author: THOMPSON, Presiding Judge.

text:
    T.K.W. v. STATE DEPARTMENT OF HUMAN RESOURCES ex rel. J.B.
    2111034.
    Court of Civil Appeals of Alabama.
    Jan. 4, 2013.

      Ginette A. Dow, Bessemer, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Jennifer M. Bush, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

The State Department of Human Resources (“DHR”), on behalf of J.B. (“the mother”), filed in the Bibb Juvenile Court (“the juvenile court”) a petition seeking to have T.K.W. (“the father”) held in contempt for his failure to pay a child-support arrearage as required by a November 20, 2009, judgment of the juvenile court. The father answered the contempt petition and argued that he was unable to pay the arrearage and had not wilfully refused to do so.

On October 24, 2011, the juvenile court transferred the matter to the domestic-relations docket of the Bibb Circuit Court (“the circuit court”). In December 2011, the father filed a motion asking that the action purportedly still pending in the juvenile court be “closed.” On December 8, 2011, the juvenile court entered an order granting that motion and stating that the action was “closed to further review” in the juvenile court. However, on February 22, 2012, the circuit court determined that it lacked subject-matter jurisdiction over the contempt action, and it ordered that the action be transferred back to the juvenile court. Also on February 22, 2012, the juvenile court entered an order, apparently in recognition of the transfer from the circuit court, that “reinstated” the contempt action in that court. We note that the same judge who presided over the contempt action in the juvenile court considered the action in the circuit court.

On February 23, 2012, the father filed in the juvenile court a “motion to set aside the order dated November 20, 2009,” which, as discussed infra, we treat as a motion filed pursuant to Rule 60(b), Ala. R. Civ. P., and he later amended that motion; in both the original motion and the amended motion, the father argued that the November 20, 2009, judgment was void. See Rule 60(b)(4). Later, the father moved that the juvenile-court judge recuse himself from the contempt action. On March 14, 2012, the juvenile-court judge denied the motion to recuse. On May 9, 2012, the juvenile court denied the father’s Rule 60(b) motion.

The juvenile court conducted a hearing on the merits of DHR’s contempt action. On May 17, 2012, the juvenile court entered a judgment determining the father to be in contempt and ordering, among other things, that an income-withholding order (“IWO”) in the amount of $500 per month be issued to the Social Security Administration with regard to the father’s income from that agency. In reaching its May 17, 2012, judgment, the juvenile court made the following factual findings:

“1. The [father] was ordered by this court on the 20th day of November 2009, to pay the amount of $500 per month until his child-support arrearage obligation was met. Th[at judgment] was entered pursuant to an agreement between the parties at which the [father] was represented by counsel.
“2. The [father] has failed to comply with this Order of Support for at least the past six months and is $15,155.56 in arrears and interest as of the 9th day of May 2012.
“3. The [father] receives in excess of $5,300 per month from Social Security Disability, Veteran’s Administration Pension and‘CRSC.’[]
“4. The [father’s] testimony indicated that he is in substantially the same financial situation currently as he was in November of 2009 when he entered into the agreement to pay $500 per month toward the child-support arrearage owed by him, and his testimony further demonstrates that he has substantial debts that he has willingly incurred and that he has continued to incur, some of which are even incurred month to month, which could have funded his support payments due pursuant to his agreement and the order of this court.
“5. The [father’s] failure to make the required payments is due to his willful neglect and is NOT due to inability to pay.”

(Capitalization in original.) The father filed a postjudgment motion, which the juvenile court denied. The father timely appealed.

The record does not indicate whether the mother and the father were ever married or the date on which the father was first ordered to pay child support. The record indicates that the father’s most recent child-support obligation for the child he had with the mother was $224 per month. The child had reached the age of majority at the time the juvenile court entered the November 20, 2009, judgment that DHR is seeking to enforce.

The father testified that he is a disabled veteran and that he is no longer able to work. The father testified that he suffered a traumatic brain injury and that his wife is his guardian and manages his financial affairs. The father stated that his wife was aware of the $500-a-month payment required by the November 20, 2009, judgment.

The evidence in the record on appeal indicates that the father’s net monthly income is approximately $5,300; that amount includes $1,416 in Social Security disability benefits. The father testified that his monthly living expenses total approximately $5,000 per month. The father insisted that he could not afford to pay the $500 per month ordered in the November 20, 2009, judgment. We note that, after the entry of the November 20, 2009, judgment, DHR obtained a garnishment of the father’s government retirement account, and, pursuant to that garnishment, it receives a $124 monthly payment toward the father’s child-support arrearage. The father included the amount of that garnishment in his calculation of his monthly expenses.

DHR cross-examined the father regarding the expenses he claimed on his estimate of monthly expenses. In addition to payments for five policies of insurance, including life insurance, the father represented he has to repay several finance companies for various loans, including a purchase of furniture. The father denied that he ate at restaurants often, but DHR’s cross-examination called that testimony into question. On DHR’s questioning, the father admitted that his wife’s monthly income of $900 in Social Security disability benefits is used, in addition to his own income, to meet the approximately $5,000 in household monthly expenses to which he testified.

The father testified that since the entry of the November 20, 2009, judgment, he has started receiving retirement income of approximately $250 a month. Otherwise, the father admitted that his financial situation is much the same as it was in November 2009, when he agreed to pay $500 monthly toward the arrearage and the juvenile court incorporated that agreement into the November 20, 2009, judgment.

