text:
    Ex parte Miguel A. ORTIZ. (In re Wendy J. Dorning v. Miguel A. Ortiz).
    2110927.
    Court of Civil Appeals of Alabama.
    Oct. 5, 2012.

      Shane M. Oncale of The Oncale Firm, P.C., Birmingham, for petitioner.
    Gerald Mack Freeman, Odenville, for respondent.
   MOORE, Judge.

Miguel A. Ortiz (“the father”) petitions this court for a writ of mandamus directing the Jefferson Circuit Court (“the trial court”) to vacate its May 14, 2012, order denying the father’s motion to dismiss the action filed by Wendy J. Doming (“the mother”). For the reasons stated below, we grant the petition and issue the writ.

Procedural History

On July 21, 2011, the mother filed in the trial court a petition to “annex” a foreign judgment. She submitted with that petition a certified copy of a December 17, 1998, judgment (“the Florida judgment”), entered by the Eighteenth Judicial Circuit of Seminole County, Florida (“the Florida court”). In the Florida judgment, the Florida court divorced the mother and the father; awarded the mother primary physical custody of the parties’ child, M.B.O., who was born on June 29, 1993; and ordered the father to pay as child support $250 on the 1st and 15th day of each month until certain specified events occurred.

Also on July 21, 2011, the mother filed in the trial court a petition for a rule nisi, seeking to hold the father in contempt for his alleged failure to comply with the child-support provisions of the Florida judgment; the mother also sought to modify the Florida judgment to provide for post-minority educational expenses for the child, to allow the mother to claim the child as a dependent for federal and state income-tax purposes, and to require the father to pay all medical expenses of the child not covered by health insurance.

On August 8, 2011, the father, through legal counsel, filed a motion to dismiss or, alternatively, a limited appearance for the purpose of contesting the jurisdiction of the trial court. The father asserted that the trial court lacked personal jurisdiction over him; that the mother had failed to comply with the requirements for registering a foreign judgment; that, pursuant to the terms of the Florida judgment, the State of Florida had retained jurisdiction over the parties; and that the State of Florida does not recognize an obligation on the part of a divorced parent to provide post-minority educational support.

On September 30, 2011, the mother submitted an amendment to her petition to annex the Florida judgment. She submitted the parties’ “Marital Settlement Agreement” that, she asserted, had been incorporated into the Florida judgment. The mother also asserted that she had fully complied with the statutory requirements for registering the Florida judgment.

The mother and the father submitted affidavits to the trial court in support of their respective positions. After an April 19, 2012, hearing on the father’s motion to dismiss, the trial court denied that motion on May 14, 2012, and scheduled the case for trial. The father timely filed this petition.

Analysis

The father first argues that the trial court lacks subject-matter jurisdiction. “[S]ubject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.” C.J.L. v. M.W.B., 868 So.2d 451, 458 (Ala.Civ.App.2003).

“ ‘ “A writ of mandamus is an extraordinary remedy, and it ‘will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ ” ’
“Ex parte Monsanto Co., 862 So.2d 595, 604 (Ala.2003) (quoting Ex parte Butts, 775 So.2d 173, 176 (Ala.2000), quoting in turn Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993)). ‘[T]he question of subject-matter jurisdiction is renewable by a petition for a writ of mandamus.’ Ex parte Johnson, 715 So.2d 783, 785 (Ala.1998). ‘Although this Court reviews a mandamus petition to determine whether the trial court exceeded its discretion, this Court reviews issues of law de novo.’ Ex parte Terry, 957 So.2d 455, 457 (Ala.2006).”

Ex parte Berry, 999 So.2d 883, 885 (Ala.2008).

The father specifically argues that the mother failed to comply with the registration requirements of § 30-3A-602, Ala. Code 1975, a part of the Uniform Interstate Family Support Act (“the UIFSA”), Ala.Code 1975, § 30-3A-101 et seq. Section 30-3A-602 of the UIFSA provides the following method for registering a foreign child-support order in a court of this state:

“(a) A support order or income-withholding order of another state may be registered in this state by sending the following documents and information to the appropriate court in this state:
“(1) a letter of transmittal to the court requesting registration and enforcement;
“(2) two copies, including one certified copy, of all orders to be registered, including any modification of an order;
“(3) a sworn statement by the party seeking registration or a certified statement by the tribunal or collection agency showing the amount of any arrearage;
“(4) the name of the obligor and, if known:
“(i) the obligor’s address and Social Security number;
“(ii) the name and address of the obligor’s employer and any other source of income of the obligor; and
“(iii) a description and the location of property of the obligor in this state not exempt from execution; and
“(5) the name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.
“(b) On receipt of a request for registration, the registering court shall cause the order to be filed as a foreign judgment, together with one copy of the documents and information, regardless of their form.”

The father asserts that, when the mother filed her July 21, 2011, action seeking to register the Florida judgment and to modify that judgment, she failed to strictly comply with the procedure set forth in § 30-3A-602 because, he says, she failed to file the necessary number of copies of the Florida judgment, she failed to file copies of the complete Florida judgment, and she failed to file a sworn statement showing the amount of the alleged arrear-age. We agree that the mother failed to comply with § 30-3A-602 because she failed to file a complete copy of the Florida judgment in her initial filing, see § 30-3A-602(a)(2), and failed to include a sworn statement showing the amount of the claimed arrearage, see § 30-SA-602(a)(3).

This court has held that a trial court does not obtain subject-matter jurisdiction over a petition to modify a foreign support order if it is not registered properly under the UIFSA. See S.A.T. v. E.D., 972 So.2d 804, 807 (Ala.Civ.App.2007). Only strict compliance with that registration procedure confers subject-matter jurisdiction upon an Alabama circuit court to enforce or to modify a foreign child-support judgment. See Mattes v. Mattes, 60 So.3d 887 (Ala.Civ.App.2010), and Ex parte Owens, 65 So.3d 953 (Ala.Civ.App.2010).

Because the Florida judgment was not registered in strict compliance with the UIFSA, the mother’s petition for a rule nisi and for modification of the Florida judgment did not trigger the subject-matter jurisdiction of the trial court. See S.A.T., 972 So.2d at 807. The mother also could not correct that fatal deficiency in her petition by filing an amendment to that petition. See Ex parte Owens, 65 So.3d 953, 954 (Ala.Civ.App.2010) (because mother had failed to properly register foreign child-support order as required by the UIFSA, her petition for a rule nisi failed to trigger subject-matter jurisdiction of the trial court and her purported amendment to her petition, filed in an attempt to comply with those requirements, was also a nullity; upon the filing of a deficient petition, the trial court had no jurisdiction to do anything but dismiss the action). As a result, the trial court erred in denying the father’s motion to dismiss for lack of subject-matter jurisdiction.

The father also contends that the trial court erred in denying his motion to dismiss the mother’s action for lack of personal jurisdiction, pursuant to Ala.Code 1975, § 30-3A-201.

‘“[A] petition for a writ of mandamus is the proper device by which to challenge the denial of a motion to dismiss for lack of in personam jurisdiction.’ Ex parte Dill, Dill, Carr, Stonbraker & Hutchings, P.C., 866 So.2d 519, 525 (Ala.2003). ‘A petitioner may be entitled to a writ of mandamus in such a case upon a showing of a clear legal right to an order dismissing the action against it.’ Ex parte First Western Bank, 898 So.2d 701, 704 (Ala.2004). ‘ “The burden of establishing a clear legal right to the relief sought rests with the petitioner.” ’ Ex parte Dangerfield, 49 So.3d 675, 680 (Ala.2010) (quoting Ex parte Metropolitan Prop. & Cas. Ins. Co., 974 So.2d 967, 972 (Ala.2007)).”

Ex parte McNeese Title, LLC, 82 So.3d 670, 673 (Ala.2011).

Section 30-3A-201, Ala.Code 1975, provides:

“In a proceeding to establish, enforce, or modify a support order or to determine parentage, a court of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if:
“(1) the individual is personally served with summons and complaint within this state;
“(2) the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
“(3) the individual resided with the child in this state;
“(4) the individual resided in this state and provided prenatal expenses or support for the child;
“(5) the child resides in this state as a result of the acts or directives of the individual;
“(6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
“(7) the individual asserted parentage in the putative father registry as provided in Section 26-10C-1, which is maintained in this state by the Department of Human Resources; or
“(8) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.”

Although the mother does not explicitly identify the subsection of § 30-8A-201 under which she alleges personal jurisdiction exists, it is clear from her arguments that § 30-3A-201(8) is the only provision under which an Alabama court could possibly attain personal jurisdiction over the father. Section 30-3A-201(8) adopts the basis for personal jurisdiction provided in Rule 4.2, Ala. R. Civ. P.

It is well settled that

“[t]he extent of an Alabama court’s personal jurisdiction over a person or corporation is governed by Rule 4.2, Ala. R. Civ. P., Alabama’s ‘long-arm rule,’ bounded by the limits of due process under the federal and state constitutions. Sieber v. Campbell, 810 So.2d 641 (Ala.2001). Rule 4.2(b), as amended in 2004, states:
“‘(b) Basis for Out-of-State Service. An appropriate basis exists for service of process outside of this state upon a person or entity in any action in this state when the person or entity has such contacts with this state that the prosecution of the action against the person or entity in this state is not inconsistent with the constitution of this state or the Constitution of the United States.... ’
“In accordance with the plain language of Rule 4.2, both before and after the 2004 amendment, Alabama’s long-arm rule consistently has been interpreted by this Court to extend the jurisdiction of Alabama courts to the permissible limits of due process. Duke v. Young, 496 So.2d 37 (Ala.1986); DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447 (Ala.1977). As this Court reiterated in Ex parte McInnis, 820 So.2d 795, 802 (Ala.2001) (quoting Sudduth v. Howard, 646 So.2d 664, 667 (Ala.1994)), and even more recently in Hiller Investments Inc. v. Insultech Group, Inc., 957 So.2d 1111, 1115 (Ala.2006): ‘Rule 4.2, Ala. R. Civ. P., extends the personal jurisdiction of the Alabama courts to the limit of due process under the federal and state constitutions.’ ...
“This Court discussed the extent of the personal jurisdiction of Alabama courts in Elliott v. Van Kleef, 830 So.2d 726, 730 (Ala.2002):
“ ‘This Court has interpreted the due process guaranteed under the Alabama Constitution to be coextensive with the due process guaranteed under the United States Constitution. See Alabama Waterproofing Co. v. Hanby, 431 So.2d 141, 145 (Ala.1983), and DeSotacho, Inc. v. Valnit Indus., Inc., 350 So.2d 447, 449 (Ala.1977)....
‘“The Due Process Clause of the Fourteenth Amendment permits a forum state to subject a nonresident defendant to its courts only when that defendant has sufficient “minimum contacts” with the forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The critical question with regard to the nonresident defendant’s contacts is whether the contacts are such that the nonresident defendant “‘should reasonably anticipate being haled into court’ ” in the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), quoting WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).’ ”

Ex parte DBI, Inc., 23 So.3d 635, 643-44 (Ala.2009) (emphasis omitted).

