the main opinion that the State waived any argument that it was inappropriate to dismiss the indictments pretrial based on an apparent lack of evidence.

For these reasons, the trial court erred in dismissing the indictments against the Rofflers pretrial and with prejudice. Accordingly, I respectfully dissent.

      . The circuit court entered a virtually identical order dismissing the indictment against Michelle Roffler.

      . As best as can be determined, counts 1, 4, 9, 12, 19, 21, 22, and 23 were previously dismissed upon motion of the State. According to the indictments, the amount of the remaining victims’ losses totaled $25,476.75.


author: STUART, Justice. STUART, Justice COBB, Chief Justice

text:
    Ex parte State of Alabama. (In re STATE of Alabama v. Mitchell ROFFLER and Michelle Roffler).
    1090007.
    Supreme Court of Alabama.
    Dec. 22, 2010.

      Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for petitioner.
    Cherlina P. Monteiro, Mobile, for respondent Mitchell Roffler.
    Michael R. Kaoui and Scott W. Hunter of Southern Law Firm, LLC, Mobile, for respondent Michelle Roffler.
   STUART, Justice.

We granted the State’s petition for a writ of certiorari to determine an issue of first impression: whether in the 21st century an indictment that charges theft of funds in a certain dollar amount, in violation of § 13A-8-3, Ala.Code 1975, but does not designate the medium of exchange of those funds is legally sufficient.

Facts and Procedural History

Mitchell Roffler and Michelle Roffler operated a furniture store, Gulf Coast Furniture, in Mobile. The Rofflers offered customers the option of purchasing furniture through a layaway plan. A customer participating in the layaway plan made monthly payments toward his or her furniture purchase without having to formally apply for new credit. The Rofflers accepted layaway payments in cash, check, two-party check, third-party check, credit-card transaction, and debit-card transaction. When a customer had paid the total purchase price of the furniture that had been placed on layaway, the Rofflers would deliver the furniture to the customer within a reasonable time.

On January 6, 2006, the City of Mobile padlocked the doors of Gulf Coast Furniture because, it said, the Rofflers had failed to pay city sales taxes. At that time, the Rofflers had several active layaway accounts at the furniture store. When some of the layaway customers attempted to inquire about their accounts and/or their furniture, they learned that the Rofflers could not be located. A criminal investigation was commenced, and, on November 6, 2006, a Mobile County grand jury issued an indictment charging Mitchell Roffler with 23 counts of theft. Each count represented a layaway customer to whom the indictment asserted Roffler owed either money or furniture, and each count read substantially the same except for the name of the property owner and the monetary amount. For example, count one of the indictment read:

“The Grand Jury of said County charge[s] that, before the finding of this indictment, MITCHELL ROFFLER, whose name is otherwise unknown to the Grand Jury, did knowingly obtain or exert unauthorized control over the property of another, with intent to deprive the owner thereof, to wit: six thousand dollars ($6,000.00) the property of Randy Garner, in violation of § 13A-8-3 of the Code of Alabama, against the peace and dignity of the State of Alabama.”

A similar indictment was issued against Michelle Roffler. On January 14, 2007, the Rofflers appeared in the Mobile Circuit Court to enter pleas of not guilty. The cases against the Rofflers were consolidated. During preliminary matters before the trial, the State dismissed 8 of the 23 counts in each of the indictments because the complaining witnesses failed to appear in court. The Rofflers moved to dismiss the other 15 counts in each of the indictments, arguing that the indictments failed to charge offenses because the counts did not specify the medium of exchange of the monetary amounts allegedly stolen. Specifically, they faulted the language in the counts for failing to specify the means by which the Rofflers had received the funds. According to the Rof-flers, the language in each count did not provide them with adequate notice of the State’s charge so as to allow them to adequately prepare a defense and to avoid the risk of double jeopardy. The trial court dismissed the indictments with prejudice, holding that the indictments were legally insufficient because each count did not state the medium of exchange of the funds allegedly stolen. In reaching its conclusion, the trial court relied on Shubert v. State, 488 So.2d 44 (Ala.Crim.App.1986), which held that an indictment charging the theft of $10,000 was legally insufficient because it failed to identify “whether the defendants were charged with stealing United States currency, a check, or coal.” 488 So.2d at 47. The State appealed the dismissal of the indictments.

