author: STUART, Justice.

text:
    ALFA MUTUAL INSURANCE COMPANY and William Koch v. Corey CULVERHOUSE.
    1121127.
    Supreme Court of Alabama.
    Feb. 14, 2014.
    William L. Lee IV and William W. Nichols of Lee, Livingston, Lee & Nichols,P.C., Dothan, for appellants.
    Jason R. Eubanks, Slocumb, for appel-lee.
   STUART, Justice.

Alfa Mutual Insurance Company (“Alfa”) and William Koch (hereinafter referred to collectively as “the Alfa defendants”) appeal an order of the Geneva Circuit Court granting in part Corey Cul-verhouse’s motion to vacate the summary judgment entered in favor of the Alfa defendants in Culverhouse’s action asserting that Alfa had wrongfully refused to pay him benefits he was entitled to under a homeowner’s insurance policy. We affirm.

I.

In late 2005 or early 2006, Culverhouse, a self-employed general contractor, began constructing a house for himself on a five-acre lot in Hartford. Culverhouse initially financed the construction of the house himself; however, he eventually sought financing from a mortgage company, and, at that same time, he obtained from Alfa a policy insuring the house during the remainder of the construction process and after construction was completed. Culverhouse does not remember many of the details surrounding his purchase of the policy, but it appears that Koch was the agent responsible for selling Culverhouse the policy. Culverhouse acknowledges receiving a copy of the policy after he purchased it, and it appears that he subsequently renewed the policy after moving into the house when construction was finished sometime in 2007 or 2008. For the one-year period beginning June 19, 2009, the policy offered a total of $975,700 in coverage — $464,600 for the structure, $325,200 for the personal property contained in the house, $46,500 for other structures on the property, and $139,400 for loss of use.

On July 3, 2009, a minor fire damaged the kitchen of the house. Culverhouse submitted a claim to Alfa, which paid for a remediation company to clean and repair the smoke damage caused by the fire. During this process, Culverhouse moved out of the house and into a barn on his property. After about two weeks of living in the barn, Culverhouse moved into a house he was constructing for eventual sale across the road from his house.

In the early morning of July 30, 2009, Culverhouse was awakened by his father, who had been alerted by a newspaper-delivery person and had driven to Culver-house’s house, and told that his house across the road was again on fire. This time, however, the fire could not be extinguished, and the house, its contents, and, according to the parties, the adjacent swimming pool were completely destroyed. Culverhouse promptly informed Alfa of the fire, and Alfa thereafter began an investigation into the cause. Ultimately, however, the investigator retained by Alfa was unable to establish how the fire began; its cause remains unknown.

On September 21, 2009, Culverhouse submitted a proof of loss to Alfa, claiming a total loss of $934,450 related to the fire. Alfa, however, immediately questioned the claim because Culverhouse had not submitted with his claim an inventory of the contents of the house and supporting documentation, and he had not submitted any evidence supporting the large claim he had submitted for loss of use in the two-month period since the fire or evidence indicating that any other structure besides the house and swimming pool had been destroyed. Moreover, using its standard procedures, Alfa had determined that the replacement value of Culverhouse’s house was $432,-268 — a sum within the $464,600 of coverage Culverhouse had on the house itself— and Culverhouse had submitted no contradictory estimates.

Culverhouse, through his attorney, sent Alfa itemized lists of the alleged contents of the house at the time of the fire; however, deeming those lists to be insufficiently specific and lacking in supporting documentation, Alfa, on November 6, 2009, notified Culverhouse that it was invoking its right under the policy to examine him under oath regarding his claim. On January 18, 2010, Culverhouse sat for the examination. During the course of the examination, Culverhouse admitted that some of the information he had submitted to Alfa was inaccurate, and he essentially acknowledged that he had just invented some values and guessed at others after becoming “frustrated and aggravated” with the claim process. Eventually Cul-verhouse refused to answer any more questions and left the examination.

On February 2, 2010, Culverhouse returned to finish the examination. Again, Culverhouse acknowledged that the list of contents he had submitted was inaccurate, and he was further unable to explain how he had arrived at the values he placed on many of the items on the list. Following the conclusion of that examination, Culver-house submitted additional itemized lists supporting his claim for contents of the house that were lost in the fire. As an example of contents included, that documentation included a claim that he had lost over 400 pairs of underwear and over 150 undershirts in the fire. Alfa was still not satisfied with the submitted information, deeming it to lack sufficient specificity and support documentation.

On March 24, 2010, Culverhouse submitted an estimate from his chosen builder stating that it would cost $464,154 to rebuild the house, and, on March 26, 2010, Culverhouse by letter requested that Alfa release the insurance proceeds he was due; Alfa responded by offering to settle Cul-verhouse’s claim for $458,750. On April 2, 2010, Culverhouse rejected Alfa’s offer, stating that it was “unacceptable and in bad faith” and demanding that Alfa pay the limits of the policy ($975,700). On April 12, 2010, Culverhouse reiterated his demand that Alfa pay the policy limits. On April 16, 2010, Alfa advised Culver-house that it would not meet his request to pay the policy limits because his “demand for policy limits [did] not make sense as there [were] various coverage[s] under the policy that [were] not applicable.” Alfa further offered to settle Culverhouse’s claim by paying $464,600 to rebuild the house and an additional $100,000 to settle all other claims.

Culverhouse thereafter advised Alfa that he would submit a response to its offer; however, on July 8, 2010, Culverhouse instead filed the instant action, alleging that Alfa had willfully refused to pay him the insurance proceeds he was due under the policy and asserting claims of breach of contract, negligence, the tort of outrage, fraud, and bad-faith failure to pay an insurance claim. Culverhouse claimed $975,700 in compensatory damages and $2,000,000 in punitive damages, plus an additional sum for attorney fees and costs. The Alfa defendants thereafter filed an answer denying Culverhouse’s claims and moving to dismiss the complaint. That motion to dismiss was granted in part, and the breach-of-contract claim against Koch was dismissed along with the entire negligence claim.

At a subsequent deposition, Culverhouse acknowledged that he had given Alfa false information in the past regarding his claim, explaining that he had been upset and had wanted to “throw the book” at Alfa, but he estimated at that time that approximately $200,000 in personal property was destroyed in the fire, plus or minus $50,000. He also testified that he had moved into another house he owned after the fire and that his only loss-of-use costs associated with that move were $500 to purchase blinds for the house into which he had moved. With regard to the “other structures” coverage of his policy, it is also undisputed that Culverhouse had only a swimming pool, and he submitted an estimate of $22,000 to rebuild that pool. Regardless of these facts, Culverhouse claimed at his deposition that he was entitled to the entire policy limits — $975,700— because he had paid his premiums.

On November 6, 2012, the Alfa defendants filed a counterclaim seeking a judgment declaring that Culverhouse had voided his insurance by making misrepresentations during both the application process and the claims process. On November 20, 2012, the Alfa defendants moved for a summary judgment on all of Culverhouse’s remaining claims, and Cul-verhouse thereafter filed a response moving to dismiss the counterclaim and opposing the summary-judgment motion. After various delays, a hearing on the summary-judgment motion was held on March 27, 2013, and on April 2, 2013, the trial court entered an order granting the' Alfa defendants’ motion and dismissing each of Culverhouse’s claims; the trial court also dismissed the Alfa defendants’ counterclaim as moot.

Culverhouse thereafter retained a new attorney and, on May 2, 2013, moved the trial court to alter, amend, or vacate its April 2, 2013, judgment pursuant to Rule 59(e), Ala. R. Civ. P. That motion raised some arguments that Culverhouse acknowledged he had not articulated clearly in his previous response to the Alfa defendants’ motion for a summary judgment, and, on that basis, the Alfa defendants moved to strike Culverhouse’s motion, while also filing a response opposing it on its merits. On May 30, 2013, the trial court granted Culverhouse’s motion in part and amended its April 2, 2013, summary-judgment order so as to exclude Culver-house’s breach-of-contract claim from the judgment, leaving it as the only remaining claim in the case. The Alfa defendants thereafter moved the trial court to certify its judgment for an immediate appeal pursuant to Rule 5, Ala. R.App. P., and, on June 13, 2013, the trial court granted that request. On June 27, 2013, the Alfa defendants petitioned this court for permission to appeal, and, on July 31, 2013, we granted that request.

