author: PER CURIAM. MAIN, Justice

text:
    Ex parte Lataya FLUKER, individually and on behalf of Ethan Fluker and Ian Fluker (In re Lataya Fluker, individually and on behalf of Ethan Fluker and Ian Fluker v. Alfa Mutual Insurance Company and Geico Casualty Company).
    1120749.
    Supreme Court of Alabama.
    Aug. 30, 2013.

      Sebie G. Sellers of Gibbs & Sellers, P.C., Demopolis, for petitioner.
    L. Hunter Compton, Jr., and K. Scott Stapp of Manley, Traeger, Perry & Stapp, Demopolis, for respondent Alfa Mutual Insurance Company.
    Thomas R. Jones, Jr., and Randal Kevin Davis of Jones, Wyatt & Davis, P.C., Northport, for respondent Geico Casualty Company.
   PER CURIAM.

PETITION DENIED. NO OPINION.

MOORE, C.J., and STUART, BOLIN, PARKER, and BRYAN, JJ., concur.

MURDOCK and MAIN, JJ., dissent.

MAIN, Justice

(dissenting).

Lataya Fluker (“Fluker”), individually and on behalf of Ethan Fluker (“Ethan”) and Ian Fluker (“Ian”), is the plaintiff in an action pending in the Sumter Circuit Court against defendants Alfa Mutual Insurance Company and Geico Casualty Company (collectively “the insurance companies”). Fluker petitioned this Court for a writ of mandamus directing the Sumter Circuit Court to vacate its order granting the insurance companies’ motions to transfer the action to the Tuscaloosa Circuit Court and to enter an order denying those motions. I would grant the petition and issue the writ; therefore, I respectfully dissent.

Fluker and her minor children Ethan and Ian are residents of Sumter County. Alfa is a domestic corporation that does business by agent in Sumter County. Gei-co is a foreign corporation that is licensed to do business in Alabama, but it does not do business by agent in Sumter County. According to Fluker, both insurance companies issued vehicular-liability insurance policies to her that contain uninsured-motorist provisions.

Fluker’s claims arise from injuries she and her children suffered in a vehicular accident that occurred on McFarland Boulevard in Tuscaloosa on May 2, 2012. Fluker was driving her vehicle; Ethan and Ian were passengers. Both policies of insurance were in effect at the time of the accident. The other motorist involved in the accident, Tommy Lee Cooper, is a resident of Tuscaloosa County. Cooper was uninsured and was issued a citation for failure to provide proof of insurance, to which he pleaded guilty. Cooper is not a party to the civil action that is the basis for this mandamus petition. At the time of the hearing on the insurance companies’ motions, he was incarcerated in Tuscaloosa County on unrelated charges. Fluker says that no other active criminal or civil eases are pending in the Tuscaloosa Circuit Court arising out of the underlying vehicular accident.

Fluker states that, immediately after the accident, she and her children returned to Sumter County, where they sought and obtained medical treatment. Fluker filed this case against the insurance companies and fictitiously named parties, alleging that she is entitled to recover benefits from them pursuant to the uninsured-motorist provisions in her policies. As previously stated, she did not sue Cooper. In her complaint, Fluker alleged:

“As a result of Mr. Cooper’s negligence and/or wantonness, Plaintiffs sustained permanent injuries and damages, including injuries to their necks, backs and knees as well as other physical and emotional injuries, pain and suffering and other consequential damages. Furthermore, Plaintiffs have incurred the cost of medical treatment for those injuries.”

She also alleged that both her Alfa insurance policy and her Geico insurance policy contained uninsured-motorist coverage pursuant to § 32-7-23, Ala.Code 1975, and that the vehicle driven by Cooper was not covered by an automobile-liability policy, making it an uninsured vehicle under § 32-7-23.

The insurance companies each filed a motion requesting the transfer of this action to the Tuscaloosa Circuit Court pursuant to the interest-of-justice prong of § 6-3-21.1, Ala.Code 1975, Alabama’s forum non conveniens statute (“the forum non conveniens statute”). Their motions were supported by a copy of the Alabama Uniform Traffic Crash Report regarding the accident; the affidavits of Keith D. Clements and J.O. Yates, Tuscaloosa police officers who investigated the accident; the affidavit of Clifford Terry Gregg, Jr., Cooper’s lawyer; and a certified copy of a case-summary sheet from the Tuscaloosa Municipal Court. Clements and Yates each testified that he investigated the accident in Tuscaloosa involving the vehicles operated by Fluker and Cooper. Each officer also stated: “It will be significantly more convenient for me to provide testimony in Tuscaloosa, Tuscaloosa County, Alabama than in Livingston, Sumter County, Alabama.” Gregg testified that he represented Cooper in a criminal action pending in the Tuscaloosa Circuit Court and that Cooper was then incarcerated in the Tuscaloosa County Jail. The case-summary sheet from the Tuscaloosa Municipal Court revealed that Cooper pleaded guilty to the charge of “no proof of insurance” and was fined, but that he did not pay the fine, resulting in a warrant being issued for his arrest. Fluker responded to the insurance companies’ motions to transfer. She supported her response with her affidavit and her husband’s affidavit. Fluker testified:

“Our family doctor is Dr. Walton at Sumter County Health Center. My children and I have been treated by Dr. Walton for injuries sustained in the car wreck that is the subject of this lawsuit. He treated us at Hill Hospital in York and also at his office. In addition, I have been treated at Rush Medical Group in Livingston, and I received physical therapy at Champion Sports Medicine in Livingston for those injuries.”

Fluker and her husband each testified that they purchased insurance policies that included uninsured-motorist provisions covering the vehicle involved in the accident, a 2010 Dodge Charger, from Audrey Graves, an agent of Alfa Insurance Company, whose York office is located in Sumter County.

Fluker also supported her response with the affidavit of Candice Keene, a physical therapist licensed in Alabama. Keene testified:

“Lataya Fluker is one of my patients. I have treated her for injuries related to a motor vehicle wreck that occurred on May 2, 2012. I saw Ms. Fluker at my office located in Sumter County, Alabama. If I am called to testify in Ms. Fluker’s case, I would prefer to have the case tried in Sumter County, because it would be convenient for me.”

On February 14, 2013, the trial court entered an order summarily granting the insurance companies’ motions to transfer the case to the Tuscaloosa Circuit Court. Fluker then filed her petition for a writ of mandamus with this Court; this Court ordered answer and briefs.

Fluker argues that the trial court exceeded its discretion in granting the insur-anee companies’ motions to transfer because venue is proper in Sumter County and because a transfer of the case pursuant to the forum non conveniens statute is not warranted. The insurance companies argue that, under the circumstances of this case, the trial court properly transferred the case to Tuscaloosa County in the interest of justice. This Court’s decision in any venue case rests on the application of the Alabama statutory authorities that define proper venue and on the forum non conve-niens statute.

Section 6-3-2, Ala.Code 1975

Section 6-3-2 governs venue of actions against individual defendants. This section is not applicable in this case.

Section 6-3-7, Ala.Code 1975

Section 6-3-7 governs venue of actions against corporate defendants. Clearly, venue is proper in Sumter County pursuant to § 6-3-7(a)(3). Subsection (a)(3) states, in pertinent part:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(3) In the county in which the plaintiff resided.... ”

Because Fluker resides in Sumter County, venue in Sumter County is proper.

Section 6-3-21.1, Ala.Code 1975

The forum non conveniens statute states, in pertinent part:

“(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

This Court has held that the forum non conveniens statute “has a field of operation only where an action is commenced in a county in which venue is appropriate.” Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995). In Ex parte Miller, Hamilton, Snider & Odom, LLC, 978 So.2d 12, 14 (Ala.2007), this Court stated:

“The doctrine of forum non conve-niens is applicable only ‘[w]ith respect to civil actions filed in an appropriate venue.’ § 6-3-21.1(a) (emphasis added). This statutory language is consistent with ‘the fundamental premise of all transfers for convenience — i.e., that venue is good at the time of filing, but that a transfer to a better venue is, or has become, appropriate.’ Ex parte Wilson, 854 So.2d [1106,] 1112 [ (Ala.2002) ] (emphasis added).”

Nevertheless, “[w]hen venue is appropriate in more than one county, the plaintiffs choice of venue is generally given great deference.” Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala.2003) (citing Ex parte Bloodsaw, 648 So.2d 553, 555 (Ala.1994)). See also Ex parte Yocum, 963 So.2d 600, 602 (Ala.2007) (“The trial court should give deference to the plaintiffs choice of a proper forum.”).

Because the insurance companies have demonstrated that there is another venue where this action might have been properly filed, the question in this case becomes whether transferring the case to that venue is necessary “in the interest of justice” pursuant to the forum non conveniens statute. The issue whether a transfer in this case was necessary “for the convenience of parties and witnesses” is not before this Court because neither insurance company based its motion to transfer on the “convenience of parties and witnesses” prong of the forum non conveniens statute. Both motions were based solely on the “interest of justice” prong. In their answers to Fiuker’s petition for a writ of mandamus, the insurance companies again argued only that the interest of justice requires that this case be transferred to Tuscaloosa County.

Fluker argues that the insurance companies have not met their burden to prove that the interest of justice dictates the transfer of this case to Tuscaloosa County. Therefore, she argues, she has a clear legal right to have her case tried in her chosen forum of Sumter County and, she asserts, the trial court exceeded its discretion when it granted the insurance companies’ motions to transfer the case to Tuscaloosa County.

