author: MOORE, Judge.

text:
    J.M.V. v. J.K.H.
    2120798.
    Court of Civil Appeals of Alabama.
    March 21, 2014.

      William R. Blanchard, Montgomery, for appellant.
    Robert M. Beno, Montgomery, for ap-pellee.
   MOORE, Judge.

J.M.V. (“the mother”) appeals from a judgment of the Montgomery Circuit Court (“the trial court”) insofar as it ordered that the surname of the parties’ child be changed. We reverse.

Procedural Background

On August 1, 2012, J.K.H. (“the father”) filed a petition in the trial court seeking to establish the paternity of E.V. (“the child”), to correct the child’s birth certificate to list him as the child’s father and to change the child’s surname, to establish custody of and visitation with the child, and to establish child support. The mother answered the petition on November 18, 2012. After a trial, the trial court entered a judgment on May 31, 2013, that, among other things, declared the father to be the legal father of the child; changed the child’s surname; awarded the mother physical custody of the child; and awarded the father six weeks’ visitation with the child in the summer, as well as visitation during a part of each Christmas holiday, during spring break and on Thanksgiving in odd years, and during fall break in even years. Both parties filed postjudgment motions, and the mother subsequently filed a notice of appeal on June 13, 2013. On August 7, 2013, the trial court denied both postjudgment motions and stayed enforcement of that part of its judgment changing the surname of the child pending resolution of the mother’s appeal attacking only that aspect of the trial court’s judgment.

Facts

The mother is an officer in the United States Air Force, and the father is an enlisted member of the Air Force. The parties were never married; they met through their employment and began a sexual relationship, which resulted in the mother’s becoming pregnant with the child. The evidence indicated that the parties’ relationship deteriorated after the mother became pregnant. The parties testified that the father had wanted to be present for the birth of the child but that the mother had opposed his presence out of concern that their careers could be adversely affected if other members of the Air Force learned that she, an officer, had engaged in a sexual relationship with the father, an enlisted man. The parties stopped speaking to each other about a month before the child was born, and the father was not notified when the mother went to the hospital to give birth to the child. The child was born on September 30, 2009, in Alabama. The mother did not list the father on the child’s birth certifí-cate, and she gave the child her surname.

It is undisputed that the mother had been the primary caregiver for the child and that the father had visited with and supported the child during the first two and a half years of his life. The father testified that he had exercised visitation with the child in the presence of the mother except for one two-week period in May 2012 when the child had stayed with him while the mother was unavailable to care for him due to her work obligations. The mother testified that the father had visited the child in her home between 10 and 12 times and that they had met for visitation on 3 other occasions. The father testified that he had paid $750 per month in child support from the time the child was born until May 2012.

The parties became embroiled in a dispute during the May 2012 visitation because the father had not allowed the mother to have telephone contact with the child for two days; the mother threatened to have law-enforcement officials pick up the child if the father did not allow her to contact the child. The father testified that the mother had spoken to the child every day during the visitation up until that point. The mother testified that the father had told her that he does not talk to the child every day, so why should she. The father testified that he had stopped paying child support at that time because the mother informed him that he had no legal rights to the child. The mother maintained that it was the father who had stated that he did not have any legal rights to the child before he stopped making child-support payments. After May 2012, the father did not see the child except through “Skype,” which is a means of communicating via a computer using a Web camera, and even that contact ceased after January 2013. The father testified that the mother had not responded to his attempts to contact her. The evidence indicated that the mother would soon be deployed to Washington, D.C., while the father would remain stationed in Florida, 500 miles away.

The father testified that he had talked to the mother about his desire to change the child’s surname and that she had said it would complicate her situation being an officer. He testified that he does not think the change would be upsetting to the child. The mother testified that she is opposed to changing the child’s name. She testified that, at the time of the trial, the child was three years and seven months old and that he knows his full name. She testified that she thinks it would be very confusing for the child to change his name. She also testified that the child’s passport, medical records, and educational records all have the child listed as “E.V.” She testified that she believes the name change might be harmful to the child due to the possibility of its creating confusion about his identity. She also testified that she is the child’s primary caregiver and that she and the child have the same surname. The mother testified that she does not recall the father’s stating at the time of the child’s birth that he wanted the child to have his surname; she testified that, even if the father had been present at the child’s birth, she would not have allowed the father to be identified on the birth certificate or allowed the child to have his surname.

The mother testified that the father had recently contacted her leadership in the Air Force and informed them of their relationship. She testified that their relationship is known only to the leadership and is not widely known throughout the Air Force and that it is better for her career that it not become widely known due to her having to supervise enlisted members.

The Trial Court’s Judgment

The trial court stated its rationale with regard to changing the child’s surname:

“[W]ouldn’t it be good cause if the Court considered the fact that during the birth of the child, the father testified that he was not present at the birth due to the fact that the mother thought his presence would jeopardize her career, and he was not allowed to be present, therefore, not allowed to sign the appropriate paperwork to have his name placed on the birth certificate, and possibly the child’s name named in his last name?
“... [T]he testimony [was] that the father was not allowed to be there during the child’s birth, or he attempted to be there and was not allowed to be there. The child [i]s not yet four years old. He’s relatively young. The Court does not see this as a detrimental effect on him in any way by changing his name at such a young age. It’s certainly something that he can become accustomed to, given his relatively infant age at the time that the name change has been ordered to take place.
“So the Court finds that it does not do any harm or detriment to the child in that it’s not against the child’s best interest to order that the child’s name be changed to that of his father whom he will, pursuant to the Court’s Order, hopefully, develop a close and nurturing relationship with, and would be identified with as the father rather than not.”

Discussion

On appeal, the mother argues that the trial court erred in changing the child’s surname. Section 26-17-636(e), Ala.Code 1975, a part of the Alabama Uniform Parentage Act (“the AUPA”), § 26-17-101 et seq., Aa.Code 1975, provides that, upon adjudicating paternity, “[o]n request of a party and for good cause shown, the court may order that the namq of the child be changed.” The mother argues that the father did not present good cause to warrant changing the name of the child.

In its judgment, the trial court stated that it decided to change the surname of the child, in part, because the mother had denied the father an opportunity to be present at the birth of the child so that he could have been listed on the child’s birth certificate and possibly could have named the child. We note, however, that, even if the father had been present at the birth of the child, the father did not have any right to be listed on the birth certificate. Section 22-9A-7(f), Aa.Code 1975, provides, in pertinent part:

“(2) If the mother was not married at the time of either conception or birth or between conception and birth, the name of the father shall not be entered on the certificate unless paternity has been determined by a court of competent jurisdiction or unless the legitimation process specified in Sections 26-11-1 through 26-11-3, [Aa.Code 1975,] inclusive, or otherwise provided by law has been completed.
“(3) If the father is not named on the certificate of birth, no other information about the father shall be entered on the certificate.”

Because the mother was not married to the father at or before the time she gave birth, to the child, the Alabama Office of Vital Statistics would not have been permitted to set forth any information about the father on the child’s birth certificate based merely on his attendance at the child’s birth.

Furthermore, the trial court was mistaken as to the possibility that the father could have named the child at the time of birth. Alabama generally follows the common law of England. See Ala. Code 1975, § 1-3-1. Under the common law, a child born of an unmarried woman customarily would bear her surname, see Buckley v. State, 19 Ala.App. 508, 98 So. 362 (1923), and a putative father had no right to name a child born out of wedlock,see Barabas v. Rogers, 868 S.W.2d 283, 285-87 (Tenn.Ct.App.1993). No Alabama statute alters the common-law rule by granting a putative father the right to name a child. Hence, in this case, the mother did not deprive the father of any “right” to name the child by objecting to his being present at the birth of the child. Given the mother’s testimony that she would not have allowed the child to be given the surname of the father, the father could not have named the child, as the trial court apparently believed.