The father first argues on appeal that the juvenile court could not issue an IWO to collect a child-support arrearage because the child has reached the age of majority. The father cites W.L.S. v. K.S.S.V., 810 So.2d 777 (Ala.Civ.App.2001), and Sheeley v. Chapman, 953 So.2d 1252 (Ala.Civ.App.2006), in support of his argument on appeal. Both of those cases have been superseded by statute. See § 30-3-60 through -71, Ala.Code 1975. As this court recently explained:

“At one time, Alabama law did not allow the use of an IWO as a tool to collect unpaid child-support obligations from nonpaying obligors after the children who had been the subject of the underlying child-support awards had attained the age of majority. See W.L.S. v. K.S.S.V., 810 So.2d 777, 780 (Ala.Civ.App.2001), and Sheeley v. Chapman, 953 So.2d 1252, 1259 (Ala.Civ.App.2006). However, the statute relied upon in both W.L.S. and Sheeley, Ala.Code 1975, § 30-3-60, was amended in 2009 so as to allow for the issuance of IWOs for ‘enforcement post-majority of arrearages accrued during minority’ as well as accrued interest. See Ala.Code 1975, § 30-3-60(10)e.”

Robbins v. State ex rel. Priddy, 109 So.3d 1128, 1129 n. 1 (Ala.Civ.App.2012). Section 30-3-60 now allows the issuance of an IWO to collect a child-support arrearage after the child has reached the age of majority. Therefore, we cannot say that the father has demonstrated error with regard to this issue.

The father also contends that the IWO was not valid because, he says, an IWO may be issued only to an “employer” and, he contends, the Social Security Administration is not his employer. However, the father failed to assert that argument before the juvenile court, and it cannot be raised for the first time on appeal. Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala.1992) (“Our review is limited to the issues that were before the trial court — an issue raised on appeal must have first been presented to and ruled on by the trial court.”).

The father next argues that the juvenile court could not issue an IWO in the amount of $500 a month against his income from the Social Security Administration because that amount is greater than 25% of the amount of his monthly Social Security benefits. In making that argument, the father cites § 6-10-7, Ala. Code 1975, which provides that no more than 25% of a source of income may be subject to garnishment. In McNabb v. State ex rel. Rhodes, 890 So.2d 1038 (Ala.Civ.App.2003), this court considered the interplay between § 6-10-7 and § 30-3-67, which provides that IWOs have priority over other garnishments and that up to 50% of an obligor’s income may be subject to withholding pursuant to an IWO. In McNabb, supra, the trial court held that an obligor’s workers’ compensation award could be subject to multiple IWOs that totaled 50% of the amount of the settlement proceeds. This court affirmed, holding that IWOs for child support are not subject to the 25% limitation on a garnishment set forth in § 6-10-7. This court then explained:

“To be clear, the federal Consumer Credit Protection Act provides that an order for support shall not exceed 50% of an individual’s disposable earnings if that individual is currently supporting a spouse or dependent child and that the order of support shall not exceed 60% of an individual’s disposable earnings if that individual is not currently supporting a spouse or dependent child. 15 U.S.C. § 1673(b)(2). Section 30-3-67, Ala.Code 1975, provides that ‘[a]ny order for income withholding issued pursuant to this article may exceed the statutory maximum amounts prescribed in Section 6-10-7 for garnishment proceedings in Alabama, but such order ... may not exceed the maximum statutory amounts prescribed under federal law for garnishments issued to enforce support obligations.’ Therefore, the trial court correctly concluded that 50% of McNabb’s worker’s compensation settlement proceeds were subject to the child-support withholding orders, and we affirm the trial court’s judgment.

McNabb v. State ex rel. Rhodes, 890 So.2d at 1042-43.

The father receives $1,416 per month in Social Security disability benefits. The IWO at issue in this case is for $500 a month, an amount that constitutes approximately 35% of the father’s monthly Social Security disability income. Accordingly, under § 30-3-67 and McNabb, supra, the juvenile court had the authority to issue the IWO in the amount of $500 a month to the Social Security Administration. The father has failed to demonstrate error with regard to this issue.

The father next argues that the juvenile-court judge erred in denying his motion to recuse. Initially, we note that the denial of a motion to recuse may be reviewed at the time of an appeal of a final judgment on the merits. Ex parte Crawford, 686 So.2d 196 (Ala.1996). The father based his motion to recuse on the fact that the same judge presided over this action as a juvenile-court judge and as a circuit-court judge during the brief period that the action was transferred to the circuit court. In support of his argument, the father cites only the title of Canon 2 of the Alabama Canons of Judicial Ethics — “A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities” — and Canon 3.c.(l), which provides, in part: “A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned .... ”

As DHR contends in its brief submitted to this court, however, the father fails to explain, other than citing “common sense,” how the juvenile-court judge violated those ethical canons. Various provisions of Alabama law allow circuit-court judges to serve in juvenile courts or allow district-court judges to be appointed to serve in the circuit court. See, e.g., § 12-17-70, Ala.Code 1975, and § 12-15-103, Ala.Code 1975. The father has not alleged in his motion to recuse or in his brief on appeal any facts tending to indicate that the juvenile-court judge violated either of the Canons of Ethics cited in the father’s brief on appeal. Given the argument set forth in the father’s brief, we cannot say that the father has demonstrated error on appeal with regard to the denial of his motion to recuse.