The insurance companies argue that the trial court properly transferred the case to Tuscaloosa County based on the interest of justice. “ ‘A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.’ ” Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala.2012) (quoting Ex parte National See. Ins. Co., 727 So.2d 788, 789 (Ala.1998)). This Court has stated:

“The ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008). This Court’s inquiry depends on the facts of the case. Ex parte ADT Sec. Servs., Inc., 933 So.2d 343 (Ala.2006).

The insurance companies maintain that Sumter County has a weak connection to this case and that Tuscaloosa County has a much stronger connection. They first argue that litigation should take place in the forum in which the injury occurred, citing Southeast Alabama Timber, 94 So.3d at 374 (“ ‘ “litigation should be handled in the forum where the injury occurred” ’ ”) (quoting Ex parte Indiana Mills, 10 So.3d at 540, quoting in turn Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006)); Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745 (Ala.2010) (same); and Ex parte McKenzie Oil Co., 13 So.3d 346 (Ala.2008) (same). The insurance companies contend that these cases stand for the proposition that, in making a venue decision, a court should assign “considerable weight” to the county in which an injury occurred. See Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573-74 (Ala.2011) (“Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis.”).

The insurance companies next argue that other factors also support the trial court’s decision to grant their motions to transfer, citing McKenzie Oil, 13 So.3d at 349 (county where all material events in case took place — including accident, alleged tortious conduct of defendants, investigation of accident, treatment of plaintiffs injuries, and punishment of traffic violation arising from accident — had strong connection to case; interest of justice required transfer from county in which virtually no events or circumstances involved in case occurred); and Ex parte Kane, 989 So.2d 509, 511-12 (Ala.2008) (although plaintiff brought personal-injury action in county of her residence and insurance company did business there, interest of justice required transfer to county in which accident occurred, individual defendant resided, occupants of other vehicle involved in accident resided, two eyewitnesses to accident resided, investigating officers resided and worked, and occupants of other vehicle had brought related action). The following factors support a nexus between this case and Tuscaloosa County:

(1) the accident occurred there;
(2) the accident was investigated there;
(3) the investigating officers reside there;
(4) Cooper resides there;
(5) both insurance companies do business there;
(6) the jurisdiction of the courts in Tuscaloosa County was invoked when Cooper was cited for failure to pay his fine for not having liability insurance.

These factors, the insurance companies argue, are significant because they create a strong nexus with Tuscaloosa County, compared to a weaker nexus with Sumter County, and offset the initial deference accorded Fluker’s choice of forum.

The cases relied on by the insurance companies are distinguishable from this case. In all the cases cited by the insurance companies, the plaintiff sued an individual defendant in addition to a corporation or business, while in this case the plaintiff sued two corporations. In only one of the foregoing cases, Ex parte Kane, did the plaintiff file her action in the forum in which she resided. In all the other cases, the plaintiff filed the action in a forum with only a tenuous connection to the case. Because Fluker filed her action in the forum in which she resides, that forum has a much stronger connection to this case than the forums chosen by the plaintiffs in the cases relied on by the insurance companies, especially when the other connections to Sumter County are considered.

Fluker contends that, in the cases cited by the insurance companies, this Court considered many factors, not merely the location in which the accident occurred. She argues that other factors support the connection between her chosen forum and this action. The following factors support a nexus between this case and Sumter County:

(1) Fluker and her husband reside there;
(2) Fluker and her children received medical treatment there for the injuries they sustained in the accident;
(3) the medical providers reside and/or practice there;
(4) the applicable medical records are maintained there;
(5) Alfa maintains an office with an agent there for the purpose of selling insurance;
(6) Fluker and her husband bought the insurance policies there;
(7) the insured vehicle is kept there.

These factors, Fluker maintains, are sufficient to prove that Sumter County has a much stronger nexus to her action than does Tuscaloosa County. Fluker relies on Ex parte American Resources Insurance Co., 58 So.3d 118 (Ala.2010), in which, she says, this Court clearly recognized that a plaintiffs choice of forum should be afforded deference in deciding whether to transfer a case under the forum non conveniens statute, and in which this Court held that a plaintiffs residence in the chosen forum was sufficient to prove that the connection with the forum was strong enough to justify burdening that forum with the action.

The insurance companies argue that where the insurance policies were issued or sold is irrelevant to this case, citing American Resources, 58 So.3d at 122-23 (transfer of action brought by insurance company to county where insured had principal place of business and where policy had been negotiated, issued, and delivered not proper when case did not involve whether policy was issued or whether fraud or other wrongful conduct occurred as to issuance of policy; when only issue was whether the events alleged in complaint fell within coverage of the policy, insurance company’s choice of forum had strong connection to action); and Ex parte State Farm Mut. Auto. Ins. Co., 893 So.2d 1111 (Ala.2004) (in action to recover uninsured/underinsured benefits from insurance company following vehicular accident, wrongful act underlying action occurred where accident took place, not where insurance policy was purchased). The insurance companies insist that the location of the accident and Cooper’s wrongful conduct are more relevant to a forum non conveniens inquiry than where the policy was sold, where Alfa has an office, or where the Flukers’ vehicles are garaged. The insurance companies also argue that where Fluker and her children received medical treatment is not a significant factor to this forum non conveniens inquiry.

Although the insurance companies are correct that disputes should ordinarily be litigated in the forum in which the injury occurred and that a court should assign considerable weight to the county in which an injury occurred, Fluker is also correct that a plaintiffs choice of a forum is generally accorded great deference. I do not agree with the insurance companies’ contention that Sumter County has a weak connection to this ease. In addition to being Fluker’s county of residence, all the medical providers who treated Fluker, Ethan, and Ian are in Sumter County, and it is clear from Fluker’s complaint that the nature of their injuries, the treatment for those injuries, and the cost of the treatment will be major factors in this litigation. Even though the vehicular accident involving Fluker and Cooper occurred in Tuscaloosa County, the investigating officers work there, and Cooper either resides or is incarcerated there, in my opinion the insurance companies have not met their burden to prove that the interest of justice requires a transfer of this case to Tuscaloosa County. There is no question in my mind that Sumter County has the stronger connection to this case and Tuscaloosa County has the weaker connection. I would hold that the trial court exceeded its discretion when it granted the insurance companies’ motions to transfer this case to Tuscaloosa County.

Because Fluker chose to file her complaint in Sumter County, where venue was proper, and because the insurance companies have not satisfied the interest-of-justice prong of the forum non conveniens statute, I would hold that Fluker has demonstrated that she has a clear legal right to the relief she seeks. Therefore, I would grant Fluker’s petition for a writ of mandamus and direct the Sumter Circuit Court to vacate its order granting the insurance companies’ motions to transfer the case to the Tuscaloosa Circuit Court and to enter an order denying those motions.

      . In the materials before us, this entity is variously referred to as Geico Casualty Company, Geico Indemnity Company, and Geico Indemnity Insurance Company.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    HUNTSVILLE CITY BOARD OF EDUCATION v. Margaret JOHNSON. Margaret Johnson v. Huntsville City Board of Education.
    2110392.
    Court of Civil Appeals of Alabama.
    April 19, 2013.
    Rehearing Denied Aug. 16, 2013.

      Edward E. Wilson, Jr., of Lanier Ford Shaver & Payne P.C., Hunstville, for ap-pellani/cross-appellee Huntsville City Board of Education.
    Robert C. Lockwood and Christopher S. Lockwood of Wilmer & Lee, P.A., Huntsville; and Sabrina L. Comer of Comer & Gundlach, PLLC, Montgomery, for appel-lee/cross-appellant Margaret Johnson.
   PITTMAN, Judge.

The Huntsville City Board of Education (“the Board”) appeals from a hearing officer’s decision reversing the Board’s approval of the termination of the employment of Margaret Johnson; Johnson cross-appealed, asserting that the hearing officer erred in determining that the Board’s notice of termination was sufficient.

Procedural History

On April 25, 2011, Dr. Ann Roy Moore, who was at that time the superintendent of the Board, sent a notice to Johnson and the Board of her intent to recommend the termination of Johnson’s employment; that notice stated the following reason for the proposed termination of Johnson’s employment:

“1. Due to financial circumstances, the Board must reduce the number of its employees. To accomplish this, the Board has adopted a Reduction in Force Plan. The selection of the employees to be terminated is based upon the job classifications affected by the Reduction in Force Plan and years of service within the Huntsville School System (those with fewer years of service in each specifically identified area to be terminated before those with greater seniority).”

The Board upheld Dr. Moore’s recommendation to terminate Johnson’s employment at a special session on May 17, 2011, and Dr. Moore sent a letter notifying Johnson of the Board’s decision and of her right to contest the Board’s decision within 15 days. Johnson timely initiated a contest of the termination in a letter to the Board and Dr. Moore, and a hearing was subsequently held on the matter before a hearing officer.

On January 4, 2012, the hearing officer rendered a decision containing findings of fact and conclusions of law; the decision stated, in pertinent part:

“To support the proposed adverse action, the Board must[ ] show its actions were rational, reasonable, relevant to its task, and logical. In less ephemeral and more concrete terms, the Board must provide sufficient proof that it was suffering a severe financial hardship, that the actions taken were in response to that hardship, and that it is reasonably likely that the actions will improve the financial condition of the Board.
“The Hearing Officer will assume— without deciding — that the Board is suffering a substantial financial hardship. The Board has presented sufficient evidence, including its budgetary shortfall and a comparison of rates of support to certified staff in similar school systems to at least presume a financial hardship for purposes of this award. This, however, is merely a necessary precondition and not, in and of itself, sufficient to provide just cause or establish a justifiable decrease in positions. The Board also has the burden of proving by sufficient evidence that the action taken in response to this hardship is a necessary and reasonable step designed to directly improve the fiscal position of the institutions. Here, the Board failed to carry its burden.
“... Merely eliminating [Johnson’s] position, without reducing or eliminating the duties or the cost of performing those duties may reduce the amount of salary in one line item of the Board’s budget, but it does not provide any real savings to the Board. The proposed termination may not be supported by shifting amounts in line items in a budget; instead, it must meaningfully address the financial troubles and provide direct and measurable relief from those troubles.”

