source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Ex parte MOUNTAIN POINTE DEVELOPMENT GROUP, L.L.C. (In re Wilson, Dillon, Pumroy, & James, L.L.C. v. Larry Ginsburg, Leonard Goldschein, and Mountain Pointe Development Group, L.L.C.).
    2100892.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2011.
    Mandamus Denied Dec. 21, 2012 Alabama Supreme Court 1101514.

      James M. Campbell of Campbell & Hopkins, Anniston, for petitioner.

      Jon E. Lewis of Lewis, Feldman & Le-hane, LLC, Birmingham, for respondents Larry Ginsburg and Leonard Goldschein.
    James R. Shaw and Stewart W. McCloud of Huie, Fernambucq & Stewart, LLP, Birmingham, for respondent Wilson, Dillon, Pumroy & James, L.L.C.
   THOMAS, Judge.

This proceeding arises from an inter-pleader action, initiated by Wilson, Dillon, Pumroy, & James, L.L.C. (“the escrow agent”), in the Calhoun Circuit Court. Larry Ginsburg and Leonard Goldschein entered into a purchase and sale agreement (“the purchase agreement”) with Mountain Pointe Development Group, L.L.C. (“Mountain Pointe”), regarding the purchase of certain real estate. Pursuant to the purchase agreement, Ginsburg and Goldschein deposited $25,000 of earnest money with the escrow agent. The purchase of the real property was never completed, and a dispute arose between Ginsburg and Goldschein, on the one hand, and Mountain Pointe, on the other hand, as to who was entitled to the earnest money. As a result, the escrow agent instituted the underlying interpleader action and deposited the money with the trial court.

On September 9, 2009, Ginsburg and Goldschein moved the trial court for a partial summary judgment against Mountain Pointe. Ginsburg and Goldschein alleged that Mountain Pointe had admitted, by failing to respond to requests for admissions made pursuant to Rule 36, Ala. R. Civ. P., that it had been given proper notice regarding a demand for the return of the earnest money under the purchase agreement. Ginsburg and Goldschein requested that the trial court enter a judgment awarding them the $25,000 in earnest money that Mountain Pointe had refused to refund.

The trial court, on June 16, 2010, entered a partial summary judgment in favor of Mountain Pointe, awarding it the $25,000 in earnest money. The partial-summary-judgment order stated that “[t]his order is hereby made find [sic] pursuant to Rule 54(b), A.R.C.P.” On June 23, 2010, Ginsburg and Goldschein filed a postjudgment motion, requesting that the trial court set aside the June 16, 2010, partial summary judgment because, they stated, Mountain Pointe had not only not sought a judgment in its favor but had agreed at the summary-judgment hearing that Ginsburg and Goldschein were entitled to a summary judgment in their favor.

On October 26, 2010, Ginsburg and Goldschein filed a motion seeking to have their postjudgment motion set for a hearing. In that motion, they referenced an August 17, 2010, status hearing, at which, they alleged, the trial court had agreed to set the motion for a hearing. Notably, the postjudgment motion had been denied by operation of law on September 21, 2010. See Rule 59.1, Ala. R. Civ. P. The trial court did not set a hearing as requested by the October 26, 2010, motion or otherwise act on the motion.

On May 4, 2011, Ginsburg and Gold-schein filed a Rule 60(b)(6), Ala. R. Civ. P., motion to set aside the June 16, 2010, partial summary judgment in favor of Mountain Pointe. In that motion, they argued (1) that the partial summary judgment had not been properly certified as final pursuant to Rule 54(b), Ala. R. Civ. P.; (2) that the partial-summary-judgment motion had been filed by Ginsburg and Goldschein and not by Mountain Pointe, which had not filed a motion seeking a partial summary judgment; and (8) that the previous trial judge, who had since left the bench, had represented that he had intended to set the June 28, 2010, post-judgment motion for a hearing. On May 10, 2011, the trial court granted Ginsburg and Goldschein’s motion and set aside the June 16, 2010, partial summary judgment.

On May 19, 2011, Mountain Pointe filed this petition for a writ of mandamus, arguing that the trial court could not set aside the June 16, 2010, partial summary judgment because it lacked jurisdiction to do so. Mountain Pointe argues that the June 16, 2010, partial summary judgment was a final judgment, having been certified as a final judgment by reference to Rule 54(b); that Ginsburg and Goldschein’s June 23, 2010, motion was a postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., which was denied by operation of law pursuant to Rule 59.1; and that the only remedy available to Ginsburg and Gold-schein was to appeal the partial summary judgment within 42 days of the denial of their June 23, 2010, postjudgment motion by operation of law. See Rule 4(a)(1) and (3), Ala. R.App. P. (requiring that a notice of appeal be filed within 42 days of the denial of a postjudgment motion).

In response, Ginsburg and Goldschein argue that the June 16, 2010, partial summary judgment was not properly certified as a final judgment. According to Ginsburg and Goldschein, the certification was not proper because such certifications should be granted only in exceptional cases and not routinely. As a companion argument, Ginsburg and Goldschein assert that the claims addressed in the partial summary judgment and unadjudicated claims are so interrelated as to preclude certification under Rule 54(b). Ginsburg and Goldschein further argue that the language used in the certification was not sufficient to certify the judgment as final under Rule 54(b) and the cases construing that rule.

Alternatively, Ginsburg and Goldschein argue that, if the partial summary judgment was properly certified as a final judgment, they sought relief from that judgment pursuant to Rule 60(b)(6), Ala. R. Civ. P., in their May 4, 2011, motion to set aside the judgment. Rule 60(b)(6), Ginsburg and Goldschein state in their response to Mountain Pointe’s petition, “grant[s] the trial court broad discretion and authority to alter, amend or vacate its judgments, where equity and judicial integrity require such relief.” Thus, Ginsburg and Goldschein contend, the trial court properly exercised its jurisdiction to set aside the June 16, 2010, partial summary judgment under Rule 60(b)(6).

Mountain Pointe, as the petitioner, must demonstrate that it has a clear legal right to have the trial court’s May 10, 2011, order setting aside the June 16, 2010, partial summary judgment set aside by this court. As we have explained:

“ ‘ “[Mjandamus is a drastic and extraordinary writ that will be issued only when there is: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Horton, 711 So.2d 979, 983 (Ala.1998).’ ”

Ex parte Builders & Contractors Ass’n of Mississippi Self-Insurer’s Fund, 980 So.2d 1003, 1006 (Ala.Civ.App.2007) (quoting Ex parte Alloy Wheels Int’l, Ltd., 882 So.2d 819, 821 (Ala.2003), overruled on other grounds by Ex parte DBI, Inc., 23 So.3d 635, 657 (Ala.2009)). We agree with Mountain Pointe that it is entitled to the relief it seeks because the trial court lacked jurisdiction to set aside its June 16, 2010, partial summary judgment. In order to explain the basis for our conclusion, we will discuss each of Ginsburg and Gold-schein’s arguments in opposition to Mountain Pointe’s petition for the writ of mandamus.

Ginsburg and Goldschein, relying on Fullilove v. Home Finance Co., 678 So.2d 151, 153 (Ala.Civ.App.1996), and Martin v. Phillips, 7 So.3d 1012, 1017 (Ala.Civ.App.2008), first challenge the effectiveness of the trial court’s Rule 54(b) certification. They say that the trial court’s certification was insufficient to certify the partial summary judgment as final because, they say, it failed to expressly declare that “there is no just reason for delay.” Indeed,

“[tjhere are three prerequisites for invoking Rule 54(b), [Ala.] R.Civ.P., to certify a judgment as a final, and therefore appealable, judgment: 1) there must be either multiple claims for relief or multiple parties involved, 2) there must be a final decision as to one of the claims or as to the rights and liabilities of one of the parties, and 3) the court must determine that there is no just reason for delay.”

Fullilove, 678 So.2d at 153.

However, the trial court’s failure to make an express finding that “there is no just reason for delay” does not, in and of itself, prevent the certification from being effective. Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753, 755 (Ala.2000). In Tinney, our supreme court determined that a trial court’s certification of a summary judgment pursuant to Rule 54(b) was effective even where that certification failed to expressly state that “there [was] no just reason for delay.” Tinney, 776 So.2d at 755. The Tinney court, while indicating that it was not approving of the failure to include the specified language, stated that, “[b]y citing Rule 54(b), the trial court implicitly incorporated the language of Rule 54(b) into its order,” thus making the certification effective. Id. We conclude, therefore, consistent with Tin-ney, that the trial court’s specific reference to Rule 54(b) was sufficient to effect a certification of the partial summary judgment under that rule.

Ginsburg and Goldschein next challenge the propriety of the Rule 54(b) certification on the ground that the issue decided by the partial summary judgment and the remaining issues are so intertwined as to make certification improper. See, e.g., Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987) (holding that Rule 54(b) certification is inappropriate in cases in which an adjudicated claim and a unadjudicated counterclaim are “so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results”); Hurst v. Cook, 981 So.2d 1143, 1148-51 (Ala.Civ.App.2007) (applying Branch). We need not consider the merits of this argument, however, because when a party aggrieved by a judgment certified as final pursuant to Rule 54(b) believes that the certification is improper, it must pursue an appeal of the judgment in order to challenge that certification. Allen v. Briggs, 60 So.3d 899, 904-05 (Ala.Civ.App.2010). A party acts at its own peril if it does not pursue a timely appeal from the certified judgment, and a later attempt to appeal from the certified judgment will result in a dismissal of that portion of the appeal. Allen, 60 So.3d at 905. Thus, we conclude that the Rule 54(b) certification of the partial summary judgment was effective and cannot now be challenged.

