author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    Lakshimi SOLA v. Prasad SOLA.
    2110380.
    Court of Civil Appeals of Alabama.
    Sept. 14, 2012.

      Henri B. McDaniel and Marcus Hel-stowski of McDaniel & McDaniel, L.L.C., Huntsville, for appellant.
    James C. Alison, Huntsville, for appel-lee.
   THOMPSON, Presiding Judge.

Lakshimi Sola (“the wife”) appeals from a judgment setting aside a default judgment entered on February 4, 2009 (“the default judgment”). The default judgment divorced the wife from Prasad Sola (“the husband”), divided the parties’ marital property, and allocated the parties’ marital debt, among other things. Specifically, the default judgment awarded the wife the marital residence and ordered her to pay the first mortgage on that residence. The husband was ordered to pay the balance on the parties’ equity line of credit, which was secured by a second mortgage on the marital residence. At the time the default judgment was entered, the balance owed on the equity line of credit was $92,397.97. The husband did not appeal from the default judgment.

On August 20, 2010, the wife filed a petition for contempt against the husband, alleging that he had failed or refused to make the monthly payments on the equity line of credit since December 2009. She also alleged that the husband had threatened her father and her with bodily harm.

On October 4, 2010, the husband answered the wife’s contempt petition and asked that the default judgment be set aside. In his motion, the husband stated that he was unaware that a default judgment had been entered against him until March 2009 — the month after the default judgment was entered. In his motion to set aside the default judgment, the husband also stated that he was unaware of the wife’s testimony in support of her motion for a default judgment until September 21, 2010, when his attorney both requested and received a copy of the testimony from the wife. The husband stated that he “denied” the wife’s testimony that, since the husband moved out of the marital residence in August 2007, he had returned to the marital residence “sporadically” for several weeks at a time in attempts to reconcile. The wife apparently testified that those attempts at reconciliation had been unsuccessful. In his motion, the husband stated that he had resided in the marital residence with the wife continuously from May 2008 to December 2008 and had believed that, during that period, the wife and he had reconciled.

The majority of the husband’s motion to set aside the default judgment was devoted to the parties’ finances. After making assertions of fact to support his position, the husband stated:

“The [husband] believes that the default divorce that was issued to the [wife] is grossly inequitable and is based on misstatements and falsehoods contained in the [wife]’s testimony in support of her application for a default divorce. The [husband] was unaware that the [wife] was proceeding to take a default judgment against him, and after the [husband] learned of the default divorce, the [wife] fraudulently represented to the [husband] that she was going to refinance and assume the total mortgage for the marital residence, lulling the [husband] into failing to challenge the default decree of divorce earlier.”

The husband then asked the trial court to relieve him of the responsibility of paying the balance of the equity line of credit.

An ore tenus hearing was held on December 12, 2011, to consider the claims raised by both parties. The evidence presented at the hearing related to events and circumstances before the default judgment was entered. During the hearing, the husband, who said he had earned a law degree in India, also testified that the wife had told him about the default judgment on February 22, 2009. He stated he had not challenged the default judgment sooner because, he said, when the wife told him about the default judgment, she also told him that she was going to talk to her lawyer because there were financial issues between the husband and her and they were going to settle those issues. He also claimed he did not challenge the default judgment earlier because, he said, he was trying to deal with issues his children were having.

The parties testified regarding their attempts at reconciliation and their living arrangements between August 2007, when they first separated, and February 4, 2009, when the default judgment was entered. The husband initially moved out of the martial residence on August 12, 2007. The wife filed her complaint for a divorce in February 2008, and the husband was served with the summons and complaint on February 27, 2008. The wife said the husband returned to the marital residence “sporadically,” and that they had resumed living together from April 2008 through December 2008 in an effort to reconcile, but that she did not intend the living arrangement to be anything but a trial or conditional situation. She said that she did not dismiss the divorce action and that she never suggested to the husband that she did not intend to go through with the divorce.

In December 2008, the wife said, they took a family vacation to the Bahamas. On the return trip, the wife said, the husband left the family at a hotel in Miami. When the wife and children returned to Huntsville on January 1, 2009, the wife said, the husband was not at the marital residence. She said he came to retrieve his clothes on January 2, 2009, and left again without indicating where he was going.

The husband testified that when he returned to the marital residence in April 2008, he did not regard it as a temporary situation. He said his “impression was I was there for good.” He said that the wife had told him she had “stopped the divorce” after he had returned to the marital residence, but the wife testified that she did not say that to the husband.

There was no evidence to indicate that after the husband left the marital residence on January 2, 2009, the parties made any further attempts toward reconciliation. The record indicates that a large part of the hearing on the husband’s Rule 60(b), Ala. R. Civ. P., motion to set aside the default judgment was devoted to the parties’ testimony regarding their finances, including their income, assets, and debts. Because that evidence is not pertinent to our disposition of this appeal, we will not discuss it in detail.

After the parties presented their evidence, the trial court said its main concern was the order requiring the husband to make the payments on the second mortgage used to secure the home-equity line of credit. The trial court made the following statement:

“All right. I am going to give you ten days for each of you to do briefs.
“I will be honest with you, had I known everything that there was to know I would not have entered the [default judgment] that I did. The one thing — and I’ll just let y’all know up front. The one thing that causes me trouble, problems with the judgment of divorce is making the husband pay the second mortgage on the house. That is what causes me the most trouble.
“And I am going to encourage y’all to talk and see if y’all can reach an agreement, but otherwise ten days to do briefs. And I mean extensive briefs. Assume this case is going to be appealed. And, and the issues are going to be, number one, what can be used at this point under Rule 60(b), [Ala. R. Civ. P.,] upon which I can set this decree aside. And the second issue is if I find the parties, in fact, reconciled during that eight-month period that they were together, which I will tell you I am leaning that way, had I known that, I probably would not have signed the decree.
“What, what is the effect that, the effect of that on this judgment of divorce? In other words, does that make any order that I enter thereafter void? If it is void, it is as if it does not exist. And a void order, as I understand the law, a void order — not voidable, but a void order can be attacked at any time.”

The parties submitted briefs as requested. The husband again asked the trial court to find that the default judgment, “based on the wife’s affidavit [submitted in support of the default judgment], was grossly inequitable and should be set aside based on fraud upon the court and/or lack of jurisdiction based on reconciliation of the parties during the pendency of the divorce.” In her brief, the wife summarized her position, stating:

“[T]he husband [had] slept on his rights. Both parties have moved on and lived their lives and conducted their financial affairs as single people for a period of years. The husband should not now be allowed to reopen the case because he has lately decided the terms of the divorce were unfair to him.”

On December 27, 2011, the trial court entered an order setting aside the default judgment. In the order, the trial court found

“from the evidence that the parties reconciled during the pendency of the original divorce action pending between the parties, ... which abrogated the cause of their action. Hale v. Hale, 878 So.2d 318 (Ala.Civ.App.2003). As a result of their reconciliation during the pendency of that action, this Court lost subject-matter jurisdiction, and the only allowable judgment after their reconciliation would have been an order of dismissal. Rikard v. Rikard, 387 So.2d 842 (Ala.Civ.App.1980).”

The trial court concluded that, based on its finding that the parties had reconciled during the pendency of the divorce action, the default judgment was void and the divorce action was due to be dismissed. The trial court then determined that, because the default judgment was void, the wife’s current contempt action based on that judgment was due to be dismissed. The wife timely appealed.

The wife contends that the trial court erred in setting aside the default judgment nearly three years after the default judgment had been entered and after the parties had relied on the default judgment in their conduct.

The default judgment was entered on February 4, 2009. Although in his motion to set aside the default judgment the husband stated that he was “unaware that the [wife] had taken a default judgment against him until he received a copy of the Court’s decree from counsel for the [wife] in or around March 2009,” he testified at the hearing that he first learned of the default judgment on February 22, 2009, when, he said, the wife told him about it. Rule 55(c), Ala. R. Civ. P., provides that a party can file a motion to set aside a default judgment not more than 30 days after entry of the default judgment. According to the husband’s own testimony, he was aware of the default judgment within 30 days of its entry; however, he took no steps to have the default judgment set aside or to contact an attorney. The husband testified that he did not challenge the default judgment based on representations he said his wife made — on the same day he said she told him of the default judgment — that there were financial issues between them that needed to be settled. He said he also did not pursue a challenge to the default judgment because he was busy dealing with problems his children were having. Regardless of the reason, the husband failed to timely move to have the default judgment set aside pursuant to Rule 55(c), Ala. R. Civ. P. He also did not appeal from the default judgment.