The hearing officer concluded that the Board had failed to present evidence indicating that terminating Johnson’s employment would “have significant fiscal benefit to the Board,” found that no action should be taken against Johnson, and sustained Johnson’s objection to the Board’s proposed termination of her employment.

The Board timely appealed to this court, and Johnson timely cross-appealed. This court entered orders requiring the parties to file letter briefs setting forth “special and important reasons” for accepting the appeal and the cross-appeal, pursuant to Ala.Code 1975, former § 36-26-104(b), a part of the former Fair Dismissal Act (“the former FDA”), Ala.Code 1975, § 36-26-100 et seq. The parties complied, and this court accepted both the appeal and the cross-appeal.

Facts

Dr. Craig Pouncey, the Deputy Superintendent for Finance and Administration for the State Board of Education, testified that one of his duties was to make sure that the Board complied with the State’s financial requirements for school districts in Alabama. Among other things, the School Fiscal Accountability Act (“the SFAA”), Ala.Code 1975, § 16-13A-1 et seq., requires the Board to “maintain a minimum reserve fund equal to- one month’s operating expenses.” Ala.Code 1975, § 16-13A-9(a). According to Dr. Pouncey, during the 2009 fiscal year, the Board had a negative balance of $20 million; thus, because the Board was also required to achieve a $16 million fund balance for one month’s operating expenses, the Board had a deficit of approximately $86 million. Dr. Pouncey testified that, to address that deficit, he had suggested, among other things, changing some bus routes, decreasing the number of vehicles maintained by the Board, tying salaries to the minimum amount received from the State, adopting a salary freeze for classified or support employees, and reducing staff. He testified that, if the Board had not adopted those recommendations to address the deficit, the State Board of Education would have intervened and taken over control of the school system.

Belinda Williams, the director of the Board’s human-resources department, testified that, at a February 10, 2011, meeting, the Board approved an initial reduction-in-force (“RIF”) plan that listed 29 job classifications to be terminated, which classifications included 137 employees.

Dr. Ed Richardson, who was hired by the Board in February 2011, after the approval of the initial RIF plan, to serve as a consultant to the superintendent, testified that the Board had had no choice but to reduce personnel. He stated that he, like Pouncey, first looked at reducing expenses in areas that would not affect employees, including selling vehicles, outsourcing the Board’s fleet management, changing bus routes, and changing salaries so that new employees would be employed according to the State’s minimum-salary schedule. He testified, however, that, at the time he made his presentation to the Board regarding personnel cuts, he did not know to what extent the Board had followed through on the recommendations as to transportation and that he also had been unable to estimate the amount of revenue that would be generated from the sale of vehicles. Dr. Richardson stated that he presented the Board with a two-year plan pursuant to which it would make half of the budget cuts in the 2012 fiscal year and half in the 2013 fiscal year for a financial target of $40 million in savings. He testified that he had increased the targeted savings to $40 million based on concerns that the legislature would make changes effectively decreasing the amount the school system would receive for teachers and because he was not confident that the amount of the savings would turn out as predicted because the figures were constantly evolving.

According to Dr. Richardson, in making cuts, he attempted to maintain the integrity of the classroom. He stated that, in determining which positions to terminate, he spoke with supervisors or staff in various departments within the school system to determine the absolute minimum the departments could operate with and that, in some instances, he had had to cut more than the supervisors were willing to give up. Dr. Richardson and Williams both testified that, once Dr. Richardson had identified positions to be terminated, he had consulted with Williams to determine, based on seniority and a supplemental RIF plan, which employees within a specific job classification would be terminated.

Dr. Richardson testified that the initial RIF plan, which he had not participated in developing, had terminated probationary support employees, or those who had been employed by the school system for less than three years. According to Dr. Richardson, in the supplemental RIF plan, which was passed by the Board at a meeting on April 21, 2011, the Board terminated 4.5 nontenured certified administrators, or assistant principals, 154 nontenured certified teachers, and 45 additional probationary support employees. He testified that adopting his proposed recommendations would save the Board $23 million each year of the two-year plan.

Williams testified that Johnson was the only printer employed by the Board; her position was listed in the- supplemental RIF. Wendy Salandy, the print-shop foreperson, testified that she supervised Johnson, who printed books, cards, and forms for the school system, and that it would be difficult to continue operating the print shop without Johnson. Salandy stated that, in busy months, she needed three people, including herself and Johnson, working in the print shop and that, if Johnson’s employment was terminated, she would be the only worker remaining in the print shop. She stated that she did not agree with the recommendation to terminate Johnson’s employment. Marc Sel-don, the materials coordinator for the Board, testified that he supervised the print shop, among other areas. Seldon testified that he had communicated with Dr. Richardson before the supplemental RIF had been implemented and that he and Dr. Richardson had discussed that, if everyone in the print shop were subject to the supplemental RIF, the schools would be subject to additional costs in having their work printed. He stated that, in his opinion, having the print shop saved the school system money.

Discussion

The Board argues that the hearing officer erred in requiring the Board to prove that the action taken in response to the presumed financial hardship “is a necessary and reasonable step designed to directly improve the fiscal position of the institutions” and that “its actions were rational, reasonable, relevant to its tasks, and logical.” . The Board further argues that, after first presuming that the Board is suffering a substantial financial hardship, the hearing officer erred in concluding that the Board had failed to show that its actions were in response to that financial hardship.

In the notice provided to Johnson, the Board indicated that her proposed termination was due to financial circumstances, requiring the Board to reduce the number of its employees. In Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So.2d 549 (1955), a case to which a teacher’s employment was terminated based on a “decrease in the number of teaching positions,” the Alabama Supreme Court stated that “the only pertinent inquiry was whether there was a ‘justifiable decrease in the number of teaching positions.’ ” 263 Ala. at 375, 82 So.2d at 552. In Board of School Commissioners of Mobile County v. Christopher, 97 So.3d 163, 176 (Ala.Civ.App.2012), this court adopted that, and other, reasoning and determined that, “once the determination that [the employee’s] employment was properly terminated due to a justifiable decrease to jobs within the system was made, the hearing officer had no authority to second-guess the termination decision of the Board.” Thus, in the present case, the Board was required to prove the existence of poor financial circumstances and that a rational response to that condition would be to decrease the number of employees in the school system.

Once the Board made such a showing, the burden shifted to Johnson to prove that the supplemental RIF plan was not a rational response to the Board’s financial circumstances; that the Board failed to follow its supplemental RIF plan, see Mobile Cnty. Bd. of Sch. Comm’rs v. Long, 46 So.3d 6 (Ala.Civ.App.2010); that the Board terminated Johnson’s employment for personal or political reasons, see Ala.Code 1975, former § 36-26-102; or that the Board had retained a probationary employee. See, e.g., Pickens Cnty. Bd. of Educ. v. Keasler, 263 Ala. 231, 82 So.2d 197 (1955). The hearing officer required the Board to prove “that it was suffering a severe financial hardship, that the actions taken were in response to that hardship, and that it is reasonably likely that the actions will improve the financial condition of the Board.” In Christopher, however, this court concluded that, once it is determined that there is a “ ‘ “justifiable decrease in the number of positions due to decreased enrollment or decreased funding,” ’ ” courts may not usurp the role of the school board in determining which positions would be canceled. Christopher, 97 So.3d at 175 (quoting Walker v. Montgomery Cnty. Bd. of Educ., 85 So.3d 1008, 1016 (Ala.Civ.App.2011)). See also Williams, 263 Ala. at 375, 82 So.2d at 552 (when there is a “justifiable decrease in the number of teaching positions,” “the right of selection is a matter resting entirely with the employing Board of Education”). Thus, to the extent the hearing officer erroneously added an element requiring the Board to justify the termination of Johnson’s employment over that of another similarly situated employee, that addition was in error. Because the hearing officer did not reach that final element, however, we conclude that the error was harmless. See Rule 45, Ala. R.App. P.

With regard to the question whether the Board had proved that it was suffering a financial hardship, the hearing officer assumed, without deciding, that it was and proceeded to determine that the Board had failed to prove that it had adopted the supplemental RIF plan in response to that financial hardship. We agree with the Board that the hearing officer erred in that regard.

The hearing officer observed that the Board had presented no evidence indicating the cost savings that would be derived from the termination of Johnson’s employment, opining that eliminating her position, “without reducing or eliminating the duties or the cost of performing those duties!,] may reduce the amount of salary in one line item of the Board’s budget, but it does not provide any real savings to the Board.” The hearing officer determined that the Board had presented no evidence of any cost savings to be derived from the proposed termination of Johnson’s employment and noted that Salandy had testified that “the Print Shop could not be operated without a person filling the Employee’s duties” and that Seldon had indicated that the print shop provided a net cost savings to the Board compared to outsourcing that work.

We note first that Salandy testified that she would be the only employee remaining in the print shop and that operating the print shop without Johnson would be “difficult.” Seldon testified that he and Dr. Richardson had discussed that, if everyone in the print shop were subject to the supplemental RIF, the schools would be subject to additional costs for their printing. There is no indication in the testimony, however, that terminating Johnson’s employment would result in the closing of the print shop. Regardless, the hearing officer’s analysis, requiring the Board to provide evidence of “the value of the work produced” by a particular employee, violates the rule established in Chñstopher and Williams, supra, that the courts may not usurp the role of the school board in determining which employees should be selected in reducing the number of positions.