Moreover, in Ex parte McNeese Title, LLC, supra, our supreme court noted the burden on the respective parties in establishing personal jurisdiction. Specifically,

“ ‘[our supreme court] has explained the appropriate analysis and the parties’ respective burdens on a personal-jurisdiction issue as follows. “The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant. Ex parte Covington Pike Dodge, Inc., 904 So.2d 226 (Ala.2004).’ J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So.2d 194, 196 (Ala.2008).
“ ““ “In considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiffs complaint not controverted by the defendant’s affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir.1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir.1990), and “where the plaintiffs complaint and the defendant’s affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff.’ Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990)).” ’
“ ‘ “Wenger Tree Serv. v. Royal Truck & Equip., Inc., 853 So.2d 888, 894 (Ala.2002) (quoting Ex parte McInnis, 820 So.2d 795, 798 (Ala.2001)). However, if the defendant makes a prima facie evidentia-ry showing that the Court has no personal jurisdiction, ‘the plaintiff is then required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and he may not merely reiterate the factual allegations in the complaint.’ Mercantile Capital, LP v. Federal Transtel, Inc., 193 F.Supp.2d 1243, 1247 (N.D.Ala.2002) (citing Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.2000)). See also Hansen v. Neumueller GmbH, 163 F.R.D. 471, 474-75 (D.Del.1995) (‘When a defendant files a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2), and supports that motion with affidavits, plaintiff is required to controvert those affidavits with his own affidavits or other competent evidence in order to survive the motion.’) (citing Time Share Vacation Club v. Atlantic Resorts, Ltd, 735 F.2d 61, 63 (3d Cir.1984)).”
‘Ex parte Covington Pike Dodge, Inc., 904 So.2d 226, 229-80 (Ala.2004) (...; footnote omitted).’
“Ex parte Excelsior Fin., Inc., 42 So.3d 96, 103 (Ala.2010).
“However, when the complaint fails to allege any jurisdictional basis, ‘there is nothing in the complaint ... that the court must consider as true and that therefore places [any] burden on [the defendant] to controvert by affidavit.’ Excelsior, 42 So.3d at 104 (defendant need not present evidence of absence of jurisdiction when the complaint contains no jurisdictional averments).”

Ex parte McNeese Title, LLC, 82 So.3d at 674 (emphasis omitted).

In the present case, the mother averred that she and the father were divorced by the Florida court in 1998 and that, after the divorce, she and the child moved to Alabama while the father moved to Maine, where he continued to reside at the time of the mother’s filings. Nothing in the mother’s petition alleged a basis for the trial court to exercise personal jurisdiction over the father.

The only allegations supporting the mother’s jurisdictional claim are found in the mother’s affidavit, in which she claimed that the father regularly had traveled to Alabama to visit with the child and that he had stayed at her apartment on one occasion in October 1999, presumably while visiting with the child. This court and our supreme court, however, have recognized that the mere act of exercising visitation with a child in Alabama is insufficient to establish minimum contacts with the state for jurisdictional purposes. See Coleman v. Coleman, 864 So.2d 371, 375-76 (Ala.Civ.App.2003) (directing the trial court to grant the husband’s motion to dismiss because, although the husband had occasionally visited the children in the State of Alabama, the husband did not have sufficient minimum contacts with the state to allow an Alabama court to exercise personal jurisdiction over him under the UIFSA); and Sena v. Sena, 709 So.2d 48, 51 (Ala.Civ.App.1998) (declaring portion of trial court’s judgment regarding paternity, child custody, and child support void for lack of jurisdiction because the husband did not have “requisite contacts with Alabama for the trial court to exercise in personam jurisdiction over him,” although he had visited Alabama several times).

Although the mother also alleges that she and the father executed an agreement modifying the Florida judgment on the issue of the father’s visitation schedule, the materials before this court do not contain a copy of that alleged modification agreement. The mother admits that she never filed that modification agreement with an Alabama court or with the Florida court and that she has misplaced her copy of the alleged modification agreement.

Assuming without deciding that the mother’s allegations regarding the substance of the modification agreement are correct and that the father, in fact, agreed to modify his visitation schedule with the child and, in doing so, acknowledged that the mother and the child lived in Alabama, such an acknowledgment does not alter our resolution of the question whether the trial court has personal jurisdiction over the father. The mother’s representations regarding the contents of the alleged modification agreement, without more, are insufficient to subject the father to the personal jurisdiction of the courts of the State of Alabama.

Conclusion

For the above-stated reasons, the father’s petition for a writ of mandamus is granted. The trial court is directed to vacate its order denying the father’s motion to dismiss for lack of subject-matter jurisdiction and personal jurisdiction and to enter a new order dismissing the mother’s action.

PETITION GRANTED; WRIT ISSUED.

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

      . Based on the materials before this court, we cannot determine the number of copies of the Florida judgment the mother filed with the trial-court clerk. We note, however, that her petition to annex the Florida judgment indicates that "a certified copy of said Judgment is attached hereto ... as Exhibit A.” We also cannot determine whether the Florida judgment she. submitted to the trial court is the last judgment entered by the Florida court in the divorce action between the mother and the father. Because, however, the materials establish that the mother failed to submit copies of the complete Florida judgment and failed to provide a sworn statement of the claimed arrearage, we need not address these other alleged deficiencies.

      . The father denies that he executed such an agreement, and the materials before this court contain no other evidentiary support to establish the existence of the alleged modification agreement, i.e., no affidavits from the witnesses to the execution of that agreement or other indicia that the agreement exists.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    XIANGMING ZHA v. NINGYONG XU.
    2110438.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2012.

      Brent T. Day of Solon Law, L.L.C., Mobile, for appellant.
    Christopher R. Miller, Mobile, for appel-lee.
   THOMAS, Judge.

Xiangming Zha (“the husband”) appeals from a judgment of the Mobile Circuit Court (“the trial court”) divorcing him from Ningyong Xu (“the wife”) and dividing the parties’ marital property.

The parties were married in China on May 17, 2002. The wife filed a complaint for a divorce in the trial court on June 20, 2011. The husband filed an answer to the complaint on July 19, 2011. The trial court conducted a hearing on October 27, 2011, at which it heard evidence ore tenus. The trial court entered a judgment on November 4, 2011, divorcing the parties, awarding custody of the parties’ minor child to the wife and visitation to the husband, and dividing the parties’ marital property. The divorce judgment ordered the husband to pay the -wife $834 per month in child support, $230 per month toward private-school tuition, and $750 per month for three years in rehabilitative alimony. The judgment also provided that,

“[w]ith respect to the financial accounts, the wife shall be awarded all accounts in her name and the husband shall be awarded all accounts that are in his name. However, the wife is awarded a judgment against the husband representing an additional property settlement, in the amount of $18,500.00. The husband shall make arrangements to pay same judgment to the wife within 6 weeks from the date of this order.”

The husband filed a motion to alter, amend, or vacate the judgment on November 16, 2011. On November 30, 2011, the wife filed a motion to alter, amend, or vacate the judgment. After a hearing on January 18, 2012, the trial court entered an order on January 19, 2012, granting the wife’s postjudgment motion insofar as it pertained to visitation and granting the husband’s postjudgment motion insofar as it pertained to private-school tuition; the trial court denied all other requests for relief. The husband filed a timely appeal with this court on February 2, 2012.

The only issue the husband asserts in his brief concerns the $18,500 additional property settlement, which we will refer to as an award of alimony in gross. The husband does not dispute the amount of the award. Rather, he argues that the trial court erred by awarding the wife a portion of his retirement accounts because the parties had been married less than 10 years at the time the complaint for a divorce was filed.

“ ‘The trial court in this case applied the law to undisputed, stipulated facts. Our review therefore is de novo.
“ ‘ “ ‘When reviewing a case in which the trial court sat without a jury and heard evidence in the form of stipulations, briefs, and the writings of the parties, this Court sits in judgment of the evidence; there is no presumption of correctness. Old Southern Life Ins. Co. v. Williams, 544 So.2d 941, 942 (Ala.1989); Craig Constr. Co. v. Hendrix, 568 So.2d 752, 756 (Ala.1990). When [an appellate court] must determine if the trial court misapplied the law to the undisputed facts, the standard of review is de novo, and no presumption of correctness is given the decision of the trial court. State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001); see also Ex parte Graham, 702 So.2d 1215 (Ala.1997)

Adams v. Adams, 107 So.3d 194, 197 (Ala.Civ.App.2012) (quoting Town of Westover v. Bynum, 68 So.3d 840, 842 (Ala.Civ.App.2011), quoting in turn American Res. Ins. Co. v. H & H Stephens Constr. Inc., 939 So.2d 868, 872-73 (Ala.2006), quoting in turn Bean Dredging, L.L.C. v. Alabama Dep’t of Revenue, 855 So.2d 513, 516-17 (Ala.2003)). It was undisputed that the parties had not been married for 10 years and that the parties had agreed upon the information provided to the trial court regarding their respective financial accounts. That information indicated that the husband had four retirement accounts that totaled $123,716.67 and three non-retirement accounts worth $6,014.85.