It was not until the wife sought to have the trial court hold the husband in contempt for his failure to make certain payments required in the default judgment that the husband decided to challenge the default judgment. His motion to set aside the default judgment was filed on October 4, 2010, one year and eight months after the default judgment was entered. Although the husband did not specify that he was moving to have the judgment set aside pursuant to Rule 60(b), Ala. R. Civ. P., the trial court pointed out at the hearing that Rule 60(b) was the only mechanism by which to have the judgment set aside.

Rule 60(b) provides for relief from a judgment in certain circumstances, and it provides in pertinent part:

“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken.”

A motion brought under Rule 60(b)(4) is not subject to the reasonable-time requirement of Rule 60(b) and may be brought at any time. Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638, 643 (Ala.2003) (“As a nullity, a void judgment has no effect and is subject to attack at any time”).

In this case, the husband explicitly stated that the reason he sought to have the default judgment set aside was because he believed it was inequitable and, as he said in his motion, he wanted the trial court “to relieve him of responsibility for the second mortgage on the marital residence.” The husband’s argument was based on what he characterized as “misstatements and falsehoods contained in the [wifej’s testimony” given in support of her motion for a default judgment. We note that “perjury is not a fraud on the Court, which is a Rule 60(b)(6) ground, but intrinsic fraud, which is a Rule 60(b)(3) ground. Brown v. Kingsberry, 349 So.2d 564 (Ala.1977), Spindlow v. Spindlow, 512 So.2d 918 (Ala.Civ.App.1987), Lockwood v. Bowles, 46 F.R.D. 625 (D.D.C.1969).” Ex parte Third Generation, Inc., 820 So.2d 89, 90 (Ala.2001). However, the husband’s Rule 60(b) motion was filed 20 months after the default judgment was entered — far beyond the 4-month period in which a party may timely make a motion pursuant to Rule 60(b)(3). Accordingly, the default judgment could not properly be set aside pursuant to Rule 60(b)(3).

The trial court was dissatisfied with the provisions of the default judgment in light of what the husband was asserting in support of his motion to set aside the default judgment. At the end of the hearing, the trial judge said: “[H]ad I known everything that there was to know I would not have entered the order that I did” as far as ordering the husband to pay the second mortgage. The court also stated that, if it had found that the parties had “reconciled during that eight-month period that they were together, which I’ll tell you I’m leaning that way, had I known that, I probably would not have signed the decree.” The court instructed the parties to prepare briefs about “what can be used at this point under Rule 60(b) upon which I can set this decree aside.” Clearly, the trial court was seeking to change the terms of the default judgment that had been entered nearly three years earlier. It appears that the husband and the trial court determined that finding that the default judgment was a void judgment pursuant to Rule 60(b)(4) was the only means to reach that result. The husband does not contend that Rule 60(b)(6) is applicable in this case.

“The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. (‘the judgment is void’), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988). ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process.’ Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978) (emphasis added).”

Ex parte Full Circle Distrib., L.L.C., 883 So.2d at 641.

Citing Hale v. Hale, 878 So.2d 313 (Ala.Civ.App.2003), and Rikard v. Rikard, 387 So.2d 842 (Ala.Civ.App.1980), the trial court in this case determined that it did not have subject-matter jurisdiction to enter the default judgment because, it said, the parties had reconciled during the pendency of the divorce action. “A reconciliation of the parties while a suit for divorce is pending will abrogate the cause of action, and the trial court usually must dismiss it.” Pride v. Pride, 631 So.2d 247, 248 (Ala.Civ.App.1993) (emphasis added). Upon reconciliation, the trial court loses subject-matter jurisdiction over the parties, and, as a general rule, the only allowable judgment is an order of dismissal. Rikard, 387 So.2d at 843 (citing McNutt v. Beaty, 370 So.2d 998 (Ala.1979), and James v. James, 369 So.2d 811 (Ala.Civ.App.1979)).

However, Hale and Rikard each involved appeals of cases in which trial courts were required to make factual determinations regarding whether the parties had reconciled before final judgments were entered. See Pride v. Pride, 631 So.2d at 248-49 (“Whether there has been a reconciliation ... is a question of fact which the trial court must determine from all the evidence before it since ‘[Reconciliation is largely a state of the minds of both of the parties to be determined from all of the evidence and reasonable and proper inferences therefrom.’ Rikard at 846.”); see also Hale, 878 So.2d at 317 (Implicit in the trial court’s judgment dismissing the divorce action was a factual finding that the parties had reconciled.).

In this case, when the husband sought to have the default judgment set aside based on the parties’ “reconciliation,” there was no divorce action pending. A final judgment had already been entered based on the evidence presented. When the default judgment was entered, there was no assertion that the trial court did not have subject-matter jurisdiction over the divorce action. The husband did not appeal from that judgment or seek to set it aside based on the misrepresentations of fact he now claims were made by the wife in support of her application for a default judgment.

In Osborn v. Roche, 813 So.2d 811, 818 (Ala.2001) (quoting Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993)), our supreme court noted:

“ ‘[RJelief [pursuant to Rule 60(b) ] should not be granted to a party who has failed to do everything reasonably within his power to achieve a favorable result before the judgment becomes final; otherwise, a motion for such relief from a final judgment would likely become a mere substitute for appeal and would subvert the principle of finality of judgments.’ ”

If the husband desired to contest the default judgment on the ground that the parties had reconciled after the wife filed the divorce complaint in February 2008, and to present evidence in support of that ground, he could have filed a motion to set aside the default judgment pursuant to Rule 55(c), he could have appealed from the default judgment, or he could have filed a timely motion to set aside the default judgment pursuant to Rule 60(b)(3). By his own testimony, the husband was aware of the default judgment in time to avail himself of any one of those options. He has not asserted that he was denied due process in these proceedings. He chose not to defend the divorce action, and he chose not to challenge the default judgment. Instead, the husband waited nearly 20 months after the default judgment was entered to seek to have it set aside. Even then, the husband’s motion was made after the wife sought to have him held in contempt for his failure to make payments on the second mortgage, and the reason the husband sought to have the default judgment set aside was to relieve him of the responsibility of paying that second mortgage.

Twenty months after the default judgment was entered (and almost four years after he was served with the complaint in the divorce action), the husband for the first time presented evidence in an attempt to refute what he says were misrepresentations the wife made in seeking the default judgment. It was also the first time the husband presented evidence to support his position that the parties had reconciled during the pendency of the divorce action and, therefore, that the divorce action should have been dismissed.

The parties have not cited any authority that would allow the trial court, at this late date, to revisit the findings of fact on which it based the default judgment. Our research has revealed no authority for such action. Without a doubt, it is preferable to have issues fully litigated between the parties. However, once a defendant in a civil action has been properly served with a summons and complaint, if he or she chooses not to participate in the litigation process, he or she does so at his or her own peril. To allow a defaulting party to ignore procedural rules and to litigate an issue only if and when it suits him or her, even years after a judgment has been entered, would do away with the principle of finality of judgments. Such finality is necessary to the orderly administration of justice. For example, in this case, it is conceivable that one or both of the parties could have remarried and even had children since the default judgment was entered.

For the reasons set forth above, the trial court erred in setting aside the default judgment on a factual determination so that the husband would be relieved of his obligation to pay the second mortgage. Accordingly, the judgment is reversed.

REVERSED AND REMANDED.

PITTMAN, BRYAN, and THOMAS, JJ., concur.