The testimony of both Dr. Pouncey and Dr. Richardson indicated that the terminations made in the supplemental RIF plan were necessary in balancing the Board’s budget. Dr. Richardson testified that he had attempted to make cuts that least impacted the classroom and that the supervisors he spoke with were not willing to give up the number of employees he was required to cut. John F. Brown, the director of facilities, maintenance, construction, transportation, and safety for the school system, testified that some people he had supervised had been terminated from their employment and that he disagreed with the decision to terminate those positions. By effectively concluding that the Board was required to present a cost-benefit analysis regarding “the value of the work produced” by each employee to prove that the specific terminations enacted in the supplemental RIF rationally addressed the financial circumstances of the Board, the hearing officer impermissibly attempted to determine whether “another course of action other than the one taken by the school board might have been wiser or more equitable.” Walker, 85 So.3d at 1016. See also Huntsville City Bd. of Educ. v. Frasier, 122 So.3d 193 (Ala.Civ.App.2013). Because the hearing officer acted outside the statutory review authority conferred by the former FDA, we reverse the hearing officer’s decision, and we remand the cause for further consideration by the hearing officer based on the preceding analysis.

In her cross-appeal, Johnson argues that the Board’s termination notice to her was defective under the provisions of the former FDA. Because the determination of that issue may affect the hearing officer’s decision on remand, we address the argument. Johnson argues that the termination notice failed to provide a “short and plain statement of the facts” supporting the reason given for termination. See Ala. Code 1975, former § 36-26-103(a). Citing Ex parte Soleyn, 33 So.3d 584 (Ala.2009), and Bishop State Community College v. Archible, 33 So.3d 588 (Ala.Civ.App.2009), Johnson asserts, among other things, that the notice failed to mention the reasons for her termination argued by the Board to the hearing officer, including a funding deficit, a potential takeover of the Board’s finances, or any condition requiring the termination of Johnson’s employment. In Archible and Soleyn, the employees were terminated based on misconduct. 33 So.3d at 591. In the present case, there are no specific allegations of misconduct for Johnson to defend against. See Huntsville City Bd. of Educ. v. Stranahan, 130 So.3d 204, 208 (Ala.Civ.App.2013). Additionally, no evidence was presented indicating that the Board had relied on a funding deficit or a potential State takeover as an independent reason for terminating Johnson’s employment; rather, those reasons were referred to only in relation to the financial difficulties that were cited in Johnson’s termination notice and that required the implementation of the supplemental RIF plan.

Johnson further asserts that the Board failed to inform her of the reasons that her position as a printer was selected to be terminated. As discussed above, the courts may not usurp the role of the school systems in selecting the specific employees to be terminated. Thus, Johnson’s assertion that the Board must specify the reasons regarding the termination of employment of each employee affected by the supplemental RIF is without merit.

Johnson does not argue that financial difficulties did not require the implementation of the supplemental RIF; rather, she argues that all the reasons that led to those difficulties were not listed in the Board’s notice to her. We conclude that sufficient notice was given to Johnson regarding the proposed termination of her employment, and we thus cannot agree with Johnson that the content of that notice would independently warrant the setting aside of the termination of her employment (a determination that, we note, the hearing officer was similarly unwilling to make).

APPEAL — REVERSED AND REMANDED. '

CROSS-APPEAL — AFFIRMED.

THOMAS, MOORE, and DONALDSON, JJ„ concur.

THOMPSON, P.J., concurs in the result, without writing.

      . The former FDA was repealed and replaced by the Students First Act, Ala.Code 1975, § 16-24C-1 et seq., effective July 1, 2011. Because the Board terminated Johnson's employment before July 1, 2011, and because the Students First Act does not apply retroactively, we apply the former FDA in the present case. See Board of Sch. Comm'rs of Mobile Cntry. v. Christopher, 97 So.3d 163, 166-67 (Ala.Civ.App.2012).

      . A transcript of Dr. Pouncey's deposition testimony was submitted to the hearing officer as part of the record. Dr. Pouncey did not testify at the hearing; all references to Dr. Pouncey's testimony refer to testimony given in his deposition.

      . A transcript of Dr. Richardson’s deposition testimony was submitted to the hearing officer as part of the record. Dr. Richardson did not testify at the hearing; all references to Dr. Richardson’s testimony refer to testimony given in his deposition.

      . Johnson first raised the argument that she had received a defective termination notice in her post-hearing brief. Without conclusively deciding whether Johnson properly preserved the issue for appellate review, we address the argument out of an abundance of caution.


author: MOORE, Judge.

text:
    David ANSON Havron v. Donna Parker HAVRON.
    2120116.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.

      Candice J. Shockley, Pelham, for appellant.
    Julie Katz Callaway, Birmingham, for appellee.
   MOORE, Judge.

David Anson Havron (“the husband”) appeals from a judgment of the Bessemer Division of the Jefferson Circuit Court (“the trial court”), divorcing him from Donna Parker Havron (“the wife”). The husband challenges the trial court’s award of custody of the parties’ child to the wife, the amount of his child-support obligation, the division of the parties’ property and the marital debts, the award of alimony to the wife, and the denial of his motion to reopen the evidence.

Procedural History

On August 4, 2010, the wife filed a complaint for a divorce from the husband. On September 9, 2010, the husband filed an answer and a counterclaim for a divorce. The case was tried on February 21, 2012. On April 5, 2012, before a divorce judgment was entered, the husband filed a motion to reopen the evidence and to allow the child to testify. He alleged, among other things, that the wife had decided to move to a high-crime area in the “South-side” area of Birmingham and that the child had indicated that he wanted to live with the husband. The trial court entered a judgment on June 5, 2012, divorcing the parties; awarding the parties joint legal custody of the child and the wife primary physical custody; awarding the husband specified visitation; ordering the husband to pay $408 monthly in child support; ordering the husband to pay the child’s private-school tuition for the 2011-2012 school year and thereafter if the husband chooses to send the child to a private school; ordering the husband to pay for medical insurance for the child; awarding the husband the marital home and ordering the husband to be responsible for the debt associated with the marital home; awarding the husband a beach condominium; dividing the parties’ motor vehicles and ordering the husband to pay the debt associated with all those vehicles; ordering the husband to pay the wife $136,000, representing one-half the equity in the marital home, the beach condominium, the retirement accounts, and the business assets, less the amount of the wife’s portion of the marital debt; ordering the husband to pay $700 per month in periodic alimony for 60 months; reserving the issue of periodic alimony after 60 months; dividing the parties’ personal property; and ordering the husband to pay the remainder of the marital debts.

On June 26, 2012, the husband filed a motion to alter, amend, or vacate the final judgment; that motion was denied by operation of law on September 24, 2012. See Rule 59.1, Ala. R. Civ. P. The husband filed his notice of appeal on November 1, 2012.

Discussion

I. Child Custody -

On appeal, the husband first argues that the trial court exceeded its discretion in awarding custody of the parties’ child to the wife.

“The standard by which this court reviews an initial award of custody following the presentation of ore tenus evidence is well settled:
“ ‘Alabama law gives neither parent priority in an initial custody determination. Ex parte Couch, 521 So.2d 987 (Ala.1988). The controlling consideration in such a case is the best interest of the child. Id. In any case in which the court makes findings of fact based on evidence presented ore tenus, an appellate court will presume that the trial court’s judgment based on those findings is correct, and it will reverse that judgment only if it is found to be plainly and palpably wrong. Ex parte Perkins, 646 So.2d 46 (Ala.1994). The presumption of correctness accorded the trial court’s judgment entered after the court has heard evidence presented ore tenus is especially strong in a child-custody case. Id.’
“Ex parte Byars, 794 So.2d 345, 347 (Ala.2001).
“ ‘ “This presumption [accorded to the trial court’s findings of fact based on ore tenus evidence] is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”
‘Ex parte Farm, 810 So.2d 631, 632-33 (Ala.2001).
“ ‘In a divorce action between two fit parents, where there has been no prior custody determination and neither parent has voluntarily relinquished custody of the child, the “best interest” of the child is controlling; the parties stand on “equal footing” and no presumption inures to either parent. ““‘The trial court’s overriding consideration is the children’s best interest and welfare.” ’ ” Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998) (quoting Collier v. Collier, 698 So.2d 150, 151 (Ala.Civ.App.1997), quoting in turn Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).
“ ‘In considering the best interests and welfare of the child, the court must consider the individual facts of each case:
“ ‘ “The sex and age of the children are indeed very important considerations; however, the court must go beyond these to consider the characteristics and needs of each child, including their emotional, social, moral, material and educational needs; the respective home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the children; the interpersonal relationship between each child and each parent; the interpersonal relationship between the children; the effect on the child of disrupting or continuing an existing custodial status; the preference of each child, if the child is of sufficient age and maturity; the report and recommendation of any expert witnesses or other independent investigator; available alternatives; and any other relevant matter the evidence may disclose.”
‘Ex parte Devine, 398 So.2d 686, 697 (Ala.1981).’
“Fell v. Fell, 869 So.2d 486, 494-95 (Ala.Civ.App.2003).”

Long v. Long, 109 So.3d 633, 645 (Ala.Civ.App.2012).

