author: MOORE, Judge.

text:
    ALABAMA DEPARTMENT OF LABOR v. Rickell GRAYSON.
    2120291.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.
    Joseph S. Ammons, gen. counsel, and Donald M. Harrison III, asst. gen. counsel, Alabama Department of Labor, for appellant.
   MOORE, Judge.

The Alabama Department of Labor (“the department”), formerly known as the Alabama Department of Industrial Relations, appeals from a judgment of the Jefferson Circuit Court (“the circuit court”) remanding to the department for its consideration the claim for unemployment-compensation benefits filed by Ric-kell Grayson. We reverse.

The evidence submitted to the circuit court indicates that Grayson filed a claim for unemployment-compensation benefits with the department’s unemployment-compensation agency. That claim was denied, and a notice of determination reflecting that denial was mailed to Grayson on June 25, 2012. Grayson purported to appeal the denial of her claim to the hearings and appeals division of the department by mailing her notice of appeal; that notice was not received by the hearings and appeals division of the department until July 12, 2012. The hearings and appeals division determined that, because the notice of appeal was received more than 15 days after the notice of determination was mailed to Grayson, the appeal had been untimely filed and, thus, the determination denying Grayson’s claim was final. Grayson filed an application to appeal to the department’s board of appeals, which disallowed the appeal. Thereafter, Grayson appealed to the circuit court.

The department moved the circuit court to dismiss Grayson’s appeal; that motion was denied. Thereafter, on November 30, 2012, the circuit court entered an order stating, in pertinent part:

“In this case, the undisputed evidence is that the plaintiff, Rickell Grayson, mailed her notice of appeal [to the hearings and appeals division of the department] from the denial of unemployment compensation benefits the day before the filing deadline. She was assured by the post office that she would have next day delivery. The defendant, The Alabama Department of Industrial Relations (now known as the Alabama Department of Labor) moved to dismiss the appeal, claiming that it was filed ... late.
“Under these facts, the Court found that it would violate the fundamental beneficent purpose of the Act as well as basic principles of equity and fairness to deny the plaintiff a hearing on the merits. As a result, the Court denied the Motion to Dismiss and set the case for trial.”

On December 19, 2012, the circuit court entered a judgment stating:

“This unemployment compensation appeal is hereby remanded to the Alabama Department of Labor, formerly known as the Alabama Department of Industrial Relations, for their administrative consideration of the plaintiffs claim for unemployment compensation benefits.
“This is a final judgment in this case. Costs are remitted.”

The department filed its notice of appeal to this court on January 29, 2013.

On appeal, the department argues that the circuit court erred in denying its motion to dismiss and in remanding Grayson’s claim for unemployment-compensation benefits to the department because, it says, Grayson’s initial appeal to the hearing and appeals division of the department was untimely filed. We agree.

Section 25 — 4—91(d)(1), Ala.Code 1975, provides, in pertinent part:

“Unless any party to whom notice of determination is required to be given shall, within seven calendar days after delivery of such notice or within 15 calendar days after such notice was mailed to his last known address, file an appeal from such decision, such decision shall be deemed final.”

In Olsen v. Moffat Road Veterinary Clinic, 441 So.2d 971 (Ala.Civ.App.1983), this court held that the mailing of a notice of appeal within the statutory period for taking an appeal following the denial of a claim for unemployment-compensation benefits did not satisfy the requirement for filing the notice of appeal; instead, this court held that the notice of appeal must actually be received by the department within the period allowed. Further, in Burgess v. State Department of Industrial Relations, 637 So.2d 1366, 1368 (Ala.Civ.App.1994), this court explained:

“It is well settled that an appeal is not a matter of vested right but is by the grace of statute and must be perfected pursuant to the time and manner prescribed in the controlling statute. Moutry v. State, 359 So.2d 388 (Ala.Civ.App.1978). The appeal must be dismissed if the requirements of the controlling statute are not met. Moutry, 359 So.2d 388.
“This court has previously held that the controlling statutes in unemployment compensation cases require the timely filing of a notice of appeal. Davis v. Alabama Dep’t of Industrial Relations, 641 So.2d 810 (Ala.Civ.App.1994); Haigler v. Dep’t of Industrial Relations, 512 So.2d 113 (Ala.Civ.App.1987). A document has not been filed until it has actually been received; mere mailing is not enough. Moutry, 359 So.2d 388.
“This court recognized that this might seem to be a harsh result and stated the following in Haigler, 512 So.2d at 115:
“ ‘Though the result may seem somewhat harsh and unemployment compensation law is to be construed liberally, the courts are not authorized to extend a time period that is statutorily mandated where the procedure is exclusive.’ ”

In the present case, Grayson’s initial appeal to the hearing and appeals division of the department was received on July 12, 2012, 17 days after the notice of determination was mailed to Grayson on June 25, 2012, and, thus, was filed outside the statutory period set forth in § 25 — 4—91(d)(1). The circuit court therefore erred in denying the department’s motion to dismiss and in remanding the case to the department. Accordingly, we reverse the circuit court’s judgment and remand this cause with instructions for the circuit court to dismiss Grayson’s appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . See § 25-2-1.1(a), Ala.Code 1975 (“All powers, duties, and functions and all related records, property, equipment of, employees of, and all contractual rights, obligations of, and unexpended balances of appropriations and other funds or allocations of the Department of Labor shall be transferred to the Department of Industrial Relations which shall be renamed the Department of Labor on October 1, 2012.").


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    S.T.W. v. T.N.
    2120521.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.

      Page A. Banks, Huntsville, for appellant.
   THOMPSON, Presiding Judge.

In April 2011, the Madison County Department of Human Resources (“DHR”) filed a petition seeking to have S.W. (“the child”), who was then six years old, declared dependent. DHR alleged that the child’s stepfather had abused the child and that the stepfather had stated that the child’s mother, T.N. (“the mother”), was aware of the abuse. On April 18, 2011, the juvenile court entered an order finding the child to be dependent and awarding custody of the child to DHR. On August 5, 2011, the juvenile court entered an order adjudicating S.T.W.’s paternity of the child and continuing custody of the child with DHR.

In a February 22, 2012, order, the juvenile court continued its award of legal custody of the child with DHR, but it awarded physical custody to S.T.W. (“the father”). A few months later, on May 24, 2012, the juvenile court awarded the mother and the father joint legal and physical custody of the child, with the father receiving primary physical custody. That order also specified, among other things, that the mother and the father each were to submit a Rule 32, Ala. R. Jud. Admin., CS^ll child-support-obligation income statement/affidavit (“CS-41 form”) for the purposes of calculating child support. In July 2012, the mother submitted a CS^l form to the juvenile court.

On August 17, 2012, the juvenile court entered an order awarding the mother and the father joint legal custody of the child, but awarding primary physical custody to the mother. The juvenile court reserved the issue of child support and ordered the parties to submit CS-41 forms within seven days of the entry of that order. On August 21, 2012, the mother submitted another CS^ll form.

On January 28, 2013, the mother filed a “motion to compel,” seeking an order requiring the father to submit a CS-41 form and seeking the establishment of the father’s child-support obligation and an award of retroactive child support. In support of that motion, the mother again submitted a CS^ll form.

On February 19, 2013, the juvenile court entered an order scheduling the matter for a hearing on March 8, 2013, and ordering each party to furnish to the court and to all counsel four separate child-support forms as required by Rule 32. The February 19, 2013, order specified that the parties were to submit those forms at least 10 days before the scheduled hearing.