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I dissent from the reversal of the trial court’s judgment setting aside as void a previous default judgment that was entered by the trial court. If a married couple reconciles during the pendency of a divorce case, that reconciliation abrogates the cause of action and, thus, deprives a court of subject-matter jurisdiction over the divorce action. See Rikard v. Rikard, 387 So.2d 842, 843 (Ala.Civ.App.1980); and James v. James, 369 So.2d 811, 812 (Ala.Civ.App.1979). The only action a trial court may take under such circumstances is to dismiss the complaint; any other action is void for lack of subject-matter jurisdiction. See id. “Rule 60[, Ala. R. Civ. P.,] allows a party to move to set aside a judgment that is void for lack of subject-matter jurisdiction at any time.” Shamburger v. Lambert, 24 So.3d 1139, 1142 (Ala.Civ.App.2009) (emphasis added).

In the present case, the husband filed for Rule 60(b), Ala. R. Civ. P., relief, and, based on the evidence presented, the trial court determined that the parties had reconciled during the pendency of the divorce action. “ ‘[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.’ ” Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala.2005) (quoting Philpot v. State, 843 So.2d 122, 125 (Ala.2002)). Based on our review of the record and applying the law set forth in Rikard, supra, I cannot conclude that the trial court’s finding that the parties had reconciled during the pendency of the divorce action was palpably erroneous or manifestly unjust. Thus, the default divorce judgment entered after that reconciliation was void for lack of subject-matter jurisdiction, and the trial court properly set aside the default judgment as void.

Based on the foregoing, I would affirm the trial court’s judgment setting aside the previous default judgment in the divorce action as void.

      . The husband does not dispute that he was served with the complaint in the divorce action, that he did not answer the complaint, and that he did not make an appearance in that action.

      . Moreover, as noted, the husband’s assertion that the wife submitted false evidence or misstatements in support of her application for a default judgment falls under Rule 60(b)(3); therefore, those allegations cannot also be used to support a claim for relief pursuant to Rule 60(b)(6). See R.E. Grills, Inc. v. Davi-son, 641 So.2d 225, 229 (Ala.1994) ("Clause (6), however, is mutually exclusive of the specific grounds of clauses (1) through (5), and a party may not obtain relief under clause (6) if it would have been available under clauses (1) through (5).”).

      . The main opinion concludes that the husband filed for relief from the default judgment too late and that to grant such relief "would do away with the principle of finality of judgments.” 123 So.3d at 524. In support of that assertion, the main opinion quotes Osborn v. Roche, 813 So.2d 811, 818 (Ala.2001), which, in turn, quotes Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993). I note, however, that neither of the motions for relief from judgment filed in those cases was based on lack of subject-matter jurisdiction.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Tabitha Jayne ORBAN v. Aaron Lawrence ORBAN.
    2110530.
    Court of Civil Appeals of Alabama.
    Nov. 16, 2012.
    Jeffery D. Toney, Sr., Crestview, Florida, for appellant.
    Donna C. Crooks, Daleville, for appellee.
   BRYAN, Judge.

Tabitha Jayne Orban (“the wife”) appeals from a judgment of the Coffee Circuit Court (“the trial court”) that divorced her from Aaron Lawrence Orban (“the husband”). We remand the cause for further proceedings.

The record reveals the following pertinent facts. The husband joined the military in 1992, and the husband and the wife were married in Las Vegas, Nevada, in 1996. The record indicates that the parties moved from Alaska to Enterprise in 2007 when the husband was stationed at Fort Rucker for flight school. The parties purchased a house in Enterprise in approximately July 2008, and they put the house on the market for sale in July or August 2009. On September 1, 2009, the husband was transferred to Fort Campbell, Kentucky, and he began renting a room from his cousin who lived near Fort Campbell, in Clarksville, Tennessee, at that time. The record indicates that the wife and the parties’ two children remained in Enterprise until February 6, 2010. At that time, the wife obtained a moving truck and moved herself and the children to Mary Esther, Florida. The husband filed a complaint for a divorce in the trial court on March 17, 2010, more than six months after he had been transferred to Fort Campbell and almost six weeks after the wife and the children had moved to Florida. In his complaint, the husband alleged that he and the wife were “bona fide resident citizens of the State of Alabama.”

In July 2010, the wife filed a motion to dismiss the complaint filed by the husband because, she alleged, the trial court lacked personal jurisdiction over her and lacked subject-matter jurisdiction over the divorce action. The wife alleged, among other things, that neither the parties nor their children resided in Enterprise. The husband filed a response to the motion, conceding only that venue was improper in Coffee County, and he subsequently filed a motion to transfer the divorce action to Dale County. On May 5, 2011, the parties appeared before the trial court for a hearing on the wife’s motion to dismiss. The record does not contain a transcript of that proceeding, and there is no indication that evidence was presented at that proceeding. On the same date, the trial court entered an order that stated that the parties had submitted to jurisdiction of the trial court, that they had agreed that the venue was proper in the trial court, and that they had withdrawn their respective motions addressed to those issues. The wife subsequently filed an answer to the husband’s complaint wherein she admitted that she and the husband were “bona fide resident citizens of the State of Alabama.” The wife also filed a counterclaim for a divorce on June 6, 2011.

The trial court conducted an ore tenus proceeding in December 2011. The husband testified that, at that time, he was still residing in Clarksville, where he had moved after two years of flight school at Fort Rucker. He stated that he had not been on “TDY” since he joined the Army in 2007 and that he had no plans to keep the parties’ house in Enterprise. It was undisputed that the wife and the children had moved to Florida approximately six weeks before the husband filed the divorce complaint in March 2010. The wife testified that she had obtained a rental home in Florida, that she had sought employment in Florida immediately after she arrived, and that she had enrolled the older child in school in Florida. There is no indication in the record that the wife intended to move back to Enterprise. The trial court entered a judgment divorcing the parties on December 16, 2012, that divided the parties’ property and addressed child-custody and support issues. After the trial court denied the wife’s postjudgment motion, the wife filed a timely appeal.

Based on our review of the entire record on appeal, we are unable to conclude with certainty that the trial court had subject-matter jurisdiction to divorce the parties, despite the parties’ agreement to submit themselves to the trial court’s jurisdiction.

“If one party is a resident of Alabama, then an Alabama court has jurisdiction over the marital res. Sachs v. Sachs, 278 Ala. 464, 179 So.2d 46 (1965). If both parties are nonresidents, an Alabama court has no jurisdiction. Winston v. Winston, 279 Ala. 534, 188 So.2d 264 (1966). Further, nonresident parties cannot stipulate that an Alabama court may assume jurisdiction over the case. Winston, supra.

Butler v. Butler, 641 So.2d 272, 278 (Ala.Civ.App.1993). For purposes of subject-matter jurisdiction in a divorce action, residency means domicile. Livermore v. Livermore, 822 So.2d 437, 441-42 (Ala.Civ.App.2001). In the present case, it is not clear that either party was domiciled in the State of Alabama at the time that the husband filed a complaint for a divorce on March 17, 2010.

“Alabama decisions hold that domicile requires two elements: (1) one’s physical presence in the chosen place of residence, and (2) an accompanying intent to remain there, either permanently or for an indefinite length of time. [Rabren v. Mudd, 285 Ala. 531, 535, 234 So.2d 549, 553 (1970) ]; Basiouny v. Basiouny, 445 So.2d 916, 919 (Ala.Civ.App.1984). It has been said that ‘domicile’ is that place to which, whenever one is absent, he or she has an intent to return. State ex rel. Rabren v. Baxter, 46 Ala.App. 134, 138, 239 So.2d 206, 209 (Civ.App.1970). When a party physically resides in one location, ‘ “[t]he intention to return [to another location] is usually of controlling importance in the determination of the whole question [of domicile].” ’ Andrews v. Andrews, 697 So.2d 54, 56 (Ala.Civ.App.1997) (quoting Jacobs v. Ryals, 401 So.2d 776, 778 (Ala.1981)).
“Furthermore, the burden is on the party who lives at a particular place to prove that he or she does not intend to remain there for an indefinite length of time, or that he or she has a present intention to return to some previous place of residence. In this regard, our Supreme Court has stated that ‘ “[t]he fact that a person lives at a particular place creates a prima facie presumption that such place is his domicile.” Andrews, 697 So.2d at 56 (quoting Nora v. Nora, 494 So.2d 16, 18 (Ala.1986)); see also 25 Am.Jur.2d Domicilfe] § 56 (1996) (proof that a party resides elsewhere rebuts any presumption of continued domicile and places burden of proof upon the party denying the charge).”