II.

The Alfa defendants’ argument on appeal does not relate to the merits of Cul-verhouse’s breach-of-contract claim. Rather, it concerns only whether the trial court acted properly by amending its summary-judgment order to resurrect that claim in response to Culverhouse’s motion to alter, amend, or vacate the judgment pursuant to Rule 59(e). We have stated that “ ‘[wjhether to grant relief under Rule 59(e), Ala. R. Civ. P., is within the trial court’s discretion.’ ” Schramm v. Spottswood, 109 So.3d 154, 160 (Ala.2012) (quoting Bradley v. Town of Argo, 2 So.3d 819, 823 (Ala.2008)).

III.

The trial court identified and explained the issue of law before this Court as follows in its order granting Culverhouse’s Rule 59(e) motion:

“Motions to reconsider serve a limited purpose: ‘to correct manifest errors of law or fact or to present newly discovered evidence.’ Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985). Examples of manifest errors of law or fact include when ‘the court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the court by the parties, or has made an error not of reasoning but of apprehension.’ Quaker Alloy Casting Co. v. Gulfco Industries, Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). Reconsideration motions may also be entertained when ‘a controlling or significant change in the law or facts since the submission of the issue to the court’ has occurred. Id. Motions to reconsider are inappropriate for introducing evidence previously available or for tendering new legal theories. Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir.1986) (‘Although the defendants attempted to raise the argument in their motion for reconsideration, a motion for reconsideration is an improper vehicle to introduce evidence previously available or to tender new legal issues.’). See also Hashwani v. Barbar, 822 F.2d 1038, 1041 (11th Cir.1987) (holding that a district court did not abuse its discretion by not considering arguments raised for the first time on a motion to amend a summary judgment order); American Home Assurance Co. v. Glenn Estess & Assocs., Inc., 768 F.2d 1237, 1239 (11th Cir.1985).
“[Culverhouse] cites the most recent [Court of] Civil Appeals case of Williams v. Valley View Health & Rehab., 64 So.3d 638, 641 (Ala.Civ.App.2010), for [his] argument that the court is within its discretion to consider any new legal arguments in [his] post-judgment motion. The [Alfa] defendants] argue[ ] that the trial court’s discretion to hear new .arguments in a postjudgment motion is limited to cases where the party articulated a justification for failing to timely raise the argument. [The Alfa] [d]efendant[s] allege[ ] this is a ‘procedural attempt to take a second bite at the apple.’ [Culverhouse] relies on the Williams case that does not go into the justification. In the Williams case the Court of Civil Appeals cited two Supreme Court decisions that do state there is to be a justification: Espinoza v. Rudolph, 46 So.3d 403, 416 (Ala.2010), and Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988). In 2010, the Espinoza decision was made in March by the Supreme Court before the September decision of Williams by the Court of Civil Appeals. In December 2010, the Supreme Court denied certiorari in the Williams case. The procedural issue is whether justification is required. The court specifically asked this question in oral argument to [Culverhouse’s] counsel, whose response was that justification was not required. At no time in briefs or argument did [Culverhouse] offer a justification to the court. Since the Supreme Court declined to clarify this matter in December 2010, the Court believes at this time that justification is not an absolute requirement. Therefore, whether to allow new argument is in the discretion of the court and this court chooses in the interest of justice to allow [Culverhouse’s] new argument.”

Subsequently, in certifying its judgment for an immediate appeal, the trial court summarized the controlling question of law as follows:

“The controlling question of law is whether the trial court erred by granting a motion to alter, amend or vacate a summary judgment order based on new legal arguments not raised during the pendency of the summary judgment where the movant failed to offer any justification for his fáilure to previously make those arguments.”

We note that the issue before us — under what circumstances a trial court may consider an argument made for the first time in a postjudgment motion — was first considered by this Court in Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366 (Ala.1988). We stated then:

“The question of whether a new legal argument in a post-judgment motion is timely, is a question of first impression in this State. Other jurisdictions considering the question presented by this case have concluded that new legal arguments in a post-judgment motion are untimely. See Excavators & Erectors, Inc. v. Bullard Engineers, Inc., 489 F.2d 318, 320 (5th Cir.1973); Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1030 (5th Cir.1982); Bally Export Corp. v. Balicar, Ltd., 804 F.2d 398, 404 (7th Cir.1986); Grumman Aircraft Eng’g Corp. v. Renegotiation Bd., 482 F.2d 710, 721 (D.C.Cir.1973), rev’d on other grounds, 421 U.S. 168, 95 S.Ct. 1491, 44 L.Ed.2d 57 (1975).
“However, this Court recently decided a case analogous to the instant case involving the introduction of new evidence in a post-judgment motion.
Moore v. Glover, 501 So.2d 1187 (Ala.1986). In that case the Court held that when new — as opposed to newly discovered — evidence was first introduced in a post-judgment motion and no reason or justification was given for failing to present the evidence while the summary judgment motion was pending, the trial judge could not consider the new evidence. Moore, 501 So.2d at 1189. Nevertheless, if the plaintiff had ‘offered a proper explanation for his failure to offer that additional evidence in response to defendant’s motion for summary judgment, the trial court could have considered it in deciding whether to amend or vacate its entry of summary judgment.’ Id. (emphasis supplied). Furthermore, ‘[a]ny reasonable explanation of the party’s failure to offer evidence in response to a motion for summary judgment [would] suffice, but this does not mean that under the guise of a Rule 59(e) motion a party [could] belatedly submit available evidence in opposition to a motion for summary judgment.’ Moore, 501 So.2d at 1191 (Torbert, C.J., concurring specially).
“Given the analogous situations in Moore and the instant case, we conclude that a trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so. We will reverse only if the trial court abuses that discretion.
“Based on the record before this Court on appeal, we conclude that there was no justification given by [the appellant] for failing to raise the argument prior to its post-judgment motion. Therefore, the trial court correctly refused to alter, amend, or vacate its order granting a summary judgment in favor of the [appellees].”

525 So.2d at 1369-70. Thus, the Green Tree Court noted that, under Moore v. Glover, 501 So.2d 1187 (Ala.1986), a party submitting new evidence for the first time in a postjudgment motion was required to justify why the evidence had not been previously submitted; otherwise the trial court lacked discretion to consider the new evidence. Relying on Moore, the Green Tree Court then concluded that a trial court may consider, that is, it has the discretion to consider, a new legal argument in a postjudgment motion but is not required to do so. The Green Tree Court did not specifically state that a party making a new legal argument in a post-judgment motion had to offer an explanation as to why that argument was not previously made in a timely manner but concluded that a trial court was justified in not considering such an argument if no such explanation was offered.

Post-Green Tree, the appellate courts of this State have at times noted a party’s failure to offer an explanation for a delay in making an argument when affirming a trial court’s decision not to consider the new argument and, at other times, the appellate courts have been silent on whether an explanation was offered or necessary. Compare Diamond v. Aronov, 621 So.2d 263, 266-67 (Ala.1993) (“Until he filed his Rule 60(b) motion, [the appellant] did not raise the [identified] issue ...; he offered no justification for failing to raise that issue earlier. A trial judge has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so. Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366 (Ala.1988). Absent an abuse of discretion, we will affirm the trial judge’s ruling in this regard. We cannot hold that the trial court abused its discretion in failing to consider that new argument; therefore, we affirm the denial of [the appellant’s] Rule 60(b) motion for relief from judgment.”), with Blackmon v. King Metals Co., 553 So.2d 105,106 (Ala.1989) (“On appeal, [the appel-Iant] argues that the judgment should be reversed [for two identified reasons]. These issues were first presented to the trial court after the ore tenus hearing on [the appellant’s] post-judgment motion. It is in the trial court’s discretion whether to deny or grant relief under Rules 59 and 60, and its decision will not be reversed on appeal absent an abuse of that discretion. ... The trial court did not abuse its discretion in rejecting [the appellant’s] new legal arguments made in his post-judgment motions. The judgment of the trial court is, therefore, affirmed.”).