Finally, Ginsburg and Goldschein rely on the “ ‘grand reservoir of equitable power to do justice’ ” provided by Rule 60(b). Ex parte Robinson Roofing & Remodeling, Inc., 709 So.2d 444, 446 (Ala.1997) (quoting Hall v. Hall, 587 So.2d 1198, 1201 (Ala.1991)(Adams, J., dissenting)). Although such a “grand reservoir” may well exist under Rule 60(b), the cases construing Rule 60(b)(6) are clear that a motion made pursuant to that rule may not be used as a substitute for an appeal. Nowlin v. Druid City Hosp. Bd., 475 So.2d 469, 471 (Ala.1985).

“Rule 60(b)(6) is a residual clause to cover unforeseen contingencies. 7 J. Moore Federal Practice § 60.27[2] (1985). Considered an extraordinary remedy, Rule 60(b)(6) may not be used to relieve a party from his own failure to take an appeal, City of Daphne v. Caffey, 410 So.2d 8 (Ala.1981), and the provision may not be used to extend the time for appeal. Relief under Rule 60(b)(6) will be allowed only in unique situations where a party can show exceptional circumstances sufficient to entitle him to relief. Ex parte Hartford Insurance Co., 394 So.2d 933 (Ala.1981).”

Nowlin, 475 So.2d at 471; see also Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993) (“Rule 60 is no substitute for an appeal and is not available to relieve a party from his failure to exercise the right of appeal.”); R.J. Reynolds Tobacco Co. v. Cantley, 717 So.2d 751, 759 (Ala.1998) (“Neither Rule 60(a) nor Rule 60(b)(6) may be used as a substitute for a timely appeal.”); and Bowen v. Bowen, 28 So.3d 9, 16 (Ala.Civ.App.2009) (quoting Williams v. Williams, 581 So.2d 1116, 1118 (Ala.Civ.App.1991), impliedly overruled on other grounds by Ex parte Billeck, 777 So.2d 105, 109 (Ala.2000)) (“To put it simply, ‘Rule 60(b)(6) is not available as a substitute for an appeal and may not be used to relieve a party from failure to exercise the right of appeal.’ ”).

Even from the scant information available to this court on mandamus review, it is apparent that Ginsburg and Goldschein failed to take the appropriate steps to safeguard their own interests. Instead of appealing the June 16, 2010, partial summary judgment after the trial court failed to rule on their postjudgment motion within the 90-day period prescribed by Rule 59.1, Ginsburg and Gold-schein, in October 2010, requested a hearing on the previously denied motion. When that request failed to provide them relief from the partial summary judgment, they waited until May 2011 to seek relief under Rule 60(b)(6). This case simply does not present exceptional circumstances warranting the exercise of the trial court’s discretion under Rule 60(b)(6).

Because the trial court lost jurisdiction over the June 16, 2010, partial summary judgment after Ginsburg and Gold-schein’s postjudgment motion was denied by operation of law on September 21, 2010, and because the failure by Ginsburg and Goldschein to timely appeal the partial summary judgment and the denial of their postjudgment motion does not form a sufficient basis for the trial court’s exercise of discretion under Rule 60(b)(6), we conclude that the trial court improperly set aside the June 16, 2010, partial summary judgment. Accordingly, Mountain Pointe is entitled to the relief it seeks, and we grant the petition for the writ of mandamus and issue the writ. The trial court is directed to vacate its May 10, 2011, order setting aside the June 16, 2010, partial summary judgment.

PETITION GRANTED; WRIT ISSUED.

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

      . Generally, when a party fails to respond to requests for admissions, a trial court may deem the matters addressed in those requests admitted. See, e.g., Bryant v. Robledo, 938 So.2d 413, 420 (Ala.Civ.App.2005) ("Pursuant to Rule 36(b), Ala. R. Civ. P., a matter is deemed admitted unless a written answer or objection is served within the applicable time frame_’’).

      . Rule 59.1 reads:
      "No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending post-judgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

      . Rule 60(b) reads, in pertinent part:
      "On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: ... (6) any other reason justifying relief from the operation of the judgment.”


author: MOORE, Judge.

text:
    Ryann E. FOX v. Jeremy S. ARNOLD.
    2110483.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2012.

      Valerie L. Goudie, Anniston, for appellant.
    Trudie Anne Phillips, Anniston, for ap-pellee.
   MOORE, Judge.

Ryann E. Fox (“the mother”) appeals from a custody-modification judgment of the Calhoun Circuit Court that awarded Jeremy S. Arnold (“the father”) primary physical custody of the parties’ children, J.A.A., who was born on February 14, 2003, and A.A., who was born on August 18, 2004 (sometimes hereinafter referred to collectively as “the children”). We dismiss the mother’s appeal as untimely filed.

Background

On August 28, 2007, the father filed a contempt petition against the mother in the Shelby Circuit Court. The father asserted that a judgment of divorce dissolving his marriage to the mother had been entered by the Shelby Circuit Court on August 13, 2006, and had been amended by that court on February 15, 2007. The father asserted that, as amended, the divorce judgment awarded him supervised visitation with the children, which visitation was to be supervised by the children’s maternal grandparents, and ordered that his visitation with the children was to progress to overnight unsupervised visitation as of August 1, 2007. The father further asserted that he had complied with all the requirements set forth in the divorce judgment, as modified, but that the mother had refused to allow him the visitation to which he was entitled.

The mother answered the father’s contempt petition, denying his allegations and asserting that, in the divorce judgment, as amended, she had been awarded sole custody of the children, that the father had been ordered to pay child support, and that, as a result of the father’s improper conduct, the Shelby Circuit Court had required the father’s visitation with the children to be supervised. The mother further asserted that the father had failed to comply with the conditions set forth in the divorce judgment, as amended, in order for him to obtain unsupervised visitation. The mother also counterclaimed for a child-support modification and requested that, because both she and the father were residing in Calhoun County, the cause be transferred to the Calhoun Circuit Court. The Shelby Circuit Court transferred the cause to the Calhoun Circuit Court (“the trial court”) on February 7, 2008.

On July 24, 2008, the father amended his pleadings to request a modification of custody and to request that the mother be held in contempt for failing to comply with the Alabama Parent-Child Relationship Protection Act, Ala.Code 1975, § 30-3-160 et seq.

In September 2008, the trial court entered a pendente lite order, approving the parties’ stipulated agreement regarding the father’s visitation pending a final hearing. In that order, the trial court noted that, although the father continued to object to supervised visitation, to the mother’s relocation to Georgia with the children, and to her continued custody of the children, the parties had agreed, among other things, that the father’s wife would supervise his visitation with the children pending a final hearing.

On August 24, 2009, the mother moved the trial court to suspend the father’s visitation, raising concerns of improper supervision during the children’s visits with the father and asserting that, based on the children’s reports, the children’s counselor had filed a report identifying the children as “at risk.”

Also on August 24, 2009, the father filed another contempt petition, asserting that he had had no contact with the children since August 2, 2009. On September 1, 2009, the trial court scheduled a hearing on the father’s August 24 contempt petition, but, on that same date, the trial court granted the mother’s motion to suspend the father’s visitation.

On September 8, 2009, the father responded to the mother’s motion to suspend his visitation. He challenged the exhibits the mother had submitted in support of her allegations as hearsay, incomplete, and unauthenticated.

On November 4, 2009, the father objected to the mother’s proposed plans to relocate to Indiana and requested an ex parte temporary restraining order. On January 21, 2010, the mother responded that she had remarried and that she had provided the father proper notice of her intent to relocate to Indiana and that the trial court had granted her permission to relocate to Indiana when the parties had last appeared in the court’s chambers.

Following ore tenus proceedings on February 18 and March 5, 2010, the trial court entered an “interim order” on March 5, 2010. In that interim order, the trial court, among other things, allowed the father unsupervised visitation with the children. On March 16, 2010, the mother provided the trial court with notice of her compliance with certain provisions of the interim order. On March 18, 2010, the mother filed a motion to alter, amend, or vacate the interim order; the trial court granted the mother’s motion on March 29, 2010, by amending the date the father was to pick the children up for summer visitation.

On May 27, 2010, the father filed a motion seeking a finding of contempt against the mother for her failure to comply with the provisions of the March 5, 2010, interim order. The mother denied those allegations.

On November 19, 2010, the father moved the trial court for an ex parte temporary custody order based upon allegations made in postdivorce litigation occurring in Indiana involving the mother’s new husband. Following ore tenus proceedings on December 20, 2010, the trial court entered an order on December 21, 2010, specifying a holiday visitation schedule for the father and stating that it was taking the father’s motion for an ex parte temporary custody order under advisement.