Id. at 442 (emphasis added).

At the ore tenus hearing in December 2011, the husband stated he had been living in Clarksville since September 2009 and the wife stated that she had been living in Mary Esther since February 2010. Thus, at the time the husband filed a complaint for a divorce in March 2010, prima facie presumptions existed that the husband was domiciled in Tennessee and that the wife was domiciled in Florida. Neither the husband nor the wife presented evidence to rebut those presumptions. See Nora v. Nora, 494 So.2d 16, 18 (Ala.1986) (“The presumption [that the place where a person lives is his or her domicile] is rebuttable by facts to the contrary.”).

“Alabama courts have no jurisdiction over the marital status of parties if neither is domiciled in Alabama, and such jurisdiction cannot be conferred on the courts, even with the parties’ consent.” Winston v. Winston, 279 Ala. 534, 587, 188 So.2d 264, 267 (1966). After a review of the entirety of the record in this matter, we are unable to conclude with certainty that the trial court had subject-matter jurisdiction to divorce the parties. Accordingly, we remand the cause with instructions to the trial court to conduct a hearing and to receive evidence regarding the domicile of each party as of March 17, 2010.

Both parties’ request for an attorney fee on appeal is denied at this time.

REMANDED WITH INSTRUCTIONS.

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

      . Although ‘‘TDY” was not defined by the husband in the record on appeal, in military parlance it typically refers to "temporary duty.”

      . The record indicates that the husband initially served in a different branch of the military before he joined the Army in 2007.

      . We note that Ala.Code 1975, § 6-7-20(a), provides:
      "Any person in any branch or service of the government of the United States of America, including those in the military, air and naval service, and the husband or wife of any such person, if he or she is living within the borders of the State of Alabama, shall be deemed to be a resident of the State of Alabama for the purpose of commencing any civil action in the courts of this state.”
      (Emphasis added.)
      The record revealed without dispute that neither the husband nor the wife was living within the borders of the State of Alabama at the time the husband initiated the divorce action.

      . We note that if the trial court determines that the wife was not domiciled in Alabama at the time that the husband filed his complaint for a divorce, the husband must “alleged ... and prove[]” that he was a “bona fide resident of this state for six months next before the filing of the complaint_" § 30-2-5, Ala.Code 1975 (emphasis added); and Skieff v. Cole-Skieff, 884 So.2d 880, 883-84 (Ala.Civ.App.2003).
      After considering the evidence received on remand, the trial court should also consider whether it has subject-matter jurisdiction to enter an initial custody award pursuant to § 30-3B-201, Ala.Code 1975, which is part of the Uniform Child Custody Jurisdiction and Enforcement Act, § 30-3B-101 et seq., Ala. Code 1975, or to enter an initial child-support award pursuant to § 30-3A-401, Ala.Code 1975, which is part of the Uniform Interstate Family Support Act, § 30-3A-101 et seq., Ala. Code 1975. See, e.g., Ex parte Pierce, 50 So.3d 447, 450-56 (Ala.Civ.App.2010) (applying § 30-3B-201), and Fuller v. Fuller, 93 So.3d 961, 966-67 (Ala.Civ.App.2012) (applying § 30-3A-401).


author: THOMAS, Judge.

text:
    Tommy S. WILEY v. BOHANNON SERVICES, INC.
    2120330.
    Court of Civil Appeals of Alabama.
    March 15, 2013.

      Mitchell D. Hays, Tuscumbia, for appellant.
    D. Marcel Black of Black & Hughston, P.C., Tuscumbia, for appellee.
   THOMAS, Judge.

Tommy S. Wiley appeals from a judgment of the Lauderdale Circuit Court (“the trial court”) in favor of Bohannon Services, Inc. (“Bohannon”).

The record indicates that Wiley, an employee of Bohannon, suffered an injury to his shoulder as a result of a work-related accident on September 28, 2010. On March 7, 2011, Wiley filed a complaint requesting that the trial court set the issue of Wiley’s right to receive total-disability benefits for an immediate hearing, order Bohannon to pay a 15% penalty pursuant to § 25-5-59, Ala.Code 1975, and award any other benefits to which Wiley may be entitled. Bohannon answered the complaint on March 20, 2011, and asserted various defenses.

A hearing was held August 1, 2011, at which time counsel for both parties informed the trial court that a settlement had been reached, and the terms of the settlement agreement were read into the record. Both parties were to separately file a proposed settlement agreement and obtain approval from the trial court. On September 20, 2011, Bohannon filed a motion to enforce the settlement agreement or, in the alternative, to dismiss the action with prejudice. According to Bohannon, Wiley had failed to file a proposed settlement agreement as required by the trial court and had refused to sign the proposed settlement agreement submitted to the trial court by Bohannon. Wiley filed a response to Bohannon’s motion to enforce the settlement agreement on September 20, 2011, in which he averred that he did not agree with certain provisions of the proposed settlement agreement that was submitted to the trial court by Bohannon, and he requested that the trial court set the matter for a hearing.

The trial court held a hearing on October 31, 2011. On November 7, 2011, the trial court entered a judgment granting Bohannon’s motion to enforce the settlement agreement. The November 7, 2011, judgment also set out the details of the settlement agreement and stated that Bo-hannon would not be responsible for any benefits or medical bills incurred by Wiley, other than those identified in the settlement agreement. Wiley filed a motion on December 6, 2011, styled as an “application to set aside settlement, motion for relief from judgment pursuant to Rule 60(b)(6) and 60(b)(l)(2)[, Ala. R. Civ. P.,] and motion to alter, vacate or amend,” pursuant to Rule 59, Ala. R. Civ. P. In summary, Wiley averred in the December 6, 2011, postjudgment motion that he had discovered new evidence regarding his medical condition that rendered the settlement agreement unjust and that, therefore, the settlement agreement should be set aside. Wiley also asked the trial court to set the matter for a hearing. Bohannon filed a response to Wiley’s postjudgment motion on January 5, 2012; Wiley filed a reply on January 24, 2012.

On June 5, 2012, the trial court entered an order purporting to grant Wiley’s post-judgment motion to set aside the settlement agreement, provided that Wiley reimburse Bohannon for any settlement proceeds that Wiley had received and all costs and attorney fees that Bohannon had incurred during the course of this action; the trial court set the matter for a hearing on September 6, 2012. Wiley filed a motion on August 29, 2012, requesting relief from the June 5, 2012, order and for leave to amend the original complaint. After the hearing on September 6, 2012, the trial court entered an order on September 11, 2012, in which the trial court found that Wiley had failed to comply with the requirements of the June 5, 2012, order and therefore denied Wiley’s requests for relief and enforced the previously entered settlement agreement.

Wiley filed a motion styled as a “motion for new trial or in the alternative motion for relief from judgment or order and motion to alter, vacate or amend pursuant to Rule[s] 59 and 60,” Ala. R. Civ. P., on September 25, 2012. The trial court denied that motion on October 4, 2012. Wiley filed an appeal with this court on October 22, 2012.

In its brief to this court, Bohan-non asserts that Wiley’s appeal is untimely because his December 6, 2011, post-judgment motion was denied by operation of law, pursuant to Rule 59.1, Ala. R. Civ. P., on March 5, 2012, and, thus, his appeal, filed more than seven months later, was untimely. We agree. Although Wiley’s December 6, 2011, motion invoked both Rule 59 and Rule 60(b), Ala. R. Civ. P., as authority for the motion, “[t]he ‘character of a [motion] is determined and interpreted from its essential substance, and not from its descriptive name or title.’ ” Ex parte Alfa Mut. Gen. Ins. Co., 684 So.2d 1281, 1282 (Ala.1996) (quoting Union Springs Tel. Co. v. Green, 285 Ala. 114, 117, 229 So.2d 503, 505 (1969)). Wiley’s motion, which was filed within 30 days after the entry of the November 7, 2011, judgment, was, in substance and in legal effect, a motion to alter, amend, or vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P.

