text:
    J.K. v. JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2110493.
    Court of Civil Appeals of Alabama.
    Dec. 7, 2012.

      John L. Bodie, Trussville, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lane, asst. atty. gen. and staff atty., Department of Human Resources, for appel-lee.
   BRYAN, Judge.

J.K. (“the father”) appeals from a judgment of the Jefferson Juvenile Court (“the juvenile court”) that terminated his parental rights to two of his children, K.K., a girl born in December 1999, and D.K., a girl born in February 2001 (hereinafter referred to collectively as “the children”).

On March 24, 2004, the Jefferson County Department of Human Resources (“DHR”) filed petitions alleging that the children were dependent. In those petitions, DHR alleged that Je.K. (“the mother”) did not take medication to control her mental illness, that domestic violence had occurred between the mother and the father, and that the mother was concerned that the father had sexually abused the children. On March 30, 2004, the children were found dependent as to the mother only based on a stipulation. However, due to the fact that there were criminal charges pending against the father, “all parties” were restrained from allowing contact between the children and the father, and physical custody of the children was awarded to S.R. (“the maternal grandmother”). On August 20, 2004, the juvenile court entered an order finding the children dependent as to the father; however, the juvenile court awarded physical custody of the children to the father. In an amended judgment, the juvenile court ordered both the mother and the father to submit to a psychological evaluation, to participate in counseling, and to maintain suitable housing and employment.

The record indicates that the children made further allegations of sexual abuse against the father, and on March 25, 2005, when K.K. was five years old and D.K. was four years old, the juvenile court found the children dependent and granted custody of the children to DHR. The mother and the father were awarded visitation with the children, supervised by DHR. The children were never returned to the custody of the mother or the father.

At the termination-of-parental-rights hearing in December 2011, Tessa Terrell, a caseworker with DHR who had been involved in this case since 2005, testified that DHR had asked the father to complete parenting classes, attend counseling, complete a psychological evaluation, and participate in drug testing. Terrell testified that, as of December 2011, the father had not completed any of those goals. The father claimed that he had completed those goals but could not offer any evidence to support his claims.

On May 17, 2005, the attorney who had been appointed to represent the father filed a motion to withdraw and requested that another attorney be appointed on the father’s behalf. The juvenile court granted that motion on May 18, 2005.. Although there is no order appointing another attorney for the father in the record, the record indicates that the father had an attorney present at the next hearing before the juvenile court on October 3, 2005.

On October 21, 2005, B.N., the great-aunt of the children, and E.N., the great-uncle of the children, filed a motion to intervene and a petition for custody of the children. On January 5, 2006, the juvenile court entered a judgment indicating that the father was present with an attorney at a dispositional hearing that was conducted on January 4, 2006. Pursuant to that judgment, custody of the children remained vested with DHR and the parties were restrained from allowing any contact between the children and the father.

During the ore tenus hearing in December 2011, the father testified that, upon the advice of his attorney, he did not come back to court for almost three years. It was undisputed that the father did not visit or contact the children from January 2006 through January 2010 and that he did not provide any financial or material support for the children during that time. However, the record indicates that the father’s absence was not the result of the no-contact order because, at the final hearing in December 2011, the father claimed that he did not know there was a no-contact order entered until late 2010. Terrell testified that she had no contact with the father from 2006 through 2010. The record indicates that, at some point in 2006, the father moved from Trussville to Missouri.

On April 28, 2006, the juvenile court entered a judgment after conducting a permanency/dispositional hearing. The father was not present, but his attorney was present. The judgment left the no-contact order in place. The juvenile court entered another judgment on October 20, 2006, which indicated that neither the father nor an attorney for the father was present at a permanency/dispositional hearing conducted on October 17, 2006. The judgment stated that the father had not submitted to a psychological evaluation as ordered. The no-contact provision of the January 2006 judgment was continued, and no other changes were made. Another judgment was entered on December 9, 2006, after a permanency hearing. There is no indication in the record that the father or an attorney representing the father was present at that hearing. No changes to previous orders were made. On April 13, 2007, E.N. and B.N. withdrew their petition for custody of the children. Another disposi-tional/permanency hearing was conducted on September 26, 2007, and a subsequent judgment awarded physical custody of K.K. to the maternal grandmother, but custody of D.K. remained vested in DHR. The juvenile court continued the no-contact order between the father and the children. Terrell testified that D.K. and K.K. had to be placed in separate homes because they were acting out sexually with one another.

On October 4, 2007, DHR filed a petition to terminate the parental rights of the mother and the father to the children. On February 4, 2008, the maternal grandmother relinquished custody of K.K. to DHR. On August 28, 2008, B.N. filed another motion to intervene and requested custody of the children. On October 8, 2008, the juvenile court conducted a dispo-sitional hearing and subsequently awarded physical custody of K.K. to B.N. and E.N., who are residents of Missouri. The juvenile court awarded the father supervised visitation with K.K. There is no indication that either the father or an attorney on his behalf was present at the hearing. On December 19, 2008, the juvenile court entered an order appointing an attorney to represent the father, and the termination-of-parental-rights hearing was scheduled for April 2009.

On April 13, 2009, the juvenile court conducted a pretrial hearing at which the father’s attorney, but not the father, was present, and the juvenile court subsequently entered a judgment awarding the father supervised visitation with the children. The juvenile court conducted another permanency/dispositional hearing on January 4, 2010. At that hearing, DHR made an oral motion to be relieved of its duty to make reasonable efforts to reunite the children with the father due to abandonment. The juvenile court granted that motion in a judgment dated January 5, 2010. The judgment indicates that the father was not present at the January 4, 2010, hearing but that his attorney was present. The judgment noted that service by publication had been perfected on the father and that the father had abandoned the children because he had not had any significant contact with the children for a period of over four months. The juvenile court again entered a no-contact order between the children and the father. The father was ordered to pay child support in the amount of $237 a month beginning on February 1, 2010. The juvenile court awarded physical custody of D.K. to E.N. and B.N. The judgment noted that it was entered over the objection of the father’s attorney.

At the final hearing in December 2011, the father and B.N. testified that B.N. had allowed the father to visit the children approximately four times in violation of the trial court’s January 2010 no-contact order in January and part of February 2010. B.N. claimed that she closely supervised the children during their visits with the father. The record reveals that the father had remarried and had three children with his wife in Missouri. The record indicates that K.K. received an injury to her face while living in Missouri and that she had accused the father’s wife of causing the injury. Based on that allegation, DHR began investigating the incident and apparently learned that B.N. had allowed the father to have contact with the children in violation of the juvenile court’s January 2010 order. The record indicates that the children were returned to Alabama in late October 2010 and placed in foster care. According to Terrell, upon their return to Alabama, the children made allegations of sexual abuse perpetrated against them by the father, E.N., and B.N. The children stated that the father had touched their “private area,” that E.N. and B.N. had forced the children to watch them have intercourse, and that E.N. and B.N. had forced K.K. to have intercourse with her eight-year-old half brother who was in the custody of E.N. and B.N.

On October 22, 2010, the father filed a motion for visitation with the children. On November 30, 2010, E.N. and B.N. filed a third motion to intervene and a petition for custody of the children. On January 12, 2011, the father filed a second motion for visitation with the children, alleging that his first motion had been held in abeyance while he waited for information from Missouri’s child-protective service. On March 15, 2011, the juvenile court entered an order awarding the father visitation with the children that was to be “strictly supervised” by DHR “to be set up as soon as possible.”

On May 2, 2011, the father filed a motion for visitation, indicating that DHR had not scheduled a time for him to visit with the children. The father filed an identical motion for visitation on July 5, 2011. DHR subsequently filed a motion to suspend the father’s visitation with the children in light of the fact that, during counseling in Alabama, the children had disclosed sexual abuse perpetrated by the father, E.N., and B.N. while the children were living in Missouri. After conducting a hearing, the juvenile court granted DHR’s motion on August 12, 2011. On the same day, the case was transferred to a different juvenile-court judge.

The juvenile court conducted an ore ten-us hearing on DHR’s petition to terminate the parental rights of the mother and the father on December 5 and 6, 2011. At the conclusion of the final hearing, E.N. and B.N. withdrew their request for custody of the children. On February 6, 2012, the juvenile court entered an order terminating the parental rights of the mother and the father to the children. The juvenile court found the children dependent pursuant to § 12-15-102(8), Ala.Code 1975; found that the mother and the father had failed to provide for the material needs of the children, had failed to maintain regular visitation with the children, had failed to maintain consistent contact or communication with the children, and had failed to provide for the care and maintenance of the children pursuant to § 12-15-319(a), Ala.Code 1975; found that the father and the mother were unable to discharge their responsibilities to and for the children; found that the conduct and condition of the father and the mother was such as to render them unable to properly care for the children and that such conduct or condition was unlikely to change in the future; found that the father had failed to abide by the orders of the juvenile court; and found that the father had an open case concerning abuse and/or neglect of his other children in Missouri. In addition, the juvenile court found, pursuant to § 12 — 15—819(b), Ala.Code 1975, that the father had abandoned the children for a period of more than four months and that DHR had been relieved of its duty to make reasonable efforts to reunite the father and the children on January 4, 2010. The juvenile court also found that the father had made no effort to adjust his circumstances to meet the needs of the children in accordance with agreements reached with DHR and the orders of the juvenile court. Finally, the juvenile court found that there were no suitable relative resources willing or able to take custody of the children and that there were no viable alternatives to terminating the father’s parental rights. Without filing a postjudgment motion, the father timely filed a notice of appeal.