In 1833, our legislature gave a putative father the right to rename a child by legitimating the child in accordance with statutory procedure. See John G. Aiken, Digest of the Laws of the State of Alabama, 77-78 (Bastardy § 9) (2d ed. 1836) (“[I]f, at the time of filing any [declaration of legitimation], the person filing the same shall desire to change the name of any child ... he shall set forth the fact, together with the name to which he desires the change to be made; whereupon the name shall be changed accordingly, and the latter name shall be the lawful name of any such child or children.”). In 1984, the legislature adopted the 1973 version of the Uniform Parentage Act, which provided, in pertinent part:

“(c) If the order of the court [adjudicating paternity] is at variance with the child’s birth certificate, the court shall order that a new birth certificate be issued pursuant to the provisions of Section 26-17-19[, Ala.Code 1975].”

Ala.Code 1975, former § 26-17-14. That statute authorized Alabama courts to change the surname of a child born out of wedlock to reflect the surname of the declared or adjudicated father. However, in 1981 the legislature had amended the legitimation statute to reflect that a declared father did not have the right to name the child, but only had the right to petition the probate court to prove that a name change would be in the best interests of the child. See Ala. Acts 1981, Act No. 81-800, p. 1407, § 2, codified at Ala.Code 1975, § 26-11-3. In 2008, the legislature adopted the current version of the Uniform Parentage Act, i.e., the AUPA, which, as stated above, now permits a court adjudicating paternity to change the name of a child only upon petition of a party and “for good cause shown.” Ala.Code 1975, § 26-17-636(e).

Alabama courts have generally defined “good cause” as “ ‘a reasonable cause, one that is material and substantial as applied to a particular set of facts.’” Heatherly v. Carter, 485 So.2d 769, 771 (Ala.Civ.App.1986) (quoting Department of Indus. Relations v. Mann, 35 Ala.App. 505, 509, 50 So.2d 780, 783 (1950)). Our courts have not defined “good cause” as it specifically relates to § 26-17-636(e), but our legislature has recognized in § 26-11-3, i.e., the legitimation statute, that the name of a child may be changed only, if it is in the best interests of the child. See also Roe v. Conn, 417 F.Supp. 769, 782-83 (M.D.Ala.1976) (declaring the former Alabama legitimation statute unconstitutional for failing to provide for a determination of whether a name change would serve best interests of the child). Construing § 26-11-3 and § 26-17-636 in pari materia, see Ex parte Johnson, 474 So.2d 715, 717 (Ala. 1985) (“It is a fundamental principle of statutory construction that statutes covering the same or similar subject matter should be construed in pari materia.”), under Alabama law a court adjudicating paternity may change the name of the child only if it is in the best interests of the child.

Furthermore, § 26-17-901, Ala.Code 1975, a part of the AUPA, provides: “In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.” Only nine states have adopted the 2000 version of the Uniform Parentage Act upon which the AUPA is based. See 9B Uniform Laws Annotated, Uniform Parentage Act (2000), Table of Jurisdictions Wherein Act Has Been Adopted (2013 Cumulative Annual Pocket Part). Of those states, Texas is the only state that has construed the “good cause” language found in § 26-17-636(e). Based on its survey of other Texas law on the same subject, a Texas appeals court determined that a court may change the name of a child if it is in the best interests of the child. In re M.C.F., 121 S.W.3d 891 (Tex. App.2003); see also In re S.M.V., 287 S.W.3d 435 (Tex.App.2009). That holding coincides with the general rule prevailing in this country that, in disputes between unmarried parents as to the surname of the child, the court should resolve the dispute based on the best interests of the child. See In re Marriage of Schiffman, 28 Cal.3d 640, 169 Cal-Rptr. 918, 620 P.2d 579 (1980); Jay M. Zitter, Rights and Remedies of Parents Inter Se With Respect to the Names of Their Children, 40 A.L.R.5th 697 (1996). Our holding places Alabama law in line with the law in those other jurisdictions and promotes the uniformity of interpretation of the AUPA our legislature has encouraged.

The mother argues that the father did not present sufficient evidence to support the name change. Because the trial court heard oral testimony in this matter, the ore tenus standard of review is applicable. “Under the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court’s findings.” Beasley v. Mellon Fin. Servs. Corp., 569 So.2d 389, 393 (Ala.1990).

Our review of the record indicates that the father offered no reason as to why he wanted the child’s surname changed. He merely testified that he did not think that the name change would upset the child. The trial court agreed with the father that, due to his young age, the child likely would not suffer any particular detriment from the name change. However, as we read § 26-17-636(e), a parent petitioning to change the name of the child must present evidence showing that the change would benefit the child in some positive manner. See Barabas, 868 S.W.2d at 287 (“The courts should not change a child’s surname unless the change promotes the child’s best interests.”). A court may not change the name of a child on the ground that the change would not cause the child any particular detriment. That standard would essentially place the burden on the nonmoving parent to prove that the requested name change would harm the child instead of placing the burden on the petitioning parent to prove that the name change will benefit the child, as § 26-17-636(e) contemplates. See Bam-bas, 868 S.W.2d at 287 (“Since Mr. Bara-bas was the party seeking to change his son’s surname, he had the burden of proving that the change would be in the child’s best interest.”).

The father did not present the trial court with any evidence indicating that the name change would promote the best interests of the child. The trial court hypothesized that, without the name change, the child might not identify with the father, but that conclusion is not based on any evidence relating to this particular child. See Ex parte Devine, 398 So.2d 686 (Ala.1981) (holding that, when deciding what is in the best interests of a child, a court must make an individualized determination based on the particular circumstances of the case without relying on generalized notions regarding families). The record contains no evidence regarding the child’s understanding of his relationship to the father. The father also did not present any evidence indicating that the use of the mother’s surname has engendered some confusion in the child about his relationship to the father.

On the other hand, the mother testified that the child already knows his name as her surname, that all of his records identify him by that name, that he would be confused about his identity if his name was now changed, and that the child has always lived with her. Pursuant to the trial court’s judgment, because of the distance between the parties’ assignments the child will not exercise visitation with the father every other weekend but, instead, will see the father on holidays and during school breaks. At all other times, the child will be living with the mother, who has been the sole custodian of the child during his entire life. The trial court received no evidence indicating that the mother would discontinue using her surname; therefore, the child will be identified by the same surname as his primary caretaker and physical custodian as he has been throughout his life. Although the factor is not dispositive, we cannot overlook the fact that the father waited over three years to establish his paternity, all the while knowing that the child was not bearing his surname and that the child would become accustomed to his given name.

Based on the foregoing, we conclude that the record does not contain substantial evidence demonstrating that good cause existed to change the child’s surname. See, e.g., In re M.C.F., 121 S.W.3d at 897-98 (reversing a judgment changing a child’s name where the father merely made a bare request for the name change and had failed to present evidence showing good cause for the change and where the mother had presented evidence indicating why the change would not be in the child’s best interests). Therefore, we reverse the judgment of the trial court and remand this cause for the entry of a judgment denying the father’s request to change the child’s surname.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . The mother’s appeal was held in abeyance until the disposition of the postjudgment motions, át which time it became effective. See Rule 4(a)(5), Ala. R.App. P.

      . Rule 420-7-l-.04(l), Ala. Admin. Code (Bd. of Health/Dep’t of Pub. Health), provides: "The parent(s) may give a child any name they wish for registration of birth. The surname of the child does not have to be the surname of either parent.” By use of the parenthesis, the drafters of the rule recognized that a child may have only one legal parent at the time of birth. That rule is therefore consistent with the English common-law custom allowing an unmarried mother to give a child born out of wedlock her surname.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Ex parte Hugh B. McCALL, as director of the Alabama Department of Public Safety. (In re Joshua Derek Morgan, as administrator of the estate of Jamie Lee Gossett, deceased v. Heath Moss et al.).
    2120617.
    Court of Civil Appeals of Alabama.
    March 28, 2014.
    F. Tim McCollum, Department of Public Safety, for Hugh B. McCall.
    J. Barton Warren of Warren & Simpson, P.C., Huntsville, for Joshua Derek Morgan, administrator of the estate of Jamie Lee Gossett, deceased.
   DONALDSON, Judge.

Hugh B. McCall, the director of the Alabama- Department of Public Safety (“the director”), appeals the judgment of the Limestone Circuit Court (“the trial court”) finding him in contempt and imposing sanctions, against him in the amount of $1,500. Because the process leading to the adjudication of contempt was insufficient, we reverse.