On December 30, 2010, the trial court entered an “Order of Modification” based upon the evidence it had received at the ore tenus hearings held in February, March, and December 2010. In that judgment, the trial court found that the mother’s testimony at the February 2010 hearing had, in large part, been untruthful; that the mother had shown no interest in working with the father for the benefit of the children; that the father was a fit and proper person to have custody of the children; and that a material change in circumstances had occurred and that the positive good brought about by the change in custody would outweigh any inherent disruption in the children’s lives resulting from the custody modification. The trial court, among other things, awarded the father custody of the children, awarded the mother visitation, ordered the mother to pay child support in the amount of $195 per month, awarded the father an attorney fee in the amount of $2,500, and, to the extent there was additional relief requested in the parties’ pleadings that the trial court had not addressed, it denied such relief.

On January 25, 2011, the father filed an “Ex Parte Motion to Suspend All Contact Between [the Mother] and the Minor Children, Motion for Rule Nisi, and Motion to Alter, Amend, or Vacate.” In that motion, the father asserted that the mother had violated certain provisions of the December 30, 2010, judgment and that she had filed a new complaint with the Calhoun County Department of Human Resources on January 5, 2011, alleging that the father had abused the children; in support of his assertions, the father submitted transcripts of the mother’s recent telephone conversations with the children. The father requested that the trial court modify its December 30, 2010, judgment to require that the mother’s visitation with the children be supervised and that, during the pendency of his contempt petition, the mother be restrained from having any contact with the children. On January 26, 2011, the trial court entered an ex parte order restraining the mother from any and all contact with the children pending further order of the trial court.

On January 26, 2011, the mother timely filed a “motion to reconsider, pursuant to Rule 59, [Ala. R. Civ. P.,]” the December 30, 2010, judgment. The mother challenged the trial court’s findings of fact and conclusions of law contained in the December 30, 2010, judgment, asserting that the trial court’s judgment was plainly and palpably erroneous and that the evidence did not support the trial court’s judgment.

On March 15, 2011, the mother answered the father’s ex parte motion to suspend all contact between her and the children, his petition for contempt, and his motion to alter, amend, or vacate the trial court’s December 30, 2010, judgment. The mother also counterclaimed for a finding of contempt, asserting that the father had violated the December 30, 2010, judgment by monitoring her conversations with the children, by alienating the children from her, and by interfering with her communications with the children; she also sought a modification of custody and attorney fees. The father answered the mother’s counterclaim for contempt and for a modification of custody, denying and demanding proof of the allegations asserted therein.

Following a March 16, 2011, ore tenus hearing on the father’s “Ex Parte Motion, Motion for Rule Nisi, and Motion to Alter, Amend, or Vacate” and the mother’s response thereto, the trial court entered an order on March 18, 2011, allowing the mother supervised visitation with the children at any time during the children’s “Spring Break.” The trial court also stated that, at the March 16, 2011, hearing, testimony had begun but had not been completed.

On January 11, 2012, the trial court purported to address the father’s “Ex Parte Motion to Suspend All Contact Between the Mother and the Minor Children, Motion For Rule Nisi, and Motion to Alter, Amend, or Vacate” and the mother’s “Counterclaim for Rule Nisi and Modification of Custody.” The trial court purported to make final all the terms and provisions of its previous orders and to deny all relief requested by the mother. The mother filed her notice of appeal on February 17, 2012.

Analysis

Before addressing the merits of the issues raised on appeal, we must first consider whether this court has jurisdiction over the mother’s appeal. “ ‘[Jjuris-dictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Singleton v. Graham, 716 So.2d 224, 225 (Ala.Civ.App.1998) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). “ ‘ “[S]ub-ject-matter jurisdiction may not be waived; a court’s lack of subject-matter jurisdiction may be raised at any time by any party and may even be raised by a court ex mero motu.’”” M.B.L. v. G.G.L., 1 So.3d 1048, 1050 (Ala.Civ.App.2008) (quoting S.B.U. v. D.G.B., 913 So.2d 452, 455 (Ala.Civ.App.2005), quoting in turn C.J.L. v. M.W.B., 868 So.2d 451, 453 (Ala.Civ.App.2003)).

Although the mother and the father filed additional pleadings, i.e., contempt petitions and custody-modification petitions, after the entry of the trial court’s December 30, 2010, judgment and after the filing of their postjudgment motions, and although the trial court purported to consider and rule upon those additional pleadings during 2011 and 2012, those pleadings were nullities because they purported to initiate a new action that should have been assigned a “.01” suffix by the trial court’s clerk and that would have required the payment of a new filing fee. See supra notes 2 & 3. See also M.M. v. B.L., 926 So.2d 1038, 1041-42 (Ala.Civ.App.2005) (dismissing father’s appeal taken from a judgment purportedly entered on grandparents’ adoption petition because the petition was not properly filed in the action pending at that time before the juvenile court, the petition was not served on the father as required by the Alabama Rules of Civil Procedure, and no filing fee was paid, which was required to initiate a new action; as a result, the juvenile court lacked subject-matter jurisdiction to grant the adoption petition); and Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002) (father’s appeal was dismissed for lack of jurisdiction because a custody-modification petition could not substitute for a postjudgment motion and father had failed to pay a filing fee and had failed to properly serve mother with his custody-modification petition, which were required since the custody-modification petition would have initiated a new action).

Thus, the father’s January 25, 2011, and the mother’s January 26, 2011, motions, requesting postjudgment relief pursuant to Rule 59, Ala. R. Civ. P., were the last pleadings properly before the trial court in case action no. DR-08-131. Those motions, however, were subject to Rule 59.1, Ala. R. Civ. P., which provides:

“No postjudgment motion filed pursuant to Rules 50, 52, 55, or 59 shall remain pending in the trial court for more than ninety (90) days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

We have examined the record and find no indication that either method identified in Rule 59.1 was used to extend the period for ruling on the postjudgment motions filed by the father and the mother.

“If a trial judge allows a post-judgment motion to remain pending and not ruled upon for 90 days, then the motion is denied by operation of law at the end of the 90th day and the trial judge then loses jurisdiction to rule on the motion. See, e.g., Ex parte Hornsby, 663 So.2d 966, 967 (Ala.1995); see also Ex parte Caterpillar, Inc., 708 So.2d 142, 143 (Ala.1997).”

Ex parte Davidson, 782 So.2d 237, 241 (Ala.2000). The trial court did not rule on either the father’s or the mother’s post-judgment motion within 90 days. As a result, the mother’s postjudgment motion, the later-filed motion, was deemed denied by operation of law on the 90th day after its filing, i.e., April 26, 2011, and the trial court lost jurisdiction of the action on that date.

Rule 4(a), Ala. R.App. P., provides that a notice of appeal must be filed within 42 days of the date of the entry of the judgment or order from which the appeal is taken. The mother’s notice of appeal was filed on February 17, 2012, over nine months after her postjudgment motion was deemed denied by operation of law. As a result, the mother has failed to invoke the jurisdiction of this court and we must dismiss her appeal. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”); and Painter v. McWane Cast Iron Pipe Co., 987 So.2d 522, 529 (Ala.2007) (“The filing of a timely notice of appeal is a jurisdictional act.”). See also Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (“[W]e are obligated to dismiss an appeal if, for any reason, [subject-matter] jurisdiction does not exist.”).

Additionally, because the trial court purported to enter orders and judgments after it lost jurisdiction to do so, our dismissal is with instructions that the trial court vacate all orders and judgments entered after the December 30, 2010, judgment. See, e.g., Ex parte Norfolk Southern Ry., 816 So.2d 469, 472 (Ala.2001) (“An order issued by a- trial court without jurisdiction is a nullity.”); and Ex parte Hornsby, 663 So.2d 966, 967 (Ala.1995) (because the trial court “lacked jurisdiction to set aside the default judgment for the petitioners, [its] January 10, 1995, order was a nullity and, therefore, is due to be set aside”).

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . On July 19, 2010, the trial court had denied the father’s request for an ex parte temporary restraining order preventing the mother from relocating to Indiana.

      . The father’s contempt petition was docketed under the existing case action no., DR-08-131.

      . As had the father's contempt petition, the mother’s counterclaim for contempt and custody modification was docketed under the existing case action no., DR-08-131.


author: BRYAN, Judge.

text:
    E.A.B. v. D.G.W., Jr. D.G.W., Jr. v. E.A.B.
    2100718.
    Court of Civil Appeals of Alabama.
    Sept. 7, 2012.
    Certiorari Denied Aug. 10, 2012 Alabama Supreme Court 1111152.

      Robert E. Gibney, Mobile; and Lois A. DiVietro, Las Vegas, Nevada, for appellant/cross-appellee E.A.B.
    Randall W. Nichols of Massey, Stotser & Nichols, P.C., Birmingham; and David P. Broome, Mobile, for appellee/cross-ap-pellant D.G.W., Jr.

       Note from the reporter of decisions: E.A.B. filed an application for rehearing in the Court of Civil Appeals and a petition for certiorari review in the Alabama Supreme Court on the same day. After the Supreme Court denied E.A.B.’s petition, the Court of Civil Appeals acted on her application for rehearing.

   On Application for Rehearing

BRYAN, Judge.

This court’s opinion of May 18, 2012, is withdrawn, and the following is substituted therefor.

E.A.B. (“the wife”) appeals from a judgment divorcing her from D.G.W., Jr. (“the husband”), and the husband cross-appeals. We affirm.