On August 7, 2009, the Court of Criminal Appeals, in an unpublished memorandum, affirmed the trial court’s dismissal of the indictments. State v. Roffler, 69 So.3d 222 (Ala.Crim.App.2009). The State petitioned this Court for certiorari review of the Court of Criminal Appeals’ decision. We granted the writ; we now reverse and remand.

Standard of Review

The legal sufficiency of an indictment is reviewed de novo. Eskridge v. State, 709 So.2d 1348, 1350 (Ala.Crim.App. 1997).

Discussion

The State presents an issue of first impression: whether in the 21st century an indictment charging the offense of theft of a certain dollar amount of funds in violation of the statutory provisions defining the offenses of theft, see § 13A-8-1 et seq., Ala.Code 1975, is legally sufficient if it identifies the dollar amount of the funds allegedly taken but does not identify the medium of exchange of those funds. In 1986, the Court of Criminal Appeals held:

“[T]he indictment in this ease was ‘bad’ because it merely alleged the theft of ‘to-wit: $10,000.00, the property of to-wit: THOMAS BURKE’ without further description of the property taken.
“‘The indictment in this case is bad. It should have averred the number and denomination of the coins, or of some of them, or that the same were to the grand jury unknown. Such have been the rulings of this court; and, as this requirement is both reasonable and easily conformed to, we are unwilling to depart from it. State v. Murphy, 6 Ala. 845 [ (1844) ]; DuBois v. State, 50 Ala. 139 [ (1874) ]; Grant v. State, 55 Ala. 201 [ (1876) ]; Whart. Crim. Pl. § 218.’ Burney v. State, 87 Ala. 80, 6 So. 391, 392 (1889) (two-count indictment describing property as ‘two hundred dollars in gold coin of the United States’ and ‘two hundred dollars’).
“Reed v. State, 88 Ala. 36, 6 So. 840 (1889) (indictment charging theft of ‘three dollars and sixty cents in money of the United States of America’ is ‘defective and insufficient in not stating the number and denomination’); Grant v. State, 55 Ala. 201, 208 (1876) (‘The indictment [for larceny] must also, state the kind and description of the goods stolen. If the larceny is of coin, the number and denomination must be stated.... When the species and denomination of the coin are unknown to the grand jury, the fact may be averred, and a general description, as so many dollars in gold, or in silver coin, will be sufficient.’); Croker v. State, 47 Ala. 53, 57 (1872) (The description of money in the indictment as ‘ten dollars in money of United States currency’ was ‘too indefinite. The term “currency,” when applied to the medium of trade, means equally coin, bank notes, or notes issued by the government.’); State v. Murphy, 6 Ala. 845, 851 (1844) (‘[T]he law requires the denomination and number of coin to be stated in the indictment.’). See also Levy v. State, 79 Ala. 259 (1885); Edwards v. State, 379 So.2d 336 (Ala.Cr.App.1979), cert. denied, Ex parte Edwards, 379 So.2d 339 (Ala.1980). This specific principle is expressly noted in § 15-8-5, [Ala.Code 1975,] which directs that “words used in an indictment must be construed in their usual acceptation in common language.’ See Wilkerson v. State, 23 Ala.App. 520, 128 So. 777 (1930).
“The proper form for an indictment for theft by deception under § 13A-8-3 is found in the Indictment and Warrant Manual prepared by the Alabama Law Institute and the Alabama Office of Prosecution Services at pp. 8-1 and 8-1(a). Although there are two alternative forms provided for a charge of theft by deception, each of those alternatives begins, ‘A.B. did knowingly obtain, by deception, control over (description of property), ...’ Every indictment form for theft of property contains the same ‘(description of property)’ requirement.
“ ‘Obviously, a check is not money,’ and in an indictment, an allegation of conversion of money will not cover a conversion of a check. Carr v. State, 104 Ala. 43, 16 So. 155, 160 (1894). See also United States v. Fernando, 745 F.2d 1328, 1330 (10th Cir.1984) (‘[S]tate courts have interpreted “money” ... as not including checks.’). ‘The word “dollars” imparts to the common understanding, the meaning of a thing of value,’ and the indictment must ‘designate the kind of dollars stolen.’ Leonard v. State, 115 Ala. 80, 22 So. 564, 565 (1897). ‘A check is a written order, or request, for the payment of money, addressed to a bank or banker.’ Thompson v. State, 49 Ala. 16, 18 (1873). ‘A check is essentially commercial paper, possessing the attributes of a contract, and certain characteristics of property, and it is equivalent to a promise to pay upon the part of the drawer. It is executory in its nature.’ Scott v. State, 33 Ala.App. 328, 330, 33 So.2d 390 (1948). ‘A check is a contract.’ Gooch v. State, 249 Ala. 477, 479, 31 So.2d 776 (1947).
“The indictment used a ‘dollar sign’ in describing the property, which is ‘[t]he symbol ($) for a dollar or dollars when placed before a numeral.’ The American Heritage Dictionary of the English Language 389 (1969); Webster’s Third New International Dictionary 670 (1971). A ‘dollar’ is ‘[t]he basic monetary unit of the United States, Australia, Canada, Ethiopia, Guyana, Liberia, Malaysia, New Zealand, Trinidad and Tobago, Western Samoa, and of Hong Kong and Singapore, equal to 100 cents,’ with the rates of exchange and equivalence in U.S. dollars differing. American Heritage 389. A ‘dollar’ is ‘1: an old German taler coin 2: any one of a number of coins of various countries patterned after the taler: ... 3a: the basic monetary unit of the U.S. serving as a medium standard, or basis of foreign exchange.... ’ Webster’s 669.
“It is fundamental that an indictment ‘must state the facts constituting the offense in ordinary and concise language, ... in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.’ Alabama Code 1975, § 15-8-25. ‘Indictments cannot be aided by intendment, but must positively and explicitly state what the prisoner is called upon to answer.’ State v. Seay, 3 Stew. 123, 130-31 (Ala.1830).
“From the indictment in this case, it cannot be ascertained whether the defendants were charged with stealing United States currency, a check, or coal.”