Our standard of review of a judgment terminating parental rights is well settled. “A juvenile court’s factual findings, based on ore tenus evidence, in a judgment terminating parental rights are presumed to be correct and will not be disturbed unless they are plainly and palpably wrong.” J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). However, a trial court’s application of the law to undisputed facts is not given a presumption of correctness on appeal, and this court applies a de novo standard of review to questions of law. See J.A. v. C.M., 93 So.3d 953, 954 (Ala. Civ.App.2012).

On appeal, the father first argues that the juvenile court lost subject-matter jurisdiction to rule on DHR’s petition to terminate his parental rights when the Child Protection Act of 1984 (“the CPA”), see former 26-18-1, Ala.Code 1975, was repealed and replaced by the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, effective January 1, 2009. He contends that the juvenile court did not have jurisdiction to enter the judgment terminating his parental rights because DHR filed its petition to terminate his parental rights while the CPA was in effect, but the judgment terminating his parental rights was not entered until after the CPA had been repealed by the AJJA. He further contends that the juvenile court was without jurisdiction to enter the judgment because the AJJA does not contain a “saving provision for actions commenced under the [CPA].” We disagree as to all the father’s arguments.

Initially, we note that no provision of the CPA conferred jurisdiction upon a juvenile court to rule on a petition to terminate parental rights. In October 2007, when DHR filed a petition to terminate the father’s parental rights, former Ala.Code 1975, § 12 — 15—30(b)(6), conferred exclusive original jurisdiction upon the juvenile courts to conduct termination-of-parental-rights proceedings. Section 12-15-30(b)(6) was amended and renumbered by Act 2008-277, § 3, codified as § 12-15-114, Ala.Code 1975, part of the AJJA, effective January 1, 2009. Like former § 12-15-30(b)(6), § 12-15-114(e)(2), Ala.Code 1975, confers upon the juvenile courts exclusive original jurisdiction over proceedings for termination of parental rights. Although the statute providing the juvenile courts exclusive original jurisdiction over proceedings for termination of parental rights was amended and renumbered by the AJJA while DHR’s petition in this case was pending, the juvenile court never lost subject-matter jurisdiction to hear DHR’s petition to terminate the father’s parental rights. The father cites Coker v. Fountain, 200 Ala. 95, 95, 75 So. 471, 471 (1917) (quoting Railroad Co. v. Grant, 98 U.S. 898, 401, 25 L.Ed. 281 (1878)), for the proposition that “ ‘if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law.’ ” However, as noted above, § 12-15-30(b)(6) was amended and renumbered, i.e., replaced by § 12-15-114(c)(2). Accordingly, there was never a time that the juvenile court did not have subject-matter jurisdiction to rule on DHR’s petition to terminate the father’s parental rights.

Next, the father argues that the juvenile court incorrectly applied the law to the facts because it applied the provisions of the AJJA instead of the provisions of the CPA in the judgment terminating his parental rights. Although the record indicates that the father is correct in stating that the juvenile court applied the AJJA to DHR’s petition, we cannot consider his argument because the father is raising it for the first time on appeal. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (this court may not consider arguments that are presented for the first time on appeal).

The father also contends that several of the juvenile court’s specific findings of fact are not supported by the evidence. Within that argument, the father contends that the juvenile court erred by failing to provide him with court-appointed counsel throughout the dependency and termination-of-parental-rights proceedings. In his reply brief, the father concedes that he did not raise this argument below. However, he argues that the juvenile court’s error should be considered because the juvenile court’s conclusion that he failed to provide for the care, maintenance, and support of the children is inequitable in light of the fact that he did not have a court-appointed attorney telling him to support the children. We disagree. It was undisputed that the father had not provided any support or maintenance for the children during the six and one-half years that the children were out of his custody, and, during most of the time in question, the father was represented by an attorney. Furthermore, the father testified that he purchased a tree-removal business in 2006 when he moved to Missouri and that, up until 2011, business had been “real[ly] good” and he had earned approximately $35,000 a year. Thus, the juvenile court could have concluded that the father had the ability to pay some form of support from 2006 through 2010 and that he did not do so.

The father also argues that the juvenile court’s finding that he had voluntarily abandoned the children because he had no meaningful contact with the children for a period of more than four months is “legally insufficient.” He argues that the applicable law, i.e., the CPA, required a finding of abandonment for a period of six months. The father makes the same argument that was addressed above — that the juvenile court erred by applying the provisions of the AJJA instead of the provisions of the CPA — and, as we did before, we decline to further consider the argument because the father failed to raise it below. See Andrews, supra.

The father further argues that the juvenile court’s findings that he had abandoned the children were not supported by the evidence because the record indicated that he was under a no-contact order for more than six months next preceding the filing of the petition to terminate his parental rights. Thus, he contends, both the January 2010 finding of abandonment and the February 2012 finding of abandonment, as well as the juvenile court’s finding that he had failed to maintain consistent contact and regular visitation with the children, are erroneous. Even if we assume, without deciding, that those findings are erroneous because of the no-contact order, despite the fact that the father admitted that he went approximately four years without contacting DHR or the children when he was supposedly unaware that a no-contact order had been entered, the juvenile court made other findings of fact that are supported by clear and convincing evidence in the record that provide two independent bases for affirming the juvenile court’s judgment terminating the father’s parental rights.

In determining whether to terminate parental rights, a juvenile court is required to apply a two-prong test: “(1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights.” B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)). The juvenile court, for a finding of dependency, must consider whether there are grounds for terminating a parent’s parental rights. K.A.P. v. D.P., 11 So.3d 812, 817 (Ala.Civ.App.2008).

Section 12-15-319, Ala.Code 1975, provides the statutory grounds for terminating a parent’s parental rights and states as follows:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child and to terminate the parental rights, the juvenile court shall consider the following factors including, but not limited to, the following....”

Section 12-15-319 then provides a list of 12 numbered subsections to be considered by the juvenile court. Subsection (1) allows the juvenile court to consider whether the father abandoned the children; subsection (9) allows the juvenile court to consider whether the father failed to provide for the material needs of the children or to pay a reasonable portion of support for the children, where the father was able to do so; subsection (10) allows the juvenile court to consider whether the father failed to maintain regular visits with the children; subsection (11) allows the juvenile court to consider whether the father failed to maintain consistent contact or communication with the children; and subsection (12) requires the juvenile court to consider whether the father demonstrated a lack of effort to adjust his circumstances to meet the needs of the children in accordance with agreements reached with DHR. See § 12-15-319(a)(l), (9), (10), (11), and (12).

In its judgment, the juvenile court found that the father’s parental rights were due to be terminated because the father was unable or unwilling to discharge his responsibilities to and for the children. To support that finding, the juvenile court made findings of fact consistent with subsections (1), (9), (10), (11), and (12) of § 12-15-319(a), listed above. However, on appeal, the father argues that the juvenile court’s findings related to only subsections (1), (9), (10), and (11) are unsupported by the evidence. We have already concluded that there was clear and convincing evidence to support a finding that, pursuant to subsection (9), the father had failed to provide for the material needs of the children or to pay a reasonable portion of support for the children when he was able to do so for a period of at least four years.

Furthermore, the father does not argue that there was insufficient evidence to support the juvenile court’s finding pursuant to subsection (12), i.e., that the father made no effort to adjust his circumstances to meet the needs of the children in accordance with agreements reached with DHR. Terrell testified that, in almost seven years that she had been involved with the family, the father had not complied with DHR’s requirements that he obtain a psychological evaluation, submit to drug testing, or participate in counseling and parenting classes. The juvenile court was well within its discretion to believe Terrell’s testimony over the father’s testimony to the extent that he disputed Terrell’s testimony. See J.C. v. State Dep’t of Human Res., supra. Accordingly, even without considering the specific findings in the judgment that are challenged by the father on appeal, we conclude that there was clear and convincing evidence to support the juvenile court’s order terminating the father’s parental rights pursuant to § 12-15-319(a)(9) and (12).

Finally, the father argues that the juvenile court’s finding that the father had an open case concerning abuse/neglect of his children in Missouri was not competent evidence to support a judgment terminating his parental rights because that evidence was hearsay and was admitted for dispositional purposes only. One e-mail from a foster-care worker in Missouri to Terrell that was submitted into evidence indicates that there was a pending investigation of the father based on an allegation that he had sexually abused his three-year old daughter. Even if we conclude that it was error for the juvenile court to consider that information in determining whether to terminate the father’s parental rights, as discussed above, there were two other independent grounds for terminating the father’s parental rights. Accordingly, the judgment is due to be affirmed.

AFFIRMED.

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

      . The juvenile court noted in its judgment that the domestic-violence charges pending against the father had been dismissed and that an investigation of allegations of sexual abuse by the father had been "unsubstantiated.”

      . At the final hearing in December 2011, the father indicated that he had hired an attorney to represent him in the dependency proceeding. However, there is no notice of appearance filed by that attorney in the record.

      .B.N. and E.N. are the aunt and uncle of the father. The record indicates that the father was raised by B.N.

      . The mother testified at the final hearing that she was not seeking custody of the children, and she did not file a notice of appeal.