Facts and Procedural History

Joshua Derek Morgan, as administrator of the estate of Jamie Lee Gossett, deceased, filed a wrongful-death claim against, among others, Alabama State Trooper Heath Moss, alleging that Moss had negligently and/or wantonly caused the death of Jamie Lee Gossett when the patrol vehicle he was driving collided with the vehicle the Gossetts occupied. During the course of that litigation, Morgan served subpoenas on witnesses Thomas Taylor and John Singletary for depositions to be held on March 29, 2012. Taylor and Singletary are Alabama State Troopers employed by the Alabama Department of Public Safety (“ADPS”). Taylor and Sin-gletary did not appear for the scheduled depositions. Morgan filed a motion requesting that the trial court hold Taylor and Singletary in contempt for failing to attend the depositions and that it assess the costs of the missed depositions against them. Through counsel for ADPS, Taylor and Singletary jointly objected to the motion. On June 21, 2012, the trial court held a hearing on Morgan’s contempt motion against Taylor and Singletary. The trial court entered an order on August 14, 2012, ordering Taylor and Singletary to appear for depositions and ordering sanctions against Singletary in the amount of $1,500. On January 24, 2013, Singletary filed a motion to set aside the finding of contempt and sanctions. The trial court held a hearing on Singletary’s motion on March 14, 2013. On March 21, 2013, the trial court entered an order in which it held, among other things, that Singletary had received a subpoena before the scheduled March 29, 2012, deposition date but that he had received “two (2) separate documents sent by the [ADPS] to Trooper Singletary that instructed him not to appear for the deposition.” The trial court set aside the contempt finding against Sin-gletary, but it found “that contempt sanctions are warranted against the Director of the [ADPS] for $1,500.00” because “the [ADPS] willfully instructed a subpoenaed material witness to ignore and refuse attendance for a deposition that had been coordinated and scheduled with attorneys for the [ADPS].” The director was not given notice of the March 14, 2013, hearing, nor was he provided with the process that led to the contempt sanction. The director timely appealed the trial court’s order.

Standard of Review

The standard of review this court follows concerning a trial court’s finding of civil contempt is well settled:

“The issue whether to hold a party in contempt is solely within the discretion of the trial court, and a trial court’s contempt determination will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that its judgment is not supported by the evidence. Brown v. Brown, 960 So.2d 712, 716 (Ala.Civ.App.2006) (affirming a trial court’s decision not to hold a parent in contempt for failure to pay child support when the parent testified that he had deducted from his monthly child-support payment the amount he had expended to buy clothes for the children).”

Poh v. Poh, 64 So.3d 49, 61 (Ala.Civ.App. 2010).

Discussion

In his appeal to this court, the director raises two issues for review: 1) whether the trial court’s contempt order violates § 14, Ala. Const.1901, and 2) whether the trial court erred by failing to follow the procedural requirements for conducting contempt proceedings pursuant to Rule 70A, Ala. R. Civ. P. We address the director’s argument regarding the trial court’s failure to follow the procedural requirements of Rule 70A first.

Rule 70A “applies] to all civil or criminal contempt proceedings arising out of civil actions.” Rule 70A(a)(l). Rule 70A distinguishes between “direct” and “constructive” contempt:

“(2) Definitions.
“(A) ‘Direct contempt’ means disorderly or insolent behavior or other misconduct committed in open court, in the presence of the judge, that disturbs the court’s business, where all of the essential elements of the misconduct occur in the presence of the court and are actually observed by the court, and where immediate action is essential to prevent diminution of the court’s dignity and authority before the public.
“(B) ‘Constructive contempt’ means any criminal or civil contempt other than a direct contempt.”

Rule 70A(a)(2). It is undisputed that the alleged misconduct of the director that led to the adjudication of contempt was not committed in open court in the presence of the judge; therefore, the trial court’s finding of contempt was based upon allegedly constructive contempt.

“A proceeding based on constructive contempt, whether criminal or civil, shall be subject to the rules of civil procedure. The proceeding shall be initiated by the filing of a petition seeking a finding of contempt.... The petition shall provide the alleged contemnor with notice of the essential facts constituting the alleged contemptuous conduct.”

Rule 70A(e)(l). This court has recently stated:

“The contemptuous conduct in this case was not committed in court and did not interrupt the proceedings; rather, the [accusedj’s conduct was ‘committed outside the presence of the court and [was] characterized by the act of disobeying the court’s orders.’ State v. Thomas, 550 So.2d [1067] at 1072 [ (Ala.1989) ]. See also Ex parte Sheffield, 120 So.3d [1091] at 1093-95 [(Ala.Civ.App. 2013) ] (discussing the differences between direct and constructive contempt under Rule 70A). Accordingly, the contempt finding at issue was one of constructive contempt. Id.) see also Dreading v. Dreading, 84 So.3d 935, 938 (Ala.Civ.App.2011). However, as in Ex parte Sheffield, ‘[t]here is no indication in the record that the contempt proceeding was initiated by the filing of a petition, that the trial-court clerk issued process for such a petition in accordance with the Rules of Civil Procedure, or that a hearing on such a petition was conducted.’ 120 So.3d at 1094. The [accused] was provided no notice that the issue of constructive contempt would be considered at the hearing. It is clear from the record that the procedures afforded under Rule 70A(c) to assert and support a claim of constructive contempt were not followed in this case.”

S.T.W. v. T.N., 141 So.3d 1083, 1088 (Ala.Civ.App.2013). There is no iñdication that a petition was filed seeking a finding of contempt against the director or that the director was provided “notice of the essential facts constituting the alleged contemptuous conduct.” Rule 70A(c)(l). Morgan fails to address the director’s argument that the process leading to the contempt adjudication denied the director procedural due process, and in fact Morgan’s brief fails to reference Rule 70A at all. Therefore, we hold that the trial court’s order of contempt was entered without affording the director procedural due process, and we reverse that order.

Because we find that the trial court failed to follow the procedures set forth under Rule 70A for finding a person in contempt, we pretermit discussion of the remaining issue raised by the director.

Conclusion

Based on the foregoing facts and author-. ities, we reverse the trial court’s order of March 21, 2013, insofar as it found the director in contempt, and we remand the cause with instructions to vacate the contempt finding.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: WELCH, Judge.

text:
    Timothy Alan BURT v. STATE of Alabama.
    CR-11-1500.
    Court of Criminal Appeals of Alabama.
    Nov. 8, 2013.
    Rehearing Denied Feb. 7, 2014.
    Certiorari Denied March 14, 2014 Alabama Supreme Court 1130512.

      J. Paul Whitehurst, Northport, for appellant.
    Luther Strange, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
   WELCH, Judge.

On August 6, 2003, Timothy Alan Burt was convicted of first-degree sexual abuse and sentenced to prison. At some point Burt was released from prison. On August 5, 2010, a two-count indictment was returned charging him in circuit court case CC-10-1797 with violating his duty under the then in effect “Community Notification of Released Convicted Sex Offenders” Act, (also known as the “Community Notification Act,” i.e., “the CNA”), §§ 15-20-20 through -38, Ala.Code 1975, to file with certain law-enforcement personnel 30 days’ prior notice of his intent to move to a different residence, a violation of § 15-20-23(a), Ala.Code 1975, and with failing to comply with the requirement of the then in effect CNA that prohibited a convicted adult sex offender from residing where a person 18 years old or younger resides, a violation of § 15-20-26(c), Ala.Code 1975. Both offenses are Class C felonies. On June 28, 2011, Burt was indicted in circuit court case CC-11-1387 for again failing to comply with the requirement of the then in effect CNA that he file a notice with law-enforcement personnel at least 30 days before moving to a different residence, a violation of § 15-20-23, Ala.Code 1975.

Effective July 1, 2011, the “Community Notification of Released Convicted Sex Offenders” Act, §§ 15-20-20 through 15-20-38, Ala.Code 1975, was expressly repealed by Act No. 2011-640, § 49, Ala. Acts 2011, and on that date replaced with the “Alabama Sex Offender Registration and Community Notification Act.” This act is codified in the Alabama Code as §§ 15-20A-1 through -48.