However, although the appellate opinions considering this issue have not always been consistent in noting whether a new argument asserted in a postjudgment motion has been or needs to be accompanied by explanations for why it was not previously asserted, those opinions are consistent in one fashion — they all recognize the broad discretion of the trial court in making the decision whether to consider a new argument and they all ultimately defer to the decision the trial court has made. Indeed, the Alfa defendants acknowledge in their brief to this Court that none of the cases they cite involves an appellate court’s holding that a trial court exceeded its discretion by considering, or not considering, a new argument; rather, the cases they cite all involve an appellate court’s affirming a trial court’s judgment and holding that the trial court had not exceeded its discretion in deciding not to consider a new argument. Culverhouse, however, goes further and notes that not only has this Court never held that a trial court exceeded its discretion by considering a new argument presented in a post-judgment motion, but also, in Maxwell v. Dawkins, 974 So.2d 282, 286 (Ala.2006), this Court rejected an appellee’s argument to that effect:

“It is true that [the appellant] did not raise the issue of his father’s mental capacity to revoke his will until he filed his motion for reconsideration after the trial court had granted [the appellee’s] motion for a summary judgment. Accordingly, the trial court was under no obligation to consider the issue because it was not timely raised. However, although there was no requirement that it do so, the trial court nevertheless did have the discretion to consider the argument, and it appears to have done so. See Green Tree Acceptance, Inc. v. Blalock, 525 So.2d 1366, 1369 (Ala.1988) (‘[A] trial court has the discretion to consider a new legal argument in a post-judgment motion, but is not required to do so.’).”

Based on Maxwell and the other cases cited by the parties, we think it clear that the discretion of the trial court to consider a new argument is paramount, and we see no reason to limit that discretion to those cases where the moving party has offered an on-the-record explanation for failing to make the belated argument earlier. The trial court is in the best position to determine whether the argument should be considered, and, in this case, the trial court specifically stated that it was “in the interest of justice” that Culverhouse’s belated argument be considered. Certainly, the trial court would have been within its discretion in refusing to consider the new argument, either because Culverhouse had not offered an explanation for failing to make the argument in a timely fashion or for some other reason; however, that is not the decision the trial court made. In recognition of the broad discretion afforded a trial court on this issue, we defer to the decision that the trial court did make.

IV.

After the trial court amended its order entering a summary judgment in favor of the Alfa defendants on all of Culverhouse’s claim to exclude from summary judgment Culverhouse’s breaeh-of-contraet claim, the Alfa defendants appealed that decision to this Court, arguing that the trial court lacked discretion to consider a new argument made by Culverhouse in his post-judgment motion because Culverhouse did not offer any explanation for his failure to make that argument earlier. We hold that the trial court acted within its discretion in considering the argument and in amending the order, and its judgment is accordingly affirmed.

AFFIRMED.

MOORE, C.J., and BOLIN, PARKER, and WISE, JJ., concur.

      . Culverhouse’s policy provided that ”[i]n ground swimming pools are considered other structures.”

      . It is not clear whether the trial court intended to resurrect Culverhouse’s breach-of-contract claim with respect to Koch, who had successfully moved to dismiss that claim against him shortly after Culverhouse filed his complaint, or just Alfa. However, both Alfa and Koch thereafter moved for permission to appeal the trial court's judgment and both are parties to this appeal, although the Alfa defendants do note in their brief that the breach-of-contract claim against Koch was separately dismissed earlier in the litigation.

      . This Court in Maxwell made no mention of whether the appellant had offered an explanation for his failure to raise this issue before the summary judgment was entered.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Victor Joseph RUSSO v. ALABAMA DEPARTMENT OF CORRECTIONS.
    1120557.
    Supreme Court of Alabama.
    Feb. 21, 2014.

      Victor Joseph Russo, pro se.
    Luther Strange, atty. gen., and Anne A. Hill, gen. counsel, and Elizabeth Sees, asst. atty. gen., Department of Corrections, Legal Division, for appellee.
   PER CURIAM.

Victor Joseph Russo, an inmate in the custody of the Alabama Department of Corrections (“ADOC”) who is currently confined at the St. Clair Correctional Facility, appeals the Montgomery Circuit Court’s dismissal of his action against ADOC challenging the implementation of a policy charging a $1.00 processing fee for money orders and cashier’s checks deposited in an inmate’s “prisoner money on deposit” (“PMOD”) account. We dismiss his appeal.

Russo alleges in his complaint that ADOC does not have “legislative or other valid authority for taking a dollar off his incoming money as a processing fee.” In response to a motion to dismiss or for a summary judgment filed by ADOC, Russo contended in the circuit court that the legislature had not “delegate[d] any power to the ADOC to take money from inmates.” Along with his response to ADOC’s motion, Russo filed an “affidavit” in which he made an additional argument in opposition to the processing fee. Russo quoted from § 14-3-30(b), Ala.Code 1975, which states in part that ADOC has the “responsibility for the maintenance and upkeep, including the payment of medical costs, of an inmate sentenced to the custody of the department.” Russo argued that this provision means that ADOC must bear all the costs associated with caring for an inmate in its charge and that the $1.00 processing fee is, therefore, unlawful.

As a preliminary matter, we note that “[w]e treat a pleading and any other filing according to its substance, rather than its form or its style.” Ex parte Bender Shipbuilding & Repair Co., 879 So.2d 577, 584 (Ala.2008). Although Russo, acting pro se, styled his complaint in the circuit court as a “petition for a writ of certiorari,” it is in essence a direct, original action against an agency of the State seeking declaratory and injunctive relief.

That said, however, Russo names only ADOC as a defendant in his action. “Section 14, Ala. Const.1901, provides ‘[t]hat the State of Alabama shall never be made a defendant in any court of law or equity.’ This section affords the State and its agencies an ‘absolute’ immunity from suit in any court.” Haley v. Barbour Cnty., 885 So.2d 783, 788 (Ala.2004). “[A]DOC ... as a department of the State, is entitled to sovereign immunity.” Id.

There are, of course, certain general categories of actions that do not come within the prohibition of § 14. “One such exception is when a party ‘ “seeks a declaration under the Declaratory Judgments Act, § 6-6-220 et seq., Ala.Code 1975, construing a statute and applying it in a given situation.” ’ ” Off Campus Coll. Bookstore, Inc. v. University of Alabama in Huntsville, 25 So.3d 423, 425-26 (Ala.2009) (quoting Ex parte Alabama Dep’t of Transp., 978 So.2d 17, 21 (Ala.2007), quoting in turn Latham v. Department of Corr., 927 So.2d 815, 821 (Ala.2005)). In Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831 (Ala.2008), this Court clarified, however, that “[t]he purpose of the so-called ‘exception’ to § 14 allowing declaratory-judgment actions is to give direction to State officers,” and so we held in Harbert International that, “[c]on-sistent with the other ‘exceptions’ to § 14 immunity, ... only State officers named in their official capacity — and not State agencies — may be defendants in such proceedings.” 990 So.2d at 841. Again, Russo did not name any officers or employees of ADOC as defendants in his action.

“Because the complaint purported to effect an action against the State in violation of § 14, Ala. Const.1901, the trial court acquired no subject-matter jurisdiction over this action.” Ex parte Alabama Dep’t of Transp., 978 So.2d at 27. Accordingly, the trial court’s judgment is void, and a “void judgment will not support an appeal.” Underwood v. State, 439 So.2d 125, 128 (Ala.1983) (cited with approval in Gallagher Bassett Servs., Inc. v. Phillips, 991 So.2d 697, 701 (Ala.2008)). Russo’s appeal therefore is due to be dismissed.

Also pending before this Court in relation to the foregoing matter is a document filed by Russo in this appeal and styled as a “Petition or Motion for a Rule Nisi to Appear and Show Cause and Order for Contempt and Request to Stay Proceeding.” Russo’s filing is, in effect, a petition for a writ of mandamus asking this Court to direct the warden and an officer of the St. Clair Correctional Facility to return what Russo alleges are missing legal materials he had compiled in the course of filing the underlying action and this appeal and to hold them in contempt for not producing the materials. This Court lacks jurisdiction to grant the relief Russo requests because Russo has not filed a motion or any action in the circuit court seeking a return of his legal materials. This Court does not have original jurisdiction to issue writs against State officers and employees other than to the lower courts. See Art. VI, § 140, Ala. Const.1901. Moreover, Russo has not filed an action in the circuit court against the warden or the officer, and so this Court has no jurisdiction over those individuals. Even if this Court did have such jurisdiction, those individuals could not be held in contempt without an order first being issued requiring them to return to Russo the allegedly missing materials. See, e.g., Ivey v. State, 698 So.2d 179,184 (Ala.Crim.App.1995) (stating that “[wjillful disobedience of the court’s order is the only element necessary to prove contempt of court”). The record does not indicate that any such order has been issued. Finally, Russo’s request for a stay of the proceedings is moot because the underlying action is due to be dismissed. Therefore, we dismiss what is, substantively, Russo’s petition for a writ of mandamus filed in conjunction with his appeal.