The father next argues that the juvenile court erred in finding him in contempt of court. The father maintains that he presented “uncontroverted evidence” demonstrating that he was unable to pay the $500 monthly payment required by the November 20, 2009, judgment. The father contends that after he made such a showing, the burden then shifted to DHR to demonstrate beyond a reasonable doubt that he had the financial ability to pay. T.L.D. v. C.G., 849 So.2d 200, 205 (Ala.Civ.App.2002).

With regard to reviewing a determination that a parent is in contempt for failure to pay child support and the respective burdens of the parties in a contempt action, this court has stated:

“Whether a party is in contempt of court is a determination committed to the discretion of the trial court. See Coleman v. Coleman, 628 So.2d 698 (Ala.Civ.App.1993). To hold a party in contempt under either Rule 70A(a)(2)(C)(ii) or (D), Ala. R. Civ. P., the trial court must find that the party willfully failed or refused to comply with a court order. See Carr v. Broyles, 652 So.2d 299 (Ala.Civ.App.1994). Inability to pay is a defense to a contempt action in a child-support-arrearage case. Id.
‘When a parent is ordered to pay child support and fails to do so, a lack of ability to pay a delinquent amount is a complete defense to a civil contempt proceeding regarding the delinquent child support. In such a case, if the obligated parent presents evidence that [his] failure to pay the delinquency is due to financial inability, the burden then shifts to the parent to whom child support is due to prove beyond a reasonable doubt that the obligated parent is financially able to pay the amount of child support ordered. If a person is found in civil contempt because of [his] failure to pay a certain amount of money, and [he] shows that [he] is unable to pay that amount, then the contempt order must be set aside.’
“Carr v. Broyles, 652 So.2d [299,] 301-02 [ (Ala.Civ.App.1994) ] (citations omitted) (quoted in Seay v. Seay, 678 So.2d 1189, 1190 (Ala.Civ.App.1996)).”

T.L.D. v. C.G., 849 So.2d at 205.

In this case, paragraphs four and five of the juvenile court’s judgment, quoted earlier in this opinion, indicate that the juvenile court did not agree that the father had demonstrated that he was financially unable to meet the $500 monthly obligation set forth in the November 20, 2009, judgment. The juvenile court noted that the father had conceded that, at the time of the hearing in this matter, he was in the same financial situation as in November 2009, when he agreed to pay that amount. Further, the juvenile court found that, although the father claimed certain expenses, the money used to meet those claimed expenses could and should have been used to pay the amount required in the November 20, 2009, judgment. The juvenile court found that the father’s failure to pay was due to his own “neglect,” i.e., that the father chose to incur certain additional expenses rather than first meeting the requirements of the November 20, 2009, judgment. Thus, the record supports a conclusion that the father failed to present evidence demonstrating that he lacked the financial ability to pay the $500 monthly obligation required by the November 20, 2009, judgment. Accordingly, the burden did not shift to DHR to rebut his claim of financial inability to pay. Our review of the record on appeal supports the findings and conclusions set forth in the juvenile court’s judgment on this issue. Accordingly, we cannot say that the father has demonstrated that the juvenile court erred in finding him in contempt for his failure to pay the $500 monthly payment set forth in the November 20, 2009, judgment.

The father last argues that the juvenile court erred in denying his February 23, 2012, “motion to set aside” the November 20, 2009, judgment. In that motion, the father argued that the November 20, 2009, judgment that DHR was seeking to enforce in the pending contempt action was void for want of subject-matter jurisdiction. The father later amended that motion to argue that the November 20, 2009, judgment was void because the action that resulted in the November 20, 2009, judgment had been dismissed before the entry of that judgment. The father maintained that during the pendency of the action that resulted in the November 20, 2009, judgment, the juvenile court had entered an order finding that the contempt allegations made in that action were moot because of the father’s recent compliance with previous orders; in that order, however, the juvenile court scheduled the pending action for a later review hearing. In his amended “motion to set aside” filed in this case, the father contended that the order finding that the previous contempt allegations were “moot” had, in effect, constituted a dismissal of the action, which, he says, nullified the juvenile court’s subject-matter jurisdiction over that action. In both the February 23, 2012, motion and the amended motion, the father sought to invalidate the November 20, 2009, judgment and thereby defeat DHR’s claim that he was in contempt for his failure to comply with that purportedly invalid judgment.

The father’s February 23, 2012, motion and his amended motion were filed well outside the time allowed for filing a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P., from the November 20, 2009, judgment, and both motions cite grounds seeking relief from a judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P. A motion must be interpreted by its substance rather than by its style. Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996). Accordingly, we conclude that, in substance, the father’s February 23, 2012, motion and his amended motion were filed pursuant to Rule 60(b)(4), which allows for relief from a judgment that is void. Weaver v. Weaver, 4 So.3d 1171, 1172 (Ala.Civ.App.2008) (“A motion seeking relief from a judgment or order on the basis that the judgment or order is void is one filed pursuant to Rule 60(b)(4), Ala. R. Civ. P.”).