Shubert v. State, 488 So.2d at 46-47.

In reaching its conclusion in Shubert, the Court of Criminal Appeals relied upon precedent applicable to the description of property taken in an indictment charging a common-law theft, which included larceny, embezzlement, and false pretenses, and applied that precedent to the description of property taken when charging theft of property, an offense defined in § 13A-8-1 et seq., Ala.Code 1975. In an indictment charging common-law theft of a certain dollar amount of funds, the medium of exchange when describing the property taken was material because the medium of exchange determined the value of the funds taken. For example, in 1844, the value of five gold coins did not equal the value of five silver coins; therefore, in 1844, to adequately describe the property in an indictment charging common-law theft of an amount of funds the medium of exchange had to be described to determine the value of the funds taken. See State v. Murphy, 6 Ala. 845, 851 (1844) (requiring that the denomination and number of coins be specified in the indictment). Hence, when pleading common-law theft of a certain amount of funds, describing the medium of exchange was material, and, if the indictment did not include the medium of exchange, the indictment was legally insufficient.

In the 21st century, however, the various mediums of exchange represent the same standard of value for the dollar. The medium of exchange involved — whether cash, check, debit-card transaction, credit-card transaction, electronic funds, etc. — does not determine the value of the amount of funds. Whether the dollar amount is in the form of cash, check, multiple-party check, credit-card transaction, debit-card transaction, or electronic funds, businesses, banks, and financial institutions recognize that the dollar has a standard value; consequently, the medium of exchange does not determine the value of a monetary amount. This acceptance of the various mediums of exchange as interchangeable and representing equivalent values for the dollar makes describing the medium of exchange immaterial when describing the funds over which a defendant allegedly has exercised unauthorized control. The material concern is the monetary amount. Therefore, we conclude that an indictment charging the offense of theft of a certain monetary amount, in violation of one of the provisions of § 13A-8-1 et seq., Ala.Code 1975, but that does not identify the medium of exchange is legally sufficient. Section 15-8-25, Ala.Code 1975, provides:

“An indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the judgment.”

See also Rule 13.2, Ala. R.Crim. P. (providing that an indictment “shall be a plain concise statement of the charge in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with a degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment”). It is unreasonable to conclude that in the 21st century a defendant charged in an indictment with exercising unauthorized control over a certain monetary amount would not know what is intended or that a court could not pronounce judgment on conviction for theft of said amount, if the medium of exchange is not designated. Therefore, we hold that the requirements of § 15-8-25, Ala.Code 1975, are satisfied even if the indictment stating the monetary amount over which the defendant is allegedly exerting unauthorized control does not identify the medium of exchange. Identification of the monetary amount alone provides the defendant adequate notice of the theft to prepare his or her defense and to avoid double jeopardy.