On May 31, 2012, prior to the commencement of Burt’s guilty-plea hearing, counsel for Burt filed written motions asking the circuit court to dismiss the charges against him. In both motions counsel argued that the charges were due to be dismissed because § 15-20-23 had been repealed by Act No. 2011-640, (§§ 15-20A-1 et seq., Ala.Code 1975), without providing a “savings clause for prosecutions for violating the statutes that were repealed.” (C. 33, 77.) The motion asserted:

“ ‘ “It is well settled, that no recovery or conviction can be had on a penal statute after its repeal, or the offence against which it is directed, is divested or criminality, unless there is a special clause allowing it,” State v. Allaire, 14 Ala. 435 (1848). See also Carlisle v. State, 42 Ala. 523 (1868); Grijf[i]n v. State, 39 Ala. 541 (1865); and Jordan v. State, 15 Ala. 746 (1849).’ ”

(C. 33, 77.) After hearing Burt’s argument in support of his motions, the circuit court denied the motions. Appellate review of the circuit court’s ruling was reserved and the guilty-plea proceedings continued. Included in the State’s factual basis underlying the pleas, the State asserted for both charges that Burt had not registered his change of residence. The guilty-plea proceedings concluded with the State dismissing count two of CC-10-1797, which alleged that Burt had resided with a person less than 18 years old, and with Burt entering guilty pleas to the 2 charges alleging that he failed to notify authorities of his change in residence. Burt was sentenced as a habitual felon with 2 prior felonies to concurrent 10-year sentences. The sentences were suspended, and Burt was placed on supervised probation for three years. Burt appealed.

Appeal

Burt contends on appeal that the circuit court erred when it denied his motions to dismiss the indictments. Typically, “‘[w]hether a trial court’s denial of a motion to dismiss an indictment was error is reviewed under an abuse-of-discretion standard of review.’” Long v. State, 14 So.3d 184, 185 n. 1 (Ala.Crim.App.2008) (quoting Hunter v. State, 867 So.2d 361, 362 (Ala.Crim.App.2003)). However, here, because the issue presented involves a review of the circuit court’s conclusion of law and its application of the law to undisputed facts, this Court applies a de novo standard of review. Washington v. State, 922 So.2d 145, 158 (Ala.Crim.App.2005). Burt argues on appeal, as he did in his written motions and at the hearing on those motions, that “because [§ 15-20-23,] the statute establishing the offense[,] was repealed and there was no savings clause, Burt’s motions to dismiss should have been granted.” (Burt’s brief, at p. 3.)

Citing Williams v. State, 565 So.2d 282, 286 (Ala.Crim.App.1990), and Ex parte Jefferson, 473 So.2d 1110, 1111 n. 1 (Ala. 1985), the State contends that Burt’s argument is without merit because the applicable law is the law in effect at the time an offense is committed. The State asserts that § 15-20-23, which required 30 days’ prior notice before changing residence, was the law in effect at the time of the commission of Burt’s offenses; thus, according to the State, the circuit court properly denied his motions to dismiss. Additionally, the State asserts that the new statute continued to require registration; the new statute merely modified the time in which a sex offender must provide notice to authorities before a sex offender may change his or her residence. Therefore, according to the State, because the new statute, like the old statute, required a sex offender to register a change in his or her residence, the old statute was not repealed.

Analysis

“A saving clause is ... an exemption from the general operation of a statute. It is generally employed to restrict repealing acts, to continue repealed acts in force as to existing powers, inchoate rights, penalties incurred, and pending proceedings, depending on the repealed statute. A repeal destroys such rights, powers and proceedings and discharges the penalties. Thus, to preserve them a special provision with saving effect is necessary.”

2A Norman J. Singer, Sutherland Statutes and Statutory Construction, § 21:12 (7th ed. 2012)(emphasis added); Griffin v. State, 89 Ala. 541 (1865)(“Where a repealing statute has no saving clause as to pending prosecutions, a person indicted for an offense created by statute cannot be convicted after repeal of such statute.”); State v. Allaire, 14 Ala. 435 (1848) (“It is well settled, that no recovery or conviction can be had on a penal statute after its repeal, or the offence against which it is directed, is divested of criminality, unless there is a special clause allowing it.”).

Williams and Jefferson, cited by the State, are not applicable here. Both Williams and Jefferson involved a repealing statute that provided a clause saving the prosecution of conduct occurring before the effective date of the new statute. Williams concerned conduct occurring in December 1986 resulting in a criminal indictment under the Alabama Uniform Controlled Substances Act, § 20-2-70, Ala. Code 1975. That statute was repealed on October 21, 1987, as part of the Drug Crimes Amendments Act of 1987, Act No. 87-603, Ala. Acts 1987, “insofar as conduct occurring after the effective date of this act is concerned.” Act No. 87-603 p. 1047. Therefore, because Act No. 87-603 declared that § 20-2-70 was repealed as to conduct occurring after the effective date of the Act, the repeal of § 20-2-70 did not abate charges in Williams.

Jefferson was charged for his April 17, 1981, conduct that violated § 13A-5-31(a)(2), Ala.Code 1975, a statute imposing capital punishment. Effective July 1, 1981, the 1981 capital-offense statute, Act No. 81-178, Ala.1981, p. 204, repealed § 13A-5-31(a)(2), Ala.Code 1975. Section 19 of Act No. 81-178, p. 214, states: “This act applies only to conduct occurring after its effective date. Conduct occurring before the effective date of this act shall be governed by pre-existing law.” Thus, in Jefferson, the repeal of § 13A-5-31 (a)(2) did not abate charges occurring before the repeal.

Act No. 2011-640, § 49, the “Alabama Sex Offender Registration and Community Notification Act,” effective July 1, 2011, and codified at §§ 15-20A-1 through 15-20A-48, expressly repealed the entire CNA formerly codified at § 15-20-20 through § 15-20-38, Ala.Code 1975. The repealing statute did not provide an express savings clause.

“The common law rule is that, in the absence of an effective saving provision, the outright repeal of a criminal statute operates to bar prosecutions for earlier violations of the statute, whether the prosecutions are pending, or not yet begun, at the time of the repeal, on the theory that the legislature by its repeal has indicated an intention that the conduct in question shall no longer be prosecuted as a crime.”

1 Wayne R. LaFave, Substantive Criminal Law § 2.5 Repeal or Amendment of Statute (2d ed. October 2012).

However, in Burt’s case, the repeal of §§ 15-20-20 through 15-20-38 was not an “outright repeal” because at the same time as the repeal, the legislature essentially reenacted the repealed statute, which is now codified at §§ 15-20A-1 through 15-20A-48, Ala.Code 1975. This action does not suggest an intent by the legislature to “pardon” conduct subject to the repealed statute.

“There is ... a generally recognized simultaneous-repeal-and-reenactment exception to the common law rule. Under this exception, if what was criminal under the repealed statute is also encompassed within the new law, which perhaps carries a different offense label, then prosecution under the repealed statute is permissible.”

LaFave; 37 Am. J.Crim. L. 1, 27 In with the New, Out with the Old: Expanding the Scope of Retroactive Amelioration (Fall 2009) (“The court’s power and authority to maintain a previously commenced prosecution should continue unabated when the legislature repeals and reenacts or amends a statute.”).

“The idea that the prosecution should be terminated in the absence of a saving clause ignores the objective indication of the legislature’s intent — represented by the retention of the offense and an associated penalty — that previously commenced prosecutions are not being pardoned .... Under such circumstances, the prosecution should not be abated even if the legislature fails to insert an express saving clause or the jurisdiction lacks a general saving statute or a constitutional saving clause.”

37 Am. J.Crim. L. at 27 (Fall 2009)(dis-cussing the repeal of a criminal statute and reenacting a similar statute having a greater sentence).

The United States Supreme Court stated the following in Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 12, 17 S.Ct. 7, 9, 41 L.Ed. 327 (1896).

“Although there is a formal repeal of the old by the new statute, still there never has been a moment of time' since the passage of the act of 1888 when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is, as we think, entirely correct to say that the new act should be construed as a continuation of the old with the modification contained in the new act. This is the same principle that is recognized and asserted in Steamship Co. v. Joliffe [69 U.S. 450], 2 Wall. 459 [450, 17 L.Ed. 805 (1864) ]. In that case there was a repeal in terms of the former statute, and yet it was held that it was not the intention of the legislature to thereby impair the right to fees which had arisen under the act which was repealed. As the provisions of the new act took effect simultaneously with the repeal of the old one, the court held that the new one might more properly be said to be substituted in the place of the old one, and to continue in force, with modifications, the provisions of the old act, instead of abrogating or annulling them, and re-enacting the same as a new and original act.”

Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1, 12, 17 S.Ct. 7, 9, 41 L.Ed. 327 (1896). Arizona condensed the above as follows:

“[W]here both the prior and subsequent acts legislate upon the same subject and the subsequent act re-enacts substantial portions of the original act but either adds, eliminates or modifies provisions of the original act, the subsequent act shall be treated as amendatory only in spite of language expressly repealing the prior act. Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U.S. 1,17 S.Ct. 7, 41 L.Ed. 327 (1896).”

State v. Babbitt, 457 A.2d 1049, 1054 (R.I. 1983).

Alabama has made similar findings:

“ ‘The repeal and simultaneous re-enactment of substantially the same statutory provisions is to be construed, not as implied repeal of the original statute, but as a continuation thereof.’ 36 Cyc. 1084(E); Endlich on Statutes, § 490; Sutherland on Stat. Construction, § 134; Forbes v. Board of Health, 27 Fla. 189, 9 South. 446, 26 Am.St.Rep. 63 [ (1891) ]; Brown v. Pinkerton, 95 Minn. 153, 103 N.W. 897, 900, 111 Am.St.Rep. 448 [ (1905) ]; Haspel v. O'Brien, 218 Pa. 146, 67 Atl. 123, 11 Ann.Cas. 470, and note 472 [ (1907) ]; White, etc., Co. v. Harris, 252 Ill. 361, 96 N.E. 857, Ann.Cas.l912D, 536 [ (1911) ].”

Allgood v. Sloss-Sheffield Steel & Iron Co., 196 Ala. 500, 502, 71 So. 724, 725 (1916); see also State v. Youngstown Mining Co., 219 Ala. 178, 180, 121 So. 550, 552 (1929) (“The repeal of a statute without a saving clause does not destroy vested rights theretofore accruing.”); Tucker v. McLendon, 210 Ala. 562, 564, 98 So. 797, 799 (1924) (“ ‘The repeal and simultaneous reenactment of substantially the same statutory provisions is to be construed not as an implied repeal of the original statute, but as a continuation thereof.’ ” (quoting 39 Cyc. 1084(E))); Haden v. Lee’s Mobile Homes, Inc., 41 Ala.App. 376, 136 So.2d 912 (1961)(same).

Section 15-20-23(a), Aa.Code 1975 (repealed), required an adult criminal sex offender to submit at least 30 days prior notice to specified law-enforcement authorities of his or her intent to change residence.

“(a) If an adult criminal sex offender intends to transfer his or her residence to a different location, he or she shall submit a notice of intent to move to the sheriff of the county and the chief of police of the municipality in which he or she resides, and to the sheriff of the county and chief of police of the municipality to which he or she plans to move, if such are different, at least 30 days prior to moving to the new location. The notice of intent to move shall be on a form developed by the Department of Public Safety provided by the sheriff and shall include all the information required by this article for community notification. Failure to provide a timely and accurate written declaration shall constitute a Class C felony.”

This statute was replaced with § 15-20A-10(c)(l) and (c)(2), Aa.Code 1975, which continues the requirement that an adult sex offender notify authorities of every residence change. The difference between the reenacted and the repealed statute is that the reenacted statute dispenses with the requirement of the repealed statute that authorities be provided with 30 days prior notice of an intent to change residences, and instead requires an adult sex offender to immediately notify authorities upon transferring or terminating any residence.

“(c)(1) Immediately upon transferring or terminating any residence, employment, or school attendance, the adult sex offender shall appear in person to notify local law enforcement in each county in which the adult sex offender is transferring or terminating residence, employment, or school attendance.
“(2) Whenever a sex offender transfers his or her residence, as provided in subdivision (1) from one county to another county, the sheriff of the county from which the sex offender is transferring his or her residence shall immediately notify local law enforcement in the county in which the sex offender intends to reside.' If a sex offender transfers his or her residence, as provided in subdivision (1) from one county to another jurisdiction, the sheriff of the county from which the sex offender is transferring his or her residence shall immediately notify the chief law enforcement agency in the jurisdiction in which the sex offender intends to reside.”

§ 15-20A-10(c), Ala.Code 1975.

The Alabama Legislature expressed its intent to maintain prosecutions for failing to register a transfer of residence when it stated the following in its “findings” section of the new statute:

“(1) Registration and notification laws are a vital concern as the number of sex offenders continues to rise. The increasing numbers coupled with the dan-gér of recidivism place society at risk. Registration and notification laws strive to reduce these dangers by increasing public safety and mandating the release of certain information to the public. This release of information creates better awareness and informs the public of the presence of sex offenders in the community, thereby enabling the public to take action to protect themselves. Registration and notification laws aid in public awareness and not only protect the community but serve to deter sex offenders from future crimes through frequent in-person registration. Frequent in-person registration maintains constant contact between sex offenders and law enforcement, providing law enforcement with priceless tools to aid them in their investigations including obtaining information for identifying, monitoring, and tracking sex offenders.”

§ 15-20A-2(1), Ala.Code 1975.

Moreover, the legislature demonstrated its intent not to pardon a failure to register when it stated in § 15-20A-2(a) that “[t]his chapter is applicable to every adult sex offender convicted of a sex offense as defined in Section 15-20A-5, without regard to when his or her crime or crimes were committed or his or her duty to register arose.”

In this case, the facts underlying the acceptance of the guilty plea were that Burt had changed his residence without registering at all. Thus, Burt violated both the law as it existed under the repealed statute and the law as it exists under the re-enacted statute. Burt’s conduct is exactly the type of conduct that violated the intent of the legislature to identify,-monitor, and track sex offenders.

Conclusion

Although §§ 15-20A-1 through 15-20A-48 were enacted without a savings clause saving the repealed statute, it is clear that the legislature' intended that conduct punishable under the repealed statute was not pardoned; the legislature actually lowered the burden placed on a sex offender by removing the requirement of providing pri- or notice of an intent to move to another residence. However, the complete failure to register, as is Burt’s case, violated both the repealed and the reenacted statute, and under both the repealed and reenacted statute, the conduct was, and remains, punishable as a Class C felony. Moreover, this change has no adverse retroactive ef-feet implicating the ex post facto clause because the complete failure to register is conduct encompassed in both § 15-20-23(a)(repealed) and § 15-20A-10.

For the reasons set forth above, Burt’s convictions are affirmed.

AFFIRMED.

WINDOM, P.J., and BURKE, J., concur.

KELLUM and JOINER, JJ., concur in the result.

      . In an appeal from a guilty-plea conviction, a defendant must both reserve and preserve his claim of error before the claim may be considered by this Court. See Knight v. State, 936 So.2d 544 (Ala.Crim.App.2005), and Mitchell v. State, 913 So.2d 501 (Ala.Crim. App.2005).

      . Codified at §§ 13A-12-210 through -216, Ala.Code 1975.

      . Codified at §§ 13A-5-40 et seq., Ala.Code 1975.

      . To clarify, §§ 13-11-1 through § 13-11-9 were recodified in identical language as 13A-5-30 through 13A-5-38 upon the enactment of the Criminal Code in 1980. These sections were repealed by the 1981 capital-offense statute, which applied only to conduct that occurred on or after July 1, 1981.

      ."A legislature may enact a general saving statute which will save rights and remedies except where a subsequent repealing act indicates that it was not the legislative intention that particular rights and remedies should be saved.” 2A Norman J. Singer and J.D. Shambie Singer, Sutherland Statutory Construction § 47.13 (5th ed. 1992). Alabama does not have a general saving statute or a constitutional savings clause.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Robert V. PALMER, Respondent.
    No. SC10-543.
    Supreme Court of Florida.
    May 9, 2013.
    John F. Harkness, Jr., Executive Director and Kenneth Lawrence Marvin, Staff Counsel, The Florida Bar, Tallahassee, FL, and Carlos Alberto Leon, Bar Counsel, The Florida Bar, Tallahassee, FL, for Complainant.
    Robert V. Palmer, pro se, Jacksonville, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that respondent Robert V. Palmer be found in indirect criminal contempt of the Court’s 1991 order disbarring him from the practice of law in Florida, and that he be incarcerated for a period of sixty days, among other sanctions. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the referee’s findings of fact, recommendations as to guilt,' and the recommended sanctions in their entirety.