On February 27, 2013, the father submitted a CS-41 form to the juvenile court. On March 5, the mother submitted the four requested child-support forms to the juvenile court. In that submission, the mother’s attorney cited complications from his recent surgery as the reason for not timely submitting those forms. In addition, the mother’s attorney stated that he had submitted several forms with only the mother’s information because, the mother’s attorney alleged, he did not have information from the father with which to complete the forms. At the March 8, 2013, hearing, the juvenile court noted that it had the forms submitted by the mother but that it could not rely on the CS-41 form she had submitted because it was not sworn. The juvenile court then stated that it had received the father’s sworn CS-41 form but that the father had not submitted the other three forms referenced in the February 19, 2013, order. The juvenile court also noted that it had entered an order in August 2012 requiring the father to submit a CS-41 form but that the father had failed to comply with that order. The following exchange then occurred:

“THE COURT: At this point, [counsel for the father], I will let you present to the Court any argument that you have as to why the father should not be held in contempt of court.
“[COUNSEL FOR THE FATHER]: I — may I have a moment?
“THE COURT: Sure.
“[COUNSEL FOR THE FATHER]: Judge, my client states that he says he claims he did not receive a copy of the orders that were previously entered by this Court.”

The juvenile court then immediately ordered the father incarcerated. In its March 8, 2013, order finding the father in “contempt of court,” the juvenile court ordered the father to be incarcerated for 72 hours. That same day, the father filed a “motion to reconsider,” arguing that he was not provided notice that the contempt issue would be considered by the juvenile court, and he argued that he “was precluded” from submitting the other three child-support forms because the mother’s CS^l form was unsworn. Also on March 8, 2013, the juvenile court denied the father’s postjudgment motion, and the father timely appealed. See Thomas v. Vanhorn, 876 So.2d 488, 491 (Ala.Civ.App.2003) (citing Rule 70A(g), Ala. R. Civ. P., and holding that an order finding a party in contempt is a final, separately appealable judgment).

The March 8, 2013, order does not specify whether the juvenile court found the father to be in civil contempt or criminal contempt. Rule 70A(a)(2)(C), Ala. R. Civ. P., specifies that “criminal contempt” is either:

“(i) Misconduct of any person that obstructs the administration of justice and that is committed either in the court’s presence or so near thereto as to interrupt, disturb, or hinder its proceedings, or
“(ii) Willful disobedience or resistance of any person to a court’s lawful writ, subpoena, process, order, rule, or command, where the dominant purpose of the finding of contempt is to punish the contemnor.”

The rule further explains that “civil contempt” is a “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.” Rule 70A(a)(2)(D), Ala. R. Civ. P. A finding of civil contempt seeks to compel compliance with a court’s order; a criminal-contempt determination is designed to punish a con-temnor for disobedience of a court’s order. State v. Thomas, 550 So.2d 1067, 1072 (Ala.1989).

“ ‘The question of whether [an action involves] civil contempt or criminal contempt becomes important ... because a contemnor must be in a position to purge himself from the contempt. Mims v. Mims, 472 So.2d 1063 (Ala.Civ.App.1985). In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both. Kalupa v. Kalupa, 527 So.2d 1313 (Ala.Civ.App.1988). In order to purge himself in a civil contempt case, the contemnor must comply with the court’s order. Rule 33.4(b), A[la]. R.Crim. P.’ ”

Davenport v. Hood, 814 So.2d 268, 272-73 (Ala.Civ.App.2000) (quoting Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994)).

In this case, the juvenile court did not order the father to be incarcerated only until he complied with its orders to complete the child-support forms; in other words, the juvenile court was not seeking to obtain the father’s compliance with its orders requiring him to submit information so that his child-support obligation could be determined. Rather, the juvenile court ordered the father to serve 72 hours in jail for his failure to comply with its orders. Thus, the contempt finding in the March 8, 2013, order is not one of civil contempt. Rather, the record indicates that the juvenile court’s contempt finding was a punishment for the father’s failure to complete the child-support forms as required by the February 19, 2013, order and perhaps for the father’s failure to comply with the earlier orders requiring that he submit a CS-41 form. We, therefore, conclude that the record demonstrates that the juvenile court found the father to be in criminal contempt. See Ex parte Sheffield, 120 So.3d 1091, 1094 (Ala.Civ.App.2013).

That determination, however, does not end the inquiry regarding the nature of the contempt finding. The juvenile court’s March 8, 2013, order does not specifically state whether the court found the father in direct contempt or indirect, i.e., constructive, contempt under Rule 70A. “Direct contempts are those committed in the judge’s presence, where all of the essential elements of the contempt are under the eye of the court, and are actually observed by the court.” State v. Thomas, 550 So.2d at 1072. “An indirect contempt is committed outside the presence of the court and is characterized by the act of disobeying the court’s orders.” Id. Recently, this court has explained:

“ ‘Such a determination is important because the procedure for finding a party in direct contempt is different from the procedure required before a party can be found guilty of constructive contempt.’ Dreading v. Dreading, 84 So.3d 935, 937 (Ala.Civ.App.2011). Rule 70A(a)(2), Ala. R. Civ. P., defines ‘direct contempt’ and ‘constructive contempt’ as follows:
“ ‘(A) “Direct contempt” means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.
“‘(B) “Constructive contempt” means any criminal or civil contempt other than a direct contempt.’
“Rule 70A(b) and (c), Ala. R. Civ. P., provide the procedure for finding a party guilty of either direct contempt or constructive contempt:
“ ‘(b) Summary Disposition of Direct Contempt Proceedings.
“ ‘(1) Finding. The court may summarily find in contempt any person who commits a direct contempt, immediately notifying the person of its finding. The judge shall cause to be prepared a written order reciting the grounds for the finding, including a statement that the judge observed the conduct constituting the contempt. The order shall be signed by the judge and entered of record.
“ ‘(2) Mitigation. The court shall apprise the person of the specific conduct on which the finding is based and give that person a reasonable opportunity to present evidence or argument regarding excusing or mitigating circumstances. No decision concerning the punishment to be imposed shall be made during the course of the proceeding out of which the contempt arises, unless prompt punishment is imperative to achieve immediate vindication of the court’s dignity and authority.
“ ‘(3) Sentence. Unless it is pronounced immediately under subsections (1) and (2) above, sentence shall be pronounced in open court, in the presence of the contemnor, within seven (7) days after the completion of the proceeding out of which the contempt arose.
“ ‘(c) Disposition of Constructive Contempt Proceedings.
“‘(1) Initiation of Action. A proceeding based on constructive contempt, whether criminal or civil, shall be subject to the rules of civil procedure. The proceeding shall be initiated by the filing of a petition seeking a finding of contempt (the petition may be in the form of a counterclaim or cross-claim authorized under Rule 13[, Ala. R. Civ. P.]). The petition shall provide the alleged contemnor with notice of the essential facts constituting the alleged contemptuous conduct.
“ ‘(2) Issuance of Process and Notice. Upon the filing of a contempt petition, the clerk shall issue process in accordance with these rules, unless the petition is initiated by a counterclaim or cross-claim authorized under Rule 13. In any case, the person against whom the petition is directed shall be notified (1) of the time and place for the hearing on the petition and (2) that failure to appear at the hearing may result in the issuance of a writ of arrest pursuant to Rule 70A(d), to compel the presence of the alleged contemnor.
“‘(3) Right to Counsel. In actions involving criminal contempt, upon the request of the alleged con-temnor and proof of indigence, counsel shall be appointed to represent the alleged contemnor. This right to appointed counsel, once asserted, may be subsequently waived by the alleged contemnor in writing or on the record, after the court has ascertained that the alleged contem-nor knowingly, intelligently, and voluntarily desires to forgo the right to counsel. The court may, in its discretion, appoint advisory counsel to advise the alleged con-temnor.’ ”

Ex parte Sheffield, 120 So.3d at 1094.