The denial of a Rule 60(b) motion is reviewed by appeal. Weaver v. Weaver, 4 So.3d at 1172; Ex parte R.S.C., 853 So.2d 228, 235 (Ala.Civ.App.2002). The juvenile court denied the father’s Rule 60(b) motion on May 9, 2012. The father had 14 days, or until May 23, 2012, to appeal the denial of his Rule 60(b) motion. The father’s notice of appeal was filed June 12, 2012, and, therefore, we conclude that the father failed to timely appeal the issues he raised in his Rule 60(b) motion. Accordingly, as to this issue, the father’s appeal is dismissed.

We note that our review of the record on appeal indicates that the issue of the validity of the November 20, 2009, judgment was not an issue tried by the implied consent of the parties during the hearing in this matter. See Rule 15(b), Ala. R. Civ. P. (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”). The father did assert, in his May 29, 2012, postjudgment motion, an argument that the November 20, 2009, judgment was void. However, the May 9, 2012, denial of the father’s Rule 60(b) motion had rejected that argument, and the juvenile court could not have invalidated that judgment based on an argument asserted in the May 29, 2012, post-judgment motion taken from the May 17, 2012, final judgment as to DHR’s contempt action. The father’s argument asserted in the May 29, 2012, motion constitutes an impermissible collateral attack on the earlier, November 20, 2009, judgment.

The father has failed to demonstrate error on appeal. We therefore affirm the juvenile court’s May 17, 2012, judgment as to DHR’s contempt action.

APPEAL DISMISSED IN PART; AFFIRMED.

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

      . "CRSC” is not identified by name in the record on appeal, but the record indicates it is a retirement account from which the father receives approximately $250 per month in income.

      . Section 30-3-67, Ala.Code 1975, provides:
      “Any order to withhold income issued and served upon any employer of the obli-gor pursuant to this article shall have priority over any writ of garnishment or any other state legal process against the same income of the obligor whether the writ of garnishment or other process was served prior or subsequent to the order of income withholding. Any order for income withholding issued pursuant to this article may exceed the statutory maximum amounts prescribed in Section 6-10-7 for garnishment proceedings in Alabama, but such order, including amounts taxed against the obligor as court costs, may not exceed the maximum statutory amounts prescribed under federal law for garnishments issued to enforce support obligations. Provided, if an obligor's income is subject to more than one withholding order or a current writ of garnishment for child support and a withholding order, the total amounts withheld may not exceed the statutory máximums herein prescribed and the current month's support payments shall be satisfied before any arrearages are satisfied.”

      “ 1These amounts are increased to 55% and 65%, respectively, with respect to support more than 12 weeks in arrears. 15 U.S.C. § 1673(b)(2)(B).”

      . The time for filing an appeal of the denial of a Rule 60(b) motion may not be extended by the filing of a postjudgment motion. Ex parte Keith, 111 So.2d 1018, 1022 (Ala.1998) ("After a trial court has denied a postjudgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to 'reconsider' or otherwise review its order denying the Rule 60(b) motion, and such a successive postjudgment motion does not suspend the running of the time for filing a notice of appeal.”).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    G. Scott FRAZIER v. Patricia Ann CURRY.
    2110860.
    Court of Civil Appeals of Alabama.
    Jan. 18, 2013.

      G. Scott Frazier, Tuscaloosa, for appellant.
   THOMAS, Judge.

G. Scott Frazier (“the husband”) appeals a judgment of the Tuscaloosa Circuit Court condemning funds that were garnished from his bank account. We reverse the denial of the husband’s postjudgment motion by operation of law and remand the cause for the trial court to conduct a hearing on that motion.

The husband and Patricia Ann Curry (“the wife”) have been before this court previously. See Frazier v. Curry, 104 So.3d 220 (Ala.Civ.App.2012). On April 15, 2011, in case number DR-08-902, the trial court entered a judgment that, among other things, legally separated the parties, divided the parties’ real and personal property, awarded the wife sole physical custody of the parties’ minor child, ordered the husband to pay monthly child support, ordered the husband to pay periodic alimony, and awarded the wife an attorney fee in the amount of $10,000. Id. at 224. The husband appealed to this court, arguing that the trial court had erred by awarding the wife a portion of his retirement accounts, awarding the wife an attorney fee, and in establishing the husband’s child-support award. Id. at 227. In Frazier, this court reversed the trial court’s judgment insofar as it had awarded the wife a portion of the husband’s retirement accounts and had awarded her an attorney fee, and we remanded the cause to the trial court to reconsider the property division and the attorney-fee award. Id. at 228.

In the present appeal, the underlying case number is again DR-08-902. However, the appeal lies from the trial court’s condemnation of funds to satisfy a portion of the attorney-fee award that had been awarded pursuant to the April 15, 2011, judgment, which this court subsequently reversed. The procedural posture of the current appeal is as follows.

On August 3, 2011, the wife filed a process of garnishment to collect the attorney-fee award with the garnishee being Capstone Bank. On August 9, 2011, the husband filed a motion to quash the garnishment. In that motion, he argued that the attorney-fee award had previously been satisfied, that allowing the garnishment to proceed would allow the wife to receive a double recovery of the attorney-fee award, and that the wife had “filed the garnishment in bad faith, and to harass and embarrass the [husband].” Additionally, in the motion, the husband requested that the trial court not condemn or release the funds until it had conducted a hearing regarding the motion. On August 11, 2011, Capstone Bank answered the process of garnishment and indicated that it was holding $9,152.72 from the husband’s account.