“ ‘It is well settled that [an appellate court] looks to the essence of a motion, not necessarily to its title, to determine how the motion is to be considered under the Alabama Rules of Civil Procedure. Ex parte Alfa Mutual General Ins. Co., [684 So.2d 1281 (Ala.1996) ]. [The Alabama Supreme Court] has held on several occasions that a motion filed within the 30-day limitation of Rule 59(e), seeking relief from a judgment that is available under Rule 59(e), should be treated as a Rule 59(e) motion to alter, amend, or vacate the judgment. See Ex parte Alfa Mutual General Ins. Co., supra; Sexton v. Prisock, 495 So.2d 581 (Ala.1986); Holt v. First National Bank of Mobile, 372 So.2d 3 (Ala.1979). See, also, Evans v. Wad- dell, 689 So.2d 23 (Ala.1997) (noting that [the Alabama Supreme] Court has repeatedly construed a “motion to reconsider” a judgment, when it has been filed within 30 days after the entry of a final judgment, as a Rule 59(e) motion). A Rule 60(b) motion to set aside a judgment cannot be substituted for a Rule 59 motion so as to avoid the operation of Rule 59.1. See Matkin v. Smith, 531 So.2d 876 (Ala.1988); Ingram v. Pollock, 557 So.2d 1199 (Ala.1989). The Court of Civil Appeals has also recognized these principles. See, e.g., Conway v. Housing Authority of the Birmingham District, 676 So.2d 344 (Ala.Civ.App.1996); Ex parte Adams, 534 So.2d 626 (Ala.Civ.App.1988); Simmons v. Simmons, 390 So.2d 622 (Ala.Civ.App.1980).’
“Ex parte Johnson, 715 So.2d 783, 785-86 (Ala.1998) (emphasis added).”

Curry v. Curry, 962 So.2d 261, 263-64 (Ala.Civ.App.2007); see also Goodyear Tire & Rubber Co. v. Haygood, 93 So.3d 132, 140 n. 2 (Ala.Civ.App.2012) (“[B]e-eause Goodyear’s second postjudgment motion was filed within 30 days of the entry of the judgment, that postjudgment motion was required to be treated as a motion filed pursuant to Rule 59(e), not as a Rule 60(b), Ala. R. Civ. P., motion seeking relief from a judgment based on newly discovered evidence.”). A postjudgment motion that is not disposed of by the trial court within 90 days is considered denied by operation of law. See Rule 59.1, Ala. R. Civ. P. As noted earlier, in the present case, Wiley’s December 6, 2011, post-judgment motion was denied by operation of law on March 5, 2012.

Under subdivisions (1) and (3) of Rule 4(a), Ala. R.App. P., a notice of appeal must be filed either within 42 days after the trial court has acted upon a timely filed postjudgment motion or within 42 days after such a motion has been denied by operation of law pursuant to Rule 59.1. Therefore, the 42-day period in which Wiley could have filed a timely appeal expired on April 16, 2012. As noted above, Wiley filed a notice of appeal on October 22, 2012. For the reasons set forth herein, Wiley did not timely file a notice of appeal. Accordingly, we dismiss this appeal for lack of jurisdiction. See Rule 2(a)(1), Ala. R.App. P. (“An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.”).

In dismissing the appeal, we note that the trial court’s orders entered on June 5 and September 11, 2012, were entered after the trial court lost jurisdiction of the matter on March 5, 2012, and, thus, are void. As a result, we direct the trial court to vacate those orders.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Section 25-5-56, Ala.Code 1975, provides, in pertinent part, that "[u]pon settlements being approved, judgment shall be entered thereon and duly entered on the records of the court in the same manner and have the same effect as other judgments or as an award if the settlement is not for a lump sum." We note that, although the trial court’s November 7, 2011, judgment was prompted by Bohannon’s motion to enforce, that judgment was also, effectively, a final judgment approving the settlement agreement. See Rule 58(a), Ala. R. Civ. P. (discussing the methods of rendering an order or judgment).


text:
    Nandean SANDERS v. E.I. CAMPBELL et al.
    2120035.
    Court of Civil Appeals of Alabama.
    March 15, 2013.

      John W. Kelly III and J. Wesley Kelly IV of Kelly & Kelly, Selma, for appellant.
    Collins Pettaway, Jr., Selma, for appel-lees.
   THOMAS, Judge.

Nandean Sanders appeals from a judgment of the Dallas Circuit Court (“the trial court”) in favor of E.I. Campbell, Averline Campbell, and Jerry Winston Lawrence (hereinafter collectively referred to as “the defendants”). We dismiss the appeal as having been taken from a nonfinal judgment.

Sanders and the defendants are the owners of adjoining properties located in Dallas County. On May 13, 2009, Sanders filed a complaint asking the trial court for declarative and injunctive relief regarding a disputed strip of property (“the disputed property”) that Sanders and the defendants both claimed to own. On July 16, 2009, the defendants filed an answer to the complaint and a counterclaim asking the trial court to establish the boundary line between Sanders’s property and the defendants’ property, to order Sanders to “cease and desist from her encroachment of and efforts to claim any right, title or interest in [the disputed] property,” and to enter a permanent injunction enjoining Sanders from trespassing on the disputed property. Sanders filed an answer to the counterclaim on July 17, 2009.

A trial was held on May 10, 2011, at which the trial court heard evidence ore tenus. The trial court entered a judgment on April 4, 2012 (“the April 4 judgment”), in favor of the defendants. The April 4 judgment stated:

“1. Judgment is in favor of the Defendants, E.I. Campbell, Averline Campbell and Jerry Winston Lawrence and against the Plaintiff, Na[n]dean Sanders, on account of statutory adverse possession. Defendants met their burden and properly satisfied the court that they are coterminous landowners with [Sanders] and have held actual possession of the disputed strip of land openly and exclusively for more than 10 years, believing it to be the actual property line. Strickland v. Markos, 566 So.2d 229 (Ala.1990); Kubiszyn v. Bradley, 292 Ala. 570, 298 So.2d 9 (1974).
“2. That defendants have held the land between the parties that includes the flowerbed as testified and presented in court, and three (3) feet beyond such point. Said point shall be the properly established property line for said parties. The defendants are authorized, at their expenses, to have prepared a boundary survey to reflect such and return it to this court within 60 days of the date of this order for further orders. “3. If the boundary survey is not returned to this court within the above said 60 days, then the court her[e]by appoints and authorizes Mr. Glen McCord ... as the surveyor/land engineer, to perform said survey in this case, the cost of which will be taxed equally against the parties.”

Sanders filed what she styled as a motion for a new trial pursuant to Rule 59(a), Ala. R. Civ. P., on April 18, 2012; the defendants filed an objection. A hearing was held on June 11, 2012; however, counsel for the defendants was unable to attend the hearing. The trial court entered an order on June 13, 2012, indicating that, at the hearing, Sanders had orally requested that the trial court instruct the defendants to stop construction of a fence on the disputed boundary line and to remove any parts of the fence that had already been constructed. In the order, the trial court instructed the defendants to cease construction of the fence and to remove any structure they had caused to be placed on the disputed property. The trial court also continued the hearing on Sanders’s purported postjudgment motion.

On July 19, 2012, the trial court entered an order that stated that Sanders’s motion for a new trial had been denied by operation of law and that also addressed questions the parties had raised regarding the finality of the April 4 judgment, stating:

“This [c]ourt is of the opinion that all actionable issues were fully adjudicated by this Court’s order of [April 4], 2012, and that the provisions of paragraphs 2 and 3 pertaining to a survey of the properly established boundary line are administrative in nature only, and therefore, there being no just reason for delay, this Court does hereby direct the entry of final judgment in favor of the defendants and against [Sanders] in accord with the provisions of this Court’s order of [April 4], 2012.”