APPEAL DISMISSED; PETITION DISMISSED.

MOORE, C.J., and BOLIN, MURDOCK, MAIN, and BRYAN, JJ., concur.

      . In addition, insofar as Russo's action amounts to a request for a declaratory judgment, it does not seek the construction of a statute, as required by the above-described exception for declaratory-judgment actions.


author: STUART, Justice. MURDOCK,. Justice

text:
    Ex parte STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. (In re Sandra H. Banks v. Robert Gary Spray and State Farm Mutual Automobile Insurance Company).
    1121338.
    Supreme Court of Alabama.
    Feb. 28, 2014.

      William H. Webster, D. Mitchell Henry, and Kayla W. Frisby of Webster, Henry, Lyons, White, Bradwell & Black, P.C., Montgomery, for petitioners.
   STUART, Justice.

State Farm Mutual Automobile Insurance Company (“State Farm”) petitions this Court for a writ of mandamus directing the Clarke Circuit Court to vacate its order dated July 8, 2013, denying State Farm’s motion to transfer this action from the Clarke Circuit Court to the Mobile Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

Facts and Procedural History

The underlying action arises out of an automobile accident that occurred in Mobile County on February 8, 2010. Sandra H. Banks, a resident of both Clarke County and Mobile County, sued Robert Gary Spray, a resident of Baldwin County, and State Farm, an Illinois corporation authorized to do business in Alabama, in Clarke County. In her complaint, Banks alleged that she suffered injuries as a result of the wrongful, negligent, and/or wanton conduct of Spray when the vehicle he was driving and owned struck her vehicle. Additionally, Banks alleged that at the time of the accident she had a policy of insurance with State Farm, which included uninsured-/underinsured-motorist coverage, and that she was due proceeds under her coverage.

On March 4, 2013, State Farm moved to transfer the action to Mobile County pursuant to the doctrine of forum non conve-niens. In its motion, State Farm argued that both the convenience of the parties and the witnesses and the interest of justice required that the action be transferred to Mobile County because, it said, the accident occurred in Mobile County, most of the witnesses were located in Mobile County, and the action had a strong connection to Mobile County. State Farm attached to its motion an affidavit from David Jones, a law-enforcement officer who investigated the accident. Jones stated that “[i]t would be significantly more convenient for [him] if this action [was] transferred to Mobile County.” Jones averred that he understood that he would be called as a witness at trial and that Mobile County would be a more convenient venue for him because he lived approximately 8 miles from the Mobile County courthouse whereas he lived approximately 100 miles from the Clarke County courthouse. On July 8, 2013, the trial court denied State Farm’s motion to-transfer.

On August 16, 2013, State Farm petitioned this Court for a writ of mandamus directing the Clarke Circuit Court to vacate its July 8, 2013, order denying State Farm’s motion to transfer this action and to enter an order granting the motion. On December 10, 2013, this Court ordered the filing of answers and briefs. Neither the Clarke Circuit Court judge nor Banks filed an answer and brief within the time provided; therefore, our decision is based solely upon application of the law to the materials provided by State Farm in support of its petition.

Standard of Review

“‘A petition for a writ of mandamus is the appropriate “method for obtaining review of a denial of a motion for a change of venue” pursuant to § 6-3-21.1[, Ala.Code 1975], Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998)....
“ ‘ “A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified ‘in the interest of justice.’ ” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where “the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6-3-21.1, Ala.Code 1975, compels the trial court to transfer the action to the alternative forum.” Ex parte First Tennessee Bank N.at’l Ass’n, 994 So.2d 906, 912 (Ala.2008) (emphasis added).’
“Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala.2011).”

Ex parte Wattman, 116 So.3d 1111, 1114 (Ala.2013).

Discussion

State Farm contends that the trial court exceeded the scope of its discretion in refusing to transfer this action from Clarke County to Mobile County because, it says, both the “convenience of parties and witnesses” and the “interest of justice” prongs of the doctrine of forum.non conve-niens compel the transfer of this action to Mobile County. It is undisputed that venue of this action is proper both in Clarke County and in Mobile County.

Section 6-3-21.1, Ala.Code 1975, provides, in pertinent part:

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

(Emphasis added.)

“Essentially, the doctrine of forum non conveniens allows a court that has jurisdiction and that is located where venue is proper to refuse to exercise its jurisdiction when, for the convenience of the parties and witnesses, and in the interests of justice and judicial economy, the case could be more appropriately tried in another forum. The prevailing question of whether a case should be entertained or dismissed depends upon the facts of the particular case and is addressed to the sound discretion of the trial judge. In determining whether to exercise or decline to exercise jurisdiction, the trial judge should consider the location where the acts giving rise to the action occurred, the relative ease of access to sources of proof, the location of the evidence, the availability of compulsory process for the attendance of unwilling witnesses, the cost of obtaining the attendance of willing witnesses, the possibility of a view of the premises, if a view would be appropriate to the action, and any other matter in order to assess the degree of actual difficulty and hardship that would result to the defendant in litigating the case in the forum chosen by the plaintiff. If, with an eye toward the goal of achieving a fair trial and after weighing all of the pertinent factors, the judge finds that the balance is strongly in favor of the defendant, he may decline to exercise jurisdiction and dismiss the complaint. Ex parte Southern Ry., 556 So.2d 1082 (Ala.1989); Ex parte Auto-Owners Ins. Co., [548 So.2d 1029 (Ala.1989) ].”

Ex parte Beiu-Acadia, Ltd., 566 So.2d 486, 488 (Ala.1990). However, this Court has recognized that although the trial court exercises discretion in ruling 'on a motion to transfer based on forum non conve-niens, “the Legislature in adopting § 6-3-21.1, intended to vest in the trial courts, the Court of Civil Appeals, and this Court the power and the duty to transfer a cause when ‘the interest of justice’ requires a transfer.” Ex parte First Family Fin. Servs., Inc., 718 So.2d 658, 660 (Ala.1998). In Ex parte Indiana Mills & Manufacturing, Inc., 10 So.Bd 536, 542 (Ala.2008), we further explained:

“[Although the trial court ‘has a degree of discretion in determining whether the factors listed in the statute ... are in favor of transferring the action,’ this degree of discretion is not unlimited and ‘must be considered in light of the fact that the Legislature used the word “shall” instead of the word “may” in § 6-3-21.1.’ [Ex parte First Family Fin. Sens.,] 718 So.2d at 660 (emphasis added). This statute, we have subsequently noted, is ‘compulsory,’ Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala. 2004), and the use of the word ‘shall’ is ‘imperative and mandatory.’ Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (comparing the use of the word ‘shall’ in Alabama’s interstate forum non conveniens statute, Ala.Code 1975, § 6-5-430, with its use in § 6-3-21.1).”

First, State Farm contends that “the convenience of the parties and witnesses” requires that this action be transferred to Mobile County. In Ex parte Swift Loan & Finance Co., 667 So.2d 706, 708 (Ala.1995), this Court recognized that “[t]he transferee forum must be significantly more convenient than the forum in which the action was brought, as chosen by the plaintiffs, to justify a transfer.”

The materials before us indicate that State Farm satisfied its burden of showing that Mobile County is a significantly more convenient forum for this action than is Clarke County. In her responses to State Farm’s request for admissions, Banks admitted that she had residences in both Clarke County and Mobile County and that she resided “in both counties according to the months and what [was] occurring in my and my husband’s life.” She further admitted that her Mobile residence is less than 20 miles from the Mobile County courthouse, that the accident occurred in Mobile County, that she was transported from the scene of the accident to Mobile Infirmary by Mobile Fire and Rescue, and that the passenger in her car at the time of the accident is a resident of Mobile County. Additionally, the affidavit of David Jones, an officer for the Mobile Police Department who investigated the accident, notes that it would be more convenient for him for the case to be tried in Mobile County because he lives 8 miles from the Mobile County courthouse and over 100 miles from the Clarke County courthouse.