The parties married in June 1990 and separated in July 2008. When the action was tried in November 2010, the wife was 44 years old, and the husband was 50. The parties had a daughter in 1994 and a son in 1996. When the action was tried, the daughter was a junior at a private boarding school, and the son was a freshman in the local public-school system.

The husband is an attorney in private practice with a law firm (“the law firm”). He owns an interest in the law firm and has personally guaranteed debt owed by the law firm. In addition, he owns an interest in a partnership (“the partnership”) that owns real property used by the law firm. His adjusted gross income was $869,342 in 2007, $1,276,794 in 2008, and $1,368,623 in 2009. From January 1, 2010, through mid-November 2010, when the action was tried, the husband had received gross draws from the law firm totaling $768,332.07.

The wife graduated from Birmingham Southern College and earned a paralegal certificate from Spring Hill College. She worked full time as a paralegal for a short period before the parties’ daughter was born in 1994. When the daughter was born, the wife stopped working to care for the daughter, and she did not work outside the home again until the children entered school; at that point, she began working as a substitute teacher at their school. In the spring of 2008, she began working part time at a store (“the bookstore”) that sells books and other miscellaneous merchandise. She was still working part time at the bookstore for $7.50 per hour when this action was tried. Her income from the bookstore in 2009 totaled $12,714.59, and her anticipated income from the bookstore for 2010 was approximately $12,000. Throughout the marriage, the wife participated in volunteer organizations. She served as president of the parent-teacher organization at her children’s school and participated in the activities of the local youth-baseball league, the local literacy council, the local United Way, a local choral society, and a local branch of the Junior Auxiliary.

The wife testified that the marriage had irretrievably broken down when the husband informed her in October 2009 that he had begun dating another woman.

The husband, on the other hand, testified as follows regarding the breakdown of the marriage. The problems in the marriage had begun shortly after the parties’ son was born in 1996 as a result of the wife’s behavior changing. The wife exhibited a cold attitude toward the parties’ daughter, stopped keeping the house orderly, stopped cooking on a regular basis and did not cook nutritious meals when she did cook, stopped exercising, and allowed her weight to increase a great deal. Those problems became progressively worse. He told the wife that he thought she might be suffering from depression; however, she did not seek professional help. In 2002, he took the wife to Hawaii and discussed the problems he was having with her; however, he saw no improvement after they returned from Hawaii. The husband asked the wife to prepare the interior of their house for Hurricane Ivan in 2004 and for Hurricane Katrina in 2005 so that he could devote his time and attention to preparing the exterior; however, the wife ignored his requests. Their house was flooded by Hurricane Katrina, and their personal property suffered damage from the flooding that could have been avoided if the wife had prepared the interi- or of the house for the hurricane as he had requested. In 2006, the parties ceased having intimate relations and began sleeping apart. In 2007, he saw the wife physically shove the daughter, which he considered unacceptable behavior by a parent. Thereafter, he arranged for family counseling with a therapist; however, he saw no improvement in the wife’s behavior after a year of counseling. In April 2008, the wife legally changed her last name to her maiden name without telling him. In the spring of 2008, the husband suggested to the wife that they separate, and he suggested that she find a house to live in near the family residence. The wife found a house she liked (“the wife’s new house”) that was near the family residence. The husband paid a down payment of $47,000 for the wife’s new house and financed the balance of the purchase price. He gave the wife her choice of the furniture in the family residence and paid for approximately $6,000 of additional furniture she picked cut at a furniture store. In July 2008, the wife moved into the her new house. The children remained with the husband in the family residence. He had hoped that the separation would be temporary and that they could work out their differences; however, the wife’s comments became “very nasty” and their relationship became worse instead of better. Consequently, he came to the conclusion that there was no way to improve the relationship and that there was no hope of continuing the marriage. The parties attempted to reach an agreement regarding the terms of a divorce and participated in a mediation in April 2009; however, the attempts to reach an agreement were unsuccessful. On August 15, 2009, he met a woman, and they began dating. A romantic and sexual relationship developed, and, in October 2009, he told the wife that he was dating. Subsequent to August 15, 2009, he took the other woman on trips and bought her gifts, including a “promise ring” that cost $5,313.75. His relationship with the other woman was ongoing when the action was tried.

On January 15, 2010, the husband sued the wife for a divorce on the ground of incompatibility, and the wife subsequently counterclaimed for a divorce on the grounds of incompatibility and adultery. The trial court received evidence ore tenus at a bench trial on November 2, 3, 16, and 18, 2010. On November 24, 2010, the trial court sent the parties’ attorneys an e-mail accompanied by a draft of the judgment. The e-mail, which was made an exhibit of the court during a March 1, 2011, hearing on the parties’ postjudgment motions, stated, in pertinent part:

“I want to tell you a little about my reasoning in this case. First, I believe it is very clear from the evidence that this marriage was irretrievably broken in 2008. The [husband’s] relationship with [the other woman] started long after that time, and I believe it did not in any way contribute to the breakdown of this marriage. Therefore, I did not give that any weight in making my ultimate decision.
“Additionally, I allocated no value in my calculations to [the husband’s] interest in the law firm or the firm’s building partnership, outside of what it allows him to produce in income. His contingent liability on the firm’s line of credit exceeds his member’s equity, and further, although his interest may be shown as $611 [thousand] on paper, I don’t view that as a tangible or marketable asset from which [the wife] should be awarded an interest.
“I imputed income to [the wife] at $40,000, as I believe that is a fair salary for a legal assistant or paralegal with her education and leadership skills. I calculated alimony and child support based on this. Certainly she may decide to continue to work part time as a book seller, but she must make the choice then to reduce her lifestyle accordingly. Also, from the perspective of alimony, I took into account the tax consequences when I calculated what I believe to be a fair amount.”

The trial court entered a divorce judgment on December 2, 2010. The judgment did not state a ground for the divorce. As subsequently amended, the judgment awarded the husband the following marital assets for which the record indicates a value:

Asset Net Value
family residence $ 319,000
Highway 181 property 3,000
Point Clear property 141,000
County Road 24 property 35,000
pick-up truck 4,400
Mustang 15,000
Land Rover 18,000
Suburban 5,000
Boston Whaler boat 5,000
Kubota tractor 24,000
Ford tractor 24,000
Caterpillar’ tractor 37,000
1933 Ford 32,000
antique race cars 6,250
golf cart 2,500
3 motorcycles 1,700
interests in law firm and partnership 611,667
1/2 of husband’s 401(k) 331,000
cash 365,000
Total net value $1,980,517

The judgment ordered the husband to pay the mortgage on the wife’s new house, which the trial court awarded to the wife. The balance owed on that mortgage was $177,362. Subtracting that $177,362 from the total net value of the assets listed above reduces the net value of the husband’s share of the assets for which the record indicates a value to $1,803,155 ($1,980,517 minus $177,362 equals $1,808,155).

In addition, the judgment awarded the husband the following marital assets for which the record does not indicate a value: his personal effects and heirlooms; a canoe; art work; antique furniture; three trailers; race-car tires; a coin collection; and all furniture, furnishings, tools, and lawn-care equipment located at the family residence.

As subsequently amended, the judgment awarded the wife the following marital assets for which the record indicates a value:

Asset Net Value
wife’s new house $200,000
Land Cruiser 7,500
race cars 1,250
1/2 of husband’s 401(k) 331,000
cash 50,000
Total net value $589,750

In addition, the judgment awarded the wife the following marital assets for which the record does not indicate a value: her jewelry, personal effects, and heirlooms; portraits of the children; a collection of bride’s baskets; Christmas decorations of her choosing; all silver in the Gorham Camellia pattern; a big conch shell; and the furniture, furnishings, tools, and lawn-care equipment located at the wife’s new house.

The judgment also awarded the husband interests in several business entities that own real property for investment purposes, which the wife conceded were contingent assets (“the contingent assets”).

In addition, the judgment ordered the husband to pay the wife $5,000 per month in permanent periodic alimony; incorporated the parties’ agreement regarding custody; imputed income of $40,000 to the wife; ordered the wife to pay $500 per month in child support; and ordered that each party would be responsible for paying his or her own attorney fees.

On December 22, 2010, the wife filed a postjudgment motion. Among other things, the wife asserted that the trial court had erred in failing to grant the divorce on the ground of adultery, in dividing the marital property, in imputing $40,000 of income to the wife, in considering the husband’s contingent liability for debts of the law firm in determining the value of the husband’s interest in the law firm and the partnership, and in failing to order the husband to pay the wife’s attorney fees. On December 28, 2010, the husband filed a postjudgment motion in which he asserted, among other things, that he had learned after the trial that the wife had contracted to buy a local business, that the wife had intentionally failed to disclose that she had done so when she testified at trial, and that the division of marital property and the award of periodic alimony should be altered to reflect the wife’s new business as a source of income.