BACKGROUND

Robert Palmer was disbarred from the practice of law in Florida on October 31, 1991. Fla. Bar v. Palmer, 588 So.2d 234 (Fla.1991). Several years later, The Florida Bar filed a petition for contempt alleging that Palmer engaged in the practice of law in violation of his disbarment. As a result of that action, on November ■ 30, 1995, Palmer was “permanently and perpetually restrained from engaging in the practice of law in the State of Florida.” Fla. Bar v. Palmer, No. 83,999, 666 So.2d 145 (Fla. order entered Nov. 30, 1995).

Since his disbarment, Palmer has continued to engage in the unauthorized practice of law. On March 10, 2005, the Court entered an order in two consolidated cases holding Palmer in indirect criminal contempt of the Court’s 1991 disbarment order. The order sentenced Palmer to sixty days incarceration on each of three counts, to be served concurrently; however, the Court suspended fifty days of each sentence, reducing the total period of incarceration to ten days. Fla. Bar v. Palmer, No. 91,838 and No. 00-1934, 900 So.2d 555 (Fla. order entered March 10, 2005).

In this case, the Bar has filed a new petition for contempt and order to show cause alleging that Palmer has engaged in the unauthorized practice of law. The Court issued an order directing Palmer to show cause why he should not be held in contempt. After Palmer filed a response to the order, the case was referred to a referee. The referee held a hearing and has submitted a report to the Court, in which he makes the following findings and recommendations.

Palmer is the registered owner of a business called “All Florida Legal Clinic” (the “Clinic”). The referee found that he identifies himself as a “retired” lawyer. In 2009, one of Palmer’s former clients contacted the Clinic to request help with a guardianship matter. Palmer answered the phone call himself, told the client he could assist her with the matter, and asked her to come to his office. When the client arrived at the Clinic she saw Palmer’s credentials on display and decided to hire him. However, after waiting a while to meet with Palmer, Palmer’s assistant told the client that he was out of the office. A few days later, the client returned to the Clinic. At that time, Palmer’s assistant told her that Palmer could help with the guardianship matter, and that he would charge $550 for his services. The referee noted that the assistant called Palmer about the price, Palmer told her the amount over the phone, and the assistant repeated the number back. ' The client then paid Palmer $550, as is evidenced by Palmer’s signature on the client’s check dated in August 2009.

Over the following weeks, the client did not hear anything further from Palmer regarding her case. When she inquired with Palmer’s office, she was told that the documents were pending. Later, after numerous calls to Palmer’s office, the client requested a refund of her $550. Her requests were repeatedly ignored. The client used a prepaid legal plan to send Palmer a letter asking for a full refund, but she still received no response. Palmer’s wife eventually sent the client a refund of $275; however, the client has not received the balance owed to her.

Although the client admitted that she did not meet Palmer face-to-face at either of her visits to All Florida Legal Clinic, she testified that she recognized his voice on the phone. Based on the facts presented, the referee found that Palmer had direct contact with the client in the nature of consultation, explanation, recommendation, advice, or assistance, and that his interactions with the client in this regard constituted the practice of law in violation of the Court’s disbarment order. Further, the referee found that, as the registered owner of “All Florida Legal Clinic,” and in identifying himself as a “retired” lawyer, Palmer held himself out as an attorney, both expressly and impliedly. Accordingly, the referee recommends that Palmer be found in indirect criminal contempt.

In determining the appropriate sanction, the referee considered one aggravating factor, namely Palmer’s prior disciplinary history. The referee did not find any mitigating factors.

As to the sanction, the referee recommends that Palmer be incarcerated for a period of sixty days; that he be ordered to pay the Bar’s costs; that he refund the remaining $275 owed to his client; and that he remove any diplomas or licenses at All Florida Legal Clinic that give the impression that he is either licensed to practice law or that he is a “retired” lawyer.

ANALYSIS

Although Palmer did file a petition for review of the referee’s report, his petition was dismissed. Accordingly, this case is now in the posture of an uncontested discipline proceeding. Pursuant to Rule Regulating the Florida Bar 3-7.7(c)(6)(A):

If no review is sought of a report of a referee entered under the rules and filed in the court, the findings of fact shall be deemed conclusive and the disciplinary measure recommended by the referee shall be the disciplinary measure imposed by the court, unless the court directs the parties to submit briefs or oral argument directed to the suitability of the disciplinary measure recommended by the referee.

Thus, we approve the referee’s findings of fact and recommendations as to guilt without further comment.

We also approve the referee’s recommended sanctions, including the recommendation that Palmer be incarcerated for a period of sixty days. Florida Bar rule 3-7.11(f)(1)(F) authorizes this Court to review petitions for contempt and to issue “any sanction that a court may impose for contempt.” (Emphasis added.) Moreover, this Court has inherent authority to enforce its orders to ensure compliance with those orders. See Parisi v. Broward County, 769 So.2d 359, 363 (Fla.2000) (“It has long been recognized that courts have the authority to enforce a judgment by the exercise of their contempt powers.”) (citing Johnson v. Bednar, 573 So.2d 822, 824 (Fla.1991)); see also Fla. Bar v. Schramek, 616 So.2d 979, 983 (Fla.1993) (“Florida’s constitution inherently vests the power in this Court to prevent the practice of law by those not admitted to that practice and ... we may enforce that authority through either injunction or contempt proceedings because the unauthorized practice of law constitutes contempt of court.”).- Here, Palmer has repeatedly engaged in the practice of law despite several specific orders from this Court prohibiting him from doing so. In light of his continued actions in contempt of this Court’s disbarment order, we hold that incarceration for sixty days is the appropriate sanction.

CONCLUSION

Accordingly, we approve the referee’s findings of fact, recommendations of guilt, and recommended sanctions as set forth in the report of the referee. Robert V. Palmer is sentenced to sixty (60) days in jail. Palmer shall surrender to the Duval County Sheriff within five (5) days after service of this order on Palmer. In the event Palmer does not surrender, the Sheriff of Duval County, Florida, is authorized and directed to take Palmer into custody and imprison him for sixty (60) days.

Additionally, Palmer shall refund the remaining $275 owed to Gwendolyn Williams under the terms and conditions set forth in the report of the referee.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Robert V. Palmer in the amount of $3,096.04, for which sum let execution issue.

It is so ordered.

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

      . Palmer’s initial brief in this case was stricken because it did not comply with Florida Rule of Appellate Procedure 9.210. Fla. Bar v. Palmer, No. 10-543 (Fla. order entered Feb. 9, 2012). Although he was given several opportunities to file an amended brief, he did not do so. Accordingly, on April 30, 2013, this Court entered an order dismissing his petition for review. Fla. Bar v. Palmer, No. 10-543 (Fla. April 30, 2013).


text:
    The FLORIDA BAR, Complainant, v. Kathleen M.P. DAVIS, Respondent.
    No. SC11-1817.
    Supreme Court of Florida.
    June 12, 2014.
    Rehearing Denied Oct. 20, 2014.
    John F. Harkness, Jr., Executive Director, Tallahassee, FL, Adria E. Quíntela, Staff Counsel, and Michel C. Greenberg, Sunrise, FL, The Florida Bar, for Complainant.
    Kathleen M.P. Davis, pro se, Lake Worth, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report recommending that Respondent Kathleen M.P. Davis be found guilty of professional misconduct in violation of the Rules Regulating the Florida Bar (Bar rules), and disbarred. Davis has filed a petition for review of the referee’s report and recommendations. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, we approve the referee’s findings of fact, recommendations as to guilt, and the recommended sanction, and disbar Davis from the practice of law in Florida.

FACTS

In September 2011, The Florida Bar (Bar) filed its complaint against Davis, and a referee was appointed to consider the matter. Davis did not file an answer to the Bar’s allegations in the complaint. Accordingly, on November 7, 2011, the referee entered an “Order Granting the Florida Bar’s Motion for a Default Judgment.” The referee then set the case for a final hearing on January 17, 2012; Davis did not appear for the hearing. The referee has now submitted his report for the Court’s review, in which he makes the following findings and recommendations.