      . Former § 26-18-7(b), Ala.Code 1975, provided a rebuttable presumption that a parent was unwilling or unable to act as a parent if the parent abandoned the child for a period of six months next preceding the filing of a petition to terminate parental rights. Section 12-15 — 319(b), Ala.Code 1975, part of the AJJA, modified former § 26-18-7(b) so that that rebuttable presumption is created when a parent abandons a child for a period of four months next preceding the filing of a petition to terminate parental rights. However, the CPA had, and the AJJA has, a provision that allows a juvenile court to consider abandonment as a ground for terminating parental rights absent consideration of a specific period of abandonment. See former § 26-18-7(a)(1), Ala.Code 1975, and § 12-15-319(a)(1), Ala.Code 1975.

      . The father also argues that the January 5, 2010, judgment finding that he had abandoned the children was void for want of due process because he was not given notice that DHR would attempt to adjudicate a finding of abandonment at that hearing. Even if we assume that the January 5, 2010, judgment is void insofar as it found that the father had abandoned the children, we can still affirm the juvenile court’s judgment on the independent bases, discussed infra. Furthermore, the father does not argue on appeal that DHR had a duty to make reasonable efforts to rehabilitate him and that it failed to do so. See Brown v. Wal-Mart Stores, Inc., 864 So.2d 1100, 1104 (Ala.Civ.App.2002) ("We will not reverse a trial court's judgment based ... on arguments not made to this court.”).

      . In the final judgment, the juvenile court found the children dependent, found clear and convincing evidence to support statutory grounds for terminating the father’s parental rights, and found that .there were no viable alternatives to terminating the father's parental rights. The father does not challenge the juvenile court’s finding of dependency or its finding that there were no viable alternatives to terminating his parental rights. Accordingly, those arguments are waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala.Civ.App.2005) (”[T]his court is confined in its review to addressing the arguments raised by the parties in their briefs on appeal; arguments not raised by the parties are waived.”).

      . For purposes of comparison with the CPA, see former § 26— 18 — 7(a)( 1) and (b)(1) — (4), which are nearly identical to § 12 — 15— 319(a)(1), (9), (10), (11), and (12).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Barbara Jo Jeter NAIL v. Barry JETER.
    2110323.
    Court of Civil Appeals of Alabama.
    Dec. 7, 2012.

      Mari Morrison, Birmingham, for appellant.
    John C. Gullahorn, Albertville, for appel-lee.
   On Application for Rehearing

THOMAS, Judge.

This court’s opinion of September 21, 2012, is withdrawn, and the following is substituted therefor.

Barbara Jo Jeter Nail (“the mother”) and Barry Jeter (“the father”) were divorced on November 4, 2010. The parties have two children, Barry Max (“Max”) and Emma (sometimes hereinafter referred to collectively as “the children”). The divorce judgment awarded the father primary physical custody of the children and ordered the mother to pay $600 per month in child support. On April 5, 2011, the mother filed a petition in the Marshall Circuit Court in which she sought, among other things, primary physical custody of the children, postminority educational support for Max, and a hearing on her allegation that the father had failed to comply with the terms of the divorce judgment regarding the transfer of her personal property. The father answered the mother’s petition and filed a counterpetition claiming that, among other things, the mother had caused the balance of the credit-card account that he had been made responsible for in the divorce judgment to increase in the amount of $4,620. On August 17, 2011, the father filed a contempt motion alleging that the mother was influencing Max to disobey the father in an attempt to “‘win’ her case of custody.” The mother responded to the father’s contempt motion, denying the father’s allegation.

On September 22, 2011, the mother filed a motion to compel the father to produce his cellular-telephone records. She asserted that she had requested production of his cellular-telephone records on August 22, 2011, but that the father had failed to produce them. The father responded to the mother’s motion to compel, stating that his cellular-telephone records were “immaterial, irrelevant, not intended to lead to discoverable evidence, and should not be produced.” He claimed that the mother intended to “misuse” or “attempt to harm” the father with the information contained in his cellular-telephone records. He requested that the trial court deny the mother’s motion to compel or, in the alternative, that the trial court limit the use of the information contained in his cellular-telephone records to the specific purpose for which the mother stated that his cellular-telephone records were needed.

A trial was held on October 4, 2011, at which the trial court heard ore tenus testimony. The trial court entered its judgment on October 13, 2011, in which it transferred primary physical custody of Max to the mother, specifically “declinefd] to set any visitation schedule” for Max “due to [his] age and [his] actions[,]” declined to transfer custody of Emma to the mother or to change the mother’s visitation schedule regarding Emma, modified the mother’s child-support obligation, directed the parties to “take the steps necessary to ensure that the [marital residence] is listed at the price suggested by the listing agent,” awarded $3,000 to the father, and denied all other requested relief, including, specifically, postminority educational support for Max.

The mother filed a motion to alter, amend, or vacate the trial court’s judgment on October 17, 2011, and the father filed a response and an amended response to the mother’s postjudgment motion. A hearing was held on the mother’s post-judgment motion on December 7, 2011, and, on December 15, 2011, the trial court entered its judgment denying her post-judgment motion.

The mother timely appealed to this court on December 28, 2011. She seeks this court’s review of six issues. She contends that the trial court erred by (1) denying her motion to compel the father to produce his cellular-telephone records, (2) failing to hold the father in contempt because, she says, he refused to follow the court’s orders regarding the property division, (3) failing to modify the custody of Emma, (4) failing to properly modify her child-support obligation, (5) awarding a judgment in the amount of $3,000 to the father, and (6) denying an award of post-minority educational support for Max.

The Denial of the Motion to Compel the Father’s Cellular-Telephone Records

The mother’s first contention is that the trial court erred because, she says, it improperly limited her discovery efforts. The mother relies on Cole v. Cole Tomato Sales, Inc., 293 Ala. 731, 310 So.2d 210 (1975), Campbell v. Regal Typewriter Co., 341 So.2d 120 (Ala.1976), Ex parte Knox Kershaw, Inc., 562 So.2d 250 (Ala.1990), Reed v. Dyas, 28 So.3d 6 (Ala.Civ.App.2009), and Hood v. Hood, 76 So.3d 824 (Ala.Civ.App.2011), to support her argument on appeal.

“ ‘ “Pursuant to Rule 26, Alabama Rules of Civil Procedure, a trial court is given authority to either limit or restrict discovery, and once the trial court chooses to so limit or restrict, its action will be liberally and broadly construed. This court will not, therefore, reverse unless it appears the trial court abused its discretion....”
‘Ex parte Sullivan, Long & Hagerty, 567 So.2d 314, 314-15 (Ala.Civ.App.1990).’
“Ex parte HealthSouth Corp., 712 So.2d 1086, 1088 (Ala.1997).”

Ex parte Tuscaloosa Cnty., 825 So.2d 729, 732 (Ala.2001).

The record reflects that the mother filed her action against the father on April' 5, 2011. On August 22, 2011, the mother requested the production of, among other documents, the father’s cellular-telephone records. Although the father produced the other requested documents, the father did not produce his cellular-telephone records. The father first stated that he was unable to print his cellular-telephone records because Max had removed the computer and printer from the father’s home. On September 22, 2011, 12 days before the trial, the mother filed a motion to compel the father to produce his cellular-telephone records, and, on the same day, the father filed his response to the mother’s motion to compel in which he asserted that his cellular-telephone records were irrelevant. The mother never filed a notice to serve a third-party subpoena on the father’s cellular-telephone carrier. The trial court heard the arguments of counsel regarding the mother’s request for discovery of the cellular-telephone records at the October 4, 2011, trial at which the mother’s attorney admitted that she had failed to subpoena the father’s cellular-telephone carrier for his cellular-telephone records because she wanted to “bypass ... additional charges that I would have to pay [the father’s cellular-telephone carrier] or someone else.” The mother’s attorney suggested that the trial court order the father to download the cellular-telephone records “during a lunch break or ... continue the trial for the records to be obtained.”

The trial court orally denied the mother’s motion to compel because the mother’s attorney had failed to subpoena the father’s cellular-telephone carrier.

“ ‘Discovery matters are within the trial court’s sound discretion, and this Court will not reverse a trial court’s ruling on a discovery issue unless the trial court has clearly exceeded its discretion.’ Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala.2003) (citing Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991)).”

Grocholski v. Grocholski, 89 So.3d 123, 128 (Ala.Civ.App.2011). In this case, we determine that the trial court acted within its discretion because the mother’s attorney failed to follow the proper procedure by filing a third-party subpoena.

Furthermore, to the extent that the exclusion of the father’s cellular-telephone records was error, it was harmless error. Ala. R.App. P., Rule 45 (“Error Without Injury”); see also Ala. R. Civ. P., Rule 61 (“Harmless Error”). The mother proffered that she intended to prove that the father had frequently telephoned or sent harassing text messages to her, her mother, and her friends. Presumably the mother and those persons would have allowed their cellular-telephone records to be used to show the alleged incoming telephone calls and text messages from the father; thus, any error in excluding the father’s cellular-telephone records was harmless.

The Refusal to Hold the Father in Contempt Regarding the Property Division

Next the mother argues that the trial court erred by failing to hold the father in contempt because, she says, he refused to follow the trial court’s orders regarding the property division. She provides citations to Reed v. Dyas, 28 So.3d 6, 8 (Ala.Civ.App.2009), and Hood v. Hood, 76 So.3d 824, 831 (Ala.Civ.App.2011), in support of this argument.