The husband is correct that § 30-2-51(b)(1), Ala.Code 1975, precluded the trial judge from awarding the wife an interest in the husband’s retirement benefits. Section 30-2-51(b)(l) provides:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.”

In the divorce judgment, the trial court did not specifically award the wife any interest in the husband’s retirement accounts. However, alimony in gross is a form of property settlement and must be “ ‘payable out of the present estate of the paying spouse as it exists at the time of the divorce.’ ” Redden v. Redden, 44 So.3d 508, 513 (Ala.Civ.App.2009) (quoting TenEyck v. TenEyck, 885 So.2d 146, 151-52 (Ala.Civ.App.2003)). The husband points out that he does not have the assets, other than his retirement accounts, with which to pay the $18,500 alimony-in-gross award.

During the trial, the trial judge commented:

“The parties also have several accounts which are set out in Court Exhibit Number 5, that are today’s balances on these accounts. Some of these accounts are IRA accounts and since the parties have not been married for ten years, the Court might award a judgment rather than a division of the accounts itself. And so I am going to decide what will be fair in light of the totality of those accounts and the circumstances that I’ll hear today.”

(Emphasis added.) The trial judge also stated the following:

“Now, I can consider the value of a retirement even though I might not be able to assign a portion of a retirement, but I can consider it in my otherwise break down.”

Based upon those comments, it appears that the trial judge may have considered the husband’s retirement accounts in the final distribution of property. Because the parties were not married for the statutorily required 10 years, the wife was not entitled to any portion of the husband’s retirement accounts as part of the property division. Hatley v. Hatley, 51 So.3d 1031, 1037 (Ala.Civ.App.2010). We note that the trial court’s judgment does not state that the alimony-in-gross award is based upon the husband’s retirement accounts. However, in light of the trial judge’s comments regarding the retirement accounts, we must reverse the award of alimony in gross to the wife.

We review the award of alimony and the division of marital property together to determine whether the trial court exceeded its discretion. See Hatley, 51 So.3d at 1034. Because we determine that the trial court erred insofar as it considered the husband’s retirement accounts in its division of property, we must reverse the trial court’s judgment as to both the property division and the alimony award. Id. Upon remand, the trial court may adjust those awards so as to institute an equitable property division between the parties.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

THOMPSON, P.J., and BRYAN and MOORE, JJ., concur in the result, without writings.

      . The record indicates that the parties moved to Mobile County in July 2009.


author: PITTMAN, Judge.

text:
    Susanne M. DAVIS v. Edward E. DAVIS.
    2110119.
    Court of Civil Appeals of Alabama.
    Oct. 12, 2012.

      J. Knox Argo, Montgomery, for appellant.
    Submitted on appellant’s brief only.
   PITTMAN, Judge.

After a 36-year marriage, Susanne M. Davis (“the wife”) filed an action seeking a divorce from Edward E. Davis (“the husband”). The parties have no minor children, and they settled all issues pertaining to the division of marital assets and liabilities in mediation. The Elmore Circuit Court incorporated their mediation settlement agreement into the divorce judgment. That agreement provided that the husband would have exclusive ownership of the marital home, would refinance the mortgage indebtedness on the property, and would pay the wife $24,000 for her equity interest in the property.

The only issues remaining for trial were the wife’s request for periodic alimony and both parties’ requests for an attorney’s fee. The trial court’s judgment made each party responsible for his or her own attorney’s fee. In the penultimate paragraph of the judgment, the trial court ordered the husband to pay the wife

“spousal support in the amount of $500.00 per month for 52 months commencing on June 1, 2011, and continuing for the following 51 months. Alternatively, the husband may pay to the wife, on or before January 1, 2012, $24,000.00 as full and final settlement of his obligation to the wife under this paragraph.”

The wife appeals, contending that, if the foregoing provision is deemed to be an award of alimony in gross, then the trial court acted outside the limits of its discretion in failing to award (or to reserve the right to award) periodic alimony. In the alternative, she contends that, if the provision is deemed to be an award of rehabilitative alimony or periodic alimony limited to a period of 52 months, then the amount of the award is inequitable. We affirm the trial court’s judgment.

I.

“ ‘A divorce judgment should be interpreted or construed as other written instruments are interpreted or construed. Sartin v. Sartin, 678 So.2d 1181 (Ala.Civ.App.1996). “The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them.” Id, at 1188.’ ” Routzong v. Baker, 20 So.3d 802, 806 (Ala.Civ.App.2009) (quoting R.G. v. G.G., 771 So.2d 490, 494 (Ala.Civ.App.2000)). We conclude that the award in the penultimate paragraph of the judgment was “either ‘rehabilitative alimony,’ see Alfred v. Alfred, 89 So.3d 786 (Ala.Civ.App.2012), or ‘periodic alimony limited to a period of [52] months,’ see id, 89 So.2d at 791 (Moore, J., concurring in part and concurring in the result).” Frye v. Frye, [Ms. 2110024, September 14, 2012] — So.3d -, - (Ala.Civ.App.2012). That is so because periodic alimony “is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse],” Ex parte Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974), and the award in this ease was specifically designated as “spousal support.” See Huldtquist v. Huldtquist, 465 So.2d 1146, 1148 (Ala.Civ.App.1984) (construing a judgment ordering payments of $350 per month for 12 months, and then $300 a month for 8 years, to be periodic alimony, despite the fact that the time of payment and amount of payment were certain, because “the purpose of the payments was not to replace the wife’s inchoate rights in the husband’s estate (alimony in gross), but rather to pay a future allowance for support of the wife out of the husband’s future earnings”).

Further, alimony in gross “is a form of property division,” Ex parte Brunner, 10 So.3d 24, 27 (Ala.2008) (citing with approval Johnson v. Johnson, 840 So.2d 909, 912 (Ala.Civ.App.2002)), and the parties had previously settled all property-division issues in mediation without providing for alimony in gross.

The wife’s periodic-alimony award will not expire until October 2016, and she may seek a modification or an extension of that award at any time before its expiration. See Enzor v. Enzor, 98 So.3d 15, 21 (Ala.Civ.App.2011); Treusdell v. Treusdell, 671 So.2d 699, 704 (Ala.Civ.App.1995).

II.

The trial court ordered the husband to pay $500 per month in pendente lite spousal support. The wife contends that the trial court’s decision not to increase the amount of periodic alimony over and above what the husband had been paying in pendente lite support was inequitable.

“This court and our supreme court have enumerated the many factors trial courts must consider when weighing the propriety of an award of periodic alimony, Edwards v. Edwards, 26 So.3d 1254, 1259 (Ala.Civ.App.2009), which include: the length of the marriage, Stone v. Stone, 26 So.3d 1232, 1236 (Ala.Civ.App.2009); the standard of living to which the parties became accustomed during the marriage, Washington v. Washington, 24 So.3d 1126, 1135-36 (Ala.Civ.App.2009); the relative fault of the parties for the breakdown of the marriage, Lackey v. Lackey, 18 So.3d 393, 401 (Ala.Civ.App.2009); the age and health of the parties, Ex parte Elliott, 782 So.2d 308, 311 (Ala.2000); and the future employment prospects of the parties, Baggett v. Baggett, 855 So.2d 556, 559 (Ala.Civ.App.2003). In weighing those factors, a trial court essentially determines whether the petitioning spouse has demonstrated a need for continuing monetary support to sustain the former, marital standard of living that the responding spouse can and, under the circumstances, should meet. See Gates v. Gates, 830 So.2d 746, 749-50 (Ala.Civ.App.2002); Hewitt v. Hewitt, 637 So.2d 1382, 1384 (Ala.Civ.App.1994) (‘The failure to award alimony, although discretionary, is arbitrary and capricious when the needs of the wife are shown to merit an award and the husband has the ability to pay.’).”

Shewbart v. Shewbart, 64 So.3d 1080, 1087 (Ala.Civ.App.2010).

At the time of trial, both parties were 56 years old. The husband is a graduate of the United States Military Academy and holds a master’s degree. The wife attended Auburn University at Montgomery but did not receive a college degree. The trial court’s judgment summarized the parties’ employment history as follows:

“The wife has had various employment during the term of the marriage, including employment in a pharmacy, a grocery store, a publishing company, and at Montgomery Radiology where she worked in the billing department. She left employment with Montgomery Radiology to assume responsibility for assisting with construction of a new home that she and [the husband] were building. After the home was complete, she went to work with Health Med doing health screening on a contract basis. According to the wife’s testimony, the job with Health Med paid $15.00 per hour, but was sporadic and she worked only several days each week....
“The husband has worked with Winn Dixie, with his father in a family insurance business, and with Alabama Home Furnishings. The husband ... is employed by the Retirement Systems of Alabama as [the] department [of office services] director and has been so employed for approximately 20 years. The husband testified that he ... will be eligible for retirement and to receive retirement benefits at age 60. His earnings between 2007 and 2009 from the Retirement Systems of Alabama have been as follows: 2007, $69,760.10; 2008, $75,163.76; and in 2009, $78,523.92.”

The wife was not employed at the time of trial because, she said, she was disabled and unable to work. She suffers from scoliosis, a curvature of the spine that causes back pain when she stands for extended periods or lifts heavy objects, and from Dupuytren’s disease, a hereditary connective-tissue disorder that causes the fingers to bend towards the palm of the hand. In 2008, the wife underwent reconstructive tendon-graft surgery on her right thumb, after which she developed chronic-pain syndrome. Later, she underwent the same surgical procedure on her left thumb; at the time of trial she was wearing a cast on her left hand. The wife stated that she could use her right hand and that she was in “an observation state” concerning her future prognosis. She stated that she had applied for Social Security disability benefits; that her claim had been denied; and that she had been awaiting a hearing before a hearing officer. She expected to receive approximately $500 per month in disability benefits if her claim was approved. The husband testified that he had had open-heart surgery in 2003 but that he considered himself to be in good health currently.