On January 9, 2012, the wife filed a motion styled as a “motion to order money into court,” in which she requested an order requiring Capstone Bank to pay all the funds it was holding pursuant to the process of garnishment into the Tuscaloosa Circuit Court Clerk’s Office (“the clerk’s office”). That same day the wife filed a motion to condemn funds. On February 23, 2012, the trial court entered an order directing Capstone Bank to pay the funds it was holding into the clerk’s office. Additionally, on February 23, 2012, the trial court entered an order condemning the $9,152.72 that was being held by the clerk’s office and ordering the clerk’s office to distribute the funds to the wife’s attorney to satisfy a portion of the attorney-fee award. On March 3, 2012, the husband filed a motion to alter, amend, or vacate the trial court’s February 23, 2012, order condemning the funds. In his post-judgment motion, the husband argued that the funds had been condemned without the trial court’s conducting an evidentiary hearing, that the garnishment was unlawful, and that he had previously satisfied his obligation to pay the wife’s attorney fees, among numerous other arguments. The husband also requested a hearing regarding his postjudgment motion. The trial court did not conduct a hearing on the husband’s postjudgment motion, and the motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The husband timely appealed.

The husband argues three issues on appeal: 1) whether the trial court violated his due-process rights by condemning the funds without conducting a hearing; 2) whether the trial court erred in failing to conduct a hearing on his postjudgment motion; and 3) whether the law-of-the-case doctrine requires a reversal of the trial court’s February 23, 2012, order. We find the husband’s second argument determinative of the appeal, and, thus, we pretermit discussion of the other issues. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue).

On appeal, the husband contends that the trial court erred to reversal in failing to conduct a hearing regarding his postjudgment motion. The record indicates that the husband requested a hearing on his postjudgment motion and that the trial court failed to conduct a hearing regarding the postjudgment motion, and, thus, the motion was denied by operation of law pursuant to Rule 59.1.

“Rule 59(g)[, Ala. R. Civ. P.,] provides that posttrial motions ‘remain pending until ruled upon by the court (subject to the provisions of Rule 59.1), but shall not be ruled upon until the parties have had opportunity to be heard thereon.’ The failure to hold a hearing on a posttrial motion is not always reversible error, however. Our supreme court has stated:
“ ‘ “[I]f a party requests a hearing on its motion for a new trial, the court must grant the request.” Ex parte Evans, 875 So.2d 297, 299-300 (Ala.2003) (citing Rule 59(g), Ala. R. Civ. P., and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989)). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. “This Court has established, however, that the denial of a post-judgment motion without a hearing thereon is harmless error, where (1) there is ... no probable merit in the grounds asserted in the motion, or (2) the appellate court resolves the issues presented therein, as a matter of law, adversely to the movant, by application of the same objective standard of review as that applied in the trial court.” Historic Blakely Auth. v. Williams, 675 So.2d 350, 352 (Ala.1995) (citing Greene v. Thompson, 554 So.2d 376 (Ala.1989)).’
“Chism v. Jefferson County, 954 So.2d 1058, 1086 (Ala.2006).”

Cunningham v. Edwards, 25 So.3d 475, 477 (Ala.Civ.App.2009). We agree with the husband that the failure of the trial court to hold a hearing on his post-judgment motion was error. The issue then becomes whether such error is reversible. Error “is reversible error only if it ‘probably injuriously affected substantial rights of the parties.’ ” Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala.1993) (quoting Rule 45, Ala. R. Civ. P., and citing Greene v. Thompson, 554 So.2d 376, 380-81 (Ala.1989), and Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989)). “If the failure to conduct a hearing did not ‘ “injuriously affect[ ] [the] substantial rights of the parties,” ’ that failure, while error, was harmless.” DWOC, LLC v. TRX Alliance, Inc., 99 So.3d 1233, 1236 (Ala.Civ.App.2012) (quoting Kitchens, 623 So.2d at 1088).

As noted in his postjudgment motion, the husband asserted that he had previously satisfied the attorney-fee award and that condemning the funds would allow the wife to receive a double recovery, among numerous other arguments targeted toward the impropriety of the attorney-fee award. Moreover, in Frazier, this court reversed the attorney-fee award and remanded the cause for the trial court to reconsider the attorney-fee award based on the fact that the trial court had erred in dividing the marital property due to its improper division of the husband’s retirement accounts. Thus, we conclude that there exists probable merit to the husband’s arguments, and this court cannot resolve the issue adversely to the husband as a matter of law. Chism v. Jefferson Cnty., 954 So.2d 1058, 1086 (Ala.2006).

Accordingly, we determine that, under the facts presented in this case, the trial court erred in failing to conduct a hearing regarding the husband’s postjudgment motion and that any error in failing to conduct a hearing was not harmless error. Thus, we reverse the denial of the husband’s postjudgment motion by operation of law, and we remand the cause to the trial court to conduct a hearing on the issues raised in the husband’s post-judgment motion. See Isbell v. Rogers Auto Sales, 72 So.3d 1258, 1262 (Ala.Civ.App.2011). Additionally, we note that the trial court has a duty to comply with the remand instructions given by this court in Frazier. See Giardina v. Giardina, 39 So.3d 204, 208 (Ala.Civ.App.2009) (quoting Brown v. Brown, 20 So.3d 139, 141 (Ala.Civ.App.2009)). Accordingly, the trial court must reconsider the attorney-fee award on remand in Frazier, and, thus, condemnation of any funds would be premature until the trial court reconsiders the property distribution and attorney-fee award in compliance with our instructions in Frazier.