The trial court heard the parties’ post-judgment motions on March 1, 2011. At that hearing, the trial court received ore tenus testimony from the wife regarding her purchase of the local business. On March 21, 2011, the trial court entered an order that granted the wife’s postjudgment motion in part by making some relatively minor adjustments in the division of marital property that favored the wife but otherwise denied the wife’s postjudgment motion. Rejecting the wife’s assertion that it had erred in considering the husband’s contingent liability for debt of the law firm in determining the value of the husband’s interest in the law firm and the partnership, the trial court stated:

“d. The Court determined the value of the parties’ marital estate without consideration of the contingent assets and liabilities of the parties, and made its division accordingly. The Court then considered and valued the contingent assets and liabilities separately. In reviewing said distribution, the Court reaffirms its previous judgment as to the division of those assets and debts.”

Also on March 21, 2011, the trial court entered a separate order ruling on the husband’s postjudgment motion. The trial court granted that motion with respect to an issue that is not material to this appeal but denied it insofar as it sought a reduction of the wife’s share of the marital property and the award of periodic alimony, stating:

“2. Although the Court agrees that the Defendant Wife’s pending purchase of a business at the time of trial was a material omission on the part of the Wife at trial, the income from that business at this time is too speculative for the Court to consider a modification of the prior order. The Court imputed a fair income to the Wife in the calculation of alimony, and that order shall stand.”

The wife timely appealed to this court on April 29, 2011, and the husband timely cross-appealed on May 13, 2011.

Because the trial court received evidence ore tenus, our review is governed by the following principles:

“ ‘ “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” ’ Water Works & Sanitary Sewer Bd. v. Parks, 977 So.2d 440, 443 (Ala.2007) (quoting Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005), quoting in ton Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). “‘The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment.” ’ Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala.2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala.1985)). ‘Additionally, the ore tenus rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or the incorrect application of law to the facts.’ Waltman v. Rowell, 913 So.2d at 1086.”

Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 929 (Ala.2007).

In her appeal, the wife first argues that the trial court erred in failing to specify a ground for the divorce.

“Although it is the better practice to set out the grounds [upon which the divorce is granted] in its decree, a trial court will not be reversed for its failure to do so. Cozad v. Cozad, 372 So.2d 1322 (Ala.Civ.App.1979). Where the decree fails to contain grounds for the divorce, this court will examine the record to see if there is sufficient evidence to support the ground or grounds propounded by the parties and if so the decree will be affirmed. Cozad, supra.

Mathieson v. Mathieson, 409 So.2d 439, 442 (Ala.Civ.App.1982).

In the present case, the parties both sought a divorce on the ground of incompatibility, while the wife sought a divorce on the additional ground of adultery. The husband’s testimony supports a divorce on the ground of incompatibility. Therefore, the trial court’s failure to specify a ground for the divorce does not constitute reversible error. Id.

The wife also argues that the trial court erred because, the wife says, the trial court did not specifically grant a divorce on the ground that the husband had committed adultery. In Roberts v. Roberts, 357 So.2d 150 (Ala.Civ.App.1977), the husband sued the wife for a divorce on the ground of incompatibility, and the wife counterclaimed for a divorce on the ground of adultery. 357 So.2d at 151. The trial court entered a judgment granting a divorce without stating a ground for the divorce. Id. The wife appealed to this court, arguing, among other things, that “there was error in failing to grant the divorce on the ground of adultery.” Id. Rejecting that argument, this court stated:

“This court said in the case of Russell v. Russell, 45 Ala.App. 255, 257, 229 So.2d 30, 32 (1969) and repeated in the case of Lloyd v. Lloyd, 46 Ala.App. 441, 442, 243 So.2d 525, 527 (1970), ‘(I)f the evidence is legally sufficient to support the decree of the court below as to any ground alleged in the Bill of Complaint, the decree must be affirmed.’ We find the evidence and its reasonable inferences sufficient to support a divorce on either the ground of incompatibility or adultery. The failure to state which ground is therefore not reversible error.”

Id. at 151-52.

As noted above, the husband’s testimony in the present case supports a divorce on the ground of incompatibility. Therefore, the trial court’s failure to specify adultery as the ground for the divorce did not constitute reversible error. Id.

The wife also argues that the trial court erred in considering the husband’s contingent liability for debt of the law firm in determining the value of the husband’s interest in the law firm and the partnership for purposes of dividing the marital property. Specifically, the wife argues that the trial court’s e-mail indicates that the trial court erroneously found that the husband’s interest in the law firm and the partnership had no value for purposes of the property division because their value was offset by the husband’s contingent liability for debt of the law firm.

This court has held that, in valuing marital property, “contingent assets and contingent liabilities [are] not to be included in the computation of the parties’ net worth but should be calculated separately and awarded separately” and that the trial court “should ... determine[ ] the value of the parties’ marital estate without reference to their contingent assets and liabilities; after determining the net worth of the parties in that fashion, the trial court then should ... consider[ ] their contingent assets and liabilities separately.” Grelier v. Grelier, 63 So.3d 668, 673-74 (Ala.Civ.App.2010). The trial court’s email indicates that the trial court initially considered the husband’s contingent liability for the law firm’s debt in determining the value of his interests in the law firm and the partnership, which was error. Id. However, the trial court’s order ruling on the wife’s postjudgment motion indicates that the trial court subsequently corrected its error by valuing the husband’s interests in the law firm and the partnership as part of the marital estate without considering the husband’s contingent liability for debt of the law firm and then considered the husband’s contingent liability for debt of the law firm in valuing the contingent assets. Although the trial court did not change its division of the marital property as a result of its subsequent valuation of the husband’s interests in the law firm and the partnership without considering the husband’s contingent liability for debt of the law firm, its failure to change the division of marital property would constitute reversible error only if it resulted in an inequitable division of the marital property. Cf. Grelier v. Grelier, 63 So.3d at 672 (holding that, when the trial court’s judgment on remand stated that it had considered the value of the husband’s business interests without applying any marketability or minority discounts to that value as this court had instructed it to do and that it had found it to be equitable to divide the marital property as it had before, the trial court had not erroneously failed to comply with this court’s mandate).

The wife also argues that the trial court’s division of the marital property and award of periodic alimony were inequitable.

“[T]he division of property and the award of alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). A property division does not have to be equal in order to be equitable based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).
“When dividing marital property and determining a party’s need for alimony, a trial court should consider several factors, including ‘ “the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage.” ’ Ex parte Elliott, 782 So.2d 308 (Ala.2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala.Civ.App.1985)) (footnote omitted). In addition, the trial court may also consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility, or where, as here, the trial court failed to specify the grounds upon which it based its divorce judgment. Ex parte Drummond, 785 So.2d 358 (Ala.2000); Myrick v. Myrick, 714 So.2d 311 (Ala.Civ.App.1998). It is well-settled that where a trial court does not make specific factual findings, the appellate court must assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous. Ex parte Fann, 810 So.2d 631 (Ala.2001); Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996).”

Baggett v. Baggett, 855 So.2d 556, 559-60 (Ala.Civ.App.2003). In addition to the factors listed in Baggett v. Baggett, the trial court may also consider the spouses’ relative economic and noneconomic contributions to the marriage in dividing the marital property and awarding periodic alimony. Weeks v. Weeks, 27 So.3d 526, 532-33 (Ala.Civ.App.2008).

“ ‘[T]here is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.’ Yohey v. Yohey, 890 So.2d 160, 164 (Ala.Civ.App.2004). ‘Even if a property division favors one party over the other, that is not, in and of itself, an abuse of discretion.’ Jordan v. Jordan, 547 So.2d 574, 576 (Ala.Civ.App.1989).”

Id. at 532.

In the present case, the marital assets for which the record indicates a value have a total net value of $2,392,905. The trial court awarded the husband $1,803,155 of that total net value and awarded the wife $589,750 of it. Thus, the trial court awarded the husband approximately 75% of the total net value of the marital assets for which the record indicates a value and awarded the wife approximately 25% of it. In addition, the trial court awarded the wife $5,000 per month in permanent periodic alimony. When the action was tried, the husband was 50 years old, and the wife was 44. The marriage lasted approximately 20 years. The husband was in good health. The wife was being treated for depression but was otherwise in good health. The husband’s future employment prospects and ability to earn are substantially greater than the wife’s. The husband and the wife enjoyed an affluent standard of living during the marriage. The husband’s economic contributions to the marriage far exceeded the wife’s and virtually all the marital assets were acquired with money he earned. The evidence would support a finding that the husband’s noneconomic contributions to the marriage also far exceeded the wife’s; the evidence would support findings that he became the primary caregiver for the parties’ children and that he made greater contributions toward salvaging the marriage than did the wife. The husband arranged for marital counseling and sponsored that effort at salvaging the marriage for over a year. Although the husband committed adultery, the trial court found that the marriage had already irretrievably broken down before the adultery began in August or September of 2009, which was over a year after the parties had separated and after the parties had attempted to agree upon the terms of a divorce. Moreover, the evidence would support a finding that the wife was primarily responsible for the failure of the marriage due to her negative attitude toward the daughter and her failure to modify her behavior despite the husband’s requests and the family counseling he arranged and sponsored. Taking into consideration all the evidence that was before the trial court, we conclude that the trial court’s division of marital property and award of periodic alimony is equitable.