The trial court determined that “both parties share responsibility for the marital discord that eventually resulted in the dissolution of this marriage.” The event that precipitated the parties’ separation in 2009 was a heated confrontation during which the husband demanded that the wife depart the marital residence and live with her mother in Montgomery. The wife left the marital residence, went to her mother’s house, and eventually filed a complaint for a divorce. The trial court’s judgment states:

“[The wife’s mother] has since died and [the wife] continues to reside in her mother’s home which is now owned by the wife and her brother .... [The wife] lives in the home rent free but pays the homeowners’ association dues of $140.00 per month and all taxes and utilities on the home. There is no mortgage on the home and the wife testified that she estimates the current value of this home to be $190,000.00. Evidence introduced at the final hearing establishes that the home is currently assessed at $230,000.00 by the Montgomery County Department of Revenue. According to the wife, this home is currently offered for sale, though not listed with an agent, and that she and her brother will eventually sell the home and divide the proceeds.
“The testimony established that since 2005, the wife has received $289,602.61 as gifts from her late mother. The evidence further established that the wife will realize, at a minimum, $95,000.00 when her late mother’s home in Montgomery sells. Using these amounts, the wife’s total gifts from her mother during the past five years total $384,602.61, or an average of $76,921.00 per year during that period. During the past three years, the husband has earned from his employment an average of $74,482.00.”

The husband testified that he had suggested that the wife save or invest part of the money she had received from her mother, but, he said, the wife had told him that it was her money and she would do with it what she pleased. The wife acknowledged that she had spent or given to the parties’ adult children all but $6,000 of the more than $384,000 in gifts that she had received from her mother. At trial, the wife presented a list of monthly expenses that, she estimated, she would incur if she were to sell her mother’s house and buy another residence for herself. Those expenses — which the wife acknowledged were speculative — totaled $2,624.

The husband’s monthly gross income is $6,690.60. His monthly net income is approximately $4,700, from which, he said, he must pay $4,769 in monthly expenses. His expenses include payments totaling $1,412 for the first and second mortgages on the marital residence; $650 for groceries; $515 for gasoline; $420 for medical bills; $285 for indebtedness on his truck; and $274 to repay his sisters for a $6,000 personal loan. With respect to the wife’s need and the husband’s ability to pay alimony, the trial court determined:

“The evidence tended to establish that neither the husband nor the wife currently has any discretionary funds and both appear to the Court to be living on what is commonly referred to as a month-to-month basis. Since the time of the pendente lite hearing, the husband has paid monthly spousal support to the wife in the amount of $500.00 per month and has had to borrow or draw from his deferred compensation account to pay some of the costs or expenses accompanied by this litigation.
“Remarkably, the wife testified during her March 2010 deposition that she was not disabled and was able to be employed. During her trial testimony, two months later, the wife claimed that she is disabled and not able to work. It is undisputed that she has not sought employment since the separation. It appears to the Court that the wife has remained content to spend freely and await an award of permanent alimony. If such is the case, the wife’s anticipation is misplaced. The Court finds from the evidence that she is indeed able to be employed should she decide to seek employment.”

The record indicates that the wife was deposed in March 2010, as the trial court’s judgment states, but that her trial testimony was given in May 2011 — 14 months, rather than 2 months, after her deposition testimony. In the interim, the wife said, her scoliosis had worsened and she had undergone surgery on her left thumb. Notwithstanding the trial court’s mistake concerning the amount of time that had elapsed between the wife’s deposition testimony and the wife’s trial testimony, it is apparent that the trial court had a basis upon which to discredit the wife’s claim that- she was unable to be employed. In light of testimony indicating that the wife’s scoliosis caused her back pain only when she stood for long periods or lifted heavy objects, that the wife had regained the use of her right hand following surgery and physical therapy, and that, following a healing period, the wife was also expected to regain the use of her left hand, there was an evidentiary basis for the trial court to disbelieve the wife’s claim of disability.

“ ‘It was within the province of the trial court to consider the credibility of the witnesses, to draw reasonable inferences from their testimony and from the documentary evidence introduced at trial, and to assign such weight to various aspects of the evidence as it reasonably may have deemed appropriate.... In order to reverse the trial court ..., we would have to make our own credibility determinations and we would have to reweigh the evidence, neither of which we are allowed to do.’ ”

Vestlake Cmtys. Prop. Owners’ Ass’n v. Moon, 86 So.3d 359, 367 (Ala.Civ.App.2011) (quoting Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala.Civ.App.2005)).

Moreover, in contrast to evidence indicating that the husband had debts relating to a first and second mortgage on the marital residence, a truck loan, personal loans from his family members, and medical expenses, the evidence indicated that the wife was virtually debt-free, having only one credit card on which there was a balance of approximately $1,000. Further, upon the entry of the divorce judgment, the wife was to receive her equity interest in the marital residence of $24,000, and upon the sale of her mother’s house, she would receive a minimum of $95,000. Notwithstanding the husband’s relatively healthy income, the trial court was authorized to conclude that the husband simply did not have the ability to pay more than $500 per month in alimony, given his debt obligations.

It appears that the trial court may have limited the wife’s alimony award to 52 months because the end of that period corresponds to the date when the husband would be eligible to retire, at which point, the trial court could have determined, the husband would have fewer financial resources available to him. As we have previously pointed out, if the wife’s physical condition deteriorates or the husband’s financial condition improves before October 2016, the wife may seek to modify or extend the alimony award. Given the circumstances that existed at the time of trial, however, we cannot find that the trial court’s judgment was unsupported by the evidence so as to be plainly and palpably wrong.

The judgment of the Elmore Circuit Court is affirmed.

The wife’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

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

MOORE, J., concurs in the result, ■without writing.


author: WELCH, Judge.

text:
    Jason Bart NAYLOR v. STATE of Alabama.
    CR-10-1540.
    Court of Criminal Appeals of Alabama.
    May 25, 2012.
    Rehearing Denied Aug. 10, 2012.

      Chris Malcom, Moulton, for appellant.
    Luther Strange, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.
   WELCH, Judge.

A Lawrence County grand jury returned a nine-count indictment against Jason Bart Naylor based on allegations that he engaged in various sex acts with his minor stepdaughter, B.J.: Counts I, III, and V charged Naylor with first-degree rape for engaging in sexual intercourse with B.J. by forcible compulsion, in violation of § 13A-6-61, Ala.Code 1975; counts II, IV, and VI charged Naylor with second-degree rape for engaging in sexual intercourse with B.J., who was less than 16 years of age and more than 12 years of age, while Naylor was 16 years of age or older and at least 2 years older than B.J., in violation of § 13A-6-62, Ala.Code 1975; count VII charged Naylor with first-degree sodomy for subjecting B.J. to deviate sexual intercourse by forcible compulsion, in violation of § 13A-6-63, Ala. Code 1975; count VIII charged Naylor with second-degree sodomy and alleged that Naylor, being more than 16 years of age, engaged in deviate sexual intercourse with B.J., who was less than 16 years of age and more than 12 years of age, in violation of § 13A-6-64, Ala.Code 1975; and count IX charged Naylor with incest for engaging in sexual intercourse with B.J., whom he knew to be his stepchild, while the marriage creating that relationship existed, in violation of § 13A-13-3, Ala.Code 1975. Immediately before the trial the State moved to dismiss counts V and VI of the indictment. The trial court granted the motion. Naylor was tried before a jury on the remaining counts. The jury found Naylor guilty of counts IV, VIII, and IX; the jury found Naylor not guilty of counts I, II, III, and VII. Naylor filed a motion for a new trial and raised issues regarding juror misconduct. The trial court conducted a hearing on the motion. The trial court thereafter held a sentencing hearing, and it sentenced Naylor to 10 years’ imprisonment on count IV, 15 years’ imprisonment on Count VIII, and 5 years’ imprisonment on count IX; the sentences in counts IV and IX were to run concurrently with one another and consecutively to the sentence for count VIII, for a total sentence of 25 years’ imprisonment. The trial court also ordered Naylor to pay fines and assessments to the crime victims compensation fund. Naylor filed an amended motion for a new trial. The trial court held a hearing on the amended motion for a new trial, and subsequently entered an order denying Nay-lor relief on all claims.

This appeal follows.

I.

Lawrence County Sheriffs Department Investigator Mike Agee testified that on September 16, 2009, he was contacted by Jennifer Owens with the Lawrence County Department of Human Resources (“DHR”) regarding B.J.’s report that she had been sexually assaulted by her stepfather, Nay-lor, about one and one-half years earlier. B.J. was 16 years old at the time of the report. He met with B.J. and her father, Mr. J., at Owens’s office, and B.J. gave a statement in which she claimed that Nay-lor had raped her in April 2008. Investigator Agee then went to the sheriffs department with B.J. and her father, and he obtained additional information from B.J. about the situation at home. B.J. told him that Naylor had raped her in her bedroom on three consecutive mornings, at approximately 4:30 a.m., before Naylor went to work. She said that on each occasion she woke up while Naylor was raping her. B.J. said that she suffered no physical injury and that she did not seek medical treatment following the incidents. B.J. told Inv. Agee that following the third time she told her mother that Naylor had raped her. During the ensuing investigation, Inv. Agee interviewed Naylor and B.J.’s mother, Melanie Naylor (“Melanie”). Melanie “was very defiant and adamant that this did not occur, it did not happen.” (R. 111.) She also told Inv. Agee that B.J. had never told her that Naylor had raped her. Inv. Agee testified that, based on the interview with B.J. and on his training and experience regarding sexual-assault victims, his opinion was that B.J. had been sexually assaulted by Naylor. (R. 149.)