Moreover, we cannot conclude that a defendant is substantially prejudiced if an indictment charging theft of a certain monetary amount in violation of § 13A-8-1 et seq., Ala.Code 1975, does not include the medium of exchange of those funds. Section 15-8-4, Ala.Code 1975, provides:

“An indictment must not be held insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on the trial.”

See also Rule 13.5(c)(2), Ala. R.Crim. P. (stating that “[n]o charge shall be deemed invalid, nor shall the trial, judgment, or other proceedings thereon be stayed, arrested, or in any manner affected, for any defect or imperfection in the charge which does not tend to prejudice the substantial rights of the defendant upon the merits”). Again, the general acceptance of the various mediums of exchange as having the same monetary value negates any finding of prejudice to the substantial rights of a defendant in this regard. However, to safeguard a defendant, the Alabama Rules of Criminal Procedure provide a means for the defendant to request that the State provide a more definite statement of the offense. See Rule 13.2(3), Ala. R.Crim. P. (providing that a defendant may move for a more definite statement of the offense charged before the entry of a plea).

In this case, the indictments charging the Rofflers with theft were sufficient (1) to identify the charge — theft of a certain monetary amount from an identified individual, (2) to enable the Rofflers to prepare their defense, (3) to protect them against the possibility of being twice put in jeopardy for the same offense, and (4) to enable the court, after conviction, to pronounce judgment. Designation of the monetary amount allegedly taken and from whom it was taken placed the Rofflers on notice as to the exact charge so that they could prepare a knowing and adequate defense. In Ex parte Harper, 594 So.2d 1181, 1183 (Ala.1991), we stated:

“The crucial question, of course, is whether the indictment sufficiently apprises the accused with reasonable certainty of the nature of the accusation made against him so that he may prepare his defense, that he may be protected against a subsequent prosecution for the same offense.”

We conclude that the indictments in this case did. Here, the State will be required to prove that the Rofflers “knowingly obtained or exerted unauthorized control over a certain monetary amount belonging to a designated individual and that [the Rofflers] intended to deprive that individual of those funds.” Thus, the language in the indictments specified the facts the State will have to prove to sustain a conviction; the indictments are legally sufficient.

Conclusion

Based on the foregoing, we reverse the judgment of the Court of Criminal Appeals and remand this case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

LYONS, WOODALL, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

STUART, J., concurs specially.

COBB, C.J., concurs in the result in part and dissents in part.

STUART, Justice

(concurring specially).

In addition to concluding that the indictments were legally insufficient, the trial court concluded that a fatal variance existed between the indictments and the evidence proffered by the State. The Court of Criminal Appeals also reached this conclusion. In support of its dismissal of the indictments, the trial court cited Delevie v. State, 686 So.2d 1283 (Ala.Crim.App.1996), which holds that an indictment is fatally defective when it alleges that a defendant stole a certain amount of United States currency, but the evidence adduced at trial established that a check in the amount was stolen. In its unpublished memorandum, the Court of Criminal Appeals, quoting Harrison v. State, 13 So.3d 45, 47-48 (Ala. Crim.App.2009), held that “the indictments against the Rofflers suffered from a fatal variance” because “the indictments against the Rofflers charged them with the thefts of specified dollar amounts, but the State would have attempted to prove those charges by presenting evidence that the Rofflers received checks in some instances, and monies from credit card and debit card transactions in other instances.”

The law is well established that a determination whether a fatal variance exists between the indictment and the evidence can only be made after the State has presented its evidence at trial. See Ex parte Brooks, 562 So.2d 604 (Ala.1990); Ex parte Airhart, 477 So.2d 979 (Ala.1985); Harrison v. State, supra; and Shubert v. State, 488 So.2d 44 (Ala.Crim.App.1986) (all addressing the issue whether a fatal variance existed between the offense charged in the indictment and the State’s evidence adduced at trial). At the hearing on the Rofflers’ motion to dismiss, the State proffered that the Rofflers had received some of the funds they allegedly stole by cash, some by check, some by two-party check, some by debit-card transaction, and some by credit-card transaction. A determination as to whether a fatal variance exists between the indictments charging the Rof-flers with theft and the evidence cannot be made until after the State has presented its evidence at trial. Holding that a fatal variance exists between the offense charged in the indictment and the evidence made before the State presents its evidence at trial is erroneous.

COBB, Chief Justice

(concurring in the result in part and dissenting in part).