“The standard of review of a judgment of contempt is as follows:
“ ‘ “[W]hether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.” ’
“Nave v. Nave, 942 So.2d 372, 377 (Ala.Civ.App.2005) (quoting Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994)). Furthermore,
“ ‘ “ ‘[i]n ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).” ’
“Gladden v. Gladden, 942 So.2d 362, 369 (Ala.Civ.App.2005) (quoting Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004)).”

S.A.T. v. E.D., 972 So.2d 804, 809 (Ala.Civ.App.2007).

The father testified that the parties’ divorce judgment required the parties to agree to a division of their personal property. Any remaining personal property that they could not agree upon was to be sold, and the parties were instructed to equally divide the proceeds of the sale of any disputed items of personal property. According to the father’s testimony, the mother had created a list of the personal property that she wanted. The father did not agree to allow the mother to have all the property listed on the mother’s list. Instead, he created two lists. He said: “These two lists were lists that I provided and said she could pick either list one or list two. She can have everything on list two or everything [on] list one.... I gave her the opportunity to choose what list she wanted.” The father testified that the lists he prepared were an attempt to reach an agreement and that, once the parties reached an agreement, the mother was free to take her personal property from the marital residence. The mother offered the lists into evidence. The mother’s testimony regarding the division of personal property consists of exactly three questions and answers. She said that she had never told the father to keep her personal property, that she had asked for her personal property, and that the father had never communicated with her about the personal property.

We determine that, unlike the wife in Reed, 28 So.3d at 8, and the wife in Hood, 76 So.3d at 831, the mother has failed to provide sufficient evidence indicating that the trial court exceeded its discretion by declining to hold the father in contempt of court. In this case, the trial court could have reasonably determined that the father’s testimony was credible and that he had attempted to abide by the court’s order, especially in light of the mother’s relatively slight testimony contradicting the father’s extensive testimony and the documentary evidence.

“ ‘ “ ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ The rule applies to ‘disputed issues of fact,’ whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.” ’
“Yeager v. Lucy, 998 So.2d 460 (Ala.2008) (quoting Reed v. Board of Trs. for Alabama State Univ., 778 So.2d 791, 795 (Ala.2000)).
“We also note that ‘ “[i]t is well settled that an appellant has the burden of presenting a record containing sufficient evidence to show error by the trial court.” ’ Wilcoxen v. Wilcoxen, 907 So.2d 447, 450 (Ala.Civ.App.2005) (quoting Leeth v. Jim Walter Homes, Inc., 789 So.2d 243, 246 (Ala.Civ.App.2000)).”

Ex parte Brown, 26 So.3d 1222, 1225 (Ala.2009).

The Denial of a Change in the Custody of Emma

“On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, [520 So.2d 534 (Ala.Civ.App. 1988)]). As the Alabama Supreme Court highlighted in [Ex parte ] Patronas [, 693 So.2d 473 (Ala.1997) ], ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ’ Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. See Patronas, 693 So.2d at 475.”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007).

Initially, we note that the mother’s only citations to authority regard our standard of review and that the mother rightly concedes that she bore the burden of proving that a change in custody would materially promote Emma’s best interests.

“Pursuant to Ex parte McLendon [, 455 So.2d 863 (Ala.1984) ], a parent seeking to modify custody must demonstrate that the change in custody would materially promote the child’s welfare and that the disruption caused by the change in custody would be offset by the advantages of that custody change.”

Smith v. Smith, 865 So.2d 1207, 1210 (Ala.Civ.App.2003). Despite the meager authority cited, we have examined the testimony presented to the trial court and conclude that the trial court did not exceed its discretion by denying the mother’s petition for custody of Emma.

In her brief, the mother asserts that she presented overwhelming evidence to the trial court of the father’s lack of fitness as a parent. She alleged that the father had stalked and harassed her and her mother, had a hostile relationship with Max, had spoken to the children about the mother in a derogatory manner, had urinated in the bathroom while Emma was brushing her teeth, had allowed Emma to sleep in his bed at times, and had not attended to Emma’s scholastic and medical needs.

The father testified, disputing or explaining each of the mother’s allegations. The father denied the mother’s allegations that had stalked or harassed anyone, that he had urinated in Emma’s presence, or that he had not attended to Emma’s scholastic needs. The father testified that approximately six times in the past year Emma had slept in his bed when she was “scared and upset.”

The father responded to the mother’s testimony regarding her allegation that he had failed to attend to Emma’s medical needs. He said that Emma had fallen off her bicycle while in his care and that she had told him that her hand hurt. He testified that he had examined her hand and that he had believed that she did not need medical attention. He admitted that the next day, while the mother was exercising her visitation with Emma, Emma had complained to the mother; the mother took Emma for an X-ray, and it was determined that she had a broken bone in her hand. The father also explained that, on another occasion, the mother had taken Emma to the doctor and Emma was diagnosed with a urinary-tract infection. He said Emma had not complained of any symptoms to him. Finally, he agreed that he had a strained relationship with Max.

After hearing ore tenus evidence, the trial court concluded that a change in Emma’s custody would not materially promote her best interests. The trial court was in the best position to hear and weigh the disputed testimony in this case. We determine that the trial court did not exceed its discretion by refusing to transfer the custody of Emma to the mother because its judgment could be reasonably supported by the evidence presented by the father. See Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981).

The Modification of the Mother’s Child-Support Obligation

The mother asserts that the trial court erred by failing to properly modify her child-support obligation. The record on appeal contains the following documentary evidence: the mother’s CS-41 “Child-Support-Obligation Income Statement/Affidavit” that was executed and notarized on September 7, 2010, the father’s CS-41 “Child-Support-Obligation Income Statement/Affidavit” that was executed and notarized on September 4, 2011, and a CS-42 “Child-Support Guidelines” form prepared by the trial court on October 4, 2011. Although both children were still minors, Emma was the only child listed on the trial court’s CS^42 form; on that form, the mother is shown as being obligated to pay $345.18 per month in child support to the father, but the father is not shown as being obligated to pay any child support to the mother, even though the mother was awarded custody of Max on October 4, 2011. Although the trial court’s October 4, 2011, judgment effected a split-custody award, there is nothing in the record to indicate that the father is obligated to pay any child support to the mother, see Rule 32(B)(9), Ala. R. Jud. Admin., and, in his brief to this court, the father admits that he was not ordered to pay child support. Because it appears that the trial incorrectly computed the child-support award, we reverse the judgment insofar as it relates to the trial court’s computation of the parties’ child-support obligations, and we remand the cause to the trial court to render a judgment in accordance with Rule 32(B)(9).

The Award of $3,000 to the Father

Although it is not entirely clear, we discern from the parties’ testimony that, at the time of the divorce, the parties had debts on at least three joint credit-card accounts. According to the parties’ testimony, the trial court made the father responsible for the debt on the parties’ Discover credit card, and it made the mother responsible for the debts on the parties’ U.S. Bank credit card and the parties’ Belk credit card. Although the exact date is disputed, it is undisputed that on some date shortly before or after the divorce judgment was entered the mother transferred $3,000 of the U.S. Bank account debt and $1,400 of the Belk account debt to the Discover account. The father said the transfers, including fees, amounted to $4,620. At the time of the trial, the father said that he had paid the minimum payment on the Discover account for approximately one year.

In her brief, the mother offers no applicable support for her argument that she should not be required to pay the father an award of $3,000. She provides one citation to this court, Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994), for its clarification of the standard of review of a judgment of civil contempt. We determine that, in violation of Rule 28(a)(10), Ala. R.App. P., the mother has failed to cite any authority to support a conclusion that the trial court erred by requiring her to pay the father $3,000. Thus, we will not further entertain this argument.

The Denial of Postminority Educational Support for Max

“Generally, the decision whether to award postminority educational support is within the discretion of the trial court after consideration of the factors set out in Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). Gabel v. Lores, 608 So.2d 1365, 1366 (Ala.Civ.App.1992). When the evidence regarding those factors is in conflict, the trial court’s factual findings are presumed correct. Abernathy v. Sullivan, 676 So.2d 939, 941 (Ala.Civ.App.1996). However, the trial court’s legal conclusions and its application of the law to the facts are not clothed with such a presumption; review of those matters is de novo. Henderson v. Henderson, 978 So.2d 36, 39 (Ala.Civ.App.2007).”

Goetsch v. Goetsch, 66 So.3d 788, 790 (Ala.Civ.App.2011).

The factors that a trial court must consider regarding an award of postminority educational support are set out in Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989). The factors are “all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” Id. In addition, a trial court may also consider “the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.” Id.

In this case, the record contains evidence pertinent to the factors regarding Max’s commitment to and aptitude for a college education, the standard of living he might have enjoyed had the family unit been preserved, and the strained relationship between Max and the father. The record also contains some evidence pertaining to the parties’ respective financial resources. However, the record does not contain evidence indicating the estimated costs of Max’s tuition, books, room, and board.