Sanders filed an appeal with our supreme court on August 29, 2012; that court then transferred the cause to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

Although no party has raised the issue of this court’s jurisdiction on appeal,

“ ‘ “[j]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely filing of a notice of appeal is a jurisdictional act. Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1202 (Ala.2009).”
Burgess v. Burgess, 99 So.3d 1237, 1239 (Ala.Civ.App.2012).
Our supreme court has stated:
“ ‘ “ ‘As this court has said many times previously, a final judgment is necessary to give jurisdiction to this court on an appeal, and it cannot be waived by the parties.... ’
“‘“When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.”
“ ‘Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974) (quoting McGowin Investment Co. v. Johnstone, 291 Ala. 714, 715, 287 So.2d 835, 836 (1973)).
“ ‘ “ Ordinarily, an appeal can be brought only from a final judgment. Ala.Code 1975, § 12-22-2. If a case involves multiple claims or multiple parties, an order is generally not final unless it disposes of all claims as to all parties. Rule 54(b), Ala. R. Civ. P. However, when an action contains more than one claim for relief, Rule 54(b) allows the court to direct the entry of a final judgment as to one or more of the claims, if it makes the express determination that there is no just reason for delay.”
‘Grantham v. Vanderzyl, 802 So.2d 1077, 1079-80 (Ala.2001).’
“North Alabama Elec. Coop. v. New Hope Tel. Coop., 7 So.3d 342, 344-45 (Ala.2008).
“In reference to certifications under Rule 54(b), Ala. R. Civ. P., this Court has stated that
“ ‘a Rule 54(b) certification should not be entered if the issues in the claim being certified and a claim that will remain pending in the trial court “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” Clarke-Mobile Counties Gas Dist. v. Prior Energy Corp., 834 So.2d 88, 95 (Ala.2002) (quoting Branch v. SouthTrust Bank of Dothan, N.A., 514 So.2d 1373, 1374 (Ala.1987)).’
“Schlarb v. Lee, 955 So.2d 418, 419-20 (Ala.2006).”

Harlan Home Builders, Inc. v. Hayslip, 58 So.3d 102, 106 (Ala.2010).

The trial court’s judgment purports to be a final judgment in favor of the defendants insofar as it established the location of the boundary line between the parties’ properties; however, the judgment did not address the defendants’ counterclaim for injunctive relief. It is our opinion that the boundary-line dispute that has been resolved by the trial court and the defendants’ request for injunctive relief, i.e., a permanent injunction enjoining Sanders from trespassing on the disputed property, “ ‘ “ ‘are so closely intertwined that separate adjudication would pose an unreasonable risk of inconsistent results.’ ” ’ ” See Harlan Home Builders, Inc., 58 So.3d at 106. Accordingly, because Sanders appeals from a nonfinal judgment, we must dismiss the appeal for lack of subject-matter jurisdiction. See Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala.Civ.App.2010) (“Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal.”).

APPEAL DISMISSED.

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

      .It appears that the trial court relied on § 35-3-3, Ala.Code 1975, which provides:
      "The judgment shall locate and define the boundary lines involved by reference to well-known permanent landmarks, and if it shall be deemed for the interest of the parties, after the entry of judgment, the court may direct a competent surveyor to establish a permanent stone or iron landmark in accordance with the judgment from which future surveys of the land embraced in the judgment shall be made. Such landmarks shall have distinctly cut or marked thereon 'judicial landmark.’ The surveyor shall make report to the court, and in his report shall accurately describe the landmark so erected and define its location as nearly as practicable.”
      (Emphasis added.) Without addressing the merits of this appeal, we note that "decrees establishing boundaries between coterminous lands must be reasonably definite and certain in their descriptions and that ascertained boundary lines must be capable of being physically identified, their description leaving no room for the exercise of discretion as to their location. Ray v. Robinson, 388 So.2d 957 (Ala.1980).” Tidwell v. Strickler, 457 So.2d 365, 368 (Ala.1984).

      . On June 13, 2012, the defendants filed a motion to reconsider the trial court's order instructing them to remove the fence. The trial court entered an order on June 16, 2012, that read, simply: "motion to reconsider filed by [the defendants] is hereby granted in part.” The motion and subsequent order are not at issue in this appeal.

      . Sanders filed the motion styled as a motion for a new trial on April 18, 2012. Pursuant to Rule 59.1, such a postjudgment motion would have been denied by operation of law on July 17, 2012, 90 days after it was filed.


author:
JOINER, Judge.
      WINDOM, Presiding Judge,

text:
    Donald Leslie ENFINGER v. STATE of Alabama.
    CR-11-0458.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.
    As Modified on Dismissal of Appeal on Return to Second Remand March 29, 2013.
    Jeffry Cali Armstrong, Daphne; and Gordon Wendell Odell,-Jr., Montgomery, for appellant.

      Luther Strange, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   On Return to Remand

JOINER, Judge.

Donald Leslie Enfinger appeals the circuit court’s decision to revoke his probation. Enfinger, as a result of a “plea bargain” (C. 8), pleaded guilty to sexual abuse of a child under 12, see § 13A-6-69.1, Ala.Code 1975. The circuit court sentenced Enfinger, as an habitual felony offender, to 20 years’ imprisonment; that sentence was split, and Enfinger was ordered to serve “time served in the custody of the Sheriff of Baldwin County, Alabama,” followed by 3 years’ supervised probation. (Record on Return to Remand, C. 13-15.) Additionally, the circuit court ordered Enfinger to pay a $500 fine, a $100 crime-victims-compensation assessment, an attorney’s fee, court costs, and restitution.

On November 17, 2011, the circuit court conducted a probation-revocation hearing at which the following evidence was presented: On February 9, 2009, Enfinger, who was 70 years old and homeless, pleaded guilty to sexual abuse of a child under 12, was sentenced, and was placed on probation. Because Enfinger was a homeless sex offender and had no permanent address, he was not immediately released from jail. When a “new statute” was enacted that allowed the release of homeless sex offenders who could not provide a fixed address, Enfinger was released from jail and was told that he “had three days to come back in that time frame upon his release ... to register the appropriate paperwork with [the Baldwin County Sheriffs Office] for all of his registration.” (R. 5.) When Enfinger was released, the Baldwin County Sheriffs Office was aware that he was “going to a prohibited area ... [b]ut the law [gave] him an opportunity in that three-day period to get his affairs in order.” (R. 5.) At the end of the three-day period, Enfinger failed to register an appropriate address, and a warrant was issued for his arrest. Six days after Enfinger’s release from jail, Deputy Chris Frank, of the Baldwin County Sheriffs Department Offender Compliance Unit, arrested Enfinger in a hospital in Fairhope. Following a hearing at which the State presented testimony, the circuit court entered a written order revoking Enfinger’s probation. This appeal followed.

On appeal, Enfinger’s appointed counsel filed a “no-merit” brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. On January 13, 2012, this Court issued an order affording Enfinger an opportunity to present pro se issues to his counsel and to this Court. Enfinger, however, failed to do so.

Reviewing the record in this case pursuant to Anders, however, we noticed a potentially meritorious issue with regard to Enfinger’s sentence that warranted further briefing: specifically, whether the sentence imposed by the circuit court — 20 years’ imprisonment, split to serve “time served in the custody of the Sheriff of Baldwin County, Alabama,” followed by 3 years’ supervised probation — complies with the Split-Sentence Act, § 15-18-8(a), Ala.Code 1975. On March 29, 2012, this Court issued an order granting Enfinger’s appointed counsel’s motion to withdraw, appointing new counsel for Enfinger, and ordering Enfinger’s new counsel to file a brief addressing the issue noticed by this Court.

Complying with this Court’s order, En-finger’s new counsel timely filed a brief addressing the issue noticed by this Court. In his brief, Enfinger contends that this case needs to be remanded to the circuit court because, he says, (1) the circuit court erred when it accepted his guilty plea and sentenced him under the Split-Sentence Act set forth in § 15-18-8(a), Ala.Code 1975; and (2) the circuit court erred in revoking his probation because “the State denied him due process by failing in its duty to obtain the registration information required under § 15-20A-7[, Ala.Code 1975,] as mandated and within the time specified by § 15-20A-9(a)(l)[, Ala.Code 1975].” (Enfinger’s brief, p. 9.) The State, in its brief, concedes that “Enfinger’s sentence is not authorized by law” and requests that this case be remanded to the circuit court to resentence Enfinger. (State’s brief, p. 4.)