In the present case, the wife testified that she had been the primary caretaker of the child and that the husband had stepped up to play an active role in child-rearing only since the divorce action had been filed. The husband, on the other hand, testified that he had always been an active parent. The husband admitted that the wife is a good mother. The husband expressed concerns, however, about the wife’s lifestyle, specifically, her drinking, smoking, partying, and socializing with lesbian women. He admitted, however, that the wife had never been convicted of driving under the influence of alcohol or public intoxication, and he did not provide any evidence of how the wife’s conduct had affected the child other than by setting a bad example and the fact that the child did not like the wife smoking. The wife testified that she does not smoke around the child and that she does not drink to the point of intoxication. Further, there was no evidence indicating that the child had witnessed any homosexual behavior. The husband testified that he had witnessed one woman sitting on another woman’s lap and that they had appeared to have been kissing; according to the husband, the child had been home at the time, but, he said, he did not know if the child had been on the deck when and where the activity had occurred. Based on the foregoing evidence, and considering that the evidence was conflicting and that the trial court was in the best position to resolve the conflicts in the evidence, we cannot conclude that the trial court exceeded its discretion in awarding the wife primary physical custody of the child.

II.Inherited Property

The husband next argues that certain inherited funds were impermissibly considered by the trial court as marital property. Section § 30-2-51(a), Ala.Code 1975, provides, in pertinent part:

“[T]he judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the judge finds from the evidence that the property, or income produced by the property, has been used regularly for the common benefit of the parties during their marriage.”

“The trial judge is granted broad discretion in determining whether property purchased before the parties’ marriage or received by gift or inheritance was used ‘regularly for the common benefit of the parties during the marriage.’ ” Nichols v. Nichols, 824 So.2d 797, 802 (Ala.Civ.App.2001) (quoting § 30-2-51(a)).

The husband testified that he had inherited funds from his parents and that he had deposited those funds into various financial accounts. Two exhibits were introduced into evidence, one showing where those funds were initially deposited and the other showing what the funds had been used for and in which accounts any remaining funds were located. The notes on those exhibits indicated that some of the inherited funds had been used to obtain a mower, a Ford Explorer sport-utility vehicle, tile for the “den,” a truck, a bed, a mattress for the child’s bed, a loan for the beach condominium, a loan to the wife’s son, a Honda automobile, and a swimming pool. Based on those exhibits, the trial court could have determined that the inherited funds had been regularly used for the common benefit of the parties during their marriage. Thus, we conclude that the trial court did not err if it did, in fact, consider those funds marital property.

III.Child Support

The husband also argues that the child-support order is not supported by the evidence. Rule 32(E), Ala. R. Jud. Admin., specifically provides that a CS^42 form “shall be filed in each action to establish or modify child-support obligations and shall be of record.... ” Although the record does contain Form CS^41 “Child-Support Obligation Income Statement/Affidavits” filed by both parties, the record does not contain a CS-42 form prepared by the trial court as required by Rule 32(E). Although the trial court states in its judgment that its child-support award “is in compliance with the Child Support Guidelines under Rule 32,” we are unable to determine from the record how the trial court calculated the husband’s child-support obligation. Therefore, we reverse the trial court’s child-support award, and we remand this cause for the trial court to enter a child-support award in compliance with Rule 32(E).

IV.Division of Property and Award of Alimony

The husband argues that the award of alimony is inequitable because, he says, among other things, it would cripple him considering his other expenses, including his child-support obligation. Because we are reversing the trial court’s judgment with regard to the husband’s monthly child-support obligation, the amount of which is a consideration in determining whether the husband’s expenses exceed his income, we also reverse the award of alimony for the trial court to reconsider it in light of the determination of the husband’s child-support award on remand. See, e.g., Flores v. Flores, 978 So.2d 791 (Ala.Civ.App.2007) (noting that an award of child support has bearing on the amount an obligor can afford to pay as periodic alimony). Further, because the division of property and the award of alimony are interrelated, we reverse the trial court’s division of property as well. See J.D.A v. A.B.A.,] 142 So.3d 603 (Ala.Civ.App.2013).

V. Motion to Reopen the Evidence

Finally, the husband argues that the trial court erred in declining to reopen the evidence. “The court’s discretion in granting or refusing to grant a motion to reopen the cause for further testimony is not reviewable except for abuse.” Sutton v. Sutton, 55 Ala.App. 254, 258, 314 So.2d 707, 710-11 (Civ.App.1975). The husband asserts that, because he found out after the trial that the wife was going to move to an allegedly high-crime area, the trial court exceeded its discretion by denying his motion to reopen the case. We note, however, that the wife testified at the trial that, although she was considering moving to one of three areas, she had not made a final decision. Further, the husband did not attach to his motion any evidence in support of his assertion that the area where the wife planned to move was, in fact, undesirable. Based on the foregoing, we cannot conclude that the trial court exceeded its discretion in denying the husband’s motion to reopen the evidence.

Conclusion

Based on the foregoing, we reverse that part of the trial court’s judgment determining the husband’s monthly child-support obligation. We also reverse the trial court’s judgment to the extent that it divided the parties’ property and awarded alimony, and we remand the cause for further proceedings consistent with this opinion. We affirm the trial court’s judgment in all other respects.

The parties’ requests for the award of attorney fees on appeal are denied.

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

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


text:
    Daisy PRUETT v. WORLDWIDE ASSET PURCHASING, LLC.
    2120232.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.

      Alesdair Ittelson of Southern Poverty Law Center, Montgomery; and Pamela D. Jackson of Legal Services Alabama, Inc., Huntsville, for appellant.
    James A. Nadler and William M. Aver-ett, Jr., of Nadler & Associates, P.C., Birmingham, for appellee.
   MOORE, Judge.

Daisy Pruett appeals from a judgment of the Morgan Circuit Court refusing to allow her to claim as exempt from garnishment the total amount of her wages. We reverse.

On March 16, 2012, Worldwide Asset Purchasing, LLC (‘WAP”), filed in the circuit court a process of garnishment against Pruett, seeking to recover the amount of $3,973.45 from the wages Pruett earned in her employment with Wal-Mart Stores, Inc. On April 10, 2012, Wal-Mart filed an answer. On August 7, 2012, Pruett filed her “Declaration and Claim of Exemption,” claiming as exempt her biweekly wages of $600; she also listed other personal property valued at $2,080, but did not claim that property as exempt. On August 11, 2012, WAP filed a contest of Pruett’s claim of exemption. On August 27, 2012, Pruett filed a response to WAP’s contest and moved to dismiss the writ of garnishment. On August 29, 2012, WAP filed a response.

On September 18, 2012, the circuit court entered a judgment stating that Pruett was “entitled to the exemption amount in § 6 — 10—7[, Ala.Code 1975,] which is 75 percent of her wages, salaries or other compensation due or to become due to her.” On October 12, 2012, Pruett filed a “Motion to Reconsider”; that motion was denied on November 2, 2012. On December 14, 2012, Pruett filed her notice of appeal.

On appeal, Pruett argues that, pursuant to Ala. Const. 1901 (Off.Re-comp.), Art. X, § 204, she is entitled to claim the entirety of her biweekly wages of $600 as exempt from garnishment. Alabama Const.1901 (Off.Recomp.), Art. X, § 204, provides:

“The personal property of any resident of this state to the value of one thousand dollars, to be selected by such resident, shall be exempt from sale or execution, or other process of any court, issued for the collection of any debt contracted since the thirteenth day of July, eighteen hundred and sixty-eight or after the ratification of this Constitution.”

“[T]he $1,000 constitutional exemption includes wages.” Roberts v. Carraway Methodist Med. Ctr., 591 So.2d 870, 871 (Ala.Civ.App.1991). In Roberts, this court held that a judgment debtor could exempt wages in addition to the amount allowed under § 6-10-7 as long as the amount of the wages and other personal property being claimed as exempt did not exceed the $1,000 exemption amount provided in Ala. Const.1901, Art. X, § 204. Because Pruett’s total claimed exemption does not exceed the $1,000 constitutional exemption, she is correct that she is entitled to an exemption of her total wages.

WAP argues, however, that because Pruett has personal property other than wages of over $1,000, she may not claim the entirety of her wages. Citing Sink v. Advanced Collection Services, Inc., 607 So.2d 246 (Ala.Civ.App.1992), WAP argues that a judgment debtor may not stack exemptions to exceed the exemption amount provided in Alabama’s Constitution. In Sink, “Sink claimed a total of $1,200 of exempt wages ($300 plus the other seventy-five percent, or $900, which was exempt under federal law and § 6-10-7) and $947.50 of a possible $3,000 in other personal property,” which was exempt pursuant to Ala.Code 1975, § 6-10-6. Id. at 248. This court determined that, because Sink’s combined exemptions under §§ 6— 10-6 and 6-10-7 exceeded $1,000, he was not entitled to claim the additional $300 in wages. We note, however, that Pruett has not attempted to stack exemptions to exceed the $1,000 constitutional exemption— she did not claim any personal property other than her wages as exempt. The plain language of § 204 indicates that the judgment debtor may select the property he or she desires to be exempted from garnishment. Thus, it is Pruett’s constitutional right to claim her wages as exempt and to decline to claim her additional personal property as exempt.

Because Pruett’s claimed exemption of the entirety of her wages does not exceed the $1,000 exemption provided in § 204, we reverse the circuit court’s judgment, and we remand the cause for the circuit court to enter a judgment allowing Pruett’s claimed exemption.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, .P.J., and PITTMAN, THOMAS, and DONALDSON, JJ„ concur.