On cross-examination, Inv. Agee acknowledged that, after he learned that B.J. had made additional allegations against Naylor in a later interview — allegations that Naylor had penetrated her with his fingers, had forced her to engage in oral sex, and that some of the assaults took place in the living room, he did not conduct any follow-up questioning of B.J. He did, however, speak to Monica Haddock, an employee at the Cramer Children Center, who had interviewed B.J., and he was satisfied with Haddock’s explanation of the reasons for the inconsistencies in B.J.’s allegations.

B.J. testified at trial that she was then 17 years old. She said her parents divorced in August 1997, and her mother married Naylor in July 2001. She lived primarily with her mother after her parents divorced, and Naylor moved into their home after he married Melanie. Melanie and Naylor had two children after they married; the children were eight years old and four years old at the time of trial, she said. B.J. stated that she had had a close relationship with her mother before the incidents for which Naylor was on trial, and she said that she and Naylor had a “typical, normal” relationship and she never felt uncomfortable around him. (R. 159.) B.J. said she had been in counseling at Alabama Psychiatric Services for attention deficit and hyperactivity disorder before these incidents occurred.

B.J. testified that she was awakened one morning by the rattling of her bedroom door, which she always locked at night to keep her younger brother and sister from entering her room. Her digital alarm clock indicated the time was 4:24. She said that Naylor told her to come to the door, but she did not get up. Naylor rattled the doorknob repeatedly and tapped on it, and he eventually was able to unlock the door. B.J. said that Naylor came into the room, pulled down her pants, and told her not to tell her mother or he would go to jail and her mother would lose the house. She said she did not scream because she was terrified. Naylor put his fingers in her vagina, touched her chest, and made her put his penis inside her mouth, she testified. B.J. said she did not know whether Naylor ejaculated and she added that, at the time this occurred, she had not yet had sex with anyone. He then pulled her pants up, pulled her shirt down, and left the house to go to work. He told her again not to tell her mother. During the incident Naylor also kissed her on the mouth and told her many times that she had a beautiful body, B.J. said. The incident lasted for 15 to 20 minutes, she said. B.J. said she did not call out or yell because she knew her mother would not hear her, and because she was frightened. She said she lay in bed until it was time for school, and she got up and went to school without telling her mother. She told two friends at school what had happened.

B.J. testified that Naylor assaulted her again, at approximately 10:00 p.m. the same day. She said that, while her mother was in the bathroom bathing one of the children, B.J. was in the living room with Naylor. He told her to pull down her jeans and bend over the couch. She bent over the couch, she said, and Naylor pulled her pants down and penetrated her with his penis. The incident lasted approximately 5 or 10 minutes, she said. B.J. said, “He didn’t finish.” (R. 174.) B.J. said that Naylor pulled up her pants, and she went to her bedroom. B.J. said she did not tell her mother.

B.J. said that Naylor unlocked her bedroom door again the following morning and he came into her room. He pulled her pants down, pulled his pants down, forced her to perform oral sex on him, and then penetrated her vagina with his penis, she said. She said the incident lasted approximately 15 or 20 minutes, and she did not know whether Naylor ejaculated. B.J. said that Naylor removed his penis from her vagina after he discovered that she had started her menstrual period. B.J. said that Naylor wiped himself off and went to work. B.J. said she told no one about that incident that morning. She said that she did not tell her mother immediately because she was afraid her mother “would do something about it” and then they would lose their house because her mother did not have a job at the time. (R. 176.)

B.J. testified that she told her mother that afternoon that Naylor had raped her. Her mother confronted Naylor, she said. The following day, B.J. said, her mother asked B.J. to tell her everything that had happened, and her mother wrote everything down. B.J. said that her mother did not report the assaults to anyone, but she got a new lock for B.J.’s bedroom door, and Naylor was not permitted to be alone with B.J.

B.J. acknowledged that she went to her father’s house on the same day she told her mother about being raped and that she could have stayed with her father, but instead she telephoned her mother and asked her to take B.J. back home.

B.J. said that after these incidents she no longer obeyed her mother, she skipped school, and sometimes refused to come home. B.J. also testified that she had an accident on a four-wheeler and she broke some bones in her face; thereafter, when her mother said something to her that she did not like, B.J. said, “I would bang my face against the wall to hurt myself.” (R. 181.) She also abused alcohol and she stayed out all night with friends. B.J. said that on September 1, 2009, she and some male friends had inhaled compressed air from a spray can to get high, and soon after she had a serious accident in her car when she was driving home and broke a spinal vertebrae. While she was still in a neck brace after that accident, on September 11, 2009, she attempted to strike her mother, and the two had a violent physical altercation. B.J. testified that her mother told her that she was going to call Mr. J. B.J. said she told her mother to “go ahead,” because her mother had threatened to do it before, but had not done so. (R. 184.) B.J.’s mother did send B.J. to live with her father after the altercation.

B.J. testified that on the night her father came to get her from her mother’s house, and before they left her mother’s house, B.J. told her father that the reason she had been so out of control was that Naylor had raped her. Her father did not initially say anything while they were at the house. He did not contact the police, nor did her take her to DHR. B.J. said that a day or two later, after she began staying with her father, she wrote a note she intended to give to her mother at some later time. B.J. said in the note she ■wrote that she did not understand why her mother was not on her side and she expressed her lack of understanding of things her mother had done. B.J. said her father found the note and gave it to B.J.’s counselor, who made her father file charges against Naylor.

B.J. acknowledged that in 2007 she had overdosed on pills she took when she was angry at her mother for refusing to let her do something she had wanted to do.

B.J. also acknowledged that she had been in counseling sessions monthly or bimonthly after she was assaulted, but that she had not reported Naylor’s assaults because her mother was always in the room during the sessions. She also stated that she had initially told the interviewers that she had been raped three times, but she was raped only twice. She explained the inconsistent reports by stating that she had tried to put the incidents out of her mind during the 18 months after the assaults occurred, even though she was living with her rapist, that there had been much drama and chaos in her life, and that she was confused and felt abandoned. She testified that, contrary to her initial report to the investigator, she had been raped twice and not three times. She also said there were two instances of oral sex, both in her bedroom. She said that the first morning Naylor came into her room he touched her and made her perform oral sex. The next evening there was sexual intercourse, B.J. said, but then she added that oral sex had also occurred. She said that the following morning there was sexual intercourse and oral sex.

On cross-examination B.J. testified that for years she had wanted her parents to get back together after their divorce, and she had expressed very strong feelings on the issue several times on an Internet blog, even as recently as in 2007. She expressed in that forum that she was angry and admitted that during the summer or early fall of 2007 she cut herself to relieve her feelings of anger and rage, before any of the issues regarding Naylor occurred. B.J. said that her stepmother and Naylor prevented her parents from getting back together. She said that it bothered her that her parents were not together, and that her father and stepmother were going to have a baby that would have its parents together and that Naylor and Melanie’s children had then-parents together.

She also admitted that before the day her mother made her leave the house to live with her father, she and her mother had had another physical altercation and Naylor had pulled B.J. off her mother. B.J. admitted that she had telephoned her father that day and had told him that Naylor had hit her. B.J. testified that Naylor had not hit her. She acknowledged that Mr. J. became very upset when she told him, and that her report that she had been struck caused some problems. B.J. testified that she remembered telling her mother something like B.J. could call Mr. J. and tell him anything and that he would believe her. B.J. also recalled that, before she left her mother’s house, she told her mother something to the effect that, if she could not live there, no one was going to live there with her mother.

Two female friends and classmates of B.J.’s testified that she told them in April 2008 that her stepfather had raped her one evening in the living room.

Jennifer Owens testified that she was a service social worker with the Lawrence County DHR and that she conducted child-abuse investigations. She said that her office received a report from the local sheriffs office that led to her contact with B.J. in September 2009. Owens testified that she met with B.J. and her father and that an investigator with the sheriffs office then met with them. Owens said that B.J. described a series of four rapes by her stepfather that B.J. said had occurred on April 21, 22, and 23, 2008, in her bedroom and in the living room. Owens said that B.J. told her that, on the first and second mornings, her stepfather had digitally penetrated her and forced her to have sex. Owens said that B.J. reported that on the afternoon of the second day her stepfather made her have sex in the living room. She testified that B.J. told her that on the third morning her stepfather had sex with her again. B.J. did not mention oral sex with her stepfather at this initial interview. Owens testified that she observed B.J.’s forensic interview with Monica Haddock at the child-advocacy center. She acknowledged that B.J. had testified at trial that her stepfather had raped her twice and forced her to have oral sex twice, and that B.J.’s initial reports had differed from her testimony. It is not uncommon for child victims of sexual abuse to change a report regarding the number of times they had been abused if the abuse had occurred multiple times. Owens testified that based on her experience, her observations, and her investigation into B.J.’s case, she formed the opinion that B.J. was the victim of sexual abuse.

On cross-examination, Owens acknowledged that B.J. made several inconsistent statements in the interviews with her, Inv.. Agee, and Haddock. For example, B.J. told Owens that she woke up on the morning of the first rape when she heard Nay-lor trying to open her door, but a short time later she told Inv. Agee that she was awakened that first morning when Naylor was on top of her, raping her. When B.J. first reported the incidents during the interview with Owens and Inv. Agee, she did not mention anything about oral sex. During the subsequent interview, Haddock asked B.J. whether Naylor had put his mouth on her or whether she had to put her mouth on him, and only then did B.J. say that that had happened on each occasion Naylor had entered her bedroom. Owens also said that B.J. had stated during the initial interview that all the rapes occurred in her bedroom in the early morning hours, but that B.J. had also told her that Naylor had once raped her in the afternoon in the family’s living room. During cross-examination Owens also testified that, although she was an observer when Haddock interviewed B.J. on September 21, 2009, Owens did not create a written report of that interview until January 25, 2011. Although Owens’s report of that interview indicated that Inv. Agee had observed the interview with her, Owens testified that the report was incorrect, and that Inv. Agee had not been present.