Initially, we note that, although the legality of Enfinger’s sentence was not first argued in the circuit court, we have held that when the circuit court does not have the authority to split a sentence under the Split-Sentence Act, § 15-18-8, Ala.Code 1975, “the manner in which the [circuit] court split the sentence is illegal,]” Austin v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003), and that “[m]at-ters concerning unauthorized sentences are jurisdictional.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).

As explained above, Enfinger pleaded guilty to sexual abuse of a child under 12, see § 13A-6-69.1, Ala.Code 1975, and was sentenced, as an habitual felony offender, to 20 years’ imprisonment and that sentence was split and Enfinger was ordered to serve “time served in the custody of the Sheriff of Baldwin County, Alabama,” followed by 3 years’ supervised probation. (Record on Return to Remand, C. 13-15.) The circuit court, however, did not have the authority, under the Split-Sentence Act, § 15-18-8, Ala.Code 1975, to split Enfinger’s sentence or to impose a term of probation.

Section 15-18-8(a), Ala.Code 1975, specifically exempts from the Split-Sentence Act those offenders who have been convicted of “a criminal sex offense involving a child as defined in Section 15-20-21(5).” Section 15-20-21(5), Ala.Code 1975, defines “criminal sex offense involving a child” as “a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.” Additionally, § 15-18-8(b), Ala.Code 1975, specifically precludes the circuit court from imposing a term of probation for offenders convicted of “a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.” Thus, the circuit court did not have the authority to. either impose a split sentence or to impose a term of probation. See § 15-18-8(a) and (b), Ala.Code 1975. Therefore, the “execution of [Enfinger’s] sentence is illegal.” Simmons v. State, 879 So.2d 1218, 1222 (Ala.Crim.App.2003).

In cases where the circuit court had no authority to impose the Split-Sentence Act, the proper remedy has been to remand the case to the circuit court for that court to remove the split portion of the sentence. See e.g., Simmons, supra (holding that, the circuit court had no authority to split a sentence and remanding the case to the circuit court for that court to set aside the split portion of the sentence), Morris v. State, 876 So.2d 1176 (Ala.Crim.App.2003) (same); cf., Moore v. State, 871 So.2d 106 (Ala.Crim.App.2003) (holding that, although the circuit court had authority to split the sentence, the circuit court split the sentence in an improper manner and remanding the case to the circuit court for that court to “reconsider the execution” of the sentence); Austin, supra (same).

Those cases, however, do not contemplate the specific facts of this case — that is, where the circuit court imposes a split sentence and a term of probation under the Split-Sentence Act when it had no authority to do so and later conducts a probation-revocation hearing at which it revokes a defendant’s probationary term and orders that the defendant serve the remainder of his underlying sentence in prison. Thus, the issue before this Court is whether the circuit court’s improper imposition of the Split-Sentence Act can be remedied by the circuit court’s conducting a probation-revocation hearing and revoking a defendant’s probation.

As discussed above, because the nature of Enfinger’s guilty-plea conviction exempts him from application of the Split-Sentence Act, the circuit court had no authority to apply the Split-Sentence Act to Enfinger and no authority to impose a term of probation on Enfinger. See § 15-18-8(a) and (b), Ala.Code 1975. Because the circuit court had no authority to split Enfinger’s sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation under § 15-18-8(c), Ala.Code 1975, which provides, in part, that under the Split-Sentence Act the circuit court “may revoke or modify any condition of probation or may change the period of probation.” Because the circuit court had no authority to impose a term of probation or to revoke probation, the circuit court’s order revoking Enfinger’s probation is void.

Because the circuit court’s probation order is void, the sentence in this case is analogous to the sentences at issue in Simmons and Morris. Thus, like those cases, we must remand this case to the circuit court for that court to remove the split portion of Enfinger’s sentence, see e.g., Simmons, supra; Morris, supra. To do so, the circuit court must “conduct another sentencing hearing and ... reconsider the execution of [Enfinger’s] 20-year sentence. Because the 20-year sentence was valid, the circuit court may not change it.” Austin, 864 So.2d at 1119; Moore, 871 So.2d at 109-10.

We recognize that the circuit court’s revocation of Enfinger’s probation in this case appears to reach a result that is no different than the result that was obtained in Simmons and Morris — i.e., the probation revocation in essence removed the unauthorized split. Those cases, however, did not involve merely the removal of an improper split. In each of those cases, the circuit court was instructed to consider on remand whether the removal of the split would affect the voluntariness of the defendant’s guilty plea. Further, the circuit court in each case was instructed that, if the defendant moved to withdraw his guilty plea, it should allow the defendant to do so. See Simmons, supra; Morris, 876 So.2d at 1178 (“Because the split sentence was a term of the appellant’s plea agreement, if the appellant moves to withdraw his guilty plea, the circuit court should grant the motion. See Austin v. State, 864 So.2d 1115 (Ala.Crim.App.2003).”) To hold that the circuit court can remedy the imposition of an unauthorized split sentence by revoking a defendant’s probation, however, would prevent that defendant from being able to move to withdraw his guilty plea and thus would treat him differently than the defendants in Simmons and Morris were treated — i.e., after the circuit court conducts a resen-tencing, the defendant would not have the assistance of appointed counsel to move to withdraw his guilty plea under Rule 14.4(e), Ala. R.Crim. P.; instead, an indigent defendant would have to raise, pro se in a Rule 32 petition, the issue that the defendant’s guilty plea was involuntary.

Furthermore, holding that a circuit court can remedy the imposition of an improper split sentence by revoking a defendant’s probation could lead to an absurd result. For example, a defendant serving a sentence that is improper under the Split-Sentence Act could be charged with violating the terms and conditions of his probation and the circuit court could thereafter revoke that defendant’s probation. On appeal, the defendant could contend that the evidence was insufficient to support the revocation of his probation, and if, after a review of the record, this Court determined that the defendant is, in fact, correct, we would be forced to hold that, although the evidence was insufficient to support the revocation, the imposition of the remainder of his sentence is correct because the circuit court could not have imposed a split sentence. Such a result is unsound and untenable.

Because the circuit court did not have the authority to revoke Enfinger’s probation, its order revoking Enfinger’s probation is vacated, and this case is remanded to the circuit court for that court to resen-tence Enfinger in accordance with this opinion.

Additionally, we note that, although the record indicates that Enfinger was convicted of sexual abuse of a child under 12 as the result of a “plea bargain” (C. 8), the record is unclear as to whether Enfinger’s sentence was part of the plea bargain. Thus, “it is impossible for this Court to determine whether resentencing [Enfinger] will affect the voluntariness of his plea.” Austin, 864 So.2d at 1119. If the split sentence was a term of Enfinger’s “plea bargain,” and, if he moves to withdraw his guilty plea, the circuit court should conduct a hearing to determine whether withdrawal of the plea is necessary to correct a manifest injustice. See Rule 14.4(e), Ala. R.Crim. P.

Based on the foregoing, the judgment of the circuit court is reversed, and this case is remanded to the circuit court for that court to resentence Enfinger in accordance with this opinion. The circuit court shall take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 42 days after the release of this opinion. The return to remand shall include a transcript of the proceedings conducted on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

WELCH, KELLUM, and BURKE, JJ., concur.

WINDOM, P.J., dissents, with opinion.

WINDOM, Presiding Judge,

dissenting.

I agree with the majority that the circuit court did not have the authority under §§ 15-18-8(a) and 15-18-8(b), Ala.Code 1975, to split Enfinger’s 20-year sentence upon his conviction for sexual abuse of a child less than 12, see § 13A-6-69.1, Ala. Code 1975. I, however, disagree with the majority’s decision to reverse the circuit court’s judgment revoking Enfinger’s probation and to remand this cause with instructions for the circuit court to resen-tence Enfinger. Specifically, I believe that when the circuit court revoked Enfinger’s probation and imposed Enfinger’s original sentence, it removed the illegal split and rendered moot any error in the circuit court’s decision to split the sentence. Therefore, I respectfully dissent.