The wife also argues that the trial court erred in imputing income of $40,000 per year to her. However, the evidence indicates that, despite the fact that the husband had primary physical custody of the children after the wife moved into her new house in July 2008, the wife made no effort to find a full-time job. The evidence would support a finding that, given her education and abilities, she was underemployed and that she could earn considerably more than the $7.50 per hour she earned as a part-time employee of the bookstore. Rule 32(B)(5), Ala. R. Jud. Admin., provides that, “[i]f the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income....” (Emphasis added.) Accordingly, we conclude that the trial court did not err in imputing income of $40,000 per year to the wife.

The wife’s final argument is that the trial court exceeded its discretion in failing to order the husband to pay her attorney fees.

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993).”

Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996).

The husband’s financial circumstances are more favorable than the wife’s. However, the evidence would support a finding that the wife’s conduct was the primary cause of the breakdown of the marriage, and the husband prevailed on most of the disputed issues in the action. Accordingly, we conclude that the trial court did not exceed its discretion in ordering each party to be responsible for his or her own attorney fees.

In his cross-appeal, the husband argues that the trial court erred in declining to reduce the wife’s share of the marital property and her award of periodic alimony due to the wife’s concealing the fact that she had contracted to buy a local business. However, we agree with the trial court’s finding that the effect of the business on the wife’s financial condition was too speculative to warrant changing the division of marital property and the award of periodic alimony. Therefore, we affirm the trial court’s ruling with respect to that issue.

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

APPLICATION OVERRULED; OPINION OF MAY 18, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

MOORE, J., recuses himself.

      . Due to delays by the court reporters in preparing the transcripts of the trial of this action, this appeal was not assigned to this judge until more than 290 days after the filing of the notice of appeal.

      . During trial, the parties reached an agreement regarding custody of the children. They agreed that they would have joint legal custody, that the husband would have primary physical custody, and that the wife would have visitation. Consequently, custody is not an issue on appeal.

      . The wife has not argued on appeal that the trial court erred in awarding the husband the contingent assets or that the award of the contingent assets to the husband rendered the trial court’s division of the marital property and award of periodic alimony inequitable. Therefore, she has waived those issues. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.").


author: PER CURIAM.

text:
    J.L.L. III and T.L.O.L. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES et al.
    2110517.
    Court of Civil Appeals of Alabama.
    Oct. 26, 2012.
    Rehearing Denied Jan. 4, 2013.

      Robert M. Echóla, Jr., Birmingham, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, staff atty., Department of Human Resources, for appellee the Jefferson County Department of Human Resources.
   PER CURIAM.

J.L.L. Ill and T.L.O.L., respectively the uncle and the aunt of D.R.O., a minor child (“the child”), appeal from a judgment of the St. Clair Juvenile Court dismissing their adoption action as to the child for lack of jurisdiction.

The child is a resident of the State of Washington. The child was adjudicated dependent in October 2010, shortly after she was born, and, since that time, she has been in the legal custody of the State of Washington. The child has never left Washington and has been under the foster care of J.B. and E.B. (“the foster parents”) since October 2010.

In October 2011, J.L.L. and T.L.O.L. (“the aunt and the uncle”) filed a petition in the St. Clair Probate Court seeking to adopt the child, their niece; the child’s parents consented to the petition. On November 3, 2011, the Jefferson County Department of Human Resources (“JCDHR”) filed a motion to intervene in the adoption proceedings; a notice of contest and objection to the adoption; a motion to set aside any interlocutory decree that might have been entered; and a motion to transfer the action to the St. Clair Juvenile Court (“the juvenile court”). On November 9, 2011, the child’s guardian ad litem in the State of Washington objected to the adoption petition filed by the aunt and the uncle. That same day, a representative from the Washington Attorney General’s office filed an appearance and objected to the juvenile court’s jurisdiction on behalf of the Washington Department of Social and Health Services, Division of Children and Family Services. Additionally, the foster parents objected to the aunt and the uncle’s adoption petition. The case was transferred to the juvenile court on November 18, 2011.

On January 4, 2012, the aunt and the uncle filed a brief arguing that the juvenile court had jurisdiction to hear their adoption petition. On January 15, 2012, the child’s Alabama-based guardian ad litem appeared and filed a motion challenging the juvenile court’s jurisdiction to hear the matter. The aunt and the uncle filed a second brief with the juvenile court asserting their position as to jurisdiction on February 2, 2012. That same day, the juvenile court dismissed the case for lack of jurisdiction. The aunt and the uncle thereafter filed a motion to alter, amend, or vacate the order of dismissal, which the juvenile court denied on February 8, 2012. The aunt and the uncle timely filed this appeal.

The only issue on appeal is whether the juvenile court erred in dismissing the adoption proceedings as to the child for want of jurisdiction. The juvenile court’s determination as to jurisdiction is strictly a legal matter. Therefore, we apply a de novo standard of review. See Ex parte Morris, 999 So.2d 932, 936 (Ala.2008).

The right to adopt in Alabama is provided for and governed by the Alabama Adoption Code (“the AAC”), § 26-10A-1 et seq., Ala.Code 1975. The following provisions of the AAC address jurisdiction and venue of adoption proceedings:

“The probate court shall have original jurisdiction over proceedings brought under the chapter. If any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights. The provisions of this chapter shall be applicable to proceedings in the court having jurisdiction over juvenile matters.”

Ala.Code 1975, § 26-10A-3.

“All petitions may be filed in the probate court in the county in which:
“(1) The minor or adult resides or has legal residence;
“(2) A petitioner resides, or is in military service; or
“(3) An office of any agency or institution operating under the laws of this state having guardianship or custody of a minor or an adult is located.”

Ala.Code 1975, § 26-10A-4.

The aunt and the uncle argue that their residence in the State of Alabama, coupled with the consent of the child’s parents, is sufficient to afford Alabama courts jurisdiction over the adoption proceedings as to the child. In their principal brief, however, the aunt and the uncle acknowledge that there is a custody case regarding the child pending in the Washington courts because the child is currently in the legal custody of the State of Washington.

JCDHR, in its brief, asserts that the juvenile court lacked jurisdiction over the adoption proceedings because, it says, the record shows that the child was not legally “available for adoption”; that the child’s parents are residents of the State of Washington; that the child is a resident of Washington and has never been in the custody of the State of Alabama; and that the aunt and the uncle had failed to comply with the Interstate Compact for the Placement of Children (“the ICPC”), adherence to which is mandated under § 44-2-20, Ala.Code 1975.

Additionally, the foster parents have filed a brief on appeal. The foster parents assert three arguments. First, they contend that the Uniform Adoption Act (“the UAA”) dictates that Alabama courts cannot exercise jurisdiction over the adoption proceedings because there is already an ongoing custody proceeding as to the child pending in the Washington courts. Second, the foster parents argue that Alabama courts cannot exercise jurisdiction because, pursuant to the Parental Kidnapping Prevention Act (“the PKPA”), 28 U.S.C. § 1738A, the home state of the child, which they argue is Washington, has the authority to exercise exclusive jurisdiction over custody matters concerning the child. Last, the foster parents argue that the child’s best interests would not be served by granting the adoption petition of the aunt and the uncle. The foster parents rely on JCDHR’s arguments, which are grounded in law applicable to jurisdictional issues in child-custody cases, in support of the juvenile court’s judgment.

It is undisputed that the child is a resident of and under the legal custody of the State of Washington pursuant to the child’s dependency adjudication of October 2010. JCDHR and the foster parents’ arguments are based, in general, on the premise that the fact that the custody proceedings in Washington are ongoing operates to preempt another state’s exercise of jurisdiction over the adoption proceedings as to the child. JCDHR’s and the foster parents’ briefs rely on the UAA and the PKPA to support their contention that Alabama courts cannot exercise jurisdiction over the adoption proceedings. The aunt and the uncle rely on the AAC to support their position that Alabama courts may exercise jurisdiction over the adoption proceedings. We agree that the AAC speaks to the exercise of jurisdiction of Alabama courts in adoption proceedings, but the provision relied upon by the aunt and the uncle does not speak to the exercise of that jurisdiction over an adoption proceeding involving a child who is already the subject of an ongoing custody proceeding and a resident of another state. Therefore, we are confronted with the issue whether Alabama courts can exercise jurisdiction over the adoption proceedings in light of the UAA and the PKPA.

The aunt and the uncle also discuss the applicability of the Uniform Child Custody Jurisdiction and Enforcement Act (“the UCCJEA”), Ala.Code 1975, § 30-3B-101 et seq. The aunt and the uncle posit that the juvenile court dismissed the action for lack of jurisdiction pursuant to the UC-CJEA; they assert that doing so was error because the UCCJEA is intended to govern competing custody orders. The UC-CJEA does not have direct application in this case in light of § 30-3B-103, Ala.Code 1975, which expressly excludes adoption proceedings from the operation of the UC-CJEA. To the extent that JCDHR contends that the UCCJEA mandates affir-mance of the juvenile court’s order, we are constrained by the plain language of the UCCJEA to disagree.

In contrast, JCDHR’s arguments are grounded upon the premise that, because the child currently resides in Washington and because there is a custody proceeding pending there, the aunt and the uncle would not be able ultimately to adopt the child because they have not already obtained custody of the child. However, our review of the AAC does not reveal a statutory basis for JCDHR’s contention. Indeed, §§ 26-10A-5 and 26-10A-6 specify that adults may adopt minors without preference to existing custody, which is addressed only as to the matter of necessary consents under § 26-10A-7. Under the AAC, the proper procedure in a situation like the one presented here, where custody proceedings have commenced in another state, is set forth in § 26-10A-21, Ala. Code 1975, which provides that a juvenile court should stay adoption proceedings until a determination is reached in that pending custody proceeding. To dismiss for lack of jurisdiction solely based on the AAC was the wrong remedy to apply in this matter.