It is undisputed that Max is an excellent student. Max testified that he desired to attend the University of Alabama and that he intended to major in business. He said that he had completed a standardized college-entrance test, that he had “sent his transcripts,” and that he intended to apply for admission and for scholarships, but, he said, it was not yet the appropriate time to apply. It is undisputed that Max had neither applied to nor been accepted to the University of Alabama or to any other institution. At the December 7, 2011, hearing on the mother’s postjudgment motion, the trial court rightly stated: “He’s not applied. He’s not been accepted. We don’t know what scholarships are. We don’t even know what expenses are. In fact, we don’t even know exactly which college. There’s no way in the world I could award any post-minority support on that.” We cannot conclude that the trial court erred by refusing to award postmi-nority educational support because the mother’s attorney failed to provide evidence to the trial court indicating the anticipated expenses of Max’s education.

However, the mother argues that the trial court erred in failing to reserve jurisdiction over the issue of postminority educational support. We agree. When a child is nearing the age of majority, a trial court should reserve jurisdiction to consider the issue of postminority educational support.

A petition seeking postminority educational support must be filed before the child reaches 19 years of age or the trial court lacks jurisdiction to act upon the petition. Bayliss, 550 So.2d at 987 (a trial court has jurisdiction, “[i]n a proceeding for dissolution of marriage or a modification of a divorce judgment, [to] award sums of money out of the property and income of either or both parents for the post-minority education of a child of that dissolved marriage, when application is made therefor ... before the child attains the age of majority ” (emphasis added)). Moreover, a trial court may entertain a petition for postminority educational support filed after a child reaches the age of 19 if a proper party has previously timely petitioned for such support and the trial court has reserved jurisdiction on the issue. See Langdale v. Baty, 673 So.2d 456, 457 (Ala.Civ.App.1996).

We recognize that this court has provided little guidance to the trial courts concerning whether or when to reserve jurisdiction over the issue of postmi-nority educational support. In Britt v. Britt, 684 So.2d 1325, 1326 (Ala.Civ.App.1996), this court stated that, “[w]hen a parent files a petition for post-minority educational] support, a court should: (1) grant the petition or (2) deny the petition and reserve jurisdiction.” In Britt, the trial court had earlier reserved jurisdiction over the issue of postminority educational support, thus permitting it to consider that issue anew upon the filing of the mother’s second petition, despite the fact that the child had reached the age of 19. Britt, 684 So.2d at 1326-27. Britt has been cited as authority for the principle that a trial court should reserve jurisdiction when it denies a petition for postminority educational support only once, in Akridge v. Akridge, 738 So.2d 1277, 1279 (Ala.Civ.App.1999). In Abridge, this court reversed the trial court’s judgment refusing to award post-minority educational support and ordered the trial court to reserve jurisdiction over the issue for future consideration when the trial court had based its denial of postmi-nority educational support on the fact that the child had not yet reached the age of majority. In situations where a child is approaching 19 years of age, a trial court should reserve the issue so that its jurisdiction to consider awarding postminority educational support will not be lost before the parent seeking the support on the child’s behalf is able to present the appropriate evidence. According to the record, Max reached 19 years of age on October 12, 2012, while this matter was still pending on appeal. Therefore, we remand the cause to the trial court with the instruction that it enter an order reserving jurisdiction over the issue of postminority educational support for Max.

In conclusion, we determine that the trial court did not err by (1) denying the mother’s motion to compel the father to produce his cellular-telephone records, (2) refusing to hold the father in contempt regarding the property division, (3) refusing to modify the custody of Emma, or by (4) awarding a judgment in the amount of $8,000 to the father. We reverse the judgment insofar as it relates to the trial court’s computation of the parties’ child-support obligations, and we remand the cause to the trial court to render a judgment in accordance with Rule 32(B)(9), Ala. R. Jud. Admin. We further reverse the judgment insofar as it failed to reserve jurisdiction to grant or deny an award of postminority educational support for Max, and we remand the cause to amend the judgment to reserve jurisdiction over the issue for future consideration.

APPLICATION FOR REHEARING GRANTED; OPINION OF SEPTEMBER 21, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

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

      . Rule 61, Ala. R. Civ. P., states, in its entirety:
      "No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or fer setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

      . The father also testified that, because of an allegation that he had inappropriately touched Emma, he had been investigated by the Department of Human Resources and that the report of that investigation had resulted in a finding of "not indicated.”

      . When questioned, Kathy Hutchins, the school counselor at Emma’s school, agreed that the mother and the father were "fairly involved parents.” Hutchins said that she had no academic concerns about Emma.

      . The Belk credit card is also referred to in the record as the GE Money Bank card, the GE card, the GEMB card, the Belk/GE Money Bank card, and the GEMB/OLDN card.

      . This court has cautioned that it "will eventually move toward a policy in which it will no longer remand these matters to the trial court for the taking of additional evidence” when the party requesting postminority educational support has failed to meet his or her burden of proof. Taylor v. Taylor, 991 So.2d 228, 235 n. 2 (Ala.Civ.App.2008). Two members of the court, including the author of this opinion, have advocated that the time has already come for the court to move to that policy. Id. at 237-38 (Thomas, J., concurring in part and dissenting in part, joined by Moore, J.).

      . Apparently, the mother labored under a false belief that her request for postminority educational support for Max was required to be filed before he reached 18 years of age rather than our legislatively prescribed age of majority — 19 years of age.


author: KELLUM, Judge. JOINER, Judge,

text:
    Quinneshia Chemise CABBLE v. STATE of Alabama.
    CR-11-0061.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.
    Rehearing Denied Oct. 26, 2012.

      Raymond E. Johnson, Montgomery, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   KELLUM, Judge.

Pursuant to a negotiated plea agreement, the appellant, Quinneshia Chemise Cabbie, pleaded guilty to one count of conspiracy to distribute marijuana, a violation of §§ 13A-12-204 and 13A-12-211, Ala.Code 1975. The circuit court sentenced Cabbie to 15 years’ imprisonment; the sentence was split, and she was ordered to serve 3 years’ imprisonment, with the balance suspended, followed by 5 years’ supervised probation. The circuit court ordered Cabbie to pay $50 to the Crime Victims Compensation Fund, a fine of $1,000 pursuant to the Drug Demand Reduction Assessment Act, $100 to the Alabama Forensic Services Trust Fund, and court costs.

The record indicates that in 2007 Eddie Spivey, John Hurst, and Becky Spark-man, agents with the United States Drug Enforcement Agency (“DEA”) Montgomery Task Force (“Montgomery DEA Task Force”) as well as DEA Special Agents Neill Thompson, Brett Hamilton, and Devin L. Whittle and others began investigating a drug distribution organization responsible for distributing hundreds of pounds of cocaine and marijuana in Montgomery and surrounding cities. In connection with this investigation, D’Andre Stokes was arrested on April 5, 2007, in a sting operation in Auburn after he attempted to purchase five kilograms of cocaine from an undercover DEA agent.

Four months later, on August 19, 2007, a DEA confidential informant (hereinafter referred to as “confidential informant no. 1”) told Special Agent Thompson that Cabbie and her boyfriend, Adarryl Brown, had contacted him about finding a cocaine supplier. Specifically, Cabbie told confidential informant no. 1 that Brown and Stokes had had a disagreement over the prices that Stokes was charging Brown for cocaine. Cabbie asked confidential informant no. 1 to contact an individual named Kelvin Artis so that Brown could purchase cocaine directly from Artis. Cabbie offered to sell confidential informant no. 1 “any amount” of cocaine confidential informant no. 1 wanted to buy.

On December 14, 2007, a different DEA confidential informant who had been arrested for drug distribution in Montgomery in April 2007 (hereinafter referred to as “confidential informant no. 2”) told Montgomery DEA Task Force Agent Spi-vey that, through his association with a Montgomery drug dealer named Gerrick Brown, he had learned that Gerrick Brown’s source of cocaine was Clarence Donya Hicks, Jr., and his brother Deondra Conrad Hicks, and that the Hicks brothers were the leaders of a large drug-trafficking organization operating in Montgomery.

On February 29, 2008, Montgomery DEA Task Force Agents Spivey and Hurst conducted a proffer interview with Stokes. During the interview, Stokes stated that Brown and Gerrick were brothers and that Gerrick got his cocaine from Donya Hicks who, in turn, got the cocaine from a black male in Atlanta who went by the name of “Lil John.” Stokes stated that he believed that Hicks’s brother Deondra transported the cocaine he received from “Lil John” from Atlanta to Montgomery by way of a tractor trailer.

On May 19, 2009, Agents Spivey and Hurst interviewed confidential informant no. 2 again, at which time confidential informant no. 2 told Agents Spivey and Hurst that, in addition to transporting cocaine, Donya Hicks also frequently transported marijuana from Atlanta to Montgomery for Gerrick. Through his association with Gerrick, confidential in-fox-mant no. 2 developed a relationship with Donya Hicks and learned how the drug-trafficking organization operated.

As the investigation continued, DEA Special Agent Whittle and Montgomery DEA Task Force Agent Spivey met with confidential informant no. 2 regarding information about Gerrick. During the meeting, confidential informant no. 2 stated that he had had conversations with Gerrick over a cellular telephone with a telephone number assigned to Gerrick. At some point before March 1, 2010, an analysis of the pen register and telephone tolls for that number — a cellular telephone used by Gerrick — showed that from February 7, 2009, to February 8, 2010, that cellular telephone had been in contact with another telephone number in Alabama a total of 281 times. At the time, the Alabama telephone number was billed to Cabbie’s physical address.