Because State Farm submitted materials establishing that the accident occurred in Mobile County, that the accident investigators and health-care providers are located in Mobile County, and that other potential witnesses are located in Mobile County, State Farm satisfied its burden of establishing that Mobile County is a significantly more convenient forum for this action than is Clarke County. Therefore, the trial court exceeded the scope of its discretion in denying State Farm’s motion to transfer the case to Mobile County in this regard.

State Farm further contends that the “interest of justice” requires that this action be transferred to Mobile County because, it says, Mobile County has a strong connection to this action.

“ ‘The “interest of justice” prong of § 6-3-21.1 requires “the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.” Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, “in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the ‘nexus’ or ‘connection’ between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.” Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that “litigation should be handled in the forum where the injury occurred.” Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider “the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.” Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).’ “Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).”

Ex parte Wattman, 116 So.3d 1111, 1115 (Ala.2013).

The trial court exceeded the scope of its discretion in denying State Farm’s motion to transfer the action to Mobile County because State Farm demonstrated that having the case heard in Mobile County would better serve the interests of justice. First and foremost, the accident occurred in Mobile County. The Mobile Police Department and Mobile Fire and Rescue responded to the scene of the accident. Banks was treated at Mobile Infirmary. The passenger in Banks’s car is a resident of Mobile County. Thus, Mobile County has a strong “nexus” or “connection” with this action. Where an automobile accident resulting in injury occurred in a county and the majority of witnesses reside in the county where the accident occurred, this Court has generally held “the interests of justice” merit a transfer to the county where the accident and the injury occurred. Ex parte Waltman, supra; Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371 (Ala.2012); Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745 (Ala.2010); and Ex parte Indiana Mills & Mfg., Inc., supra.

Clarke County, on the other hand, has a weak “connection” or “nexus” to this case. From the materials presented to this Court, it appears that the only connections this case has to Clarke County are that Banks resides there part of the time and that State Farm does business in Clarke County. None of the witnesses, other than Banks, resides in Clarke County, and none of the relevant facts in this action involves Clarke County. Nothing.before us establishes a need for Clarke County to be burdened with an action that arose in Mobile County simply because Banks resides there on a part-time basis. Instead, Mobile County clearly has a strong connection with this action. Therefore, we conclude that having this action heard in Mobile County would “more serve the interest of justice.” Ex parte Indiana Mills & Mfg., 10 So.3d at 542.

Because both the “convenience of parties and witnesses” and the “interest of justice” prongs of the doctrine of forum non conveniens compel the transfer of this action from Clarke County to Mobile County, the trial court exceeded the scope of its discretion in refusing to transfer the action.

Conclusion

State Farm has established a clear, legal right for this action to be transferred to Mobile County. Therefore, we grant State Farm’s petition and issue a writ directing the Clarke Circuit Court to vacate its order dated July 8, 2013, denying State Farm’s motion to transfer this action from the Clarke Circuit Court to the Mobile Circuit Court and to enter an order granting the motion.

PETITION GRANTED; WRIT ISSUED.

BOLIN, PARKER, and BRYAN, JJ„ concur.

MURDOCK and MAIN, JJ., concur in the result.

MOORE, C.J., dissents.

WISE, J., recuses herself.

MURDOCK,. Justice

(concurring in the result).

I previously have expressed concern as to the types of circumstances to which this Court in recent years has applied the “interest of justice” prong of our forum non conveniens statute. See, e.g., Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 377 (Ala.2012) (Mur-dock, J., dissenting). I write separately today to comment on the standard of appellate review now employed by this Court in such cases.

As the main opinion acknowledges, a trial court should employ the doctrine of forum non conveniens to transfer a case from a forum chosen by the plaintiff in which venue is proper only when “‘the balance is strongly in favor of the defendant.’” 149 So.3d at 1086 (quoting Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala.1990)). Furthermore, as the main opinion also acknowledges, the trial court’s decision in this regard is to be considered by an appellate court as a matter of “discretion” for the trial court. Id. (quoting Ex parte Wattman, 116 So.3d 1111, 1114 (Ala.2013)). Despite these acknowledgments, I am concerned that the main opinion then concludes its discussion of the standard of review by articulating, at least for interest-of-justice cases, a standard of appellate review that, improperly in my opinion, is closer to a de novo standard than an excess-of-discretion standard. See 149 So.3d at 1086 (employing quotations from Ex parte First Family Financial Services, Inc., 718 So.2d 658, 660 (Ala.1998), and Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 542 (Ala.2008)).

That said, in this particular case, I concur in the result reached by the main opinion because I agree that the trial court did exceed its discretion in not transferring this case to the Mobile Circuit Court based on the convenience-of-the-parties- and-witnesses prong of § 6-3-21.1, Ala. Code 1975. I see no need in this case to reach the interest-of-justice prong of the statute.


text:
    Ex parte S.T. (In re S.T. v. K.P. and M.T.).
    2130132.
    Court of Civil Appeals of Alabama.
    March 21, 2014.
    Kevin D. Teague, Decatur, for petitioner.
    Peter M. Neil of Neil Sparkman Attorneys, Decatur, for respondent K.P.
    Judge Charles B. Langham, as respondent.
   PER CURIAM.

On November 8, 2012, K.P. filed an action in the Morgan District Court, Juvenile Division (“the juvenile court”), seeking to be adjudicated the father of C.R.C. (“the child”), a child born to S.T. (“the mother”) in March 2010. In his complaint, K.P. also sought an award of custody of the child and the determination of child support for the child. KP.’s action was assigned case number CS-12-900061 in the juvenile court.

Shoftly thereafter, on November 30, 2012, the child’s maternal grandmother, M.T. (“the grandmother”), filed a dependency complaint in the juvenile court in which she sought an award of custody of the child. In her dependency complaint, the grandmother alleged that the mother was abusing drugs and that the child’s father was “unknown.” The grandmother’s dependency action was assigned case number JU-12-742.01.

On December 6, 2012, the juvenile court entered an order in case number JU-12-742.01 in which it awarded the grandmother pendente lite custody of the child and awarded the mother supervised visitation. In that December 6, 2012, order, the juvenile court took judicial notice of KP.’s paternity action and ordered that K.P. was a party to case number JU-12-742.01. The December 6, 2012, order further specified that “[t]his matter shall be set for adjudication on January 10, 2013, at 1:30 p.m., with case number CS-12-900061.” On April 1, 2013, the juvenile court entered an order in case number CS-12-900061 in which it adjudicated KP.’s paternity of the child. In that order, the juvenile court scheduled a hearing on the merits of KP.’s custody claim.

On July 10, 2013, the juvenile court entered a judgment in case number CS-12-900061 in which it granted the mother’s motion to dismiss that action and ordered that all earlier orders entered in that action were void. In so ruling, the juvenile court found that the mother had produced evidence indicating that R.D.C. had executed an acknowledgment of paternity of the child and, therefore, that R.D.C. was the child’s legal father. Based on that finding, the juvenile court determined that it lacked subject-matter jurisdiction over KP.’s paternity action. K.P. did not appeal the July 10, 2013, judgment dismissing case number CS-12-900061.

On July 12, 2013, in case number JU-12-742.01, the juvenile court entered an order in which it made R.D.C. a party to that action, ordered that KP.’s previously ordered visitation with the child be suspended, and scheduled a hearing on the merits for August 19, 2013. The juvenile court rescheduled that hearing.

The juvenile court'conducted an ore ten-us hearing on September 24, 2013, in case number JU-12-742.01. The grandmother and K.P., together with their attorneys, appeared for that hearing. R.D.C. appeared at the hearing, pro se, and the child’s guardian ad litem was present. The mother and her attorney did not attend the hearing.