      . Section 6-10-7(a), Ala.Code 1975, provides, in pertinent part:
      "The wages, salaries, or other compensation of laborers or employees, residents of this state, for personal services, shall be exempt from levy under writs of garnishment or other process for the collection of debts contracted or judgments entered in tort in an amount equal to 75 percent of such wages, salaries, or other compensation due or to become due to such laborers or employees, and the levy as to such percentage of their wages, salaries, or other compensation shall be void. The court issuing the writ or levy shall show thereon the amount of the claim of the plaintiff and the court costs in the proceedings. If at any time during the pendency of the proceedings in the court a judgment is entered for a different amount, then the court shall notify the garnishee of the correct amount due by the defendant under the writ or levy. The garnishee shall retain 25 percent of the wages, salaries, or other compensation of the laborer or employee during the period of time as is necessary to accumulate a sum equal to the amount 'shown as due by the court on the writ or levy.”

      . Section 6-10-6 provides:
      "The personal property of such resident, except for wages, salaries, or other compensation, to the extent of the resident's interest therein, to the amount of $3,000 in value, to be selected by him or her, and, in addition thereto, all necessary and proper wearing apparel for himself or herself and family, all family portraits or pictures and all books used in the family shall also be exempt from levy and sale under execution or other process for the collection of debts. No wages, salaries, or other compensation shall be exempt except as provided in Section 5-19-15 or Section 6-10-7[, Ala.Code 1975].”


author: DONALDSON, Judge.

text:
    J.S.M. v. CLEBURNE COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2120258.
    Court of Civil Appeals of Alabama.
    Aug. 16, 2013.
    Elma Rose Walton, Anniston, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

J.S.M. appeals from the denial of his “Motion to Establish Paternity” and his “Motion to Intervene” as the alleged biological father in the underlying termination-of-parental-rights case. Because we hold that the juvenile court erred in failing to hold a hearing on J.S.M.⅛ motion to intervene, we reverse the underlying judgment and remand the matter for a hearing.

Facts and Procedural History

L.E. (“the child”) was born on January 16, 2012, while K.E. (“the mother”) was married to J.O. The Cleburne County Department of Human Resources (“DHR”) obtained temporary custody of the child on January 18, 2012. On June 21, 2012, DHR petitioned the juvenile court (“the trial court”) to terminate the parental rights of the mother and J.O. as to the child “due to the parents’ failure and inability to properly care for the child.” J.O. was served by publication directed to “[J.O.] and any unknown fathers,” after which he filed an affidavit of substantial hardship and was appointed counsel. On October 1, 2012, J.O. filed an answer to DHR’s petition, denying the allegations. The trial court set the matter for a hearing on October 22, 2012, and it reset that hearing for November 16, 2012. On October 24, 2012, J.O. filed a “Motion for Immediate DNA Testing.” On November 1, 2012, J.O. filed a “Motion to Repudiate Paternity.”

On November 8, 2012, J.S.M., the alleged biological father of the child, filed a “Motion to Establish Paternity,” presumably in response to the notice by publication. On November 15, 2012, J.S.M. filed an answer to DHR’s petition, a motion to continue the hearing on DHR’s petition, and a “Motion to Intervene.” On November 15, 2012, the trial court denied J.O.’s “Motion to Repudiate Paternity” and his “Motion for Immediate DNA Testing” and also denied J.S.M.’s “Motion to Establish Paternity,” his motion to intervene, and his motion to continue. The trial court did not hold a hearing on any of the motions it denied.

On November 16, 2012, J.O. filed an “Answer and Consent to Petition for Permanent Custody and Termination of Parental Rights.” On November 16, 2012, the trial court terminated the mother’s and J.O.’s parental rights, and neither filed an appeal. J.S.M. filed a motion to alter, amend, or vacate, addressing the denial of his motion to intervene and his “Motion to Establish Paternity,” on November 29, 2012, which was denied by operation of law. J.S.M. filed this timely appeal.

J.S.M. raises two issues on appeal: whether the trial court erred in denying J.S.M.’s motion to intervene and whether the trial court erred in denying his “Motion to Establish Paternity” without holding an evidentiary hearing. DHR agrees with J.S.M.’s allegations of error.

Standard of Review

“Alabama law does indeed afford a party whose motion to intervene has been denied a right to appeal from that decision; in Thrasher v. Bartlett, 424 So.2d 605, 607 (Ala.1982), and Universal Underwriters Insurance Co. v. Anglen, 630 So.2d 441, 442 (Ala.1993), the Alabama Supreme Court, citing federal authorities in support, concluded that an order denying intervention as of right and an order denying permissive intervention, respectively, were each appealable final judgments.”

Shaw v. State ex rel. Hayes, 953 So.2d 1247, 1251-52 (Ala.Civ.App.2006).

“[W]e note that Rule 24(a), Ala. R. Civ. P., provides, in pertinent part:
“ ‘Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.’
“Our supreme court has stated:
“ ‘The decision to grant or to deny a motion to intervene is within the sound discretion of the trial court, and this Court will not disturb that ruling absent an abuse of discretion. In its exercise of discretion, the trial court must determine whether the potential intervenor has demonstrated: (1) that its motion is timely; (2) that it has a sufficient interest relating to the property or transaction; (3) that its ability to protect its interest may, as a practical matter, be impaired or impeded; and (4) that its interest is not adequately represented.’
“City of Dora v. Beavers, 692 So.2d 808, 810 (Ala.1997) (citations omitted).”

D.S. v. Cullman Cnty. Dep’t of Human Res., 42 So.3d 1284, 1286 (Ala.Civ.App.2010).

Analysis

Pursuant to the Alabama Uniform Parentage Act, § 26-17-101 et seq., Ala.Code 1975, “[ujnless parental rights are terminated, a parent-child relationship established under this chapter applies for all purposes, except as otherwise specifically provided by other law of this state.” § 26-17-203, Ala.Code 1975. “A man is presumed to be the father of a child if ... he and the mother of the child are married to each other and the child is born during the marriage.” § 26-17-204(a)(l). “A presumption of paternity established under this section may be rebutted only by an adjudication under Article 6[, i.e., § 26-17-601 through § 26-17-638].” § 26-17-204(b).

“We have held that a man in the biological father’s position does have a right to intervene in a custody case concerning a child he claims to have fathered because ‘“the matter of custody of a child to which one seeks to establish paternity is a matter of such interest as to provide intervention of right,” ’ W.D.R.[ v. H.M.], 897 So.2d [327,] 330 [ (Ala.Civ.App.2004) ] (quoting Finkenbinder v. Burton, 452 So.2d 880, 883 (Ala.Civ.App.1984), superseded by statute as noted in Foster v. Whitley, 564 So.2d 990, 991 (Ala.Civ.App.1990)). However, although such a man has a right to intervene, as noted above, the pivotal issue of the biological father’s standing to actually prove his paternity of [the child] turns on whether the legal father persists in his presumption of paternity. W.D.R., 897 So.2d at 331. In W.D.R., we were presented with the question of what happens after a man in the same position as the biological father in the present case is permitted to intervene. Id. at 330-31. We held, based on a similar holding in J.O.J. v. R.R., 895 So.2d 336, 340 (Ala.Civ.App.2004), that ‘a man seeking to establish paternity of a child born during the mother’s marriage to another man must be given the opportunity to establish standing in an eviden-tiary hearing where he and others may present evidence bearing on whether the presumed father ... persisted in his presumption of paternity.’ W.D.R., 897 So.2d at 331.”

R.D.B. v. A. C., 27 So.3d 1283, 1287 (Ala.Civ.App.2009). The record is clear that, at all times relevant to this matter, J.S.M. consistently asserted that he was the biological father of the child. Although the consent to termination filed by J.O. suggests that he was persisting in his presumption of paternity, J.S.M., as the alleged biological father of the child, should have been “given the opportunity to establish standing in an evidentiary hearing where he and others may present evidence bearing on whether the presumed father ... persisted in his presumption of paternity.” W.D.R. v. H.M., 897 So.2d 327, 331 (Ala.Civ.App.2004). Whether J.S.M. is ultimately successful in meeting his burden of demonstrating that J.O. did not persist in his presumption of paternity is not properly before this court. Therefore, we pre-termit the question whether the trial court erred in denying J.S.M.’s “Motion to Establish Paternity.”

Based on J.S.M.’s right as an alleged biological father to a hearing on his motion to intervene, we reverse the order of the trial court denying the motion to intervene and remand this matter with instructions to conduct a hearing on J.S.M.’s motion to intervene.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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


author: JOINER, Judge.

text:
    Orlando Mozzel POWELL v. STATE of Alabama.
    CR-12-0814.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.
    Richard M. Hinds, Mobile, for appellant.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   JOINER, Judge.

Orlando Mozzel Powell appeals the revocation of his probation; we reverse and remand.

In June 2008, Powell pleaded guilty to unlawful possession of controlled substances, see § 13A-12-212, Ala.Code 1975, and resisting arrest, see § 13A-10-41, Ala. Code 1975. Powell was sentenced to 15 years’ imprisonment for the controlled-substances conviction, and 6 months’ imprisonment for the resisting-arrest conviction; Powell’s 15-year sentence was split, and Powell was sentenced to serve 3 years “in community corrections,” followed by 3 years’ probation. (C. 7.) In December 2009, Powell was “revoked from Montgomery County Community Corrections” and ordered to serve the remainder of his split sentence in the custody of the Alabama Department of Corrections. (C. 8.) Following the confinement portion of his split sentence, Powell was placed on probation. Although the record is sparse, the case-action summary reflects that in November 2012, Powell had an initial appearance on probation-revocation charges. (C. 8.) Powell’s probation was revoked at a subsequent court appearance in January 2013.