Next, we look to the foster parents’ arguments urging affirmance based on the UAA and the PKPA. The foster parents assert that both statutes provide a separate basis for the conclusion that Alabama courts cannot exercise jurisdiction over the adoption petition of the aunt and the uncle. Their argument is oversimplified; although they state in their brief that the UAA, which expressly prohibits a state from exercising jurisdiction over an adoption proceeding as to a minor if there is already a custody or adoption proceeding pending in a court of another state, has been adopted by Alabama, in actuality it has not been adopted in this state. See D.B. v. M.A., 975 So.2d 927, 936 n. 5 (Ala.Civ.App.2006). However, the PKPA provides alternative guidance on the issue of jurisdiction in situations like the one presented here, because, unlike the UC-CJEA, it does not by its terms explicitly exclude adoption proceedings. Moreover, the PKPA has been interpreted to apply to adoption actions. Brookshire v. Blackwell, 384 S.C. 333, 682 S.E.2d 295 (Ct.App.2009); In re Baby Girl F., 402 Ill.App.3d 127, 932 N.E.2d 428, 342 Ill.Dec. 301 (2008); and People ex rel. A.J.C., 88 P.3d 599 (Colo.2004). Under 28 U.S.C. § 1738A(g), a part of the PKPA, a state court “shall not exercise jurisdiction in any proceeding for a custody or visitation determination” filed while a similar proceeding is already pending in the child’s home state.

In this case, Washington is unquestionably the child’s home state, which is defined in the PKPA as the place where a minor has lived for at least six consecutive months, see 28 U.S.C. § 1738A(b)(4), because the child has lived in Washington her entire life. The child has never resided in Alabama. Because the custody proceeding concerning the child was ongoing in Washington at the time that the aunt and the uncle filed their adoption petition in Alabama, the Alabama courts cannot exercise jurisdiction over the adoption proceedings. See Ex parte D.B., 975 So.2d 940 (Ala.2007) (granting exclusive jurisdiction over custody proceedings to a minor’s home state, pursuant to the PKPA, where a custody proceeding had already commenced in that state). Therefore, the juvenile court’s judgment dismissing the adoption proceedings is affirmed.

AFFIRMED.

PITTMAN, J., concurs.

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

      . 28 U.S.C. § 1738A(g) gives exclusive jurisdiction to a state in which custody or visitation proceedings involving the minor are already pending so long as that state is exercising jurisdiction consistently with the provisions of the PKPA, i.e., so long as that state is exercising jurisdiction as the child’s home state.


author: WELCH, Judge,

text:
    Earnest Lee WALKER v. STATE of Alabama.
    CR-11-0169.
    Court of Criminal Appeals of Alabama.
    Dec. 11, 2012.
    Rehearing Denied August 23, 2013
    Shanon Haack, Montgomery, for appellant.
    Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   WELCH, Judge,

dissenting.

In an unpublished order the majority holds that this Court has no jurisdiction to consider the issues Earnest Lee Walker has raised, and it dismisses his appeal. I disagree. Not only does this Court have jurisdiction, but Walker is entitled to relief. Therefore, I dissent.

The order sets out the procedural history of this case:

“In June 2006, Earnest Lee Walker pleaded guilty to second-degree receiving stolen property, see § 13A-8-18, Ala.Code 1975, and was sentenced as an habitual felony offender with 3 prior felonies to 15 years’ imprisonment. In February 2010, Walker filed in the circuit court a petition for postconvietion relief pursuant to Rule 32, Ala. R.Crim. App., arguing, among other things, that his sentence is illegal because one of the three prior felony convictions used to enhance Walker’s sentence had been vacated. In its response to Walker’s petition, the State conceded that the vacated felony conviction had been used to enhance Walker’s sentence and agreed that Walker was entitled to be resen-tenced. On August 4, 2011, the circuit court entered a written order granting Walker’s petition in part and denying it in part; specifically, the circuit court agreed that Walker was entitled to be resentenced but denied all other claims raised by Walker. Following a sentencing hearing on September 21, 2011, the circuit court resentenced Walker, without application of the habitual felony offender act, to 10 years’ imprisonment; at the sentencing hearing, Walker, on his own behalf, moved to withdraw his guilty plea on the basis that it was involuntary because his new sentence did not conform with the terms of his original plea agreement. The circuit court denied Walker’s motion, and Walker gave both oral and written notices of appeal. Walker now appeals.”

(Footnote omitted.)

Two additional points are relevant here. In its August 4, 2011, order, the circuit court stated that Walker was entitled to be resentenced as an habitual felony offender, without a nol-prossed case being used for enhancement. Furthermore, when the circuit court imposed the 10-year sentence on September 21, 2011, it failed to order that the sentence run concurrently with the sentence in CC-04-3797, as Walker’s plea agreement provided and as the trial court ordered when it imposed the original sentence.

The Court dismisses Walker’s appeal and states, first, that Walker’s notice of appeal was untimely because it was filed on September 21, 2011, more than 42 days after the circuit court issued the August 4, 2011, order. The Court further holds that this Court has no jurisdiction to consider Walker’s allegations of error as to his re-sentencing, and it relies solely on Hart v. State, 939 So.2d 948 (Ala.Crim.App.2005), to support that holding.

I.

Walker’s notice of appeal was timely filed on September 21, 2011, the date the trial court imposed the sentence, because the sentencing order was the final order in the case, and the case then became ripe for review.

“ ‘[Pjostconviction proceedings filed pursuant to Rule 32[, Ala. R.Crim. P.,] are civil proceedings.’ State v. Hutcherson, 847 So.2d 378, 383 (Ala.Crim.App.2001).” Ex parte Wright, 860 So.2d 1253, 1254 (Ala.2002). Rule 32.10(a), Ala. R.Crim. P., provides that “[a]ny party may appeal the decision of a circuit court according to the procedures of the Alabama Rules of Appellate Procedure to the Court of Criminal Appeals upon taking a timely appeal as provided in Rule 4, Alabama Rules of Appellate Procedure.” Rule 4(a)(1), Ala. R.App. P., provides, in relevant part:

“Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the supreme court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from....”

In this case, “the judgment or order appealed from” is the circuit court’s complete disposition of Walker’s petition for postconviction relief, and the case was not finally disposed of until the circuit court entered a new sentence on September 21, 2011. The circuit court stated at the beginning of the hearing on September 21, 2011:

“THE COURT: This is the State of Alabama v. Earnest Lee Walker in CC-06-2129 for resentencing pursuant to a Rule 32 Petition which I granted a por tion of. The grounds for the Rule 32 petition that I granted was that the sentence was enhanced by convictions, one of which has been set aside by the Circuit Court of Baldwin County. So at this point is it the state’s intent to go forward under the Habitual Offender Act on this case?”

(R. 3.)

At the conclusion of the hearing the circuit court stated: “At this time, Mr. Walker, I’m going to sentence you to 10 years to serve in CC-06-2120 and that sentence again would be pursuant to the limited grounds for the Rule 32 that I had already granted.” (R. 7.) In the Rule 32 petition, Walker sought resentencing as a habitual felony offender with only two pri- or felonies, and he requested that the new sentence run concurrently with the sentence imposed in CC-04-3797, in compliance with his original plea agreement. It was only after the trial court imposed the 10-year sentence and failed to order that the newly imposed sentence run concurrently with the sentence in CC-04-3797 that it became clear that Walker had not been sentenced in accordance with his plea agreement or pursuant to either the Habitual Felony Offender Act (§ 13A-5-9, Ala. Code 1975) or the voluntary sentencing standards created following the enactment of the Alabama Sentencing Reform Act of 2003 (§ 12-25-31 et seq., Ala.Code 1975). It was only after Walker was illegally sentenced that his right to appeal from the illegal sentence ripened. Thus, his notice of appeal was timely filed on September 21, 2011.

The August 4, 2011, order was an interlocutory order, one that did not dispose of all the issues before the court and one that left sentencing for future determination. In Rule 32 cases, orders disposing of fewer than all the claims are considered on appeal after the final order disposing of the remaining claims has been issued. For example, in Taylor v. State, [Ms. CR-05-0066, Oct. 1, 2010], — So.3d —, — (Ala.Crim.App.2010), this Court stated: “Taylor appeals the orders of partial dismissal entered on October 23, 2003, and he appeals the August 1, 2005, final order summarily dismissing the petition in its entirety.” An interlocutory appeal, that is, “[a]n appeal that occurs before the trial court’s final ruling on the entire case,” Black’s Law Dictionary 113 (9th ed. 2009), is allowed only in limited circumstances. By generally limiting review to final judgments, appellate courts are spared considering over a long period multiple appeals that share the same facts and related legal issues.