The contemptuous conduct in this case was not committed in court and did not interrupt the proceedings; rather, the father’s conduct was “committed outside the presence of the court and [was] characterized by the act of disobeying the court’s orders.” State v. Thomas, 550 So.2d at 1072. See also Ex parte Sheffield, 120 So.3d at 1094 (discussing the differences between direct and constructive contempt under Rule 70A). Accordingly, the contempt finding at issue was one of constructive contempt. Id.; see also Dreading v. Dreading, 84 So.3d 935, 938 (Ala.Civ.App.2011). However, as in Ex parte Sheffield, “[t]here is no indication in the record that the contempt proceeding was initiated by the filing of a petition, that the trial-court clerk issued process for such a petition in accordance with the Rules of Civil Procedure, or that a hearing on such a petition was conducted.” 120 So.3d at 1096. The father was provided no notice that the issue of constructive contempt would be considered at the hearing. It is clear from the record that the procedures afforded under Rule 70A(c) to assert and support a claim of constructive contempt were not followed in this case.

We do not condone the father’s failure or refusal to comply with several court orders, particularly when those orders pertain to attempts to require the father to support his child. The juvenile court has the authority to hold a party in civil or criminal contempt for a failure to comply with court orders. See discussion of civil and criminal contempt, supra. Thus, the juvenile court, if it follows the procedures set forth in Rule 70A, has the authority to fine a party violating its orders, to order the party confined until he or she complies with court orders, or to punish a party for noncompliance. However, in this case, because the juvenile court failed to follow the procedures set forth under Rule 70A for finding a party in constructive contempt, we must reverse its March 8, 2013, order.

REVERSED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ„ concur.

      . Those forms were a CS-41 form, a CS-42 child-support guidelines form, a CS-43 child-support-guidelines notice-of-compliance form, and a CS-47 child-support information sheet.

      . Rule 33, Ala. R.Crim. P., previously governed contempt proceedings arising out of civil actions. See Gladden v. Gladden, 942 So.2d 362, 370 n. 2 (Ala.Civ.App.2005).

      . We also note that the juvenile court may protect the child's right to support from his parents that has been impeded by the delays in filing the appropriate child-support forms by ordering that child support be made retroactive.


author: PITTMAN, Judge. MOORE, Judge,

text:
    TRA TRANSPORTATION v. James PATTERSON.
    2120182.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2013.
    Michael I. Fish and Charley M. Drum-mond of Fish Nelson, LLC, Birmingham, for appellant.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Ex parte BE & K Constr. Co., 728 So.2d 621, 624 (Ala.1998); Shiver v. Butler Cnty. Bd. of Educ., 797 So.2d 1086, 1089 (Ala.Civ.App.2000); Speed v. Speed, 341 So.2d 156, 159 (Ala.Civ.App.1976); County of Wayne v. City of Detroit, 233 Mich.App. 275, 277, 590 N.W.2d 619, 620-21 (1998); People ex rel. MacMullan v. Babcock, 38 Mich.App. 336, 348 n. 4, 196 N.W.2d 489, 495 n. 4 (1972); and Mich. Ct. R. 2.209(A)(3).

THOMAS and DONALDSON, JJ., concur.

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

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

On November 30, 2007, James Patterson (“the employee”) received various personal injuries in an automobile accident arising out of and in the course of his employment with TRA Transportation (“the employer”). The accident occurred in Michigan, but the employer paid the employee workers’ compensation benefits under the Alabama Workers’ Compensation Act (“the Act”), § 25-5-1 et seq., Ala.Code 1975, eventually settling the claim with the approval of the Tallapoosa Circuit Court (“the trial court”) in June 2009 for a lump sum of $60,000, leaving open the employee’s right to future medical benefits. Before entering into the settlement, the employee filed a civil action in Michigan (“the third-party action”) against several third parties who were allegedly proximately responsible for the employee’s accidental injury, and he settled that case in 2010. Avizent, the administrator of the employer’s group self-insured fund, filed a motion to intervene in the third-party action for the purpose of enforcing the fund’s reimbursement, credit, and subrogation rights under § 25-5-11, Ala.Code 1975, a part of the Act. The Michigan court denied the motion to intervene, concluding that the employer’s insurer had no interest in the third-party settlement proceeds. The employer then filed in the trial court a “petition to reopen” the June 2009 settlement for the purpose of enforcing its reimbursement, credit, and subrogation rights under § 25-5-11 against the settlement proceeds of the third-party action. The trial court dismissed the petition based on the doctrine of res judicata. The employer now appeals from that judgment.

Ordinarily, under the doctrine of lex loci delecti, whether an employer, or its group self-insured fund, has an interest in the settlement proceeds of a third-party action depends on the law of the state in which the accident occurred. See Northeast Utils., Inc. v. Pittman Trucking Co., 595 So.2d 1351 (Ala.1992) (distribution of proceeds of third-party recovery was governed by Alabama law when employee accepted workers’ compensation benefits under Connecticut’s statute but injury occurred in Alabama). However, some authority supports the proposition that, if the parties validly agree that the law of a certain state will apply to all injuries received in the course of the employment, the law of the agreed-upon state controls the distribution of the proceeds of a third-party action. See Hile v. Liberty Mut. Ins. Co., 281 Ala. 388, 203 So.2d 110 (1967) (applying Wisconsin’s third-party credit statute to proceeds of third-party suit arising under Alabama law because parties had agreed that Wisconsin’s workers’ compensation laws would apply to all injuries received in course of employment).

In this case, when filing its motion to intervene, Avizent alleged that the employee had entered into a valid written agreement pursuant to which all injuries received in the course of his employment with the employer would be governed by the terms of the Act. Avizent further asserted that it claimed an interest in the third-party proceeds pursuant to § 25-5-11, not Michigan law. The employee evidently did not refute the allegation that he had agreed that Alabama law would apply to his work-related injuries, and the employee evidently did not contest the motion to intervene on the ground that Michigan, as opposed to Alabama, law controlled Av-izent’s rights to the third-party proceeds. The parties thus at least implicitly agreed that Alabama law would govern Avizent’s reimbursement, credit, and subrogation rights.

Section 25-5-ll(a) of the Act provides, in pertinent part, that, “[t]o the extent of the recovery of damages against the other party, the employer shall be entitled to reimbursement for the amount of compensation theretofore paid on account of injury or death.” By the plain terms of § 25-5-11, an employer, or its group self-insured fund, has a right to be reimbursed its compensation outlay from any recovery from a third party, however denominated. See 2 Terry A. Moore, Alabama Workers’ Compensation § 21:76 (West 1998) (discussing American Econ. Ins. Co. v. Thompson, 643 So.2d 1350 (Ala.1994) (holding that plaintiff in third-party action could not avoid employer’s reimbursement rights under § 25-5-11 by denominating payments as being solely to wife for loss of consortium)). Section 25-5-ll(a) further provides that an “employer shall be entitled to subrogation for medical and vocational benefits expended by the employer on behalf of the employee,” thereby giving an employer, or its group self-insured fund, who has paid for the medical care of an injured employee, the right to subrogation against that portion of a third-party recovery attributable to medical expenses. See Trott v. Brinks, Inc., 972 So.2d 81 (Ala.2007); and Ex parte BE & K Constr. Co., 728 So.2d 621 (Ala.1998).