On March 1, 2010, DEA Special Agent Whittle, through the United States Attorney for the Middle District of Alabama, applied to the United States District Court for a wiretap on Gerrick’s cellular telephone. On March 1, 2010, United States District Judge W. Keith Watkins signed an order authorizing the interception of wire communications for that cellular telephone number. The March 1, 2010, wiretap order listed Cabbie, among others, as a target interceptee.

On March 2, 2010, a telephone call was intercepted on the wiretap between the cellular telephone number used by Gerrick and an Atlanta area cellular telephone number used by Donya Hicks. During the telephone call, Hicks asked Gerrick for a quarter of a pound of a type of marijuana the two of them referred to as “bubble.” (C. 148.) A second call was subsequently intercepted the same day on the wiretap between the cellular telephone number used by Gerrick and the Atlanta area cellular telephone number used by Donya Hicks. During that telephone call, Hicks told Gerrick that Hicks kept “a pound or two” of marijuana at' Lakesha Moore’s house. (C. 150.) Later in the investigation, an analysis of the pen register and telephone tolls for Moore’s cellular telephone revealed that, between February 1, 2010, and February 18, 2010, Moore’s cellular telephone had been in contact with Hicks’s cellular telephone a total of 443 times.

On March 3, 2010, another telephone call was intercepted on the wiretap between Gerrick and the Atlanta area cellular telephone number used by Hicks. In the call, Hicks informed Gerrick that Thomas Shir-rell and Buford Mercel had broken into Amber Mann’s house and had stolen two pounds of marijuana Hicks had stashed there. Later in the investigation, an analysis of the pen register and telephone tolls for Mann’s cellular telephone revealed that, between February 1, 2010, and March 4, 2010, Mann’s cellular telephone had been in contact with Hicks’s cellular telephone a total of 369 times.

On March 30, 2010, DEA Special Agent Whittle made a separate application for a wiretap on the cellular telephone number belonging to Hicks. The application expressly referenced the fact that the Montgomery DEA Task Force had already obtained a wiretap on Gerrick’s cellular telephone number, and that information gathered from that wiretap and from other sources had led agents to believe that they also needed a wiretap on Hicks’s cellular telephone. On March 30, 2010, United States District Judge W. Keith Watkins signed an order authorizing the interception of wire communications for Hicks’s cellular telephone number.

After conducting an extensive investigation which included wiretaps on both Ger-rick’s and Hicks’s telephone numbers, law-enforcement agents working the case concluded that the amount of marijuana to which Cabbie was linked did not meet the minimum threshold necessary for the Montgomery DEA Task Force to pursue federal charges against Cabbie. The record indicates that the United States Attorney for the Middle District of Alabama subsequently sought, under 18 U.S.C. § 2517, authorization from the federal court to release to the Montgomery County District Attorney the information gathered on Cabbie from the federal wiretaps on Hicks’s cellular telephone number. On or before April 26, 2010, the federal court issued an order pursuant to 18 U.S.C. 2518(8)(b) authorizing the release to the Montgomery County District Attorney of the information gathered on Cabbie from the federal wiretaps on Hicks’s cellular telephone. Thereafter, both the information from the wiretap on Gerrick’s cellular telephone and the information from the wiretap on Hicks’s cellular telephone were turned over to the Montgomery County District Attorney for potential state court prosecution. Cabbie was subsequently indicted for conspiracy to traffic in marijuana.

Before pleading guilty to conspiracy to distribute marijuana, Cabbie moved to suppress evidence obtained as a result of the federal wiretaps. Cabbie filed two motions to suppress the wiretap evidence. In her first motion, Cabbie argued that the information gathered from the federal wiretaps pursuant to a federal-wiretap warrant was inadmissible in an Alabama state court. Specifically, Cabbie asserted that Alabama law prevents the admission of wiretap evidence under § 13A-11-30 et seq., Ala.Code 1975, and that no exception existed that would allow the admission of the wiretap evidence at trial. In her second motion, Cabbie argued that the wiretap evidence should be suppressed because, she argued, the affidavit submitted by DEA Special Agent Whittle was insufficient to support the issuance of the wiretaps. Specifically, Cabbie argued that the affidavit contained only “generalizations and boilerplate recitations regarding why traditional investigative techniques have not sufficed” and that, on that basis, it did not adequately demonstrate the necessity for a wiretap. (C. 198.) Finally, Cabbie argued that the district court’s order authorizing the wiretap was flawed because the order did not include a specific statement of the particular state offenses to which it related. The circuit court denied both motions to suppress the wiretap evidence.

After the circuit court denied her motions to suppress the wiretap evidence, Cabbie moved to prevent the State from using sealed documents during its prosecution of Cabbie. Cabbie contended that the sealed documents, i.e., the information gleaned from the wiretaps, were properly released by order of United States District Judge Watkins for Hicks’s cellular telephone but were not properly released by federal order for Gerrick’s cellular telephone number. The circuit court denied Cabbie’s motion.

Cabbie subsequently pleaded guilty to conspiracy to distribute marijuana. Before pleading guilty, Cabbie reserved for appellate review the circuit court’s denial of her motion to suppress the federal wiretaps as evidence in her case. Specifically, Cabbie reserved “issues concerning the admissibility of the federal wiretaps as evidence in [her] case.” (C. 243.) This appeal followed.

I.

Cabbie contends that the circuit court erred in not suppressing the evidence obtained as a result of the federal wiretaps. Specifically, Cabbie argues that wiretapping is illegal in Alabama as “eavesdropping” under § 13A-11-31, Ala.Code 1975, and, therefore, that evidence gleaned from a federal wiretap is inadmissible in state court.

“This Court reviews de novo a circuit court’s decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999).” State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App.2004). In the instant case, the facts are uncontested; the only issue is the circuit court’s application of the law to those facts. Therefore, this Court affords the circuit court’s ruling no presumption of correctness.

In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act (“the Wiretap Act”), 18 U.S.C. §§ 2510-2521, to address certain Fourth Amendment problems inherent in wiretapping. See Berger v. New York, 388 U.S. 41,’ 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The original act addressed only the intentional interception of wire or oral communications. In light of technological developments and changes in the structure of the telecommunications industry, Congress amended Title III and adopted the Electronic Communications and Privacy Act of 1986 (“ECPA”) to prohibit the intentional interception of electronic communications. Electronic communication includes “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electro-magnetic, photoelectronic or photooptical system that affects interstate or foreign commerce.” 18 U.S.C. § 2510(12). Thus, electronic communications include cellular-telephone service. See United States v. Carrazana, 921 F.2d 1557, 1562 (11th Cir.1991); In re Application for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, 849 F.Supp.2d 526 (D.Md.2011).

Title 18, United States Code, § 2516(2) of the Wiretap Act and ECPA allows individual states to enact concurrent state legislation governing the interception of wire, oral, or electronic communications. The statute recognizes that a state may either adopt procedures and standards that are more restrictive than those of the federal statute or prohibit wiretapping altogether. See United States v. Marion, 535 F.2d 697, 702 n. 9 (2d Cir.1976). Therefore, state statutes may narrow the scope of permissible wiretapping, but may not broaden the scope of permissible wiretapping beyond that contemplated by the federal statute. To do otherwise would run afoul of the Supremacy Clause. U.S. Const. Art. VI, cl. 2.

The Alabama Legislature has enacted legislation criminalizing certain offenses against privacy including, among others, criminal eavesdropping, see § 13A-11-S1, Ala.Code 1975. “A person commits the crime of criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at the time.” § 13A-11-31, Ala.Code 1975. “Eavesdrop” has been defined by our legislature as follows: “To overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law.” § 13A-11-30(1), Ala.Code 1975 (emphasis added). The Commentary following this statute explains, in pertinent part:

“Federal law has become quite pervasive in this area with ... Title III, Omnibus Crime Control and Safe Streets Act of 1968 (Pub.L. 90-351, 82 Stat. 211, 18 U.S.C. § 2510 et seq.), which also applies to states. The Criminal Code continues this coverage. It prohibits eavesdropping, defined in § 13A-11-30(1) as overhearing, recording, amplifying or transmitting any part of the private communication of others, except as otherwise provided by law. The latter phrase incorporates by reference any lawful regulations that may be promulgated affecting the monitoring of messages by communications carriers, and any surveillance under court order authorized by law.”

In examining the above statutes, we keep in mind the following principles of statutory construction:

“ ‘The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. If possible, the intent of the legislature should be gathered from the language of the statute itself.’ Volkswagen of America, Inc. v. Dillard, 579 So.2d 1301, 1305 (Ala.1991). “Where a statutory pronouncement is distinct and unequivocal, there remains no room for judicial construction and the clearly expressed intent of the legislature must be given effect.’ Ex parte Holladay, 466 So.2d 956, 960 (Ala.1985) (citing Dumas Bros. Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534 (Ala.1983)).”

Ex parte Soto, 991 So.2d 691, 692 (Ala.2008).

Although our research reveals no Alabama caselaw addressing whether a federal wiretap like the one at issue in the instant case constitutes “eavesdropping” in violation of § 13A-11-31, Ala.Code 1975, the question of the admissibility of federal wiretaps in Alabama can be resolved by reading the plain language of the applicable statutes in conjunction with the Commentary cited above. Section 13A-11-30(1), Ala.Code 1975, and the Commentary following that statute indicate that the Alabama Legislature intended to create an exception in § 13A-11-30 et seq. to allow for the application of federal law. By creating an exception in § 13A-11-30 in the definition of eavesdropping and permitting the collection of private communication “as otherwise provided by law,” the legislature intended to permit the collection of electronic communication as provided for under federal law, including the lawful regulations for federal wiretaps found in the Wiretap Act and the ECPA. Therefore, we do not agree with Cabbie’s contention that wiretapping is illegal in Alabama as “eavesdropping” under § 13A-11-31, Ala. Code 1975.