Owens testified that she interviewed Melanie Naylor as part of her investigation. Melanie told Owens that she was not aware of any sexual abuse or rape of B.J. by Naylor, that she did not believe B.J., and that B.J. had lied to her about other things. Owens testified on redirect examination that Melanie later recanted, and told her that B.J. had reported in April 2008 that she had been sexually assaulted.

Mark Jacobs, a therapist at the Alabama Psychiatric Services, testified that he had had counseling sessions with B.J. beginning in 2006 because she was having struggles with attention deficit and hyperactivity disorder. He said that, beginning around April 2008, B.J.’s behavior reportedly deteriorated, and she exhibited more acting-out behaviors, violated curfew, was disrespectful, and began cutting herself. In September 2009, he met with B.J.’s mother and father, and it was disclosed to him then that B.J. had been sexually assaulted. Jacobs testified that B.J.’s behavior had been consistent with the behavior of a victim of sexual abuse.

On cross-examination Jacobs stated that he was aware that B.J. had issues with cutting herself and that she had taken an overdose of drugs, but he could not remember when those incidents had occurred. Jacobs reviewed his notes and acknowledged that one of the recurring issues he had noted in 2006, 2007, and before April 2008 were BJ.’s defiance, issues regarding parental control, and B.J.’s lying to her parents. Jacobs also testified that he sometimes met with B.J. alone, so that she had an opportunity to speak freely with him about anything that was on her mind or that was bothering her. He also stated that the types of acting-out behavior B.J. exhibited was not always indicative of sexual abuse. Jacobs further testified that he spoke with B.J.’s mother about B.J.’s allegations of sexual assault, and B.J.’s mother said she did not believe B.J., in part because B.J. had a history of not being truthful.

On redirect examination, Jacobs testified that, in his opinion, B.J. had been the victim of sexual abuse. On further cross-examination, Jacobs testified that he was aware that, approximately one week before the allegation was revealed to him in September 2009, B.J.’s mother had filed juvenile charges against B.J. Also at that time, Jacobs acknowledged, B.J. was recovering from injuries from a serious accident, and “there were issues going on there between her and her parents as it related to her treatment and where she was going to stay, which parents she was going to stay with.” (R. 371.)

Melanie Naylor testified that she and B.J.’s father divorced in 1997 and that she married Naylor in July 2001. She and Naylor divorced in October 2005, but they remarried in March 2006. Divorce proceedings for the Naylors were pending at the time of trial. Melanie testified that in April 2008 B.J. reported to her that Nay-lor had raped her. B.J. was very upset and was crying when she revealed the rapes, Melanie said. Melanie testified that she confronted Naylor immediately, and that Naylor said he knew that what he had done was wrong.

Melanie said that the next day she asked B.J. to tell her everything that had happened, and Melanie wrote it down. She said B.J. told her that she had awakened the first morning when Naylor was trying to open her bedroom door. Melanie said that B.J. told her that Naylor came into her room, pulled her pants down and her shirt up, kissed her all over her chest, and put his fingers inside her. Melanie said that B.J. told her that on that Monday night, Naylor had bent her over the end of the couch in living room and inserted his penis in her. B.J. told Melanie that Nay-lor had hurriedly pulled her pants up because Melanie was coming toward the living room. Melanie said that B.J. told her that the next morning Naylor came into her room again, pulled her pants down, and raped her. Melanie said that B.J. also told her that Naylor forced her to perform oral sex on him on both of those mornings in B.J.’s bedroom. Melanie said that she secretly recorded a conversation she had with Naylor that night in which she confronted him with B.J.’s allegations, and she hid a recording of that conversation, along with the pieces of underwear she believed B.J. and Naylor had been wearing on the morning of the final sexual assault. She said she later disposed of those items.

Melanie said that she did not do anything after B.J. told her about the multiple assaults because she was afraid no one would believe her and she was afraid Nay-lor would hurt her or her children. She said she tried to protect B.J. by getting locks for her bedroom and bathroom doors, and she made sure Naylor was not alone with B.J. Melanie also testified that she told B.J. not to tell anyone about the rapes, and she said she told B.J. that if she reported the rapes to anyone, Melanie would deny that they had happened.

Melanie said that after B.J. was raped, Melanie did not discipline B.J. at all, and she let B.J. do whatever she wanted. She testified that in May 2008, with her permission, B.J. severely damaged Naylor’s pickup truck, using various items such as a hammer, roofing tacks, spray paint, and a baseball bat. B.J. acted out frequently after April 2008; she yelled and screamed at Melanie, she punched and kicked holes in the walls of her bedroom, and she refused to go to school or to observe a curfew. Melanie said that, in December 2008 after B.J. had had an accident on her four-wheeler that resulted in B.J.’s breaking several bones in her face, B.J. intentionally banged her head against walls when she was upset. Melanie said B.J. had a serious accident in her car in September 2009, and when she got out of the hospital her behavior continued to deteriorate, and she verbally and physically attacked Melanie. Melanie filed charges in juvenile court against B.J. alleging harassment and assault. She decided B.J. should stay with Mr. J., and when he came to pick B.J. up from the house, B.J. told him that Naylor had raped her.

A few days later, Melanie met with Mr. J. and employees at Alabama Psychiatric Services, where B.J. had been receiving counseling, and they confronted Melanie about B.J.’s rape allegations. Melanie testified that she denied the allegations, and she told them that B.J. was lying. Melanie testified that she also told DHR employees that she did not believe B.J.’s allegations. Melanie testified that in June 2010 she told investigators the truth, which, she said, was the same thing she had testified to at trial regarding the sexual abuse.

On cross-examination Melanie acknowledged that in the summer or fall of 2007, before B.J. made the rape allegations, B.J. had issues relating to harming herself by cutting herself, she took an overdose of pills, and she was having some issues with friends at school. Melanie also testified that, after she contacted Mr. J. to come get B.J. the final time, when B.J. realized that Melanie was not going to back down from the decision, B.J. stated to her: “If I can’t live here in our house, then nobody will.” (R. 437.)

B.J.’s father testified that on September 11, 2009, Melanie telephoned him and said that he needed to come get B.J., so he did. When he arrived at the house, Melanie said she was tired of B.J.’s acting out and she did not know what else to do; she was packing B.J.’s clothing and B.J. was crying. B.J. then told him that Naylor had raped her. Mr. J. said that he spoke to his daughter about her allegations that night and during the next two days, and that on the second day he saw a letter in his computer room that B.J. had written to her mother. He said he decided then to contact the authorities. He said that his delay in reporting the allegations was out of an abundance of caution so as not to make baseless accusations against Naylor.

Mr. J. acknowledged that not long before B.J. alleged that Naylor had raped her, B.J. had telephoned him and told him that Naylor had hit her. Mr. J. admitted that he had been very upset by that. However, Mr. J. said, he spoke with Nay-lor and Naylor said that B.J. and Melanie had been in a physical altercation and Naylor had pulled B.J. off of Melanie; B.J. then admitted to her father that Naylor’s explanation was true. Mr. J. also testified that he was aware that before April 2008 B.J. had had issues with cutting herself and that she had taken an overdose of pills, and that those issues had nothing to do with Naylor.

Monica Haddock testified that she worked at the Cramer Children Center, an agency that conducted forensic interviews of children when there were allegations or concerns about abuse. She interviewed B.J. on September 21, 2009, following a referral from DHR. Haddock said that B.J. reported to her that at 4:24 a.m. on the first morning Naylor came into her room and digitally penetrated her. She said that on three subsequent occasions he had sexual intercourse with her, once in the living room. Haddock said she asked B.J. whether Naylor had ever put his mouth on her, and B.J. said he had kissed her using his tongue. She asked B.J. whether Naylor had ever performed oral sex on her, and she denied that, but said that Naylor did make her perform oral sex on him. Haddock testified that B.J. said oral sex occurred every time sexual intercourse occurred, “so it would have been in the bedroom and living room.” (R. 468.) She said that B.J. “disclosed that he digitally penetrated her pretty much every time.” (R. 466.) Haddock testified that it was her opinion that B.J. had been the victim of the sexual abuse she had disclosed.

Haddock also testified that a child’s initial disclosure is typically the most accurate.

On cross-examination Haddock acknowledged that B.J.’s initial reports to Owens and to Inv. Agee differed somewhat from the report B.J. made to her. For example, Haddock acknowledged, B.J. had told Haddock that digital penetration and oral sex had occurred several times, but B.J. did not mention digital penetration or oral sex in the earlier interviews. Haddock also acknowledged that B.J. did not initially tell Haddock about oral sex, and she only mentioned it after Haddock asked her if it had occurred. Although B.J. initially told Haddock that sexual intercourse did not occur on the first morning, B.J. later told her that, on the second morning, her stepfather had sex with her “again.” (R. 487.)

Haddock testified that she was not aware that a few days before B.J. made the September 2009 allegations, B.J.’s parents had gone to juvenile court and that charges had been filed against B.J.

After the State presented its ease Nay-lor moved for a judgment of acquittal, which the trial court denied. Naylor then filed a motion requesting the court to require the State to make an election as to which specific act of which incident it was relying on to establish the various charges. The trial court granted the motion. The State then indicated that, as to count 1 and count 2, charging first-degree rape and second-degree rape, respectively, it was referring to the incident of intercourse that took place in the living room during the evening. The State said that count 3 and count 4 related to the events that took place in BJ.’s bedroom the following morning, after the living-room incident. Count 7 and count 8, the sodomy charges, the State said, related to the first morning B.J. was assaulted in her bedroom, when she noticed the clock at 4:24 a.m. The State acknowledged that jeopardy had attached, and that there would be no additional prosecutions of Naylor for any actions that had been testified to during the trial. The trial court stated that it would have to give a unanimity charge to the jury so that if the jury was convinced beyond a reasonable doubt that deviate sexual intercourse had occurred at some time other than during the morning of the first assault, the jury could not convict Naylor of deviate sexual intercourse. Defense counsel then noted that he had made a pretrial motion requiring the State to elect the incidents on which its charges had relied, and the trial court had denied the motion and that, as a result, the State had been permitted to introduce testimony about multiple additional acts of abuse other than those it had later specifically elected. Defense counsel asked the court to strike the additional evidence of other acts and to instruct the jury not to consider that testimony. The trial court denied that motion, but agreed to give a limiting instruction to the jury and inform the jury that it could not consider the additional testimony as evidence of Naylor’s guilt for the charged events.