In this case, the Michigan court apparently determined that Michigan law would not allow the employee to recover from the third parties damages for lost wages and medical bills. The Michigan court, therefore, ruled that any damages recovered by the employee from the third parties could not be subject to Avizent’s reimbursement or subrogation rights under § 25-5-11. In other words, the Michigan court decided that Avizent had no interest in the third-party proceeds that would support intervention under Rule 2.209(A)(3) of the Michigan Court Rules of 1985.

It appears that the Michigan court erred in at least one respect. Assuming Michigan law does not allow the recovery of lost wages and medical benefits, and that any recovery from the third parties could not be denominated as such, it remains that, under the Alabama law cited above, the employer, and its group self-insured fund, would be entitled to reimbursement for its compensation outlay, which allegedly totaled approximately $100,000.

Nevertheless, the trial court could not correct that error or attribute some part of the third-party proceeds to medical expenses for which the employer would have a right to subrogation. Once the Michigan court adjudicated Avizent’s rights under § 25-5-11, that judgment became res judi-cata as to Avizent and the employer. Under the doctrine of res judicata as set forth in Michigan appellate-court decisions, “ ‘a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.’ ” County of Wayne v. City of Detroit, 233 Mich.App. 275, 277, 590 N.W.2d 619, 620-21 (1998) (quoting Black’s Law Dictionary 1305 (6th ed. 1990)). The Michigan court clearly had jurisdiction to adjudicate Avizent’s interest in the proceeds of the third-party action. See Ex parte BE & K Constr. Co., 728 So.2d at 624 (recognizing that a trial judge overseeing a third-party action has jurisdiction to determine an employer’s interest in the proceeds of that action under § 25-5-11). The Michigan court also plainly, and finally, determined the merits of Aviz-ent’s claim when it denied its motion to intervene. The employer does not deny that it is in privity with Avizent. Consequently, the doctrine or res judicata barred the employer from raising the same claim, i.e., its claim for reimbursement and subrogation under § 25-5-11, before the trial court.

In Buco Building Constructors, Inc. v. Myrick, 863 So.2d 1130, 1134 (Ala.Civ.App.2003), a plurality of this court stated that

“where trial courts in which third-party claims have been brought make no determination concerning the proper allocation of settlement proceeds with respect to future medical expenses, or erroneously determine that no portion of a third-party recovery is allocable to such expenses, it devolves upon courts hearing employees’ workers’-compensation claims, in the first instance, to rectify such errors or omissions by ‘fairly apportion[ing]’ third-party recoveries so as to equitably determine what portions thereof are ‘attributable to medical (and vocational) expenses, both past and future.’ ”

(Quoting Ex parte BE & K Constr. Co., 728 So.2d at 624 (emphasis added).) However, the underlined portions of the above-quoted statement were obiter dictum. See Ex parte Williams, 838 So.2d 1028, 1031 (Ala.2002) (“[Ojbiter dictum is, by definition, not essential to the judgment of the court which states the dictum.”). In Buco Building, the circuit court was not asked to correct an error committed by the federal district court that presided over the injured employee’s third-party action. The facts as presented in the opinion indicate that the federal district court had never ruled on the employer’s rights under § 25-5-11 because no party had ever invoked its jurisdiction for that purpose. Rather, the circuit court was the initial court to address the employer’s claim that it could suspend its obligation to furnish medical care based on the injured employee’s third-party recovery of medical expenses. Thus, the foregoing statement in Buco Building has no precedential value. See State v. J.M.W., 936 So.2d 555, 559 n. 6 (Ala.Crim.App.2005) (noting that obiter dictum has no precedential value).

From my reading of our caselaw, including Buco Building, it is apparent that either a court presiding over a third-party action or a court presiding over a workers’ compensation claim may adjudicate an employer’s reimbursement, credit, and subro-gation rights under § 25-5-11. However, the law of judgments generally provides that, once one of those courts makes a final determination, and all the other elements of res judicata are present, the other court may not thereafter adjudicate the same claim. Nothing in the Act modifies that general law to allow circuit courts overseeing workers’ compensation claims to sit in the capacity of an appellate court to correct errors made by a separate trial court in a third-party action in its determinations as to an employer’s rights under § 25-5-11, as the dicta in Buco Building implies.

The court correctly decided in Buco Building that the circuit court that had approved the workers’ compensation settlement could adjudicate the employer’s rights under § 25-5-11, but only because the federal district court had not already adjudicated that claim. In this case, the trial court correctly determined that, because the Michigan court had already definitively decided the employer’s rights under § 25-5-11, the doctrine of res judicata precluded it from adjudicating the same claim. Therefore, I concur that its judgment is due to be affirmed.

      . When an employee covered by the Act receives injuries in another state due to the fault of a third party, under the doctrine of lex loci delecti, the law of that state controls his or her right of recovery against the third parties. See Fitzgerald v. Austin, 715 So.2d 795 (Ala.Civ.App.1997); and Powell v. Sappington, 495 So.2d 569 (Ala.1986).

      . Subsection (A)(3) provides, among other things, that a person has a right to intervene in an action upon timely application "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.”

      .The precedential value of the reasoning in a plurality opinion is questionable at best. See Ex parte Achenbach, 783 So.2d 4 (Ala.2000).

      . The employer complains on appeal that the employee did not timely raise the affirmative defense of res judicata under Rule 8(c), Ala. R. Civ. P. However, the employer did not argue that point to the trial court and thereby waived it for purposes of this appeal. See Shiver v. Butler Cnty. Bd. of Educ., 797 So.2d 1086, 1089 (Ala.Civ.App.2000).


text:
    MACON COUNTY and the Macon County Commission v. Brittany MURPHY Macon County and the Macon County Commission v. Willie L. Buchanna, Jr. Macon County and the Macon County Commission v. Willie Cole Macon County and the Macon County Commission v. Reginald Huffman Macon County and the Macon County Commission v. Michael Johnson Macon County and the Macon County Commission v. Jeffery McKinstry Macon County and the Macon County Commission v. Levi Moore Macon County and the Macon County Commission v. Edward Stinson Macon County and the Macon County Commission v. Erik Whitlow Macon County and the Macon County Commission v. Celeste Garrett.
    2120755, 2120756, 2120757, 2120758, 2120759, 2120760, 2120761, 2120762, 2120763, and 2120764.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2013.

      Fred D. Gray, Sr., of Gray, Langford, Sapp, McGowan, Gray & Nathanson, Tuskegee; and C. Winston Sheehan, Jr., and Emily C. Marks of Ball, Ball, Matthews & Novak, P.A., Montgomery, for appellants.
    Ted L. Mann of Mann & Potter, P.C., Birmingham, for appellees.
   MOORE, Judge.

Macon County (“the County”) and the Macon County Commission (“the Commission”) appeal from the denial of their joint motions to compel arbitration of the claims asserted against them by Brittany Murphy, Willie L. Buchanna, Jr., Willie Cole, Reginald Huffman, Michael Johnson, Jeffery McKinstry, Levi Moore, Edward Stin-son, Erik Whitlow, and Celeste Garrett (hereinafter referred to collectively as “the plaintiffs”). We reverse.

Background,

On January 14, 2010, the plaintiffs each sued American Family Life Assurance Company of Columbus (“AFLAC”), the County, and the Commission asserting claims of breach of contract; negligent, reckless, and intentional fraud; fraudulent deceit, pursuant to Ala.Code 1975, §§ 6-5-103 and -104; fraudulent suppression, pursuant to Ala.Code 1975, § 6-5-102; conversion; breach of fiduciary duty; bad faith; and common-law negligence and/or wantonness.