REVERSED AND REMANDED.

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


author: PER CURIAM. PARIENTE, J.,

text:
    Claudia Vergara CASTANO, Petitioner, v. STATE of Florida, Respondent.
    No. SC11-1571.
    Supreme Court of Florida.
    Nov. 21, 2012.
    H. Manuel Hernandez of H. Manuel Hernandez, P.A., Longwood, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; and Kristen Lynn Davenport and Wesley Harold Heidt, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
    Rebecca A. Sharpless, University of Miami School of Law, Immigration Clinic, Coral Gables, FL, for Amicus Curiae, Lawyers Association American Immigration.
   PER CURIAM.

In Castano v. State, 65 So.3d 546 (Fla. 5th DCA 2011), the Fifth District Court of Appeal affirmed the denial of Claudia Ver-gara Castano’s postconviction motion. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In this timely filed initial postconviction motion, Castaño raised the same claim raised in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which held that defense counsel was deficient for failing to advise his client of mandatory deportation consequences for pleading guilty. Castano’s postconviction proceeding was pending when the United States Supreme Court issued Padilla. Therefore, although we held that Padilla does not apply retroactively in Hernandez v. State, — So.3d - (Fla.2012), Padilla does apply to Castano’s pending case. On that basis, we quash the Fifth District’s decision and remand for further proceedings.

It is so ordered.

POLSTON, C.J, and LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion, in which QUINCE and PERRY, JJ., concur.

PARIENTE, J.,

concurring.

I concur with the majority that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), is not retroactive, but does apply to this case. I write to explain why. Here, Castaño timely filed an initial postconvietion motion months after her plea, raising the same claim as raised in Padilla. The United States Supreme Court then issued its decision in Padilla while Castano’s postconviction motion was still pending in the trial court. This is therefore not a case where the defendant waited for years after the conviction and initial postconviction motion were final to bring a Padilla claim. Specifically, this case stands in contrast to Hernandez v. State, — So.3d - (Fla.2012), where the defendant waited nine years after his 2001 plea to move for post-conviction relief. Fundamental fairness demands that Castaño receive the benefit of Padilla.

The underlying facts of this case are as follows. Castaño has stated that although she was not a United States citizen, she was lawfully residing in this country and was in the process of trying to obtain her permanent residency. She also has stated that she intended to ultimately apply for United States citizenship, and her youngest child was an American citizen. At the time of the criminal charges, Castaño owned and operated a day care center out of her home. She was charged with child neglect, a third-degree felony, when a child under her care was found wandering in her neighborhood. See Castano v. State, 65 So.3d 546, 547 (Fla. 5th DCA 2011). The child was found unharmed a short distance away by a neighbor who called the police. Castaño entered her plea on March 4, 2009, and was sentenced to one day in jail, with credit for one day served, three years of supervised probation, and court costs. In November 2009, only eight months after the plea, Castaño filed a postconviction motion alleging, among other grounds for relief, that her counsel had failed to advise her that her plea would subject her to mandatory deportation.

There was dispute about the specific advice Castano’s defense counsel gave her regarding the immigration consequences of her plea. According to her defense attorney, he had told Castaño she needed to consult with an immigration attorney. On the other hand, Castaño testified that she did not know she would be entering a plea until just minutes before entering the courtroom. She stated that her counsel told her that there was no alternative because she “would be found guilty anyway.” She further testified that counsel told her that the plea would require only a payment from her and that “everything was going to be all right.” She testified, however, that as a result of her plea, she was now subject to deportation and has lost the license to run her day care business, her main source of income.

At the time of the evidentiary hearing in December 2009, the law in Florida was governed by State v. Ginebra, 511 So.2d 960, 962 (Fla.1987), which held “that counsel’s failure to advise his client of the collateral consequence of deportation does not constitute ineffective assistance of counsel.” However, before the trial court entered an order denying relief in this case, the United States Supreme Court issued its opinion in Padilla, a postconviction case involving a similar claim of ineffective assistance of counsel for failure to advise of the deportation consequences of a plea. The Supreme Court held that Padilla’s defense counsel was deficient under the first prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to advise Padilla that a guilty plea would subject him to automatic deportation. Padilla, 130 S.Ct. at 1478.

In this case, the postconviction court denied Castano’s motion by finding that the record refuted her claims of an involuntary plea, attaching a transcript of the 2009 plea colloquy. The postconviction court did not make any findings concerning whether counsel had advised Castaño of a risk of deportation or had referred her to an immigration attorney.

On appeal to the Fifth District, Castaño advanced the argument that, under Padilla, her attorney “was ineffective for failing to apprise her of the immigration consequences of her plea.” Castano, 65 So.3d at 547. The Fifth District affirmed the denial of relief, holding that the plea colloquy cured any prejudice and that Padilla was not retroactive. Id. at 548.

This Court in Hernandez, — So.Sd - (Fla.2012), held that Hernandez’s counsel was deficient for failing to advise him that his plea subjected him to presumptively mandatory deportation, but that Padilla did not apply retroactively to his case. This Court also rejected the argument that the plea colloquy cured any claim of prejudice arising out of deficient advice regarding the plea consequences. Further, in light of Padilla, this Court receded from Ginebra, the controlling case law at the time of Castano’s plea. See Hernandez v. State, — So.3d at - n. 5.