II.

Cabbie also contends that the circuit court erred in not suppressing the evidence obtained as a result of the federal wiretaps because, she argues, the affidavits produced by DEA Special Agent Whittle for wiretaps on Gerrick’s and Hicks’s telephone numbers were insufficient under 18 U.S.C. § 2518(1) to support the issuance of the wiretaps. Specifically, Cabbie argues that the government failed to meet its burden of showing necessity; failed to show that traditional investigative procedures were unsuccessful; and failed to provide specific facts that relate to the specific offenses for which the wiretap was sought. Regarding the latter contention, Cabbie maintains that the specific facts provided in the affidavits and, in turn, the district court’s orders authorizing the wiretaps, related only to federal violations and not to any crimes under Alabama law that Cabbie was charged with violating.

Title 18, United States Code, Section 2515 provides:

“Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

Title III of the Wiretap Act allows an “aggrieved person” to move to suppress the contents of intercepted oral or wire communications, or evidence derived from such communications, obtained in violation of the statute. An aggrieved person may challenge the use of such evidence at trial on the grounds that:

“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted was insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”

18 U.S.C. § 2518(10)(a).

Title 18, United States Code, § 2518(l)(c), requires each application for interception of electronic communications to provide “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(l)(c). This mandatory explanation of other investigative procedures in an electronic surveillance application is “designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime.” United States v. Kahn, 415 U.S. 148, 153 n. 12, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). A comprehensive exhaustion of all possible investigative techniques, however, is not necessary before applying for a wiretap. United States v. Alonso, 740 F.2d 862, 868 (11th Cir.1984). Furthermore, the “partial success of alternative investigative measures ... does not necessarily render electronic surveillance unnecessary.” United States v. Perez, 661 F.3d 568, 581 (11th Cir.2011). To determine necessity, courts should evaluate wiretap affidavits “in a ‘common sense fashion,’ and ‘the determination of when the Government has satisfied [the statutory] requirement must be made against flexible standards, and ... each case must be examined on its own facts.’ ” United States v. Miller, 431 Fed.Appx. 847, 853 (11th Cir.2011)(quoting United States v. Hyde, 574 F.2d 856, 867 (5th Cir.1978)).

In the wiretap-warrant affidavits, DEA Special Agent Whittle recounted in detail the lengthy, two-year investigation of the alleged drug organization run by Donya Hicks and Gerrick Brown. Special Agent Whittle explained in his affidavit that the wiretaps were necessary at this point in the investigation because (1) the “close knit” nature of the drug organization made it difficult for an undercover agent to infiltrate the organization to the extent necessary to produce the evidence needed to establish the identities and levels of participation of all the relevant participants; (2) confidential informant no. 1 was no longer willing to cooperate in the investigation; (3) confidential informant no. 2 knew only Gerrick Brown within the organization and therefore the government had no source through which it could make the kind of controlled drug purchases that would allow it to establish the identities and levels of participation of the relevant participants in the organization; (4) neither of the confidential informants were able to provide significant information on the Atlanta source of Donya Hicks’s and Gerrick Brown’s drug supply; (5) neither of the confidential informants were able to provide significant information on where, how, and with whom Donya Hicks and Gerrick Brown locally stored cocaine and marijuana; (6) if called before a grand jury, the targets of the investigation and/or their co-conspirators would likely invoke their Fifth Amendment right against self-incrimination; (7) search warrants for the addresses of Donya Hicks and Gerrick Brown would likely produce no evidence, given the use of drug “stash houses,” and would alert both men to the fact that they were being investigated; (8) physical surveillance by law enforcement had been attempted but thwarted by Gerrick Brown’s moving from a house to an apartment and by Donya Hicks’s habit of moving from one girlfriend’s house to another; (9) the use of pen registers and toll analysis, although successful, resulted in mere speculation as to the contents and purpose of the telephone calls; and (10) the tendency of members of drug organizations like that of Donya Hicks and Gerrick Brown to be conscious of what they put in their trash and the fact that Gerrick resided in an apartment complex that had a community dumpster made the possibility of finding sufficient information to prosecute high-level members of the conspiracy unlikely.

The affidavits executed by DEA Special Agent Whittle demonstrate that the request for wiretaps on the cellular telephone numbers registered to Donya Hicks and Gerrick Brown was not an initial step in the investigation against Hicks and Ger-rick but, instead, was made following a lengthy and involved investigation using other investigative resources and techniques available to investigators. The affidavits document both the successes and failures of the various investigative resources and techniques used before requesting wiretaps. Further, the affidavits demonstrate why wiretaps were necessary to advance the investigation. Therefore, contrary to Cabbie’s contention on appeal, the affidavits met the necessity requirement of 18 U.S.C. § 2518(l)(c).

III.

We now turn to Cabbie’s contention that Special Agent Whittle’s affidavits and the district court’s orders were defective because both addressed alleged federal crimes and not the state crime of which she was ultimately convicted. In support of her contention, Cabbie relies solely on United States v. Marion, 535 F.2d 697 (2d Cir.1976), for the proposition that “when a law enforcement officer intercepts oral or wire communications relating to offenses other than those specified in a court order, [the officer] must get subsequent judicial approval to disclose those communications in a criminal proceeding.” (Cabbie’s brief, p. 15.) Cabbie’s reliance on Marion is unavailing. In Marion, the issue before the United States Court of Appeals for the Second Circuit was “whether subsequent judicial approval was required by § 2517(5) before communications intercepted pursuant to state court authorized wiretaps could be used in the federal grand jury and criminal proceedings.” 535 F.2d at 701. Unlike the court in Marion, we are not called upon in the instant case to address the propriety of wiretaps issued under provisions of a state wiretapping statute and whether those state-issued wiretaps complied with federal law. Indeed, no such statute exists in Alabama.

Title 18, United States Code, § 2517(5), provides, in pertinent part:

“When an investigative or law enforcement officer, while engaged in intercepting wire, oral, or electronic communications in the manner authorized herein, intercepts wire, oral or electronic communications relating to offenses other than those specified in the order of authorization or approval, the contents thereof, and evidence derived therefrom, may be disclosed or used ... when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the contents were otherwise intercepted in accordance with the provisions of this chapter.”

The record indicates that Special Agent Whittle’s affidavits alleged, and the district court’s orders stated, that there was probable cause to believe that Cabbie, among others, had committed or was committing various violations of federal law relating to the possession and distribution of controlled substances. There is no indication in the record that the investigators who were engaged in the judicially authorized electronic surveillance of the cellular telephones at issue intercepted wire or oral communications relating to offenses other than those specified in the order of approval issued by the district court in this case. Therefore, we conclude that there was no violation of § 2517(5) and that Cabbie’s argument to the contrary is without merit.

IV.

Finally, Cabbie contends that the circuit court erred in denying her motion to prevent the State from using sealed wiretap documents on Gerrick Brown’s cellular telephone number during the criminal proceedings against her. Cabbie argues that the wiretap documents on that cellular telephone number remained under seal and that the federal government’s failure to comply with provisions of 18 U.S.C. § 2518(8)(b) should have prevented the admission of the wiretap documents in an Alabama state court.

In the instant case, the record indicates that defense counsel received a copy of an order entered by the United States District Court for the Middle District of Alabama unsealing under 18 U.S.C. § 2518(8)(b), the wiretap information relative to Hicks’s cellular telephone number. At a hearing before the circuit court, the prosecutor explained to the court that an Assistant United States Attorney informed the State that the district court had also issued an order unsealing the wiretap information relative to Gerrick Brown’s cellular telephone number. The prosecutor stated that he would attempt to obtain a copy of the district court’s order on Ger-rick’s telephone number and deliver it to defense counsel as soon as possible. The record indicates, however, that the State was unable to locate or obtain a copy of a federal court order releasing the federal wiretap information on Gerrick’s cellular telephone number before a hearing on the motion to suppress was conducted. Thereafter, defense counsel renewed his objection to the admission of the evidence under seal.

“Applications made and orders granted [for the interception of wire, oral, or electronic communications] shall be sealed by the judge ... [and] shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction.” 18 U.S.C. § 2518(8)(b). In United States v. Caggiano, 667 F.2d 1176 (5th Cir.1982), the United States Court of Appeals for the Fifth Circuit addressed the effect of noncompliance with 18 U.S.C. § 2518(8)(b), on the admissibility of wiretaps as follows:

“A failure to comply with the procedures of 18 U.S.C. § 2518(8)(b) may render an interception unlawful and its fruits inadmissible under 18 U.S.C. § 2518(10)(a)(i). See, e.g., United States v. Lawson, 545 F.2d 557, 564 (7th Cir.1975); United States v. Chun, 503 F.2d 533, 542 n. 18 (9th Cir.1974). Such technical noncompliance necessitates suppression, however, only if the violated procedure is a central or a functional safeguard in the statutory scheme to prevent abuses of the wiretap act and if the purpose of the procedure has been frustrated or the procedure has been deliberately ignored. See, United States v. Diana, 605 F.2d 1307, 1312 ([4]th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d 787 (1980).”