The plaintiffs alleged that, as of July 2007, they were employed by the County or the Commission; that, at various times, AFLAC had offered the employees of the County and the Commission a supplemental insurance policy; that the County and the Commission had agreed to deduct the insurance premiums due for the AFLAC insurance policies from its employees’ payroll checks; and that the County and the Commission had agreed to remit those premiums to AFLAC on behalf of the employees, including the plaintiffs. The plaintiffs further alleged that, beginning at varying times, the County and/or the Commission had deducted amounts for their insurance premiums from their paychecks but that, beginning in 2007, the County and/or the Commission had failed to remit all the deducted amounts to AFLAC. The plaintiffs also alleged that they discovered in 2009 that their insurance policies with AFLAC had lapsed due to nonpayment of premiums, prompting them to file their respective complaints.

On March 3, 2010, AFLAC moved to compel arbitration of the plaintiffs’ claims and to stay the trial-court proceedings or, alternatively, to dismiss those proceedings. AFLAC relied on the express language of an arbitration agreement, which each of the plaintiffs had executed along with his or her respective application for the AF-LAC policy. Those arbitration agreements state, in pertinent part:

“I agree that binding arbitration will be used to resolve the following claims, disputes or lawsuits:
“1. Any and all claims, disputes or lawsuits that I have concerning my AFLAC policy; and/or
“2. Any claims, disputes or lawsuits that I have concerning any relationships that my AFLAC insurance policy creates; and/or
“3. Any claims, disputes or lawsuits concerning the validity of this arbitration agreement; and/or
“4. Any and all claims, disputes or lawsuits that I have that come up from the proposed sale of the policy by any agent or employee of AFLAC, including any allegation of fraud or improper act.
“.... Both I and AFLAC agree and understand that all disputes arising under law, whether made by the courts or the legislature or any other law which includes but is not limited to all contract, tort and third-party disputes, will be decided by use of binding arbitration.”

In support of its motion, AFLAC submitted the affidavit of Virgil R. Miller, who was employed with AFLAC as vice president of client services. In his affidavit, Miller established that AFLAC is a corporation organized and existing under the laws of the State of Nebraska; that AF-LAC maintains its principal place of business in Georgia; that AFLAC engages in the sale of supplemental insurance policies in all 50 states in the United States; that claims on AFLAC policies are processed in Georgia; and that premiums paid by the plaintiffs were sent from Alabama to the corporate headquarters in Georgia.

On March 5, 2010, the County and the Commission also filed joint motions to compel arbitration of the plaintiffs’ claims against them. The County and the Commission relied on the arbitration agreement executed by the plaintiffs in conjunction with their insurance applications; the County and the Commission also relied on the other documentation submitted by AF-LAC in support of its motions to compel arbitration. The plaintiffs opposed the joint motions to compel arbitration filed by the County and the Commission.

On November 5, 2012, the trial court granted AFLAC’s motion to compel arbitration in each plaintiffs case, and, on December 26, 2012, the trial court denied the joint motion to compel arbitration filed by the County and the Commission in each case. The County and the Commission timely filed their notices of appeal.

Standard of Review

“ ‘This Court reviews de novo the denial of a motion to compel arbitration. Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000). A motion to compel arbitration is analogous to a motion for a summary judgment. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999). The party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction affecting interstate commerce. Id. “[A]fter a mo- . tion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question.” Jim Burke Automotive, Inc. v. Beavers, 674 So.2d 1260, 1265 n. 1 (Ala.1995) (opinion on application for rehearing).’ ”

Elizabeth Homes, L.L.C. v. Gantt, 882 So.2d 313, 315 (Ala.2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 280 (Ala.2000)).

Analysis

In Green Tree Financial Corp. of Alabama v. Vintson, 753 So.2d 497, 501-02 (Ala.1999), this Court stated:

“Section 2 of the Federal Arbitration Act (‘FAA’) provides that ‘[a] written provision in any ... contract evidencing a transaction involving [interstate] commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable.’ 9 U.S.C. § 2. Moreover, the Supreme Court of the United States has stated that the FAA establishes a strong federal policy favoring arbitration. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (the FAA ‘establishes that, as a matter of federal law, any doubts concerning the scope of arbi-trable issues should be resolved in favor of arbitration’). Accordingly, trial courts are required to stay or dismiss proceedings and to compel arbitration when the parties have entered into a valid contract containing an arbitration agreement, and a trial court’s denial of a motion to compel arbitration is subject to appeal. See, e.g., Patrick Home Center, Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999).”

As the parties seeking to compel arbitration, the County and the Commission bore the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidenced a transaction affecting interstate commerce. In granting AFLAC’s motions to compel arbitration of the plaintiffs’ claims, the trial court must have found that the insurance applications and policies at issue evidenced transactions in interstate commerce, as required by the FAA.

In seeking to compel arbitration of the claims asserted against them, the County and the Commission relied on the same evidence presented by AFLAC to establish that the applications for insurance and the resulting insurance policies bore the necessary nexus with interstate commerce. On appeal, the County and the Commission reassert that the necessary nexus with interstate commerce exists; the plaintiffs have not disputed that assertion. We, therefore, conclude that the County and the Commission met their burden of proof as to the interstate-commerce issue.

We next address whether the County and the Commission sufficiently established that the existence of a contract calling for arbitration of the claims asserted by the plaintiffs against them. The County and the Commission assert that the language of the arbitration agreements is broad enough to encompass the plaintiffs’ claims against them and to allow them to invoke the arbitration provision, even though the County and the Commission are not signatories to the arbitration agreements. In their appellees’ brief, the plaintiffs argue that the arbitration agreements are not broad enough to encompass their claims against the County and the Commission because they do not expressly refer to the County or the Commission and the language in the agreements is too narrow in scope to encompass any claims but those asserted against AFLAC.

We recognize that arbitration is a matter of contract and that, with certain limited exceptions, i.e., a third-party-beneficiary theory or a theory of equitable es-toppel or the intertwining of claims, the general rule is that a party may not be compelled to arbitrate a dispute unless he or she has agreed to do so. See Ex parte Cain, 838 So.2d 1020, 1026 (Ala.2002); and Ex parte Lovejoy, 790 So.2d 933, 937 (Ala.2000).

In Green Tree, supra, our supreme court stated:

“Whether an arbitration provision encompasses a party’s claims ‘is a matter of contract interpretation, which interpretation is guided by the intent of the parties, and which intent, absent ambiguity in the clause, is evidenced by the plain language of the clause.’ Allied-Bruce Terminix Cos. v. Dobson, 684 So.2d 102, 110 (Ala.1995).”

753 So.2d at 505. Thus, we review the language of the arbitration agreements and the allegations of the plaintiffs’ complaints to determine if their claims against the County and the Commission fall within the plain language of their arbitration agreements or if one of the limited exceptions to the general rule recognized by our supreme court applies.

In connection with their applications for an AFLAC insurance policy, the plaintiffs each executed an arbitration agreement requiring them to arbitrate the following:

“1. Any and all claims, disputes, or lawsuits that I have concerning my AFLAC policy; and/or
“2. Any claims, disputes or lawsuits that I have concerning any relationships that my AFLAC insurance policy creates; and/or
“3. Any claims, disputes or lawsuits concerning the validity of my arbitration agreement; and/or
“4. Any and all claims, disputes or lawsuits that I have that come up from the proposed sale of the policy by any agent or employee of AFLAC, including any allegation of fraud or improper act.
“.... Both I and AFLAC agree and understand that all disputes arising under law, whether made by the courts or the legislature or any other law which includes but is not limited to all contract, tort and third party disputes, will be decided by the use of binding arbitration.”