The defense called Inv. Agee, who testified that he had arrested Naylor only for the three acts of forced intercourse that had allegedly occurred on consecutive mornings in B.J.’s bedroom. Inv. Agee testified that, although he had read the report prepared following B.J.’s interview at the child-advocacy center and he had information that there might have been support for additional charges, he arrested Naylor only for rape, based on B.J.’s initial report to him.

Naylor testified in his own defense. He testified that he married Melanie in July 2001, and that B.J. was eight years old when they married. He said he had a good relationship with B.J. He said that Melanie and B.J. were already in counseling when he met them and that he sometimes attended the ongoing counseling sessions, as did Mr. J. and Mr. J.’s wife. Naylor testified that his pickup truck was vandalized with paint, a hammer, and a baseball bat on April 12, 2008, approximately one week after he had purchased it and before the alleged rapes occurred. He did not know until he came to trial that B.J. had vandalized his truck, he said.

Naylor said that he was unaware that B.J. had made any allegation of sexual abuse before September 2009, on the day B.J. went to live with her father. When he came home from work that day Melanie told him that B.J. had told her father that Naylor had raped her.

Naylor said that he. bought a Honda Civic automobile in August 2009 and that B.J. had wanted that car, but he told her that he had bought her first car and that he would not buy another for her. B.J. had a serious accident in her car in September 2009, and she wanted Naylor to give her another car; he refused. He said that soon after he refused her request, B.J. went to live with her father. Naylor testified that Mr. J. gave her a car when she recovered from her neck injuries sustained in the September 2009 accident.

Naylor denied all the charges against him and said he had never had any kind of sexual contact with B.J., at anytime or anyplace.

Naylor said that he replaced the door and the threshold to B.J.’s bedroom in late summer of 2008, after B.J. had kicked the door down. The new door did not come with a knob, he said, and a few days after he replaced the door Melanie purchased a keyed lock for it. Naylor said that the lock on the door was a result of B.J. “fussing at her mother” about going through her room. (R. 584.)

During deliberations the jury first asked for a clarification of the various counts, and more than an hour later asked for additional instructions on the definition of forcible compulsion. The jury returned verdicts finding Naylor not guilty of counts I, II, III, and VII, and guilty of count IV— rape in the second degree, count VIII— sodomy in the second degree, and count IX — incest.

II.

Naylor raises several claims that, he says, entitle him to a reversal. We need address only one of the claims, however, because we agree with Naylor that reversible error occurred as to that issue.

Naylor argues that the trial court erred when it permitted three witnesses — Inv. Agee, Jennifer Owens, and Monica Haddock — to testify over objection that it was his or her opinion that B.J. was sexually abused by Naylor. He argues that the testimony violated Rule 704, Ala. R. Evid., and that it was improper testimony about the ultimate issue in the case.

“The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court’s determination on that question will not be reversed except upon a clear showing of abuse of discretion.” Ex parte Loggins, 771 So.2d 1093, 1103 (Ala.2000).

We note at the outset that it is unclear whether Inv. Agee, Owens, or Haddock testified as experts. The State did not proffer any of the witnesses as experts. However, each witness testified about his or her experience with sexual-abuse cases, and when the State asked witnesses about their opinions it referred to each witness’s training and experience, as parties typically do when eliciting opinion testimony from expert witnesses. We note, too, that the trial court instructed the jurors that they had heard the testimony of “an expert witness or witnesses,” and it instructed the jurors that they were not required to accept the conclusions or opinions to which the experts had testified. (R. 625-26.) However, as noted, no witness was formally tendered as an expert by the State or accepted as an expert by the trial court. Of course, because the State did not proffer the witnesses as experts, Naylor did not challenge any witness as not being qualified before his or her opinions were given. Because the witnesses were not proffered as experts, we consider their testimony to be that of lay witnesses. See Ex parte Sharp, [Ms. 1080959, Dec. 4, 2009] — So.3d -, -(Ala.2009) (although appellant argued that the trial court had erred in allowing a witness to testify as an expert, the Alabama Supreme Court evaluated the witness’s testimony as a lay witness after noting that the State had not proffered the •witness as an expert).

During redirect examination by the State, Inv. Agee was permitted to testify, after repeated objections by Naylor: “My opinion is she was a victim of sexual assault by her stepdad.” (R. 149.)(Emphasis added.) During direct examination by the State, Owens testified, over objection, “I did believe that [B.J.] was a victim of sexual abuse.” (R. 301.) Monica Haddock testified, also over defense objection, “I feel like she was a victim of a traumatic event, that being sexual abuse that she disclosed.” (R. 472-73.)(Emphasis added.) Before Inv. Agee and Owens testified about their opinions of whether B.J. had been sexually abused, Naylor specifically objected on the ground that the State had not laid the proper foundation for the testimony and that the opinions were based only on their limited interviews with B.J. (R. 143-44, 301-02.) He also objected that a question about Inv. Agee’s opinion was improper because, he said, it invaded the province of the jury. (R. 140.) Before Haddock testified as to her opinion, Naylor objected on the ground that it related to the ultimate issue. (R. 472.)

Naylor argues that testimony from Inv. Agee, Owens, and Haddock was improper because, he argues, it embraced the ultimate issue and violated Rule 704, Ala. R. Evid. He also argues, “Arguably none of the three were properly qualified to testify as to whether or not [B.J.] had been the victim of sexual abuse by the defendant.” (Naylor’s brief, at p. 139.) He argues that their opinions were based only on brief interviews with B.J. Rule 701, Ala. R. Evid., addresses the admissibility of opinion evidence by a lay witness; it provides:

“If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”

The Advisory Committee’s Notes to Rule 701 state, in relevant part:

“Traditional common law, including that in Alabama, generally has precluded a lay witness from giving an opinion. The law has required that the witness place all the facts before the trier of fact, thus placing the trier of fact in just as good a position as the witness to draw a conclusion in the matter. Indeed, it has been said that permitting a lay witness to give an opinion preempts the role assigned to the jurors. Boatwright v. State, 351 So.2d 1366 (Ala.1977); C. Gamble, McElroy’s Alabama Evidence § 127.01(2) (4th ed.1991).
“The rule excluding opinion evidence has been under consistent attack through the years. Professor Morgan argued that it merely furnishes the basis for both foolish appeals and foolish reversals. E. Morgan, Basic Problems of Evidence 220 (1963). Dean Wigmore argued for its total abolition. 7 J. Wig-more, Wigmore on Evidence § 1929 (Chadbourn rev.1978). Criticism of this rule finally led to Fed.R.Evid. 701, which vests the trial court with discretion to permit lay witnesses to give opinions but only under certain conditions.
“Alabama Rule of Evidence 701, like its identical counterpart under the Federal Rules of Evidence, permits lay witnesses to give opinions whenever two conditions are met. First, the opinion must be rationally based upon the perception of the witness. This is no more than a restatement of the ‘firsthand knowledge rule,’ found in Ala. R. Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not personally observe. Second, a lay witness with firsthand knowledge may give an opinion only if it is helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue. A fair amount of discretion is vested in the trial judge regarding the determination of whether opinions are helpful. It is clear, however, that opinions should be excluded as not being helpful if they are ‘meaningless assertions which amount to little more than choosing up sides.’ Fed.R.Evid. 701 advisory committee’s note. Assertions that one is ‘liable,’ ‘guilty,’ or ‘at fault’ generally would not be helpful and thus would properly be excluded. See United States v. Ness, 665 F.2d 248, 249-50 (8th Cir.1981) (proper to preclude opinion that defendant had no intent to ‘hurt’ the bank from which he allegedly misappropriated funds); United States v. Bashes, 649 F.2d 471, 478 (7th Cir.1980), cert. denied, 450 U.S. 1000 (1981) (holding it not helpful for a witness to be allowed to testify that conduct was ‘unlawful’ or ‘wilful’); Scheib v. Williams-McWilliams Co., 628 F.2d 509, 511 (5th Cir.1980) (trial court did not abuse its discretion by precluding lay opinion that a dredge tender was ‘dangerous’).”

In Ex parte Jackson, 68 So.3d 211 (Ala.2010), the Alabama Supreme Court addressed a portion of the Committee Comments to Rule 701, Ala. R. Evid. In that case, Jackson argued that the victim’s mother had been permitted to testify about her opinion of his guilt, even though she had no personal knowledge of the identity of the perpetrators. The Alabama Supreme Court agreed with Jackson, and held:

“Such testimony from a lay witness was clearly inadmissible. Rule 701, Ala. R. Evid., provides, in pertinent part, that a lay ‘witness’s testimony in the form of opinions or inferences is limited to those opinions and inferences which are ... rationally based on the perception of the witness.’ ‘The Advisory Committee’s Notes on [this] portion of Rule 701 ... indicate that “[t]his is no more than a restatement of the ‘firsthand knowledge rule,’ found in Ala. R. Evid. 602, tailored to opinions. No lay witness may give an opinion based upon facts that the witness did not actually observe.’” Musgrove Constr., Inc. v. Malley, 912 So.2d 227, 239-40 (Ala.Civ.App.2003). See also Lewis v. State, 889 So.2d 623, 646 (Ala.Crim.App.2003).”

68 So.3d at 215 (footnote omitted).

Inv. Agee, Owens, and Haddock testified as lay witnesses, and they had no firsthand knowledge of whether B.J. was sexually abused by Naylor. Therefore, their opinion testimony should have been excluded, whether or not that testimony concerned the ultimate issue. Ex parte Jackson, 68 So.3d at 215-16. The trial court’s admission of their opinion testimony constituted an abuse of discretion for this reason.