The totality of the proceeding underlying Powell’s revocation is as follows:

“THE COURT: I have been studying this case. [Powell] has been with this Court for 20 something years since he was about 16 years old. I have done everything I know to do, everything possible as a judge to try to help [Powell] get past this drug addiction and involvement in drugs and things like that, and I haven’t been successful. I have been sending [Powell] to the penitentiary, bringing him out of the penitentiary.
“I have be[gun] to like [Powell]. He is almost like a child of mine, because he came here when he was 16 years old. His mother has always been with us. She has spent a lot of time around the courthouse trying to help [him], I would send him in, bring him out.
“In the end, [Powell] is going to get on his bicycle over there in Ridgecrest and he is going to ride around and get involved in dope and selling and go to a hotel out there on Air Base Boulevard and get arrested. So I don’t have a solution. I have spent a long time this morning talking to the probation officer. She doesn’t have a solution. We don’t have a solution for [Powell]. I wish we did.
“[Defense counsel]: Can [Powell] speak?
“THE COURT: Well, [Powell] can speak. But the truth of the matter is, this has been a 20-year journey. How old are you?
“[Powell]: 40.
“THE COURT: So you were older than 16. But it has been more than 20 years you have been in and out of the penitentiary. We don’t have a solution. What I am going to do is revoke his probation, send him back to drug treatment. Maybe lightning will strike and it will help him.
“[Powell]: Your Honor, I can get drug treatment on the street.
“THE COURT: No, you can’t get drug treatment on the street. I have tried everything on the street. In the penitentiary, on the street, in the penitentiary, on the street. None of it has worked, [Powell]. I sure wish it could have, because I like you personally because you came here at a very young age. You are not a bad person. You don’t commit violent crimes. It is the drugs you are on and always out there selling. So I am going to revoke his probation, put in place the original sentence. Order that he be sent to the one-year place, New Outlook. Have you been to New Outlook?
“[Powell]: I have never been there.
“THE COURT: I am going to send him to New Outlook. Revoke probation, send him to New Outlook for one year intensive treatment. Notify the Court upon completion. The Court will maintain jurisdiction. That’s the best I can do. Thank you.”

(R. 2-4.)

The case-action summary reflects that the circuit court entered the following written order:

“The defendant having been advised in writing of the alleged violation of the terms of his probation as brought before the court, with counsel, for a hearing on the allegations. A hearing was held and the court finds that the defendant has violated the terms of his probation.
“Defendant’s probation is hereby revoked to serve the original sentence. Defendant is ordered to be placed in the New Outlook program. The Court will maintain jurisdiction and the defendant is to return to court upon completion of the program.”

(C. 3^1.) Nothing in the record indicates why probation-revocation proceedings were instituted against Powell or what condition of his probation that Powell violated.

On appeal, Powell argues, among other things, that the circuit court failed to afford Powell an actual hearing, and that the circuit court’s probation-revocation order is insufficient. We agree.

“ ‘Absent a clear abuse of discretion, a reviewing court will not disturb a trial court’s conclusions in a probation-revocation proceeding, including the determination whether to revoke, modify, or continue the probation. A trial court abuses its discretion only when its decision is based on an erroneous conclusion of law or where the record contains no evidence on which it rationally could have based its decision.’ ”

McCain v. State, 33 So.3d 642, 647 (Ala.Crim.App.2009) (quoting Holden v. State, 820 So.2d 158, 160 (Ala.Crim.App.2001) (citations omitted)). However, we review de novo those cases that involve only issues of law and the application of the law to the undisputed facts. See Ex parte Walker, 928 So.2d 259, 262 (Ala.2005) (“[This] case involves only issues of law and the application of the law to undisputed facts. Thus, our review is de novo.”).

“ ‘ “The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This Court ‘has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.’ Puckett, 680 So.2d at 983.” ’
“Bauer v. State, 891 So.2d 1004, 1006 (Ala.Crim.App.2004) (quoting Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998)). This court has also recognized a third exception that a defendant can raise for the first time on appeal — the requirement that the court advise the defendant of his or her right to request an attorney to represent the defendant during probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000). A fourth exception to the preservation rule recently announced by our Supreme Court also allows a defendant to raise for the first time on appeal the allegation that the circuit court erred in failing to appoint counsel to represent the defendant during probation-revocation proceedings. See Dean v. State, 57 So.3d 169 (Ala.2010).”

Saffold v. State, 77 So.3d 178, 179 (Ala.Crim.App.2011).

Thus, although it is unclear whether Powell challenged the adequacy of the probation-revocation hearing or order before the circuit court, these claims may be properly raised for the first time on appeal.

Regarding minimum due-process requirements for probation-revocation hearings, this Court reiterated in Hollins v. State, 737 So.2d 1056, 1057 (Ala.Crim.App.1998), that

“[t]he minimal due process to be accorded a probationer before his probation can be revoked includes written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and to cross-examine adverse witnesses, a neutral and detached hearing body such as a traditional parole board, and a written statement by the factfinders as to the evidence relied on and the reasons for revoking probation.”

Due process also requires a sufficient order revoking probation.

“Rule 27.6(f), Ala. R.Crim. P., provides that, when revoking probation, ‘[t]he judge shall make a written statement or state for the record the evidence relied upon and the reasons for revoking probation.’ In order to meet the requirements of Rule 27.6(f), as well as those of constitutional due process, it is ‘the duty of the trial court to take some affirmative action, either by a statement recorded in the transcript or by written order, to state its reasons for revoking probation, with appropriate reference to the evidence supporting those reasons.’ ”

Ex parte Garlington, 998 So.2d 458, 458-59 (Ala.2008) (quoting McCoo v. State, 921 So.2d 450, 462 (Ala.2005) (emphasis omitted)).

Powell asserts that, “[a]t the proceedings!,] no testimony was admitted by the State!,] [n]o witnesses were called!,] [t]he assistant district attorney did not say a single word!,] Wo documents were introduced!, and] [t]he only evidence mentioned at the hearing was a ... ‘long talk’ between [the judge] and the probation officer.” (Powell’s brief, p. 9.) Powell also asserts that the circuit court “failed to include [in its order] a reason for the revocation of probation, as well as the evidence relied upon in reaching [its] determination.” (Powell’s brief, p. 14.) We agree.

The record clearly supports Powell’s contentions that the circuit court failed to conduct an adequate probation-revocation hearing and subsequently failed to enter a sufficient probation-revocation order. Accordingly, we reverse the order revoking Powell’s probation, and remand this matter for proceedings consistent with this opinion.

REVERSED AND REMANDED.

WINDOM, P.J., and WELCH, KELLUM, and BURKE, JJ., concur.


author: KELLUM, Judge.

text:
    W.G.M. v. STATE of Alabama.
    CR-12-0472.
    Court of Criminal Appeals of Alabama.
    Aug. 30, 2013.

      Bart M. Boothe, Elba, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, W.G.M., was convicted of rape in ‘the first degree, a violation of § 13A-6-61, Ala.Code 1975, sodomy in the first degree, a violation of § 13A-6-63, Ala.Code 1975, and sexual abuse of a child less than 12 years of age, a violation of § 13A-6-69.1, Ala.Code 1975. The circuit court sentenced W.G.M. to life imprisonment for his rape and sodomy convictions and to 20 years’ imprisonment for his sexual-abuse conviction. The circuit court ordered the sentences to run consecutively. The court further ordered W.G.M. to pay a fine of $3,000, $750 to the crime victims compensation fund, and court costs. W.G.M. subsequently filed a motion for new trial that the circuit court denied. This appeal followed.

W.G.M. does not challenge the sufficiency of the evidence on appeal; therefore, a detailed recitation of the facts is unnecessary in this case. On appeal, W.G.M. contends that the circuit court abused its discretion by denying his motion for a new trial in which he argued, among other things, that there existed juror misconduct where several jurors failed to correctly answer questions during voir dire and that the circuit court erred by not allowing the jury to have access to certain tangible evidence before announcing their verdict.

“The granting or denying of a motion for new trial rests largely within the discretion of the trial court, and the exercise of that discretion carries with it a presumption of correctness that will not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.”

Knight v. State, 710 So.2d 511, 513 (Ala.Crim.App.1997) (quoting Beard v. State, 661 So.2d 789, 796 (Ala.Crim.App.1995)) (citations omitted).

I.

W.G.M. contends that juror misconduct occurred when jurors failed to completely disclose during voir dire their relationship with a State’s witness, the prosecutor, and the District Attorney. Specifically, W.G.M. alleges that Juror W.P. failed to mention during voir dire that she was married to the first cousin of a witness for the State, that she attended the witness’s wedding, or that they shared a relationship on the Facebook social-media Web site. W.G.M. further contends that several jurors did not fully disclose that they had a “Facebook/Social Networking relationship” with the prosecutor or the District Attorney. (W.G.M.’s brief, p. 19.)