In their complaints, the plaintiffs alleged that they “purchased said insurance products from the Defendant AFLAC by and through its agents and servants, the County and the Commission, [and that] the [plaintiffs were] told that the premiums for said coverage would be payroll deducted from the [plaintiffs’] paycheck[s] and remitted by the County and the Commission to Defendant AFLAC.” The plaintiffs alleged that the County and the Commission were liable because they had breached their agreement or otherwise acted wrongfully or fraudulently “while acting as agents, servants, employees and/or representatives of Defendant AFLAC ... for the collection and remission of insurance premiums.”

The case of ECS, Inc. v. Goff Group, Inc., 880 So.2d 1140 (Ala.2003), addresses issues substantially similar to the issues presented in these consolidated appeals. In ECS, Inc., Goff Group, Inc., sued ECS, Inc., and related parties (hereinafter referred to collectively as “ECS”), alleging fraud, tortious interference with a contractual/business relationship, the tort of outrage, conspiracy, unfair competition, violation of trade secrets, conversion, and “tortious training and supervision.” Id. at 1143. Goffs claims were based on a business arrangement involving Goff, ECS, and certain insurance companies. Goff and the insurance companies were parties to a contractual agreement, which included an arbitration provision. Id. at 1143. Although ECS was involved in the business arrangement — Goff forwarded collected premiums to ECS which then forwarded a certain portion of those premiums to the insurance companies — ECS was not a party to the contract or to the arbitration agreement. Id.

ECS moved to compel arbitration of Goffs claims, and the trial court denied that motion. Id. at 1145. On appeal, our supreme court concluded that ECS was entitled to invoke the arbitration agreement, despite its status as a nonsignatory, because the language of the arbitration agreement was not so restrictive as to preclude arbitration of the claims asserted against ECS by Goff, Goffs claims against ECS arose out of the business contract between Goff and the insurance companies, Goffs claims against ECS were intertwined with its claims against the' other signatories to the arbitration agreement, and Goffs claims against the other signatories would be resolved in arbitration and, as a result, Goffs claims against ECS must also be resolved in arbitration. Id. at 1146-48.

As in ECS, Inc., the language of the arbitration agreements at issue in these cases is not so restrictive as to preclude arbitration of the plaintiffs’ claims against the County and the Commission. A summary review of the complaints reveal that the claims asserted by the plaintiffs against the County and the Commission concern the AFLAC insurance applications and policies, clearly relate to relationships created by the AFLAC policies, and clearly relate to the proposed sale of policies by an alleged AFLAC agent and include allegations of fraud and improper actions; the plaintiffs’ claims against the County and the Commission also could be characterized as third-party disputes arising from the sale of AFLAC insurance policies. Thus, the language of the arbitration agreements is not so restrictive as to preclude arbitration of the claims asserted against the County and the Commission, even though the County and the Commission are not signatories to those agreements.

Also similar to the factual scenario in ECS, Inc., supra, the claims asserted against the County and the Commission arise out of the plaintiffs’ underlying contracts with the signatory to the arbitration agreements, i.e., the plaintiffs’ claims against the County and the Commission arise out of the plaintiffs’ applications for insurance with AFLAC and the resulting insurance policies issued by AFLAC. Moreover, the plaintiffs’ claims against the County and the Commission are intertwined with their claims against AFLAC because those claims allege that the County and the Commission were, at all relevant times, acting as AFLAC’s agents. We fail to see how the plaintiffs’ claims against the County and the Commission can be resolved without reference to the plaintiffs’ applications for insurance with AFLAC, the policies issued by AFLAC to the plaintiffs, and the role played by the County and the Commission in obtaining and maintaining those policies.

We agree with the County and the Commission that the language of the arbitration agreements is not ambiguous and that it is broad enough to encompass the plaintiffs’ claims asserted against them. Because the plaintiffs’ claims against AFLAC will be resolved in arbitration and because those claims are intertwined with the plaintiffs’ claims against the County and the Commission, the plaintiffs must also resolve their claims against the County and the Commission in arbitration. We, therefore, reverse the trial court’s denial of the motions to compel arbitration filed by the County and the Commission. We remand the causes for entry of an order consistent with this opinion.

2120755 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120756 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120757 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120758 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120759 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120760 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120761 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120762 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120763 — REVERSED AND REMANDED WITH INSTRUCTIONS.

2120764 — REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, THOMAS, and DONALDSON, JJ., concur.

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

      . All of the cases have been consolidated for purposes of appeal.


text:
    R.Z. v. S.W.
    2120327.
    Court of Civil Appeals of Alabama.
    Sept. 20, 2013.

      Robert Troy Teague, Montgomery, for appellant.
   MOORE, Judge.

R.Z. (“the father”) appeals from a judgment of the Montgomery Circuit Court (“the circuit court”) to the extent that it declined to consolidate this case with a pending juvenile case, made a determination regarding the pending juvenile case, and awarded custody of C.W. to S.W. (“the mother”).

Procedural History

The parties were never married and have two children together, T.W. and C.W. The father was awarded custody of T.W. in 2002. On July 8, 2011, the father filed, in case number CS-02-237.02, a petition to modify the mother’s child-support obligation for T.W. The father also objected to a hearing before a referee and requested that the case be heard before a circuit judge. The father further alleged that a custody case concerning C.W. was pending in the juvenile court, case number JU-11-541.01, and requested that the cases be heard together. On October 27, 2011, the circuit court entered an order denying the father’s request to consolidate case number CS-02-237.02 with case number JU-11-541.01. On January 23, 2012, the circuit court entered an order “clos[ing] out” case number CS-02-237.02 “due to lack of jurisdiction of the Child Support Division” and consolidating that action with another action, which had been assigned case number DR-11-708.

On January 30, 2012, the mother filed in case numbers DR-11-708 and CS-02-237.02 a counterpetition for determinations as to paternity, custody, and support with regard to C.W. and a counterpetition for a modification of custody with regard to T.W.

On May 30, 2012, a trial was held, and, on December 12, 2012, the circuit court entered a judgment adjudicating the father to be the father of C.W., awarding the parties joint legal custody of C.W., awarding the mother sole physical custody of C.W., stating that the father’s petition in case number JU-11-541.01 was moot, denying the mother’s petition to modify custody of T.W., awarding the parties specific visitation, and ordering the father to pay child support.

On January 18, 2013, the father filed his notice of appeal to this court.

Discussion

On appeal, the father argues that the circuit court erred by declining to consolidate this case with case number JU-11-541.01, by making a determination regarding case number JU-11-541.01, and by awarding custody of C.W. to the mother.

I.