In January 2007, Davis was retained by a woman (the “client”) who was serving as the guardian for her sister. The client’s sister suffered from Early Onset Alzheimer’s Disease, and her husband of twenty-one years had abandoned her. Thus, the client hired Davis to file divorce proceedings. In January 2007, the client paid Davis $1,500 as partial payment of a $5,000 retainer; she paid an additional $1,000 in February 2007. Subsequently, in July 2007, the guardianship court granted approval to proceed with the marital dissolution case. On August 10, 2007, Davis met with the client and her sister at the sister’s nursing home to discuss the matter. At that time, the client paid Davis the remaining $2,500.

Following their August 10 meeting, the client and her husband sent Davis various e-mails inquiring about the progress of the case. The e-mails indicate that Davis told the client she would file the divorce papers “by Thursday or Friday of next week,” which would have been August 16 or August 17, 2007. On August 17, Davis sent an e-mail to the client stating that she had been tied up in court and would begin finalizing the divorce papers. However, the client did not receive any paperwork from Davis in August or September 2007.

In October 2007, the client did eventually receive a copy of the divorce papers. However, the referee found that the paperwork contained “numerous errors.” The client sent the papers back to Davis with proposed corrections; however, the client did not receive corrected paperwork. In fact, Davis never filed for divorce on behalf of the client’s sister. -Instead, in November 2007, the client’s sister was served with divorce papers filed by counsel for her husband. The client and her husband e-mailed Davis to inform her that the divorce papers had been served, and asked whether she wished to continue in the case. Davis did not respond to the e-mail, and the client was forced to file a response to the divorce papers on her own.

Based on these facts, the referee recommends that Davis be found guilty of violating three Bar rules: 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a)(3) (a lawyer shall keep the client reasonably informed about the status of the matter); and 4-1.4(a)(4) (a lawyer shall promptly comply with reasonable requests for information).

The referee found five aggravating factors in this case. First, the referee found that Davis has a disciplinary history. On March 25, 2010, the Court imposed a public reprimand and one-year probation for Davis’ ethical violations in two separate client matters. Fla,. Bar v. Davis, 33 So.3d 36 (Fla.2010) (table). Additionally, the referee found that Davis engaged in a pattern of misconduct; she committed multiple offenses; the victim, the client’s sister, was vulnerable; and Davis has substantial experience in the practice of law.

The referee did not find any mitigating factors.

Significantly, the referee found that Davis’ conduct throughout this case demonstrated a “continuing ... pattern of neglect.” Davis neglected the client and her sister’s divorce case, and failed to keep the client informed as to the status of the case. When the client told Davis that her sister’s husband had filed divorce papers, Davis did not respond or take any action. Similarly, in this disciplinary ease, although the referee expressly found that Davis had “actual knowledge” of the proceeding, she did not respond to the Bar’s allegations or appear at the final hearing. The referee held: “Had Respondent chosen to appear in the disciplinary case, this Referee might be inclined to recommend a penalty less than disbarment.... Respondent’s failure to appear is troubling and given the aggravating factors and the absence of apy evidence of mitigation, I am recommending that disbarment is the appropriate sanction.” Accordingly, the referee recommends that Davis be disbarred. The referee awarded costs to The Florida Bar, in the amount of $1,298.58.

Davis seeks review of the referee’s report. She argues that she was denied due process, that the referee’s factual findings lack evidentiary support, and that the referee’s recommended sanction is too severe.

ANALYSIS

We first address Davis’ argument that she was denied due process. As a general matter, the Court has stated that due process is satisfied in a disciplinary proceeding “where the attorney is served with notice of the Bar’s charges and is afforded an opportunity in the disciplinary hearing to be heard and defend himself.” Fla. Bar v. Tipler, 8 So.3d 1109, 1118 (Fla.2009); see also Fla. Bar v. Committe, 916 So.2d 741, 745 (Fla.2005).

Here, it is clear that Davis received notice of the Bar’s charges. Consistent with the Bar rules, the Bar mailed a copy of the formal complaint to Davis by certified mail, sent to her record Bar address. See R. Regulating Fla. Bar 3 — 7.11(b) (“Mailing of registered or certified papers or notices prescribed in these rules to the last mailing address of an attorney as shown by the official records in the office of the executive director of The Florida Bar shall be sufficient notice and service unless this court shall direct otherwise.”). The Bar received a return receipt, indicating the complaint was received and signed for. Moreover, at Davis’ request, the Bar e-mailed her an additional copy of the complaint. Thus, we conclude that Davis was properly served with the Bar’s complaint and was aware of the allegations against her. As noted, Davis did not file an answer to those allegations and, on November 7, 2011, the referee entered a default judgment. We have previously held that the referee in a disciplinary proceeding may enter a default judgment where, as in this case, a lawyer fails to respond to the Bar’s pleadings. See Fla. Bar v. Porter, 684 So.2d 810, 813 (Fla.1996) (“Florida Rule of Civil Procedure 1.500(b) empowered the referee to enter a default against Porter, who failed to plead or defend the action.”).

We also conclude that Davis was provided opportunities to be heard and defend herself against the Bar’s allegations. Following the default judgment, the referee scheduled Davis’ case for a hearing. The Bar states that it again mailed Davis notice of the final hearing by certified mail, sent to her record Bar address. However, Davis did not appear for the hearing. Davis argues before this Court that she did not receive the Bar’s notice of hearing and that, in any event, she would have been unable to attend the hearing because she was in the hospital receiving treatment for an illness at the time the hearing was held. Initially, we note that Davis did not present this argument to the referee. Moreover, while Davis may have been in the hospital on the date of the hearing, we nonetheless conclude that she was not denied due process. As we have stated, Davis had notice of the Bar’s allegations against her, and she was aware of the disciplinary case. She had several opportunities to refute the Bar’s charges and to participate in the disciplinary case, but she did not do so. There is no excuse for Davis’ repeated failure to respond to the Bar and the referee. Accordingly, we hold that Davis was not denied due process.

We turn next to address Davis’ challenge to the referee’s factual findings. Davis argues that the findings lack eviden-tiary support. However, by virtue of the default judgment, “the allegations in the Bar’s complaint were deemed admitted,” and the default “provided the referee with competent, substantial evidence upon which to base the findings.” Id. Thus, we approve the referee’s findings of fact without further discussion. We also approve the referee’s recommendation that Davis be found guilty of violating Bar rules 4-1.3 (a lawyer shall act with reasonable diligence and promptness in representing a client); 4-1.4(a)(3) (a lawyer shall keep the client reasonably informed about the status of the matter); and 4-1.4(a)(4) (a lawyer shall promptly comply with reasonable requests for information).

Finally, we address the referee’s recommended sanction of disbarment. In reviewing a referee’s recommended discipline, this Court’s scope of review is broader than that afforded to the referee’s findings of fact because, ultimately, it is our responsibility to order the appropriate sanction. See Fla. Bar v. Anderson, 538 So.2d 852, 854 (Fla.1989); see also art. V, § 15, Fla. Const. However, generally speaking, this Court will not second-guess the referee’s recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So.2d 555, 558 (Fla.1999).

Pursuant to the Florida Standards for Imposing Lawyer Sanctions, disbarment is the appropriate discipline when a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to the client. See Fla. Stds. Imposing Law. Sanes. 4.41. In this case, Davis was retained to file divorce proceedings on behalf of the client’s sister. The client’s sister was in a particularly vulnerable position — she suffered from Early Onset Alzheimer’s Disease, she was in a nursing home, she had lost her job and any financial support from her former husband, and her finances were dwindling. The referee noted that the client sent Davis an e-mail explaining that her sister’s divorce needed to proceed quickly, and that her sister was in danger of being forced to move out of the nursing home where she lived. Nonetheless, Davis neglected the case over a period of several months, and never actually filed the divorce papers. We conclude that Davis’ inaction amounts to serious misconduct, warranting a severe sanction. Indeed, because Davis charged the client a $5,000 retainer and then took no significant action in the case, causing harm to the client and her sister, we believe that her actions warrant a sanction similar to those attorneys who misuse or misappropriate client funds held in trust.