Thereafter, on October 3, 2013, K.P. filed a “motion to set final hearing.” In that October 3, 2013, motion, K.P. argued that, at the September 24, 2013, hearing, R.D.C. had disavowed his paternity of the child. K.P. submitted an affidavit executed by R.D.C. on October 3, 2013, in support of that motion.

On November 1, 2013, the juvenile court entered an order in case number JU-12-742.01 based on the documentary evidence, testimony, and arguments it had received at the September 24, 2013, ore tenus hearing. In that order, the juvenile court stated that it would conduct a later hearing to determine if the child was “still dependent.” Also in its November 1, 2013, order, the juvenile court determined that R.D.C. was not the child’s father, adjudicated K.P. as the child’s legal father, and scheduled a final hearing in the action. The mother filed a timely petition for a writ of mandamus in this court challenging that part of the November 1, 2013, order in which the juvenile court concluded that R.D.C. was not the child’s father and determined that K.P. was the child’s father. “Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995).

In her petition, the mother asks this court to order the juvenile court to dismiss both K.P. and R.D.C. as parties from case number JU-12-742.01. However, K.P. was made a party pursuant to the December 6, 2012, order of the juvenile court, and R.D.C. was made a party pursuant to the juvenile court’s July 12, 2013, order. The mother’s petition for a writ of mandamus was filed on November 14, 2013. Thus, the mother’s petition was filed well in excess of the 14-day presumptively reasonable period for seeking relief from either of those interlocutory orders. See Rule 21(a)(3), Ala. R.App. P. (“The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal.”); Ex parte C.J.A., 12 So.3d 1214, 1215 (Ala.Civ. App.2009) (The presumptively reasonable time for filing a petition for a writ of mandamus in a juvenile action is 14 days.). Accordingly, that part of the mother’s petition seeking an order requiring that K.P. and R.D.C. be dismissed as parties in case number JU-12-742.01 is untimely, thus mandating the denial of the requested relief. Ex parte C.J.A., 12 So.3d at 1216.

The mother also argues in her petition that, under the Alabama Uniform Parentage Act (“the AUPA”), § 26-17-101 et seq., Ala.Code 1975, the juvenile court erred in entering its November 1, 2013, order establishing KP.’s paternity of the child. In her brief submitted to this court, the mother points out that in March 2010, shortly after the child’s birth, she and R.D.C. executed an acknowledgment of paternity of the child. See § 26-17-301, Ala.Code 1975 (“The mother of a child and a man claiming to be the genetic father of the child may sign an acknowledgment of paternity with intent to establish the man’s paternity.”); and § 26-17-302(a), Ala.Code 1975 (requiring, among other things, that a valid acknowledgment of paternity be a sworn statement signed by the mother and the man asserting his paternity of the child). The mother and R.D.C. filed the acknowledgment of paternity with the Alabama Office of Vital Statistics on March 18, 2010. See § 26-17-304(b), Ala.Code 1975 (“An acknowledgment of paternity takes effect upon the signature of both the mother and the putative father and the filing of the document with the Alabama Office of Vital Statistics.”).

The effect of the execution of the acknowledgment of paternity was to make R.D.C. the child’s legal father: “a valid acknowledgment of paternity filed with the Alabama Office of Vital Statistics shall be considered a legal finding of paternity of a child and confers upon the acknowledged father all of the rights and duties of a parent.” § 26-17-305(a), Ala.Code 1975 (emphasis added). The AUPA states that the term “ ‘[acknowledged father’ means a man who has established a father-child relationship under Article 3 [of the AUPA].” § 26-17-102(1), Ala.Code 1975; see also § 26-17-201(b), Ala.Code 1975 (“The father-child relationship may be established between a man and a child by: ... (2) an effective acknowledgment of paternity by the man under Article 3 [of the AUPA], unless the acknowledgment has been rescinded or successfully, chal-lenged_”)• The establishment of the father-child relationship by the execution of an unchallenged acknowledgment of paternity is equivalent to a judicial determination of paternity by a juvenile or circuit court. See Alabama Comments to § 26-17-302 and § 26-17-305(a), Ala.Code 1975 (both noting that Article 3 of the AUPA uses the phrase “legal finding” rather than “adjudication” to reflect the nonjudicial nature of the manner in which paternity is established under Article 3); see also § 26-17-310, Ala.Code 1975 (providing that “[a] court or administrative agency ... is not required or permitted to ratify an unchallenged acknowledgment of paternity”).

The AUPA allows an acknowledged father to seek to rescind an acknowledgment of paternity under § 26-17-307, Ala.Code 1975, within 60 days of the execution of that acknowledgment; R.D.C. did not seek to rescind the March 18, 2010, acknowledgment of paternity within 60 days. After the period for rescission has expired, an acknowledged father may “commence a proceeding” to challenge, under certain limited circumstances, an acknowledgment of paternity. See 26-17-308, Ala.Code 1975. R.D.C.’s oral motion during the September 24, 2013, ore tenus hearing cannot be said to constitute the “commencement” of a proceeding. Our rules of procedure specify that an action is “commenced” by filing a complaint. Rule 3(a), Ala. R. Civ. P. (“A civil action is commenced by filing a complaint with the court.”).

Article 6 of the AUPA contains a provision allowing a nonsignatory to an acknowledgment of paternity to seek to challenge an acknowledgment. Specifically, the AUPA provides:

“(a) If a child has an acknowledged father, a signatory to the acknowledgment of paternity may maintain a proceeding seeking to rescind the acknowledgment or challenge the paternity of the child only within the time allowed under Section 26-17-307 or 26-17-308.
“(b) If a child has an acknowledged father, an individual, who is not a signatory to the acknowledgment of paternity and who seeks an adjudication of paternity of the child may maintain a proceeding at any time after the effective date of the acknowledgment if the court determines that it is in the best interest of the child.”

§ 26-17-609, AIa.Code 1975.

In asserting in his brief filed in this court that the juvenile court had the authority to make a paternity adjudication as part of its November 1, 2013, order in case number JU-742.01, K.P. relies on § 26-17-609(b). However, K.P. only briefly mentions § 26-17-609(b), and the mother has failed to mention that statute in her submission to this court. Thus, the parties have not adequately addressed whether K.P. could be said, through his participation in case number JU-742.01, to have “maintained” a proceeding under § 26-17-609(b), and they have not submitted arguments concerning the nature of the proceeding to which § 26-17-609(b) refers and whether it would be limited, as is § 26-17-609(a), by certain provisions of Article 3 of the AUPA. In the absence of arguments from interested parties, we decline to interpret § 26-17-609(b) as it might pertain to the facts of this case.

However, we do find persuasive the mother’s argument that, even if this court or the juvenile court were to interpret KP.’s arguments in case number JU-12-742.01 as a claim pursuant to § 26-17-609(b), the mother was not afforded notice of the nature of that claim or notice that the juvenile court would consider a claim seeking to disprove R.D.C.’s parentage in case number JU-10-742.01. Accordingly, the mother was not properly afforded due process with regard to such a claim. See Neal v. Neal, 856 So.2d 766, 782 (Ala.2002) (“ ‘[D]ue process of law means notice, a ■ hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’” (quoting Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940))); and B.B. v. D.H., 93 So.3d 949, 952 (Ala.Civ.App.2012) (holding an order void for failure to afford the mother due process). That part of the November 1, 2013, order, finding R.D.C. not to be the child’s father and adjudicate-ing KP.’s paternity is void. Therefore, we grant the mother’s petition for the writ of mandamus insofar as it seeks to invalidate that part of the November 1, 2013, order.

PETITION DENIED IN PART AND GRANTED IN PART; WRIT ISSUED.

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

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

      . The motion to dismiss is not included in the materials submitted to this court.

      . We note that, under Alabama law, another man may not execute an acknowledgment of paternity when the child has a presumed father. § 26-17-302, Ala.Code 1975. K.P. has not alleged, and the materials submitted to this court do not indicate, that he has claimed to be a presumed father of the child under § 26-17-204, Ala.Code 1975.