With regard to the father’s arguments concerning this case’s relationship to case number JU-11-541.01, we note that the father initially filed his petition to modify child support in case number CS-02-237.02. That case was considered to be a juvenile matter. See, e.g., R.P.M. v. P.D.A., 112 So.3d 49, 51 (Ala.Civ.App.2012) (quoting C.W.S. v. C.M.P., 99 So.3d 864, 866 n. 1 (Ala.Civ.App.2012)) (“ ‘[A] case designated with a “CS” case number is considered a juvenile-court action, whether it is filed in a juvenile court or in a circuit court.’ ”). At the time the father filed his petition, July 8, 2011, the state of the law was that juvenile courts did not retain jurisdiction over a child to modify custody or support unless that child had previously been found dependent. See, e.g., Ex parte T.C., 63 So.3d 627, 630 (Ala.Civ.App.2010) (“ ‘[A] juvenile court’s retained jurisdiction [is limited] to cases in which “a child has been adjudicated dependent, delin[q]uent, or in need of supervision.” ’ ”) (quoting W.B.G.M. v. P.S.T., 999 So.2d 971, 975 (Ala.Civ.App.2008) (Pittman, J., concurring specially), quoting in turn Ala.Code 1975, § 12-15-117(a)). There is no indication that the initial child-custody and support order was entered in the context of a dependency proceeding. Thus, the juvenile court did not acquire jurisdiction over the father’s petition to modify, and the case was properly transferred to the circuit court. Therefore, case number JU-11-000541.01, a juvenile matter, which the father indicates in his brief was filed as a dependency case, could not be consolidated with case number DR-11-708. We agree with the father, though, that the circuit court lacked jurisdiction to make any order with regard to case number JU-11-541.01. Thus, we reverse the circuit court’s judgment to the extent that it adjudicated the father’s petition filed in case number JU-11-541.01. See, e.g., T.B. v. T.H., 30 So.3d 429, 433 (Ala.Civ.App.2009) (“Although cloaked with the authority to act as a circuit-court judge, that authority did not enable the judge to enlarge the jurisdiction of the juvenile court and rule on matters outside that court’s jurisdiction.”).

II.

The father next argues that the circuit court erred in awarding sole physical custody of C.W. to the mother.

“When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the ‘best interest of the child’ standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala.Civ.App.2000); see also Ex parte Byars, 794 So.2d 345 (Ala.2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the “‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.” ’ Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)).... Other factors the trial court may consider in making a custody determination include ‘the sex and age of the [children], as well as each parent’s ability to provide for the [children’s] educational, emotional, material, moral, and social needs.’ Tims v. Tims, 519 So.2d 558, 559 (Ala.Civ.App.1987). The overall focus of the trial court’s decision is the best interests and welfare of the children.”

Steed v. Steed, 877 So.2d 602, 604 (Ala.Civ.App.2003).

In the present case, the evidence indicated that C.W. was eight years old and had lived with the mother for the three years preceding the trial. Before that, C.W. had lived with the mother and the father in the same home. There was evidence indicating that the mother had allowed C.W. to play outside in the mobile-home park with a group of children with no adults present, that a group of children C.W. was a part of had broken some of the neighbors’ vehicle windows, that C.W. slept in the bed with the mother, and that the mother and her six children lived in a mobile home with only three bedrooms. The mother testified, however, that she had rented that mobile home in a rush after the father had kicked her and her children out of the home they had been living in and that she planned to obtain a larger home when her lease expired the month following the trial. There was also evidence indicating that C.W. had gotten suspended from riding the school bus for one day. The mother testified that that had been the result of C.W.’s playing at the bus stop with a toy gun that the father had purchased for him.

The father testified that C.W. and other children have come to his house and asked for food and that he had enrolled C.W. and the mother’s other children in the YMCA. The father also testified that C.W. would have his own room at his house. He testified that his shift changes at work and that his shift at the time of the trial required him to leave for work at 5:15 p.m. and get home at 5 a.m. He testified that T.W. stays with a relative on the nights he is working. The mother, on the other hand, leaves for work at 5:35 a.m. and gets home around 3:15 p.m. The mother’s 18-year-old son, D.W., testified that he and the mother’s other children walk to the bus stop together. He testified that his bus comes before C.W.’s bus arrives and that C.W. waits with the other children for his bus. D.W. testified that there is food in the mother’s home and that the mother takes good care of the children. The mother testified that she allows C.W. to visit the father when he asks to do so but that C.W. rarely spends the night there. She testified that the father has prevented her from visiting with T.W. Several of the members of the mother’s church testified that the mother and her children are involved in church, that the mother is a good parent, and that C.W. is well-behaved.

Based on the foregoing, the circuit court could have concluded that, although C.W. had had some isolated discipline issues, it was in his best interest to continue living with the mother, with whom he had lived his entire life. There was more than sufficient evidence indicating that the mother was a good parent to C.W. Considering all the applicable factors, we cannot conclude that the circuit exceeded its discretion in awarding the mother custody of C.W., and we therefore affirm the juvenile court’s judgment to the extent that it awarded the mother custody of C.W.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . Effective May 14, 2012, juvenile courts retain jurisdiction in "[proceedings to establish, modify, or enforce support, visitation, or custody when a juvenile court previously has established parentage.” Ala.Code 1975, § 12-15-115(7).


author: BURKE, Judge.

text:
    Harold FROST v. STATE of Alabama.
    CR-11-1216.
    Court of Criminal Appeals of Alabama.
    Nov. 2, 2012.

      Patricia Anne Gill, Birmingham, for appellant.
    Luther Strange, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   BURKE, Judge.

Harold Frost pleaded guilty to two counts of sexual abuse of a child less than 12 years old, see § 13A-6-69.1, Ala.Code 1975. Frost was sentenced to 20 years’ imprisonment on each charge; the sentences were to run concurrently. Frost was ordered to pay $50 to the Alabama Victims Compensation Commission, and to register as a sex offender and comply with all sex-offender registration and notification laws upon his release. He was also ordered to submit to a DNA sample and was permanently restrained and enjoined from having direct or indirect contact with the victims. Frost subsequently filed a motion to withdraw his guilty pleas; that motion was denied by the circuit court. This appeal follows.

On November 19, 2007, Frost was indicted by the Coffee County grand jury in Case No. CC-07-209.80 for first-degree sodomy. Frost was also indicted in Case No. CC-07-210.80 for one count of sexual abuse of a child less than 12 years old, and in Case No. CC-07-212.80 for one count of sexual abuse of a child less than 12 years old.

On March 8, 2012, after the jury was empaneled, Frost entered into a plea agreement with the State, in which Frost agreed to enter a guilty plea to the two counts of sexual abuse of a child less than 12 years old, in Case No. CC-07-210.80 and Case No. CC-07-212.80, in exchange for the State’s agreement to nol-pros the charge of first-degree sodomy in Case No. CC-07-209.80.

On April 5, 2012, Frost filed a motion to withdraw his guilty pleas. As best we can determine, Frost’s motion requested that he be allowed to withdraw his pleas on the following grounds: 1) the assistant district attorney had been allowed to “stack” the jury with mostly women, which was an unfair disadvantage to him because the victims of sexual abuse are predominantly women; 2) that the rape case against him, which was nol-prossed as part of the plea agreement, was a result of police conspiracy and, during the initial investigation, the police had violated his rights by improperly detaining him and his personal property separately, which led him to make an involuntary incriminating statement out of fear and because he was threatened by the investigators; and 3) that his primary witnesses were not subpoenaed for trial until the Thursday before his trial was scheduled to begin on the following Monday, and that he could not have a fair trial without his witnesses.

On April 12, 2012, the circuit court summarily denied Frost’s motion to withdraw his guilty pleas, stating that the court had conducted a colloquy and had determined that Frost knowingly, voluntarily, and intelligently entered his pleas after consulting with his attorney. The court also noted that Frost had waived any right to appeal, his right to a jury trial, his right against self incrimination, and his right to confront witnesses against him.