I agreed in Hernandez that Padilla should not be applied retroactively to cases where initial postconviction proceedings were final before Padilla was decided. Here, however, Castaño timely raised her claim of ineffective assistance of counsel and sought to withdraw her plea only eight months after the plea was entered. The facts of this case stand in stark contrast to the facts of Hernandez, where Hernandez waited until 2010 to assert ineffective assistance of counsel with respect to his 2001 plea, filing a postconviction motion only after Padilla was decided.

Moreover, this case is distinguishable from those cases in which we have restricted the benefit of new law to “pipeline” cases — that is, cases in which an appellate court mandate has not yet issued on direct appeal. Those cases typically involved new law on issues that would be raised during direct appeal — not postconviction. See Hughes v. State, 901 So.2d 837, 838 (Fla.2005)(sentencing issue—application of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt”); Johnson v. State, 904 So.2d 400, 405, 407 (Fla.2005)(sentencing issue—application of “Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which held that a jury, not a judge, must find every fact upon which eligibility for the death penalty depends”); Smith v. State, 598 So.2d 1063, 1064 (Fla.1992)(sentencing issue — “when an appellate court reverses a departure sentence because there were no written reasons, the court must remand for resentencing with no possibility of departure from the guidelines”).

In contrast to the above “pipeline” cases, Padilla created new law that would apply to a claim raised in postconviction, not on direct appeal. Given the procedural posture of this case — where the defendant timely raised the same postconviction claim as the defendant in Padilla and the resolution of her claim was still pending at the time Padilla was decided — it is in effect a “pipeline” case for purposes of whether Padilla applies. Cf. Barthel v. State, 882 So.2d 1054, 1055 (Fla. 2d DCA 2004)(applying this Court’s decision in Nelson v. State, 875 So.2d 579 (Fla.2004)—which established new law regarding the requirements for an ineffective assistance of counsel claim for failing to call a witness — to the appeal from the denial of a postconviction motion, because the “appeal was in the ‘pipeline’ at the time Nelson became final,” and therefore the defendant “is entitled to the benefit of the controlling law in Nelson in effect at the time of appeal”).

In sum, Castaño was in the exact same position as Padilla, having filed a postcon-viction motion claiming that counsel was ineffective for failing to advise of the deportation consequences of a plea. Unlike the defendant in Hernandez, this is not a case where the defendant waited years after the conviction was final to bring a Padilla claim. Rather, Castaño timely filed a postconviction motion just months before the United States Supreme Court’s decision in Padilla, and the resolution of Castano’s claim was still pending when Padilla was decided. Under the facts of this case, it would be inequitable and illogical to hold that only one of two similarly situated defendants — Padilla and not Cas-taño — should receive the benefit of the United States Supreme Court’s decision. Accordingly, I concur with the majority opinion.

QUINCE and PERRY, JJ., concur.


author: PARIENTE, J., LEWIS, J., CANADY, J.,

text:
    In re IMPLEMENTATION OF JUDICIAL BRANCH GOVERNANCE STUDY GROUP RECOMMENDATIONS-AMENDMENTS TO The FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. SC11-1374.
    Supreme Court of Florida.
    Dec. 20, 2012.
   The motions for rehearing filed by the Conference of Circuit Court Judges of Florida, the Conference of County Court Judges of Florida, and the Trial Court Chief Judges of Florida (“the Conferences and the Chief Judges”) stating that the Conferences and the Chief Judges intended to file written comments in support of their motions within the sixty-day comment period provided for in the Court’s February 9, 2012, opinion, In re Implementation of Judicial Branch Governance Study Group Recommendations, 121 So.3d 1 (Fla.2012), are treated as comments on the rule amendments adopted in this case, in accordance with the invitation in the opinion. See Fla. R. Jud. Admin. 2.140(g)(1) (providing that the Court may amend rules in Part II of the Rules of Judicial Administration at any time, with or without notice and if a change is made without notice the Court will fix a date for future consideration of the change and publish the change for comment). The Conferences’ and the Chief Judges’ comments have been filed and were considered by the Court along with the matters raised in the motions and the other comments filed in this case.

The Court, having considered the comments and heard oral argument, hereby grants the requests for clarification of the language in new Rule of Judicial Administration 2.205(a)(1)(B) stating that the rule “is not intended to apply to judges expressing their personal views who affirmatively make it explicitly clear that they are not speaking on behalf of the judicial branch.” (Emphasis added.) In order to address concerns about the above emphasized language, the Court amends rule 2.205(a)(1)(B) as follows:

(B) Consistent with the authority of the supreme court to establish policy, including recommending state budget and compensation priorities for the judicial branch, no judge, supreme court created committee, commission, task force, or similar group, and no conference (Conference of District Court of Appeal Judges, Conference of Circuit Court Judges, Conference of County Court Judges) is permitted to recommend state budget priorities, including compensation and benefits, to the legislative or executive branch that have not been approved by the supreme court. This subdivision is not intended to apply to judges expressing their personal views who affirmatively make it explicitly-c-leaa? state that they are not speaking on behalf of the judicial branch.