667 F.2d at 1178-79 (footnote omitted).

We will assume, as the Fifth Circuit did in Caggiano, that “the sealing requirement is a central or a functional safeguard to prevent abuses of the wiretap act” based on the importance of preserving the confidentiality of wiretap applications and orders. 667 F.2d at 1179. However, Cabbie does not suggest on appeal that the district court’s alleged failure to enter an order unsealing the wiretap evidence as to Gerrick’s cellular telephone number promoted any breach of confidentiality or that the court’s failure to enter an order frustrated the purpose of the Wiretap Act; nor does she suggest that the State deliberately circumvented 18 U.S.C. § 2518(8)(b). Further, Cabbie does not argue how she was prejudiced by the alleged noncompliance with the procedural requirements of 18 U.S.C. § 2518(8)(b). Instead, Cabbie merely suggests that had the documents been sealed, they would not have been disclosed and she would not have had to move to suppress the wiretap evidence. Because Cabbie failed to demonstrate that the government’s “technical noncompliance” with 18 U.S.C. § 2518(8)(b) mandated suppression, the circuit court’s denial of her motion to prevent the State from using sealed wiretap documents on Gerrick’s cellular telephone number is due to be affirmed.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

WINDOM, P.J., and WELCH and BURKE, JJ., concur. JOINER, J., concurs in part and concurs in the result in part, with opinion.

JOINER, Judge,

concurring in part and concurring in the result in part.

I concur in Parts II and III of the main opinion; I concur in the result in Parts I and IV.

With respect to Part I, Cabbie argues that the trial court should have suppressed the federal-wiretap evidence because, she says, Alabama’s criminal-eavesdropping statutes do not permit the admission of the wiretap-evidence in state court. (Cabbie’s brief, pp. 10-11.) Specifically, Cabbie asserts that

“[t]he Federal statute sets out minimum standards for electronic surveillance, and allows the states to enact their own statutes. However, the states may be more restrictive, but state regulations may not be more permissive.
“Alabama has adopted a law which allows recorded conversation between individuals as evidence only if one of the parties is aware of, and consents to, the recording of the conversation.”

(Cabbie’s brief, p. 10 (citations omitted).) The majority concludes as follows:

“By creating an exception in § 13A-11-30 in the definition of eavesdropping and permitting the collection of private communication ‘as otherwise provided by law,’ the legislature intended to permit the collection of electronic communication as provided for under federal law, including the lawful regulations for federal wiretaps found in the Wiretap Act and the ECPA. Therefore, we do not agree with Cabbie’s contention that wiretapping is illegal in Alabama as ‘eavesdropping’ under § 13A-11-31, Ala. Code 1975.”

114 So.3d at 862. I disagree with the majority’s statement of the controlling issue as whether the use of a wiretap in this case is eavesdropping under Alabama law.

Title III of the Omnibus Crime Control and Safe Streets Act (“the Wiretap Act”), 18 U.S.C. §§ 2510-2521, allows an aggrieved person to move to suppress the contents of intercepted oral or wire communications, or evidence derived from such communications, obtained in violation of the statute. 18 U.S.C. § 2515. An aggrieved person may challenge the use of such evidence at trial on the grounds that:

“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted was insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”

18 U.S.C. § 2518(10)(a).

Cabbie appears to be arguing that, because the wiretap violated Alabama’s criminal-eavesdropping statutes, the wiretap evidence is inadmissible because it was communication that “was unlawfully intercepted.” Cabbie’s argument, however, is premised on her contention that Alabama’s criminal-eavesdropping statutes are controlling in our analysis; Alabama’s criminal-eavesdropping statutes are only controlling if — as envisioned by the Wiretap Act — it is state legislation governing the investigative interception of wire, oral, or electronic communications as allowed by the Wiretap Act. See United States v. Manon, 535 F.2d 697, 702 n. 9 (2d Cir. 1976) (“The [Wiretap Act] envisions that States would be free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.”).

As quoted in the majority opinion, however, the Commentary to § 13A-11-31, Ala.Code 1975, indicates that Alabama’s criminal-eavesdropping statutes recognize the scope of and defer to the Wiretap Act with respect to the investigative interception of wire, oral, or electronic communications. As such, Alabama’s criminal-eavesdropping statutes are preempted with respect to the investigative interception of wire, oral, or electronic communications. See State v. Rivers, 660 So.2d 1360, 1362 (Fla.1995) (“Congress preempted the field of the interception of wire communications under its power to regulate interstate communications.”). Accordingly, because Alabama’s criminal-eavesdropping statutes are preempted ■with respect to investigative interception of wire, oral, or electronic communications, there was no violation of those statutes for the purpose of the Wiretap Act, and, thus, Cabbie’s argument fails. It is for this reason that I conclude that we need not address, unlike the majority, whether the wiretap in this matter constituted eavesdropping under Alabama law.

Finally, with respect to Part IV, I would hold that Cabbie has failed to provide sufficient legal authority in support of her argument and, thus, has failed to comply with Rule 28(a)(10), Ala. R.App. P.; accordingly, I would conclude that her argument is waived and I would not address, as the majority does, whether the order unsealing the wiretap documents was legally sufficient.

      . During this time, Spivey was employed as an investigator in the Alabama Attorney General's Office and was assigned to the High Intensity Drag Trafficking Area Unit. In this capacity, Spivey worked with the Montgomery DEA Task Force.

      . This Court has, however, addressed whether evidence obtained from a warrantless radio interception was admissible under the criminal-eavesdropping statutes. In Chandler v. State, 680 So.2d 1018 (Ala.Crim.App.1996), a police officer privately purchased a radio scanner that he placed in his patrol car. While listening to the scanner, the officer overheard a cordless telephone conversation implicating the defendant in drug-dealing activity. As a result of the overheard conversations, police conducted an investigation that resulted in the defendant’s arrest. Following his conviction, the defendant appealed and argued, among other things, that "the interception of his cordless telephone conversations violated ... Alabama’s criminal eavesdropping statutes, and that the evidence arising from the warrantless interception of these conversations therefore should be excluded.” Chandler, 680 So.2d at 1026.
      On appeal, this Court held that the defendant failed to show under the criminal eavesdropping statutes that he had a reasonable expectation of privacy in his cordless telephone conversations and, therefore, failed to show how the criminal eavesdropping statutes applied in his case. Chandler, 680 So.2d at 1026. Further, this Court concluded that "even if the interception in this case constituted criminal eavesdropping ... the conversation intercepted would not be rendered inadmissible by that fact” because §§ 13A-11-30 and -31, Ala.Code 1975, "contain no exclusionary rule providing for the per se prohibition against use of evidence obtained in violation of the statutes.” Id.

      Our holding in Chandler, however, is not controlling in this case because Chandler is both factually and legally distinguishable from the case at bar. Unlike Chandler, the telephone conversations in the instant case that were intercepted by police were private communications and the evidence gleaned from the telephone conversations was legally obtained pursuant to a federal wiretap warrant. In Chandler, the Court concluded that the telephone conversations were not private and that, therefore, the criminal-eavesdropping statutes did not apply to the conversations at issue.

      . An "aggrieved person” is defined as "a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11).

      . See also United States v. Van Horn, 579 F.Supp. 804, 810 (D.Neb.1984) ("[I]t must be observed that the federal wiretap statute preempts state law pertaining to electronic surveillance. 18 U.S.C. § 2516(2); United States v. Tortorello, 480 F.2d 764, 772 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973); see Senate Report 1097, 90th Cong.2d Sess.1968, reprinted in U.S.Code Cong. & Admin.News 2112, 2180, 2187.”).

      . In support of her argument that Alabama’s criminal-eavesdropping statutes prohibit the admission of wiretap evidence, Cabbie relies on People v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749 (Cal.App.1973), and State v. Williams, 94 Wash.2d 531, 617 P.2d 1012 (Wash.1980). According to Cabbie, in Jones, “the Court of Appeals of California ruled information gathered from a federal wiretap was inadmissable in state court.” (Cabbie’s brief, p. 11.) In Jones, however, the California criminal-eavesdropping statute in question included a provision, unlike Alabama's criminal-eavesdropping statutes, that explicitly prevented the admission of evidence obtained in violation of the eavesdropping statute. Jones, 30 Cal.App.3d at 855, 106 Cal. Rptr. 749; therefore, Jones is clearly distinguishable. Similarly, Cabbie relies on Williams for the proposition that "the Supreme Court of Washington held that wiretap evidence under [] federal law is not admissible in [s]tate courts.” (Cabbie’s brief, p. 12.) Like the decision in Jones, the decision in Williams was based on a state statute different from that in question in this case; specifically, the Williams decision was premised on Washington law that specifically addressed the admissibility of illegally obtained wiretap evidence. Williams, 94 Wash.2d at 540, 617 P.2d at 1018. Thus, Williams, too, is inappo-site.


author: MAIN, Justice.

text:
    Ex parte Quinneshia Chemise CABBLE. (In re Quinneshia Chemise Cabble v. State of Alabama).
    1120146.
    Supreme Court of Alabama.
    Dec. 7, 2012.
    Raymond Johnson, Montgomery, for petitioner.
   MAIN, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1973).

WRIT DENIED.

MALONE, C.J., and WOODALL, BOLIN, and MURDOCK, JJ., concur.