We note, furthermore, that the testimony from Inv. Agee and Haddock embraced the ultimate issue. “An ultimate issue has been defined as the last question that must be determined by the jury. See Black’s Law Dictionary (5th ed.1991).” Tims v. State, 711 So.2d 1118, 1125 (Ala.Crim.App.1997). Rule 704, Ala. R. Evid., states: “Testimony in the form of an opinion or inference otherwise admissible is to be excluded if it embraces an ultimate issue to be decided by the trier of fact.” The Advisory Committee’s Notes to Rule 704 explain that “[t]he basis for the preclusion is the fear that the admission of such an opinion will preempt the role and function of the factfinder.” Therefore, even if Inv. Agee and Haddock testified as experts, the trial court erred when it permitted their ultimate-issue testimony that Naylor had sexually abused B.J. The State concedes that Inv. Agee’s testimony embraced the ultimate issue. (State’s brief, at pp. 59-60.) However, the State argues, incorrectly, that Haddock did not testify about whether Naylor was the perpetrator of the sexual abuse she believed B.J. had suffered. Haddock clearly testified that she believed that B.J. had been the victim of the “sexual abuse that she disclosed.” (R. 472-73.) (Emphasis added.) B.J. never alleged that anyone other than Naylor had sexually abused her; therefore, Haddock’s testimony clearly implicated Naylor as the perpetrator of B.J.’s abuse, and that testimony, too, embraced the ultimate issue. Sanders v. State, 986 So.2d 1230, 1232 (Ala.Crim.App.2007) (“[T]he ultimate issue in similar cases is whether the defendant had sexually abused the child, not whether the child had in fact been sexually abused.”); Kennedy v. State, 929 So.2d 515 (Ala.Crim.App.2005) (the fact at issue was whether Kennedy was responsible for the victim’s abuse); Sexton v. State, 529 So.2d 1041, 1048 (Ala.Crim.App.1988) (“The ultimate fact in issue, however, was whether the defendant raped and sodomized the child....”).

Contrary to the State’s contention that the three witnesses were all “able to gauge the credibility and sincerity of the minor victims they are charged to protect,” (State’s brief, at p. 60), the testimony from Inv. Agee and Haddock gave unwarranted and legally impermissible stamps of approval to B.J.’s allegations that Naylor had sexually abused her, and thus usurped the jury’s function to decide the ultimate issue. Therefore, even if Inv. Agee and Haddock had testified as experts, their testimony invaded the province of the jury in that they expressed impermissible opinions on the ultimate fact in issue — whether Naylor had sexually abused B.J. The trial court abused its considerable discretion when it permitted the witnesses’ testimony.

ni.

Although 'we find that the trial court erred when it permitted Inv. Agee and Monica Haddock to testify regarding the ultimate issue, our inquiry does not end there. The harmless-error rule provides, in pertinent part:

“No judgment may be reversed or set aside ... on the ground of ... improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

Rule 45, Ala. R.App. P. See also Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In Ex parte Crymes, 630 So.2d 125 (Ala.1993), the Alabama Supreme Court stated:

“In determining whether the admission of improper testimony is reversible error, this Court has stated that the reviewing court must determine whether the ‘improper admission of the evidence ... might have adversely affected the defendant’s right to a fair trial,’ and before the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”

630 So.2d at 126. See also Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993) (holding that the proper harmless-error inquiry is whether it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty absent the improperly introduced evidence).

Here, considering the record as a whole, we cannot conclude that the errors in the admission of the testimony were harmless. The evidence of Naylor’s guilt of the three charges of which he was convicted was far from overwhelming. There was no physical evidence connecting Nay-lor to the crimes. B.J.’s allegations regarding the assaults varied on significant details, as we have fully discussed in the initial portion of this opinion, including her statements about in which rooms of the house the assaults occurred, the time of day they occurred, whether anyone else was nearby or even awake when they occurred, and what acts Naylor had allegedly performed on each of those occasions. Defense counsel thoroughly cross-examined B.J., Melanie, Inv. Agee, Owens, and Haddock about the inconsistencies; he also thoroughly cross-examined Inv. Agee, Owens, and Haddock regarding their failure to ask B.J. about those inconsistencies. Following defense counsel’s thorough cross-examination of Inv. Agee, the State on redirect examination sought primarily to elicit from the investigator testimony that he believed B.J.’s allegations; redirect examination ended with Inv. Agee testifying, “My opinion is she was a victim of sexual assault by her stepdad.” (R. 149.)

Defense counsel also presented substantial evidence that B.J. had behavioral issues before the alleged incidents occurred, including testimony that B.J. had a longstanding desire for her parents to be reunited and she was angry that her parents were not together, and that B.J. had taken an overdose of pills and engaged in cutting behavior before these events were alleged to have occurred. Defense counsel also presented substantial evidence of B.J.’s history of lying — including the fact that, shortly before B.J. made these allegations, she had lied to her father about Naylor striking her, a fact she admitted at trial. B.J.’s mother initially told authorities that she did not believe B.J.’s allegations. Defense counsel also elicited evidence that B.J. was angry that her mother was actually going to make her move out of the house and live with Mr. J., when her mother had not previously enforced her threats to do so. Defense counsel established that B.J. was angry with Naylor before she made these allegations because he had refused to give her another car after she wrecked the car he had purchased for her.

Moreover, the jury acquitted Naylor of the most serious charges against him, indicating that they did not find B.J.’s testimony completely credible.

A review of the entire case makes it clear that a determination of B.J.’s credibility and the truth of her various allegations were the keys to determining Nay-lor’s guilt or innocence, and Inv. Agee and Haddock testified directly to that issue, both stating they relied on their experience and knowledge in testifying that they believed that Naylor had sexually abused B.J. If the improperly admitted evidence had been excluded, the jury would have been presented with the opposing testimony of B.J. and Naylor and, because the jury already rejected a majority of the charges that were based on B.J.’s allegations, it might have also found Naylor’s version to be more credible and acquitted him of all charges. It is also possible that, without the improper testimony supporting B.J.’s credibility that Inv. Agee and Haddock provided, the jury would have been unable to agree on Naylor’s guilt as to the remaining charges and might have been deadlocked, requiring a mistrial on those counts. We simply cannot ignore the prejudicial effect of the erroneously admitted testimony, and we cannot hold that the testimony did not affect the outcome of the trial or otherwise prejudice Naylor’s substantial rights. To the contrary, we think it is highly probable that the errors had a substantial and injurious effect on Naylor’s substantial rights and that they affected the outcome of the trial.

We are fully conscious of the important — and sometimes competing — societal interests in finality and fundamental fairness, and we do not lightly overturn criminal convictions. We also have regard for the discretion a trial court has in deciding the admissibility of the evidence and for our duty to apply the harmless-error rule. However, even with the deference that is due, in this case, with evidence of guilt that is far from overwhelming and verdicts of questionable validity, we must honor our obligation to ensure the fairness of all criminal prosecutions. To do otherwise increases the possibilities for the miscarriage of justice for all other individuals.

Based on the foregoing, the judgment of the circuit court is reversed, and the cause is remanded for a new trial or for other proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and KELLUM and BURKE, JJ., concur. JOINER, J., concurs in the result.

      . B.J.’s father has the same initials as B.J., so in this opinion we will refer to B.J.’s father as “Mr. J."

      . After the State conducted its direct examination of Jennifer Owens, defense counsel objected to the State’s "qualification of the witness as an expert after he’s put on testimony relating to her opinion,” and the trial court stated that the objection was untimely. (R. 302.) Owens had completed her testimony by stating that she had testified in that circuit court as a witness in sexual abuse cases in which children were involved and that she had testified as an expert in that regard. (R. 301-02.) Owens’s testimony that she had testified in prior cases as an expert did not constitute a proffer of Owens as an expert witness in this case and, as noted above, the trial court did not accept Owens as an expert.

      . Owens did not opine that Naylor was the perpetrator of B.J.'s abuse.


author: WISE, Justice.

text:
    Ex parte State of Alabama. (In re Jason Bart NAYLOR v. STATE of Alabama).
    1111512.
    Supreme Court of Alabama.
    Oct. 19, 2012.

      Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Kristi 0. Wilkinson, asst. atty. gen., for petitioner.
    Submitted on petitioner’s brief only.
   WISE, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and WOODALL, STUART, BOLIN, PARKER, MURDOCK, and MAIN, JJ., concur.

SHAW, J., dissents.


author: PER CURIAM. PERKINS, T.R., Associate Judge,

text:
    UNITED DOMINION REALTY TRUST, INC., Appellant, v. PENCO CONSTRUCTION COMPANY, etc., et al., Appellee.
    No. 5D12-692.
    District Court of Appeal of Florida, Fifth District.
    Mar. 15, 2013.
    G. Jeffrey Vernis and Stephanie M. Showe, of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for Appellant.
    Jeffrey S. Hammer and Griffith J. Winthrop, III, of Alvarez, Sambol & Winthrop, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED.

EVANDER and BERGER, JJ., concur.

PERKINS, T.R., Associate Judge, concurs specially, with opinion.

PERKINS, T.R., Associate Judge,

concurring specially.

I concur in the opinion of the majority and offer some additional explanation for the decision to affirm dismissal of Appellant’s cross-claim against Appellee without leave to amend. The trial court granted summary final judgment in favor of Appel-lee, finding it was not negligent in its dealings with the Appellant or the injured Plaintiff. That ruling was never challenged or appealed. As a consequence, the Appellant’s cross-claims sounding in contribution, negligence or common law indemnity were properly dismissed without leave to amend. See Murga v. United Prop. Cas. Ins. Co., 941 So.2d 482, 482 (Fla. 3d DCA 2006) (dismissal is proper where amendment is futile). Although the Appellant now claims that it could have asserted a contractual indemnity claim, it never did. More importantly, Appellant never asked the court for leave to amend its cross-claims. As a result, the trial court properly dismissed the then pending cross-claims with prejudice.