      . We note that, in response to the mother’s petition for the writ of mandamus, the juvenile-court judge asserts that he had the authority to allow R.D.C. to disavow his parentage of the child under § 12-15-314(a)(4), Ala. Code 1975. That statute, which governs the disposition of dependent children, allows a juvenile court, once it determines that a child is dependent, to "[m]ake any other order as the juvenile court in its discretion shall deem to be for the welfare and best-interests of the child.” Although a juvenile court may adjudicate a father’s paternity as part of a dependency action, nothing in § 12-15-304 or the remainder of the dependency statutes, see § 12-15-301 through -324, Ala.Code 1975, authorizes a juvenile court to invalidate the establishment of a parent-child relationship between a dependent child and one or both of his or her parents. However, a correct judgment may be affirmed for any reason, see J.W. v. T.D., 58 So.3d 782, 789 (Ala.Civ.App.2010), and, therefore, in disposing of the mother’s petition for the writ of mandamus, this court is not confined to the reason for the judgment cited by the juvenile court in its submission to this court.


author: PITTMAN, Judge. THOMPSON, Presiding Judge,

text:
    Terry Eugene ADAMS v. Audrey M. ADAMS.
    2120657.
    Court of Civil Appeals of Alabama.
    March 21, 2014.

      Robert H. Brogden, Ozark, for appellant.
    William B. Matthews, Jr., Ozark, for appellee.
   PITTMAN, Judge.

Audrey M. Adams (“the wife”) brought an action in the Dale Circuit Court seeking the dissolution of her marriage to Terry Eugene Adams (“the husband”), as well as custody of the two children born of the marriage, an award of child support, and a division of marital property. An interlocutory order was issued at the wife’s request awarding the wife custody of the children pendente lite and directing the parties to file income affidavits so that child support could be calculated. The husband filed an answer and a counterclaim seeking custody of the children, an award of child support, and a division of marital property. Neither party requested an award of alimony in the pleadings. The parties then filed income affidavits in response to the trial court’s interlocutory order; the husband averred in his response that his sole income consisted of non-employment-related “SSI” (i.e., disability) benefits and that those benefits were not to be considered in determining the husband’s gross income under Rule 32, Ala. R. Jud. Amin., pertaining to child-support awards.

After a brief ore tenus proceeding, during which the trial court heard testimony from the wife, the husband, the parties’ older child, and a representative of a mental-health provider who had treated or counseled the husband, the trial court entered a judgment divorcing the parties, awarding the parties joint legal custody of the children (with primary physical custody of the children placed with the wife subject to the husband’s visitation rights), directing the wife to enroll the children in counseling, awarding the wife $247 in monthly child support, dividing the parties’ marital property, and reserving jurisdiction to award periodic alimony in the future. The husband filed a postjudgment motion challenging the trial court’s award of custody, that court’s inclusion of his disability benefits in determining the wife’s child-support award, the trial court’s decision to reserve the issue of periodic alimony rather than award alimony, and the property division fashioned by the trial court. Following the denial of that motion, the husband, acting through new counsel, appealed to this court, raising each of the issues that had been presented in his postjudgment motion.

“At the outset we note that, in reviewing the judgment by the trial court, we are governed by the well-established ore tenus rule. Under this rule, when the trial court has been presented evidence in a divorce case ore tenus, its judgment will be presumed to be correct and will not be set aside by this court unless it is plainly and palpably wrong or unjust.”

Brannon v. Brannon, 477 So.2d 445, 446 (Ala.Civ.App.1985).

The husband contends that the trial court erred in awarding primary physical custody of the parties’ children to the wife. The husband acknowledges the applicability of the “best-interests-of-the-child” standard of review in the setting of an initial award of custody and the trial court’s discretion, under Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981), to consider a wide variety of factors, including the gender, age, and characteristics of the children; the age, health, character, and responsiveness of the contestants; and each child’s preference (should that child be of sufficient age and maturity). However, he asserts that the wife committed acts of domestic violence against him so as to give rise to a presumption that an award of custody to the wife would not be in the best interests of the children under the Domestic and Family Violence Act (see Ala.Code 1975, § 30-3-131).

There was limited testimony adduced at trial regarding the parties’ competing custody claims. The wife testified that the parties’ children were 12 years old and 8 years old at the time of trial and that the children had lived with her during the pendency of the divorce action together with the children’s 17-year-old half brother, who helps perform household chores and attends school in the same school system as the parties’ children. The wife also testified that she is available to assist with school homework after her work shift ends each afternoon. The parties’ older child testified at trial that it was his preference to remain with the wife and that he was happy where he was; that child also testified that the husband, following the parties’ separation, had objected to his hairstyle (which, judging from comparative photographic evidence, had lengthened) and that a recent moderate decline in his scholastic grades was attributable not to the parties’ separation but .to an increase in homework assignments from one particular teacher.

The husband testified that he was concerned by the changes in appearance of the parties’ 12-year-old child and by certain claimed escalations of objectionable behavior he had observed as to both children; the husband stated that the older child in particular had been consuming “vulgar” audio and video media, that he had talked in a disrespectful manner, and that he and the younger child had constantly fought and made threats against each other. However, on, cross-examination, the husband admitted that the children had behaved in a similar manner before the parties separated. The husband opined that counseling would be appropriate for the children (an opinion ultimately accepted by the trial court, which directed that the children undergo counseling in its judgment divorcing the parties). He further testified that he had been receiving disability payments since approximately 2000, two years into the marriage, because of anxiety-related panic attacks, but he admitted that he had “not had any major problem with panic attacks in years.” Another witness testified that the husband had been diagnosed by his mental-health professionals as suffering from “general anxiety disorder without manifestations” but added that the husband had not been prescribed any medication by those professionals for his condition.

The facts surrounding the husband’s domestic-violence assertion against the wife are somewhat unclear and are disputed. The husband testified that his principal concern about the wife’s having primary physical custody of the parties’ children was “[h]er temper”; he testified that the wife had been arrested for domestic violence against him on one occasion during which the wife had “grabbed” weapons and “got after me with them” before attempting to hurt herself and ingesting some unidentified medicine. The wife admitted that she had been convicted of domestic violence and had been placed on probation, but she stated that she had attempted to assault the husband on only one occasion during the marriage when she had pushed the husband because, she said, he had blocked her ability to exit the home. Further, although the wife admitted that she had made suicidal gestures in the past because the husband had “kept fussing” at her and she could not see any other way to get away from the husband at the time, she testified that she had sought psychiatric help for her condition and had been informed that she was not at fault.

Although the evidence of record does not reveal the wife to be a perfect parent, we cannot conclude that the trial court erred in determining that placing the parties’ children in her primary physical custody would serve their best interests notwithstanding the husband’s contention regarding the wife’s past domestic violence. The wife’s testimony and the husband’s testimony, taken together, do not reveal that any domestic violence on the wife’s part, had any effect upon the children, and the lack of such evidence tends to counsel deference in favor of the trial court’s judgment in favor of the wife. See Enzor v. Enzor, 98 So.3d 15, 19 (Ala.Civ.App.2011). We further note the trial court’s ability under Devine to draw favorable inferences as to the wife’s character from her productive earning of wages during and after the parties’ marriage as compared to the husband’s reliance for over a decade upon unearned income stemming from a “general-anxiety” condition of questionable continued severity. Finally, we note the older child’s expression of a custodial preference in the wife’s favor — a factor that is entitled to much weight (see Enzor, 98 So.3d at 19) — and the presence in the wife’s home of a half sibling of the parties’ children, who should not be “perfunctorily separate[d]” by a custody judgment. See A.B. v. J.B., 40 So.3d 723, 730 (Ala.Civ.App.2009). We thus conclude that the placement of the parties’ children in the primary 'physical custody of the wife was within the trial court’s wide discretion notwithstanding any •prima facie statutory presumption against such a placement that arose under § 30-3-131.