To the extent that the majority holds that indictments charging theft satisfy the requirements of § 15-8-25, Ala.Code 1975, without explicitly stating with the dollar amount allegedly stolen the additional language “in lawful United States currency,” I concur in the result. I concur in the result on this point because the only rationale supporting the majority opinion is that “times have changed” and that, therefore, it is now necessary to discard approximately 100 years of legal precedent that required the State to specify the value of what has been allegedly taken in a theft by reference to “lawful United States currency.” See, e.g., Shubert v. State, 488 So.2d 44 (Ala.Crim.App.1986), and the cases cited therein. Although I believe the result is correct, I do not believe that this Court should discard its precedent without a more thorough analysis of facts and authorities from other American jurisdictions that support such action.

With regard to the further holding that the medium of exchange is now essentially irrelevant to the validity of an indictment charging a crime of theft, I must respectfully dissent. This holding also reverses many years of established precedent without authority, and I am not persuaded that simply specifying a dollar amount in charging theft without specifying the medium of exchange sufficiently informs an individual under § 15-8-25, Ala.Code 1975, of the offense. I do not believe that the theft of cash money is necessarily equivalent with the theft of a check or the theft of funds by unauthorized electronic transfer, or the theft of a credit card or a debit card, and the failure to provide an accused with such information, i.e., the medium of exchange, can be substantially prejudicial under § 15-8-25. Further, I do not believe it is unduly burdensome on the State to specify the medium of exchange before it undertakes to deprive a person of his or her liberty in a prosecution for a felony. Because I do not believe that the majority opinion is required to make the further holding that all mediums of exchange are equal in order to properly resolve this case, I respectfully dissent from that holding.

      . A "medium of exchange” is defined as "something commonly accepted in exchange for goods and services and recognized as representing a standard of value.” Merriam-Webster's Collegiate Dictionary 771 (11th ed.2003).

      . The trial court also held that a fatal variance existed between the indictments and the evidence proffered by the State.

      . See, e.g., Ex parte Airhart, 477 So.2d 979 (Ala.1985), Delevie v. State, 686 So.2d 1283 (Ala.Crim.App.1996), and Henderson v. State, 520 So.2d 169 (Ala.Crim.App.1987).

      . "An indictment must state the facts constituting ' the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. In no case are the words ‘force of arms’ or ‘contrary to the form of the statute’ necessary.”


author: WELCH, Presiding Judge.

text:
    STATE of Alabama v. Mitchell ROFFLER and Michelle Roffler.
    CR-08-0045.
    Court of Criminal Appeals of Alabama.
    Feb. 25, 2011.
    Troy King, atty. gen., and Joseph L. Fitzpatrick, Jr., deputy atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellant.
    Cherlina Pauline Monteiro, Mobile, for appellee Mitchell Roffler.
    Michael R. Kaoui, Mobile, for appellee Michelle. Roffler.
   On Remand from the Alabama Supreme Court.

WELCH, Presiding Judge.

The State of Alabama appealed from the circuit court’s dismissal of the 28-count indictment against Mitchell Roffler and the separate 23-count indictment against Michelle Roffler. The indictments charged the Rofflers with theft of property, and the Rofflers had argued that the indictments failed to sufficiently describe the property taken because they failed to designate whether the funds taken had been in the form of cash, check, credit-card transaction, or debit-card transaction. The circuit court agreed that the language of the indictments failed to provide the Rofflers with adequate notice of the State’s charges because the charges failed to specify the means by which the Rofflers had received the funds. This Court affirmed the circuit court’s judgment. State v. Roffler, 69 So.3d 222 (Ala.Crim.App.2009). The State of Alabama petitioned the Alabama Supreme Court for certiorari review. On December 22, 2010, the Alabama Supreme Court held:

“[T]hat the requirements of § 15-8-25, Ala.Code 1975, are satisfied even if the indictment stating the monetary amount over which the defendant is allegedly exerting unauthorized control does not identify the medium of exchange. Identification of the monetary amount alone provides the defendant adequate notice of the theft to prepare his or her defense and to avoid double jeopardy.”

State v. Roffler, 69 So.3d 225, 230 (Ala. 2010).

Thus, the Supreme Court determined that the indictments were legally sufficient, and it reversed this Court’s judgment and remanded this case for further proceedings. Therefore, in accordance with the directions of the Alabama Supreme Court, we now reverse the circuit court’s judgment dismissing the indictments against the Rofflers, and we remand the case to the circuit court for further proceedings.

REVERSED AND REMANDED.

WINDOM and KELLUM, JJ., concur.