Whether a judgment is a final one is not always clear; the Alabama Supreme Court has explained on several occasions that a final, appealable judgment is one that resolves all issues and claims in the litigation. For example, in Radetic v. Murphy, 71 So.3d 642 (Ala.2011), a breach-of-contract case, the Court stated:

“ ‘ “An appeal ordinarily lies only from a final judgment.” Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001). “For a judgment to be final, it must be issued by a court of competent jurisdiction and reflect a complete resolution of each and every matter in controversy.” Potter v. Owens, 535 So.2d 173, 174 (Ala.Civ.App.1988).’ Alvira v. Campbell, 909 So.2d 847, 849 (Ala.Civ.App.2005). Here, the trial court’s July 28, 2008, order, although determining [the prospective buyer’s] liability, clearly did not dispose of the issue of the accompanying damages award. Therefore, it was not a final, appealable order.
“ ‘It is well established that a final judgment is a “terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.” Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986). Further, the judgment must be conclusive and certain with all matters decided, including the assessment of damages with specificity for a sum certain determinable without resorting to extraneous facts, Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623 (Ala.1976).’

“Dees v. State, 563 So.2d 1059, 1061 (Ala.Civ.App.1990). In Dees, the Court of Civil Appeals concluded, based on a finding that there had been both a determination of liability and a stipulation as to the amount of damages, that ‘the judicial labor ended and nothing unfinished or inconclusive remained.’ Id. In the present case, however, there remained ‘judicial labor’ to perform, namely, the assessment of damages based on the trial court’s previous liability determination. Therefore, contrary to the [sellers’] argument, the February 17, 2010, order did not simply acknowledge the July 2008 judgment but constituted a final, appealable order because it conclusively determined all remaining issues in the case. See Jetton v. Jetton, 502 So.2d 756, 758 (Ala.1987) (‘It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’ (citations omitted)); Jewell v. Jackson & Whitsitt Cotton Co., 331 So.2d 623, 625 (Ala.1976) (‘A final judgment is a termi-native decision by a court of competent jurisdiction which demonstrates there has been complete adjudication of all matters in controversy between the litigants within the cognizance of that court. That is, it must be conclusive and certain in itself.’ (citations omitted)).”

71 So.3d at 648-49. (some emphasis added; some emphasis omitted). In Moore v. State, 888 So.2d 1248, 1250 (Ala.Civ.App.2004), the appellant had filed a pro se postconviction pleading in circuit court in which he sought correction of an error as to his sentencing, and the circuit clerk treated the pleading as a claim alleging legal malpractice. Appellant’s counsel had already filed a petition seeking the same relief from sentencing in the criminal case, however, and the circuit court determined that the pro se claims should be transferred to the case that had already been filed by appellant’s counsel and that the pro se case should then be dismissed. Moore appealed from the trial court’s decision, and the Court of Civil Appeals dismissed the appeal, stating:

“ ‘ “It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.” ’ Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999) (quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981)). This court has also stated: ‘A final judgment is one that completely adjudicates all matters in controversy between all the parties.’ Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002). Moreover, ‘[a]n order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment.’ Id.; see also Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003) (appeal by inmate in his action against medical-services provider and prison warden was dismissed because trial court merely entered order granting provider’s summary-judgment motion and denying inmate’s summary-judgment motion without ruling on claims against warden or certifying its order as final pursuant to Rule 54(b), Ala. R. Civ. R).
“Although this case is not a perfect analogy to a case in which there is an appeal from a partial summary judgment, the fact that the trial court transferred all of Moore’s claims to its criminal division indicates that none of Moore’s claims has been finally adjudicated. This case is more similar to those cases where a trial court transferred an action from a court of law to a court of equity; such action would not support an appeal. See Commercial Bank v. Hall, 266 Ala. 57, 94 So.2d 198 (1957). An order transferring a cause from the law docket to the equity docket and vice versa could not support an appeal; such an order was only reviewable on appeal from the final judgment in the case. See Ballentine v. Bradley, 236 Ala. 326, 182 So. 399 (1938).
“The trial court’s judgment in this case was in fact a transfer of the case to the criminal division from the civil division and is not a final judgment that will support an appeal within the scope of § 12-22-2, Ala.Code 1975.”

888 So.2d at 1250-51.

As in the foregoing cases, and the cases cited therein, there was no final judgment from which to appeal until September 21, 2011, when the circuit court held the sentencing hearing and imposed a new sentence. Therefore, Walker’s notice of appeal was timely, and his claims were properly before this Court.

II.

The majority relies on Hart v. State, 939 So.2d 948, 950 (Ala.Crim.App.2005), for its holding that this Court has no jurisdiction to address any issues regarding Walker’s resentencing. Hart is inapposite and does not support the majority’s rationale for dismissing the claims regarding resentenc-ing.

Hart presented a unique set of procedural circumstances and produced a limited holding. As we explained in that case, Hart was convicted of capital murder in 1990; he was sentenced to death; and his conviction and sentence were affirmed on appeal. Hart v. State, 612 So.2d 520 (Ala.Crim.App.1992), aff'd, 612 So.2d 536 (Ala.1993). His petition for postconviction relief was denied, and this Court affirmed the denial of the petition. Hart v. State, 796 So.2d 446 (Ala.Crim.App.1999) (table), aff'd, 800 So.2d 140 (Ala.2000).

“In August 2005, the attorney general filed a motion in the Mobile Circuit Court requesting that the circuit court vacate Hart’s death sentence based on the United States Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which prohibited the imposition of a sentence of death on any individual under the age of 18 when the offense was committed. Hart was 16 when he committed the murder.”

939 So.2d at 948.

“The circuit court vacated Hart’s death sentence and sentenced Hart to life imprisonment without the possibility of parole — the only other available sentence for a person who has been convicted of a capital offense. See § 13A-5-45, Ala.Code 1975. Hart filed a notice of appeal. The question presented by this case is whether Hart has the right to appeal this ruling.”

Id. at 949.

This Court dismissed Hart’s appeal, holding that § 12-22-130, Ala.Code 1975, provides that a defendant in a criminal case can appeal only from a judgment of conviction and stating that “no statute ... allows Hart to appeal the circuit court’s ruling vacating his sentence of death and imposing a sentence of life imprisonment without the possibility of parole. Hart has already obtained appellate review of the proceedings that lead to his capital-murder conviction.” Id. at 950.

The differences between Walker’s case and Hart are significant: unlike Hart, Walker was not simply resentenced as a criminal defendant who had already obtained appellate review of the relevant proceedings but was resentenced as a civil litigant pursuant to relief granted him in a post-conviction proceeding and with no pri- or appellate review of the proceeding; upon resentencing, Hart received the only sentence available to him, and there was no exercise of judicial discretion in the court’s consideration of his sentence; Hart had no prior guilty-plea agreement; neither the HFOA or voluntary sentencing guidelines were applicable in Hart’s case; and the State initiated the vacatur of Hart’s death sentence in order to comply with United States Supreme Court precedent.

In light of all the foregoing circumstances, this Court should have recognized that the holding in Hart was limited by its unique facts and that Hart does not restrict this Court from reviewing the claims Walker raised on appeal from the resen-tencing he obtained through his postcon-viction proceeding.

III.

Not only does this Court have jurisdiction to consider Walker’s claims and should consider them for the reasons discussed in Part I and Part II, above, this Court may take judicial notice of an illegal sentence at any time. E.g., Ex parte Jarrett, 89 So.3d 730, 732 (Ala.2011)(“This Court has held that ‘ “a challenge to an illegal sentence is jurisdictional and can be raised at any time.” ’ Ex parte Batey, 958 So.2d 339, 341 (Ala.2006) (quoting Ginn v. State, 894 So.2d 793, 796 (Ala.Crim.App.2004)).”). This Court can and should address the sentencing issues in this case because the trial court failed to enter a sentence based on either the Habitual Felony Offender Act or the voluntary sentencing standards.

“The Alabama Sentencing Reform Act of 2003 (‘the Act’), as amended effective October 1, 2006, created voluntary sentencing standards to, among other things, assist trial judges in determining the most appropriate sentence for convicted felony offenders. See § 12-25-31(a)(1), Ala.Code 1975. ‘The Act gives a trial judge discretion to either sentence a defendant pursuant to the voluntary sentencing standards or pursuant to the [Habitual Felony Offender Actl.].’ State v. Crittenden, 17 So.3d 253, 259 (Ala.Crim.App.2009).”

Sistrunk v. State, 109 So.3d 205, 208 (Ala.Crim.App.2012) (emphasis added) (remanding case to circuit court “for that court to resentence Sistrunk ... pursuant to either the [Habitual Felony Offender Act] or the voluntary sentencing standards”).

Finally, as Walker correctly argues on appeal, his plea agreement provided that he was to be sentenced as a habitual felony offender and that his sentence in this case was to run concurrently with the sentence in CC-04-3797. When the trial court granted a portion of Walker’s Rule 32 petition, it stated that it would resentence him in accordance with the Habitual Felony Offender Act, yet it failed to do so. As the State recognizes in its brief to this Court, the circuit court erred when it re-sentenced Walker without application of the Habitual Felony Offender Act. I believe the case should be remanded to the trial court for that court to sentence Walker in accordance with his plea agreement, thus granting Walker the remedy he seeks and complying with Alabama law as to sentencing.

For all the foregoing reasons, I dissent from the order dismissing Walker’s appeal.