On appeal, Frost raised four issues in his original brief. In his reply brief, Frost argues that the recent decision of the Alabama Supreme Court in Ex parte Pritchett, 117 So.3d 356 (Ala.2012), requires that, if a defendant files a pro se motion to withdraw before his attorney of record withdraws as his counsel, the circuit court must hold a hearing on the motion to withdraw the guilty plea. He submits that at the hearing, the defendant must be represented by counsel or the trial court must determine that the defendant has knowingly, intelligently, and voluntarily waived his right to counsel and wishes to proceed pro se.

In Ex parte Pritchett, the Alabama Supreme Court noted that a motion to withdraw a guilty plea is a critical stage of a trial that requires that a defendant be represented by counsel or that he validly waive that right. The Court further determined that, although Pritchett was represented by an attorney of record when he filed his pro se motion, the representation could not be presumed because “it was clear that the motion was prepared and relief was sought by Pritchett without the involvement of that counsel.” 117 So.3d at 358. In this case, as in Ex parte Pritchett, the motion to withdraw was handwritten. Although unlike Pritchett, Frost did not allege ineffectiveness of counsel in his motion to withdraw, he did allege ineffectiveness on appeal. Moreover, as the Supreme Court stated, quoting Berry v. State, 630 So.2d 127, 129-30 (Ala.Crim.App.1993), in relevant part:

“‘The right to counsel does not depend upon a request by the accused. Brewer v. Williams, 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed.2d 424 (1977); Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). “[I]f an accused does not waive counsel and does not retain acceptable counsel, the court must appoint counsel.” United States v. Turnbull, 888 F.2d 636, 638 (9th Cir.1989), cert. denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990). If a defendant in a criminal proceeding is not represented by counsel, the state must prove an intentional relinquishment of that right. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). If an accused waives his right to counsel, that waiver must be intelligently and understanding^ made and cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
“ ‘ “But it is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request. ...
“ . Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”
‘Id. at 513-16, 82 S.Ct. at 889-90.
“ ‘In reviewing the record in the instant case, we conclude that the hearing, insofar as the appellant’s motion to withdraw his guilty plea was reviewed, was a critical stage in the judicial proceedings that required that he have the assistance of counsel during that proceeding or that he have validly waived such assistance. The record shows and we find that he did not have the assistance of counsel, and no waiver is reflected on the record before us. Because we conclude that the hearing was a critical stage of the proceeding, involving the appellant’s substantial rights, the trial court was required to advise the appellant of his right to counsel and to ensure that counsel was provided or to ascertain if the right to counsel had been waived. On the record before us, we conclude that the trial court did neither.’ ”

117 So.3d at 359.

Although Frost failed to raise the claim that he was not properly represented by counsel or shown to have waived that right in his original brief to this Court on appeal, because this matter affects a trial court’s authority to convict an accused and has been held to constitute a jurisdictional matter, we reach this matter on appeal. In Thomas v. State, 8 So.3d 1018 (Ala.Crim.App.2008), this Court stated:

“Thomas contends that he did not knowingly, intelligently and voluntarily waive his right to counsel, and that the trial court should not have let him represent himself without first warning him of the dangers of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In response, the State contends that Thomas did not preserve the issue for appellate review.
“The State’s position is without merit. Deprivation of the right to counsel is a jurisdictional bar to a valid prosecution and, thus, it can be raised at any time. See Woodruff v. City of Pelham, 1 So.3d 157, 159 (Ala.Crim.App.2008) (and cases cited therein).
“In Baker v. State, 933 So.2d 406, 408-09 (Ala.Crim.App.2005), this Court discussed the jurisdictional prerequisite as it relates to the issue of right to counsel as follows:
“ ‘ “A defendant’s decision to represent himself necessarily involves the waiver of his right to counsel. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1064 (1986). In Pratt v. State, 851 So.2d 142, 144-45 (Ala.Crim.App.2002), this Court pointed out:
“ ““ “The constitutional ‘right to counsel, or waiver thereof, is an essential jurisdictional prerequisite to the authority to convict an accused[, and c]onviction without this safeguard is void.’ People v. Carroll, 140 Cal.App.3d 135, 140, 189 Cal.Rptr. 327, 331 (Cal.App. 2 Dist.), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93 (1983) (citing Johnson v. Zerbst [, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ]). Unless a defendant has or waives assistance of counsel, the Sixth Amendment is a jurisdictional bar to a valid conviction and sentence. Johnson v. Zerbst; Stokes v. Singletary, 952 F.2d 1567 (11th Cir.1992); Boruff v. United States, 310 F.2d 918 (5th Cir.1962). See also Lancaster v. State, [638 So.2d 1370, 1373] (Ala.Crim.App.1993) (‘the appellant’s ... right to have counsel appointed on appeal [is a] jurisdictional matter[]’); Lake v. City of Birmingham, 390 So.2d 36, 38 (Ala.Crim.App.1980) (a record failing to reveal any of the circumstances surrounding the appellant’s self-representation ‘will not support the trial court’s judgment wherein the appellant was sentenced to a loss of liberty’)”
" '" ' Berry v. State, 630 So.2d 127, 130 (Ala.Crim.App.1993) (footnote omitted). See also Custis v. United States, 511 U.S. 485, 494, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (‘“If the accused ... is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.... The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus.’ ”) (quoting Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)); Weakley v. State, 721 So.2d 235, 236 (Ala.1998) (holding that the right to counsel at arraignment is a jurisdictional matter).’
“ ‘ “Thus it is the lack of counsel, coupled with the absence of a knowing and intelligent waiver thereof, that acts to deny the defendant counsel and to jurisdictionally bar his prosecution.” ’ ”

8 So.3d at 1019. See also Powers v. State, 38 So.3d 764 (Ala.Crim.App.2009); Presley v. City of Attalla, 88 So.3d 930 (Ala.Crim.App.2011).

Therefore, pursuant to Ex parte Pritch-ett, the order of the trial court denying Frost’s motion to withdraw his guilty pleas is reversed, and this case is remanded for a hearing on his motion at which Frost is represented by counsel or at which the trial court determines that Frost has knowingly, intelligently, and voluntarily waived his right to counsel. Due return shall be made to this court within 35 days of the issuance of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . ”[I]ssues raised for the first time in a reply brief are not properly subject to appellate review.” Ex parte Powell, 796 So.2d 434, 435 (Ala.2001).


author: PER CURIAM. WELCH, Judge,

text:
    James Albert RAGLAND v. STATE of Alabama.
    CR-12-0207.
    Court of Criminal Appeals of Alabama.
    Feb. 15, 2013.
    Rehearing Denied Sept. 27, 2013.
    James Albert Ragland, pro se.
    Luther Strange, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

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

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

James Albert Ragland appealed from the circuit court’s denial of his Rule 32, Ala. R.Crim. P., petition.

The petition sought postconviction relief from two twenty-year split sentences. The sentences were split pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975; the trial court ordered that Ragland be confined for five and three years consecutively as the confinement portions of his two split sentences. Ragland asserted that it was illegal to impose consecutive sentences because that resulted in eight years’ confinement, which, according to Ragland, is not authorized by the Split Sentence Act, § 15 — 18—8(a)(1), Ala.Code 1975, because, Ragland argues, the Split Sentence Act limits the incarceration portion of a twenty-year split sentence to five years of confinement. Therefore, Ragland claimed that he should serve the incarceration portion of his two sentences concurrently. The trial court denied relief, and Ragland appealed.

The majority, relying on Brand v. State, 93 So.3d 985 (Ala.Crim.App.2011), affirmed the circuit court’s denial of Ragland’s petition for relief. For the reasons set forth in my dissent in Brand v. State, 93 So.3d 985 (Ala.Crim.App.2011), I must respectfully dissent.