The Alabama Supreme Court has explained:

“ ‘The proper standard for determining whether juror misconduct warrants a new trial, as set out by this Court’s precedent, is whether the misconduct might have prejudiced, not whether it actually did prejudice, the defendant. See Ex parte Stewart, 659 So.2d 122 (Ala.1993).... The “might-have-been-prejudiced” standard, of course, casts a “lighter” burden on the defendant than the actual-prejudice standard. See Tomlin v. State, supra, 695 So.2d [157] at 170 [ (Ala.Crim.App.1996) ] ....
“ ‘It is true that the parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely.... However, not every failure to respond properly to questions propounded during voir dire “automatically entitles [the defendant] to a new trial or reversal of the cause on appeal.” Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970)_As stated pre-
viously, the proper standard to apply in determining whether a party is entitled to a new trial in this circumstance is “whether the defendant might have been prejudiced by a veniremember’s failure to make a proper response.” Ex parte Stewart, 659 So.2d at 124. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court’s discretion.
“ ‘ “The determination of whether the complaining party was prejudiced by a juror’s failure to answer voir dire questions is a matter within the discretion of the trial court and will not be reversed unless the court has abused its discretion. Some of the factors that this Court has approved for using to determine whether there was probable prejudice include: ‘temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.’ ”
‘Union Mortgage Co. v. Barlow, 595 So.2d [1335] at 1342-43 [ (Ala.1994)]....
“ ‘The form of prejudice that would entitle a party to relief for a juror’s nondisclosure or falsification in voir dire would be its effect, if any, to cause the party to forgo challenging the juror for cause or exercising a peremptory challenge to strike the juror. Ex parte Ledbetter, 404 So.2d 731 (Ala.1981).... If the party establishes that the juror’s disclosure of the truth would have caused the party either to (successfully) challenge the juror for cause or to exercise a peremptory challenge to strike the juror, then the party has made a prima facie showing of prejudice. Id. Such prejudice can be established by the obvious tendency of the true facts to bias the juror, as in Ledbetter, supra, or by direct testimony of trial counsel that the true facts would have prompted a challenge against the juror, as in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992).’ ”

Ex parte Dixon, 55 So.3d 1257, 1260-61 (Ala.2010) (quoting Ex parte Dobyne, 805 So.2d 763, 771 (Ala.2001)) (footnote omitted in original; emphasis in original). We have explained:

“The might-have-been-prejudiced standard, although on its face a light standard, actually requires more than simply showing that juror misconduct occurred. ‘[T]he question whether the jury’s decision might have been affected is answered not by a bare showing of juror misconduct, but rather by an examination of the circumstances particular to the case.’ Ex parte Apicella, 809 So.2d 865, 871 (Ala.2001). Thus, 4[i]n applying this standard we look at “the temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or in failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.” ’ Hooks [v. State], 21 So.3d [772,] 781 (Ala.Crim.App.2008) (quoting DeBruce v. State, 890 So.2d 1068, 1078 (Ala.Crim.App.2003), overruled on other grounds, Ex parte Jenkins, 972 So.2d 159 (Ala.2005)).”

Bryant v. State, [Ms. CR-08-0405, February 4, 2011] — So.3d -, - (Ala.Crim.App.2010). With those principles in mind, we address W.G.M.’s claims of juror misconduct.

A.

W.G.M. argues that Juror W.P. “failed to mention that she was in fact married to the [State’s] witness’ first cousin and failed to mention that the witness had attended her wedding.” (W.G.M.’s brief, p. 17.) The record demonstrates that the venire was asked whether anyone knew the State’s witness, and Juror W.P. responded that the witness was “a cousin now through marriage.” (R. 48.) No follow-up questions were asked regarding the nature of Juror W.P.’s relationship with the State’s witness or whether that relationship included Facebook or any other social-media network. Because Juror W.P. was not asked whether she had a social-networking relationship with the State’s witness, there is no evidence that she willfully provided false information during voir dire. W.G.M. is, therefore, due no relief on this claim.

B.

W.G.M. also asserts that he might have been prejudiced because Juror W.P. failed to disclose that she and a State’s witness “shared a relationship on Face-book.” (W.G.M.’s brief, p. 17.) He also argues that he might have been prejudiced because several jurors did not disclose their “Facebook/Social Networking relationships” with the assistant district attorney and the District Attorney. (W.G.M.’s brief, p. 19.) As noted in Part I.A, Juror W.P. was not asked any follow-up questions regarding her relationship with the State’s witness. The record also demonstrates that members of the venire were never asked whether they had a social-media networking relationship with anyone associated with the District Attorney’s office. Because there is no evidence that the jurors willfully failed to disclose their social-media networking relationships with members of the District Attorney’s office, W.G.M. is not entitled to relief on this claim.

Further, “[it] is now common knowledge that merely being friends on Facebook does not, per se, establish a close relationship from which bias or partiality on the part of a juror may reasonably be presumed.” McGaha v. Commonwealth, 414 S.W.3d 1, 6 (Ky.2013).

In addressing a similar claim of error, the Supreme Court of Kentucky explained:

“Appellant asserts that the mere fact that each juror was a ‘Facebook Mend’ with April Brewer creates a presumption of juror bias and should have been disclosed during voir dire. Websites such as Facebook do require a member to affirmatively approve or deny requests to enter into a ‘friendship.’ Therefore, in order for the jurors to become ‘friends’ with April Brewer, either April Brewer would have been required to approve friendship requests from the jurors, or the jurors would have been required to approve requests from April Brewer. In either situation, the ‘friendship’ that the jurors had with April was not happenstance; there was an affirmative act to connect the parties.
“But ‘friendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Face-book ‘friends’ varies greatly, from passing acquaintanceships and distant relatives to close friends and family. The mere status of being a ‘friend’ on Face-book does not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are ‘friends’ or are not ‘friends,’ with no status in between.
“Indeed, some people have thousands of Facebook ‘friends,’ as was the case with April Brewer, which suggests that many of those relationships are at most passing acquaintanceships. This is further complicated by the fact that a person can become ‘friends’ with people to whom the person has no actual connection, such as celebrities and politicians. See, e.g., Robbie Woliver, Lady Gaga and her 10 million Facebook friends: celebrity worship syndrome, Psychology Today (July 3, 2010), http://www. psychologytoday.com/blog/alphabet-kids/ 201007/lady-gaga-and-her-10-million-facebook-friends-celebrity-worship-syndrome (noting that the singer Lady Gaga has ‘10 million Facebook friends [who] aren’t really her friends’). Thus, a Facebook member may be ‘friends’ with someone in a strictly artificial sense.”

Sluss v. Commonwealth, 381 S.W.3d 215, 222-23 (Ky.2012) (footnotes omitted).

Because the status of being a “friend” on Facebook does not necessarily equate to a close relationship from which a bias could be presumed, W.G.M. has failed to establish that he might have been prejudiced in the failure of the veniremembers to voluntarily disclose a social-media networking relationship with any member of the District Attorney’s office. W.G.M. is, therefore, due no relief on this claim.

II.

W.G.M. also contends that he was entitled to a new trial because, he argues, the circuit court did not allow the jury to watch a DVD of an interview conducted with the victim after the jury specifically requested to watch the DVD again during their deliberations.

The record indicates that Julie Knight, a social-service caseworker with the Department of Human Resources of Covington County, interviewed the victim. An audio recording of that interview was admitted as State’s Exhibit 1. The record also indicates that Chad Wright, a forensic interviewer with the Southeast Alabama Child Advocacy Center, conducted a separate interview of the victim. A DVD of that interview was introduced as Defense Exhibit 2 and played for the jury.

During its deliberations, the jury sent the circuit court a note informing the court that it “would like to see the Chad Wright DVD and hear the Julie Knight audio again.” (C. 89; R. 409.) The record appears to indicate that the DVD player needed to play Defense Exhibit 2 was in use in another courtroom. The circuit court, with the consent of W.G.M., took a cassette tape player to the jury room to allow the jury to listen to State’s Exhibit 1 while a DVD player was being set up in the courtroom to allow the jury to watch Defense Exhibit 2. The circuit court later noted that, when it took State’s Exhibit 1 and the cassette tape player to the jury room, it

“instructed the jury to listen to that and when they got through with it to knock on the door and let [the circuit court] know they were through with that part of it and [the circuit court] would bring them back in [the courtroom] and let them watch the DVD.
“In the meantime, after about 30 minutes or so passed, they knocked on the door and they no longer required to see the DVD and they had a verdict. So that’s where we stand at the moment.”

(R. 410.) The jury then delivered its verdict.

At the outset, we note that this issue was not preserved for our review. When an objection based upon evidence being delivered to “the jury room during the deliberations of the jury is made after the verdict is returned, the objection is waived.” Smith v. State, 344 So.2d 1239, 1241 (Ala.Crim.App.1977). The record demonstrates that W.G.M. did not object before the jury reached its verdict. The issue is, therefore, not properly before us.

Moreover, even if W.G.M. had preserved this issue for appeal, he would not be entitled to any relief on this claim. A circuit court’s decision not to send evidence into the jury room is reviewed for an abuse 'of discretion. Parris v. State, 885 So.2d 813, 830 (Ala.Crim.App.2001). Section 12-16-14, Ala.Code 1975, provides that “[a]ll items of evidence and depositions read to the jury may be taken out by them on their retirement.” Further, Rule 22.1(b), Ala. R.Crim. P., states that, “[wjithin the exercise of its discretion, the court may permit the jurors, upon retiring for deliberation, to take with them exhibits, writings, and documents that have been received in evidence.”

The circuit court did not deny the jury the opportunity to view Defense Exhibit 2. In accommodating the jury’s request to listen to State’s Exhibit 1, it informed them that when they had finished listening to that exhibit they would be brought back into the courtroom to watch Defense Exhibit 2. Instead of doing so, the jury informed the circuit court that “they no longer required to see the DVD.” (R. 410.) Therefore, circuit court did not abuse its discretion by denying W.G.M.’s motion for a new trial on the basis that the jury did not have an opportunity to watch the DVD during deliberations.

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

AFFIRMED.

WINDOM, P.J., and WELCH, BURKE, and JOINER, JJ., concur.