The Florida Bar’s request that new Rule of Judicial Administration 2.220(c)(3) be amended to correct numbering errors is also granted. That rule is amended as follows:

(3) Officers. Management of the conference shall be vested in the officers of the conference and an executive committee. (A)-(B) [No Change]
(DC) There shall be an annual meeting of the conference.
(ED) Between annual meetings of the conference, the affairs of the conference shall be managed by the executive committee.

The effective date for the eight-year term limitation for trial court chief judges in Florida Rule of Judicial Administration 2.215(c) is delayed until February 1, 2015, at 12:01 a.m., so that with terms beginning July 1, 2015, judges who have served for eight years or more are not eligible for reelection.

The remainder of the requests in the comments is denied. The Court thanks those who filed comments for their input. But, after due consideration of the matters raised, the Court has determined that no other revisions to the rules or effective dates should be made at this time.

Accordingly, Florida Rules of Judicial Administration 2.205 and 2.220 are amended as reflected in this order. New language is indicated by underscoring and deletions are indicated by struck-through type. These amendments shall become effective immediately upon the issuance of this order.

POLSTON, C.J., and PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs with an opinion, in which QUINCE and PERRY, JJ., concur.

LEWIS, J., dissents with an opinion.

CANADY, J., concurs in part and dissents in part with an opinion.

PARIENTE, J.,

concurring.

I write briefly to address the dissent of my esteemed colleague Justice Lewis. Justice Lewis clearly has strong feelings that the entire work of the Judicial Branch Governance Study Group (Study Group) was misguided and unnecessary. He has characterized the majority’s decisions as “truly whimsical” and “misdirected bad policy,” among other phrases. Dissenting op. at 1213 (Lewis, J.). I respectfully disagree with his assessments of the Study Group’s work and the amendments to the Rules of Judicial Administration that this Court has adopted.

The Study Group was established in October 2009 during the term of Chief Justice Quince, after the Court approved the long-term strategic plan for the Florida judicial branch. Chaired by now-Chief Justice Polston with Justice Labarga serving as one of its members, the Study Group engaged in thoughtful deliberation and analysis regarding ways “to strengthen the governance and policy development structures of the Florida judicial branch, improve the effective and efficient management of the branch, and enhance communication within the branch.” In re: Implementation of Judicial Branch Governance Study Group Recommendations, 121 So.3d 1, 1 (Fla.2012).

I am certain that the Study Group’s recommendations and the Court’s adoption of those recommendations was not an exercise in “change for the sake of change,” and, of course, I sincerely hope that the amendments will not “produce further turmoil and political maneuvering within the judicial branch.” Dissenting op. at 1213 (Lewis, J.). To the contrary, over the past fifteen years that I have served on the Court, I have seen many examples of just the opposite — that is, cooperation at all levels of the judiciary with a common mission to serve the citizens of this state in the administration of justice.

Lastly, as far as the decision to delay by two years the implementation of term limits for trial court chief judges, the purpose of this prospective application is to ensure an orderly transition to a new chief judge. Since the elections for chief judges are currently scheduled to take place in early 2013 for terms to commence on July 1, 2013, the two-year delayed time period allows for current chief judges to prepare to make it easier for their successors to assume leadership. Simply stated, there is nothing sinister or misguided about our decision to make this particular change prospective.

QUINCE and PERRY, JJ., concur.

LEWIS, J.,

dissenting.

I continue to dissent in connection with this project. Today’s order on rehearing demonstrates the truly whimsical nature of this entire effort. This project was ill-conceived, ill-structured, and totally without proper parameters or full discussion by the Court prior to its ill-fated mission. Now, a lack of principle has evolved in a “delayed implementation” approach as though the bad policy decisions will improve with age as a vintage wine. To the contrary, not only is the “change for the sake of change approach” misdirected, the implementation of a bad policy does not, and should not, be predicated upon improvement with age. In a similar manner, implementation of a good policy should not be delayed to satisfy the personal desires of a very few who, for personal benefit, oppose the policy. Nothing new has been presented to this Court on rehearing that was not previously considered by this Court, nor have we failed to consider anything presented on rehearing. The modified decision merely reflects an attempt to silence or placate the voice of some who objected, as do I, to this well intended but misdirected bad policy that will produce further turmoil and political maneuvering within the judicial branch.

CANADY, J.,

concurring in part and dissenting in part.

I disagree with the majority on three points.

First, I dissent from the majority’s determination with respect to the rule provisions imposing term limits on the chief judges of the circuit courts and of the district courts. I would repeal the term limit provisions in Florida Rules of Judicial Administration 2.210(a)(2)(F) and 2.215(c). These provisions have been met with the expression of overwhelming opposition. And no case whatsoever has been made that these term limits are necessary or will be beneficial to the effective administration of justice in Florida.

Second, I dissent from the Court’s decision not to revisit the provisions of rule 2.220(b), which relate to the Florida Conference of Circuit Judges. I would repeal the provisions of rule 2.220(b) and undertake further study of the matter in consultation with Florida’s circuit court judges.

Finally, I dissent from the Court’s decision not to revise rule 2.244(c)(3), which creates the Unified Compensation Committee, to provide for membership of a representative of the circuit court chief judges. The chief judges play a crucial role in the administration of the judicial branch, and their input on this committee would be very valuable.

I otherwise concur in the Court’s order.