The husband contends that the trial court erred in directing him to pay a sum of monthly child support based in part upon evidence that he was receiving $639 per month in government benefits. According to an evidentiary exhibit offered by the husband at trial, which was prepared by the federal Social Security Administration (“SSA”), the husband has received “disability benefits” from SSA since 2000; however, the SSA statement reveals that the monthly benefits of $639 currently being paid to the husband are actually Supplemental Security Income (“SSI”) payments and that that “payment amount may change from month to month if [the husband’s] income or living situation changes.” The nature of the husband’s payments is significant because, although “Rule 32(B)(2), Ala. R. Jud. Admin., includes disability payments in ... a party’s ‘gross income’ for purposes of calculating child-support obligations pursuant to the guidelines,” Hawkins v. Cantrell, 963 So.2d 103,105 n. 1 (Ala.Civ.App.2007), that rule includes SSI in a list of “means-tested public-assistance programs” whose payments are specifically excluded from “gross income.” Rule 32(B)(2), Ala. R. Jud. Admin.; see also Hawkins, 963 So.2d at 105 n. 1. Although, six years before the adoption of the Rule 32 child-support guidelines, this court had held in Ex parte Griggs, 435 So.2d 103 (Ala.Civ.App.1983), that “SSI benefits may be subjected to a claim for past-due child support payments” in an enforcement action, 435 So.2d at 104, any precedential value Griggs might otherwise have had with respect to a trial court’s determination of a parent’s income for purposes of calculating prospective child support was abrogated by the adoption of the guidelines, and “[u]se of the child support guidelines is mandatory in all actions filed after October 9,1989.” Gautney v. Raymond, 709 So.2d 1279, 1281 (Ala.Civ.App.1998).

The Form CS — 42 prepared by the trial court in determining the parties’ respective child-support obligations clearly shows that that court, in seeking to apply the Rule 32 guidelines, included the husband’s SSI benefits in determining his gross income and, thereby, in determining the amount the husband should pay to the wife as child support each month. In light of Rule 32(B)(2), we conclude that that court erred. The trial court’s judgment is reversed as to the husband’s child-support obligation, and the cause is remanded for that court to properly establish the husband’s child-support obligation by reference to the guidelines as pertinent to the husband’s “ ‘actual gross income [he] has the ability to earn’ ” (see Herboso v. Herboso, 881 So.2d 454, 457 (Ala.Civ.App.2003), quoting Rule 32(B)(1), Ala. R. Jud. Admin.) or, alternatively, to deviate from the guidelines if warranted (see Rule 32(A)(ii), Ala. R. Jud. Admin.).

The husband also contends that the trial court erred in failing to award him periodic alimony instead of reserving the issue. Assuming, without deciding, that the husband timely injected the issue of his potential entitlement to alimony into the case for the first time at the post-judgment stage despite having failed to seek alimony in his pleadings, we cannot agree with the husband that the trial court erred to reversal. “The burden is on the party who is seeking periodic alimony to prove that a periodic-alimony award is warranted.” Taylor v. Taylor, 890 So.2d 151, 155 (Ala.Civ.App.2004). In this case, the husband did not itemize any monthly monetary needs in any evidentiary exhibit, nor does such an itemization appear within the 12 transcribed pages of his trial testimony; in contrast, evidence was adduced by the wife to the effect that the husband had not assisted her in making economic contributions to the expenses of the marriage in recent years apart from occasional contributions to paying electricity bills; thus, the trial court had no imperative duty to award periodic alimony on this record. See Weeks v. Weeks, 27 So.3d 526, 533 (Ala.Civ.App.2008), and Austin v. Austin, 678 So.2d 1129, 1131 (Ala.Civ.App.1996).

The husband contends that the trial court erred in dividing the parties’ property. At trial, the husband submitted an evidentiary exhibit listing 11 itemized classes or articles of personal and real property he was seeking to have awarded to him; the husband was awarded all of that property except for (a) one motor vehicle to which, during his trial testimony, he had waived any claim; and (b) the parcel of land to which the parties’ marital residence, a “double-wide” mobile home, had been permanently affixed and (according to the wife’s testimony) could not be moved. The husband was awarded a 1999 model Ford F-15 truck principally used by the husband (and as to which the wife asserted no claim); he was also, over the wife’s objection, awarded a 2001 model Ford Escort automobile that, despite its earlier acquisition by the parties from a member of the husband’s family, had been borrowed against by the wife. Notably, the parties were directed by the trial court to “take the steps necessary to have the non-owner” of particular property items “released from the debts and security agreement,” indicating the trial court’s intent to award the 2001 Escort automobile to the husband free from all liens.

We cannot agree with the husband that the property division fashioned by the trial court was inequitable so as to fall outside the trial court’s discretion. There was disputed evidence presented at trial concerning the contributions of the parties to the purchase of the land to which the mobile home was permanently affixed, with the husband testifying that the land had been purchased using only a lump-sum payment of his SSI benefits and the wife testifying that the land had been purchased using both the husband’s benefits and income earned by the wife. The trial court could properly have determined that the wife had contributed to the acquisition of the land upon which the marital residence sat and that the wife, who had been entrusted with the primary physical custody of the children, had need of both that residence and the land upon which it was situated so as to “ensure that [she] would have an adequate residence in which to live and care for the [children].” Lamb v. Lamb, 939 So.2d 918, 923-24 (Ala.Civ.App. 2006). Further, the husband was awarded every automobile that he both claimed in his evidentiary exhibit and sought in his testimony. The trial court could properly have deemed its property division to be equitable under the facts of. this case.

Based upon the foregoing facts and authorities, the trial court’s judgment is reversed as it pertains to child support; in all other respects, that judgment is affirmed. The cause is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMAS and DONALDSON, JJ., concur.

THOMPSON, P.J., concurs in the result, with writing.

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

THOMPSON, Presiding Judge,

concurring in the result.

I concur in the result of the main opinion. I write specially to address the issue of child support in this case. I agree that the caselaw and Rule 32, Ala. R. Jud. Admin., provide that Supplemental Security Income (“SSI”) benefits are not to be used in determining a parent’s gross income for the purpose of calculating child support. It is clear that the trial court improperly used the amount of SSI benefits received by Terry Eugene Adams (“the father”) in calculating child support and, therefore, that that award must be reversed.

Given the specific facts of this case, I believe the trial court may on remand, within its discretion, consider imputing income to thé father. See Pardue v. Pardue, 917 So.2d 857 (Ala.Civ.App.2005); and Hudson v. Hudson, [Ms. 2120884, Feb. 28, 2014] — So.3d — (Ala.Civ.App.2014). The evidence in the record indicates that the father was diagnosed with an anxiety disorder for which no medications were prescribed and from which the father stated he has not experienced symptoms in years. Thus, the evidence in the record could support a determination by the trial court that the father is capable of making some contribution to the support of his children. The SSI program contains work-incentive programs designed to allow benefit recipients to attempt to return to work. See, e.g., 42 U.S.C. § 1320b-20. In discussing the basic principles of SSI benefits, the Social Security Handbook explicitly states that “you are encouraged to work if you can.” Social Security Administration, Social Security Handbook, § 2102.2.E. Given the law applicable to SSI benefits and the evidence concerning the husband’s lack of symptoms or need for medication for years, the record may support an imputation of income to the father.

      . The trial transcript consists of only 52 pages of testimony.

      . No record of any trial or judgment in any criminal matter involving the wife was placed in evidence.

      . But cf. Hughes v. Hughes, 500 So.2d 1140, 1141 (Ala.Civ.App.1986) (reversing award of periodic alimony to spouse who made no request therefor; because parties’ economic evidence was referable to another disputed issue, alimony issue could not be said to have been tried by consent).

      . The record reflects that that vehicle, a Ford Mustang convertible automobile dating from the 1990s, had been purchased by the wife using refunded income-tax withholdings that, the trial court could properly have inferred, had come from her wages and not the husband's SSI benefits (which are not subject to federal income tax, see Dep't of the Treasury, Internal Revenue Serv., Publication 915, Social Security and Equivalent Railroad Retirement Benefits, p. 1 (2013); on the date this opinion was released, this document could be found at: http://www.irs.gov/pub/irs-pdf/p9I5. pdf).

      . Although the husband has asserted, without citation to any evidence presented at trial, that he does not yet have possession of the 2001 Escort automobile because it has been seized by creditors of the wife, we would note that the trial court has the inherent authority, in appropriate postjudgment proceedings, to enforce, against the wife, its award of the 2001 Escort automobile to the husband. See generally Grayson v. Grayson, 628 So.2d 918, 919-20 (Ala.Civ.App.1993).

      . On the date this opinion was released, a copy of § 2102 of the Social Security Handbook (as last revised on Feb. 24, 2009) could be found at: http://www.socialsecurity.gov/ OPHome/handbook/handbook.21/handbook-2102.html.