Moreover, we also note that Davis did not file an answer to the Bar’s complaint and she did not participate in the proceedings before the referee. We have stated, “a lawyer’s willful refusal to participate at all in the disciplinary process when he is accused of misconduct calls into serious question the lawyer’s fitness for the practice of law.” Fla. Bar v. Bartlett, 509 So.2d 287, 289 (Fla.1987).

Given Davis’ serious misconduct, and her failure to participate in the disciplinary case, we conclude that the referee’s recommendation of disbarment is well supported. Id. at 288 (disbarring a respondent who was retained to represent a client regarding an encroachment on an easement, but who took no action in case and did not respond to an order from the Court requesting that he file a brief); see also Fla. Bar v. Horowitz, 697 So.2d 78 (Fla.1997) (disbarring a respondent who neglected three separate client matters, and failed to respond to the Bar’s complaint).

We have also considered the referee’s findings in aggravation. The referee found five aggravating factors: (1) a disciplinary history; (2) a pattern of misconduct; (3) multiple offenses; (4) vulnerability of the victim; and (5) substantial experience in the practice of law. In particular, in considering Davis’ disciplinary history, we note that she was previously reprimanded for neglecting client cases. Fla. Bar v. Davis, 33 So.3d 36 (Fla.2010) (table). Indeed, the referee in this case found that Davis’ prior misconduct is similar to her misconduct at issue here. We have long held that “cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct.” Fla. Bar v. Patrick, 67 So.3d 1009, 1018 (Fla.2011) (quoting Fla. Bar v. Walkden, 950 So.2d 407, 410 (Fla. 2007)).

In sum, considering Davis’ serious misconduct, the harm to her client, her failure to participate in the disciplinary proceedings before the referee, and her disciplinary history, we conclude that disbarment is the appropriate sanction.

CONCLUSION

Accordingly, Respondent Kathleen M.P. Davis is hereby disbarred. Davis is currently suspended. See Fla. Bar v. Davis, No. SC12-1367 (Fla. order granting petition for contempt entered Sept. 20, 2013); see also Fla. Bar v. Davis, No. SC14-581 (Fla. order imposing emergency suspension entered April 3, 2014). Therefore, Davis does not need thirty days to close out her practice, and her disbarment shall be effective immediately. Davis shall fully comply with Rule Regulating the Florida Bar 3 — 5.1(h). Further, Davis shall accept no new business from the date this opinion is filed.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Kathleen M.P. Davis in the amount of $1,298.58, for which sum let execution issue.

It is so ordered.

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

      . In Februaiy 2012, Davis filed a Motion to Vacate Report of Referee for Lack of Due Process. In the motion, she argued that she did not receive notice of the final hearing. Significantly though, Davis did not assert that she was in the hospital at the time the hearing took place. In fact, she stated: "Had the Respondent received [notice] of the Final Hearing, she would have attended and proffered evidence in her defense.” In contrast, in her briefs in this case, Davis asserts that she was in the hospital receiving treatment for a life-threatening illness and that, even if she received notice of the hearing, she would have been unable to attend.


text:
    Robert LUNDBERG, Petitioner, v. STATE of Florida, Respondent.
    No. SC13-66.
    Supreme Court of Florida.
    June 26, 2014.
    Rehearing Denied Oct. 17, 2014.
    Carol Stafford Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Celia A. Terenzio, Senior Assistant Attorney General, and Jeanine Marie Germanowicz, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We initially accepted review of the decision in Lundberg v. State, 127 So.3d 562 (Fla. 4th DCA 2012), based on express and direct conflict. See art. V, § 3(b)(3), Fla. Const. Upon further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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

LEWIS, J., dissents.


text:
    FLORIDA BOARD OF BAR EXAMINERS re C.M.H.
    No. SC14-1911.
    Supreme Court of Florida.
    Oct. 9, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and C.M.H. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of five years from January 2012.

2. During the period of probation, the applicant shall:

(a) abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA during the entire probationary period by complying with the rehabilitation contract with that organization executed on December 11, 2012 and by extending the contract to cover the entire period of probation if necessary;
(d) participate actively in Alcoholics/Narcotics Anonymous by attending, at least, weekly meetings or such greater frequency as required by FLA; practice AA/NA principles in all of her affairs and carry the AA/NA message to other individuals with a substance use disorder;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA;
(f) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA; and
(f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to her compliance with the conditions set forth in 2(a), (b), (c), (d) and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender her license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate her license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.


text:
    FLORIDA BOARD OF BAR EXAMINERS re K.T.V.
    No. SC14-1912.
    Supreme Court of Florida.
    Oct. 9, 2014.
   Upon consideration of the Report and Recommendation filed by the Florida Board of Bar Examiners, it is ordered that the Board’s recommendation is approved by the Court and K.T.V. shall be admitted to The Florida Bar subject to the following conditions:

1. The applicant’s license to practice law shall be placed on probation for a period of two years.

2. During the period of probation, the applicant shall:

(a)abstain from the consumption of alcoholic beverages;
(b) abstain from the use of controlled substances except as prescribed by a duly licensed medical physician and approved by Florida Lawyers Assistance, Inc. (FLA);
(c) participate actively in the program offered by FLA by complying with the rehabilitation contract with that organization executed on September 17, 2012 and by extending the contract to cover the entire period of probation if necessary;
(d) submit to and pay for a minimum of six (6) random urine drug/alcohol screens annually, as well as any other hair, blood, sweat, or other substance screening tests determined to be appropriate by FLA;
(e) attend attorney support meetings at least monthly, or at such greater frequency as required by FLA; and
(f) submit quarterly sworn statements to The Florida Bar by March 31, June 30, September 30, and December 31 during the probationary period attesting to his compliance with the conditions set forth in 2(a), (b), (c), (d) and (e) above.

3. The Florida Bar shall monitor the conditions set forth in the Consent Agreement pursuant to Rule l-3.2(b) of the Rules Regulating The Florida Bar, and the costs thereof shall be paid by the applicant to The Florida Bar or its designated monitoring agency.

4. To monitor effectively the provisions in this agreement, the applicant shall reside within the State of Florida during the entire period of probation. Any business or pleasure trips outside Florida that exceed ten days shall occur only with the advance approval of The Florida Bar. If the applicant relocates outside the State of Florida during the probationary period for any reason, the applicant shall surrender his license to practice law in Florida and if the applicant fails to do so, the Supreme Court of Florida shall terminate his license.

5. The applicant shall immediately inform The Florida Bar of any criminal arrest or prosecution and the filing of any grievance or complaint related to the applicant’s practice of law.

6. If the applicant’s license is surrendered or terminated during the probationary period, the applicant shall resume the practice of law in the State of Florida only upon full compliance with the rules and regulations governing admission to The Florida Bar.

7. A failure to observe the conditions of the probation or a finding of probable cause as to conduct of the applicant committed during the period of probation may terminate the probation and subject the applicant to all available grievance procedures and disciplinary sanctions including disbarment under the Rules of Discipline. Upon receiving notice of a violation of the Court’s order of conditional admission, The Florida Bar may immediately petition the Court for an order of suspension. The applicant shall have ten days to file a response. If no response is timely filed by the applicant, then the Court shall issue an order suspending the applicant. If a response is filed, the matter shall be disposed of as the Court directs. Unless terminated by the Court, an order of suspension shall remain in effect until final disposition of the grievance procedures commenced by The Florida Bar against the applicant.

8. If circumstances so warrant it, the applicant and The Florida Bar may stipulate to an extension of the period of probation or The Florida Bar may petition the Court for such an extension with a final decision to be made by the Court.

9. By executing this Agreement, the applicant acknowledges that an uninterrupted period of documented sobriety for a minimum period of time must be established prior to admission to The Florida Bar on an unconditional basis. Should the period of probation be extended pursuant to either paragraph 7 or 8 above, the applicant, therefore, further agrees that such extension shall be for a minimum of three up to five years.

10. By executing this Agreement, the applicant specifically consents to and authorizes the release of any and all materials in the applicant’s file to The Florida Bar that the Bar may request from the Board to enable the Bar to fulfill its responsibilities under this Consent Agreement.