Initially, it is important to note that Enfinger’s sentence, as a habitual felon with two prior felonies, to 20 years in prison for the crime of sexual abuse of a child less than 12, see § ISA-6-69.1, Ala. Code 1975, a class B felony, was within the statutory range of punishment. See § 13A-5-9(b)(2), Ala.Code 1975 (“In all cases when it is shown that a criminal defendant has been previously convicted of any two felonies and after such convictions has committed another felony, he or she must be punished ... [o]n conviction of a Class B felony, [to] imprisonment for life or [to] any term of not more than 99 years but not less than 15 years.”). Accordingly, Enfinger’s sentence of 20 years in prison was not illegal.

However, the manner in which Enfinger was to execute his sentence — a split sentence with time served followed by 3 years of probation — was illegal. Before trial, Enfinger pleaded guilty to sexual abuse of a child less than 12, a criminal sex offense against a child. Because Enfinger was convicted of a criminal sex offense against a child, the circuit court did not have the authority to impose a split sentence. See § 15-18-8(a), Ala.Code 1975 (authorizing a circuit court to split a defendant’s sentence “[w]hen [that] defendant is convicted of an offense, other than a criminal sex offense involving a child ...” (emphasis added)). Thus, the circuit court should not have split Enfinger’s 20-year sentence.

The circuit court’s order illegally splitting Enfinger’s sentence does not, however, render Enfinger’s 20-year sentence illegal. Instead, the circuit court’s order rendered illegal only the manner in which the lawful sentence was to be executed. See Berry v. State, 698 So.2d 225, 227 (Ala.Crim.App.1996) (recognizing that an underlying sentence may be valid although “the manner in which the trial court split the sentence” is illegal); Moore v. State, 871 So.2d 106, 108 (Ala.Crim.App.2003) (recognizing the difference between an illegal sentence, a sentence outside the statutory range of punishment, and the illegal execution of a sentence, an improper split of an otherwise legal sentence); Havis v. State, 710 So.2d 527 (Ala.Crim.App.1997) (same); Wood v. State, 602 So.2d 1195 (Ala.Crim.App.1992) (same).

Thus, Enfinger was originally given a legal sentence that was ordered to be executed in an illegal manner. The illegal manner in which Enfinger was to serve his sentence does not, however, require this Court to remand this cause for resentenc-ing because, on November 17, 2011, the circuit court revoked Enfinger’s probation and ordered Enfinger to serve his original 20-year sentence, thus removing the split. Cf. Morris v. State, 876 So.2d 1176, 1178 (Ala.Crim.App.2003) (recognizing that the remedy for an illegal split of a legal sentence is to “remand th[e] case to the circuit court with instructions [for] that court [to] set aside the split portion of the appellant’s sentence ” (emphasis added)); Simmons v. State, 879 So.2d 1218, 1222 (Ala. Crim.App.2003) (same); Johnson v. State, 778 So.2d 252, 253 (Ala.Crim.App.2000) (“ ‘[A] probationer is not entitled to credit on his sentence for time served on probation.’ ”) (quoting Chapman v. State, 43 Ala.App. 693, 694, 199 So.2d 865, 866 (1967)). In other words, by revoking Enfinger’s probation and removing the illegal split, the circuit court remedied the illegality of the manner in which Enfinger was executing his sentence, and Enfinger is now properly executing a legal 20-year sentence.

Because the probationary period of En-finger’s illegal split sentence has been removed and he is now properly executing a legal 20-year sentence, the circuit court’s error in originally splitting his sentence and allowing him to execute a portion of his sentence on probation is moot. See Kenney v. State, 949 So.2d 192, 194 (Ala.Crim.App.2006) (holding that the circuit court’s imposition of an illegal probationary period was rendered moot when the appellant’s probation was revoked); Minshew v. State, 975 So.2d 395, 397-98 (Ala.Crim.App.2007) (holding that the circuit court’s imposition of an illegal probationary period was rendered moot by the fact that he was subsequently sentenced to life in prison without the possibility of parole); Bailey v. State, 355 Md. 287, 301, 734 A.2d 684, 692 (1999) (holding that an illegal term of probation will be rendered moot if the appellant’s probation is revoked); People v. Cortese, 79 A.D.3d 1281, 1284, 913 N.Y.S.2d 383 n. 1 (2010) (holding that the improper calculation of a probationary period was rendered moot when the appellant’s probation was revoked); Moore v. State, (No. M2003-00332-CCA-R3-PC, Feb. 17, 2004) n. 1 (Tenn.Crim.App.2004) (not selected for publication in the South Western Reporter) (holding that the appellant was not eligible to be sentenced to community corrections under Tennessee law because he was convicted of a crime of violence in which a weapon was used; however, “since the community corrections sentence has been revoked, ... this ... issue is moot”); cf. Stephens v. State, 823 So.2d 180, 181 (Fla.Dist.Ct.App.2002) (“The appellant now claims that the original scoresheet that was prepared for sentencing in 1998 contained errors. Because the trial court prepared a new scoresheet when it sentenced the appellant upon revocation of probation, and because this new scoresheet did not contain the errors that allegedly existed in the original scoresheet, the appellant’s complaints are moot.”); Madison v. State, 999 So.2d 561, 570 (Ala.Crim.App.2006) (holding that a death-row inmate’s challenge to the manner in which his sentence would be executed, i.e., electrocution, was rendered moot when the legislature changed the manner of execution to lethal injection because the death-row inmate was no longer sentenced to die by electrocution).

The majority asserts that this issue is not moot:

“Because the circuit court had no authority to split Enfinger’s sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation under § 15-18-8(c), Ala. Code 1975, which provides, in part, that under the Split-Sentence Act the circuit court ‘may revoke or modify any condition of probation or may change the period of probation.’ Because the circuit court had no authority to impose a term of probation or to revoke probation, the circuit court’s order revoking Enfinger’s probation is void.”

123 So.3d at 538.1 disagree.

As the majority recognizes, this Court has “held that when the circuit court does not have the authority to split a sentence under the Split-Sentence Act, § 15-18-8, Ala.Code 1975, ‘the manner in which the [circuit] court split the sentence is illegal[,]’ Austin v. State, 864 So.2d 1115, 1118 (Ala.Crim.App.2003), and ... ‘[m]atters concerning unauthorized sentences are jurisdictional.’ Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994).” 128 So.3d at 537. Further, it is well settled that a court can and should correct a jurisdictional error at any time. See Ex parte Peterson, 884 So.2d 924, 926 (Ala.Crim.App.2003) (“A court can notice a jurisdictional defect at any time and has a duty to correct the defect.”). Here, the circuit court corrected a jurisdictional defect — it removed the illegality in the manner in which Enfinger executes his sentence — and, because the defect was jurisdictional, the circuit court had the authority to do so. Id.

Further, if the circuit court’s probation-revocation order is, as the majority holds, void, then this Court must dismiss the appeal. It is well settled in this State that:

“ ‘A judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.’ Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008).”

MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala.2011) (emphasis added). This Court must dismiss an appeal from a void judgment “[b]ecause [if] the trial court’s actions were void, there is no judgment to support an appeal.” D.H. v. State, 24 So.3d 1166, 1169 (Ala.Crim.App.2009). The majority, however, has not dismissed Enfinger’s appeal from the revocation of his probation. Instead, the majority holds that the circuit court’s order is void, reverses that judgment, and remands the cause for resentencing. However, the circuit court’s judgment is not, in my opinion, void. Rather, it was a valid order correcting a jurisdictional error in the manner in which Enfinger executes his sentence. Further, whether the order purported to rule on a probation-revocation proceeding, a postconviction proceeding pursuant to Rule 32, Ala. R.Crim. P., or a request to modify a sentence, the circuit court’s order corrected a jurisdictional defect; therefore, the circuit court had the authority and the duty to do so. See Peterson, 884 So.2d at 926. Cf. Ex parte Deramus, 882 So.2d 875 (Ala.2002) (holding that substance, as opposed to style, controls). Because the circuit court had the authority to correct and did correct the jurisdictional error in the execution of Enfinger’s sentence, that error is moot and does not entitle Enfinger to any relief.

The majority also states that this issue is not moot because the illegal manner in which Enfinger was allowed to execute his sentence may affect the voluntariness of Enfinger’s guilty plea, i.e., Enfinger could argue that he did not receive the sentence for which he bargained and pleaded guilty. Specifically, the majority rationalizes:

“To hold that the circuit court can remedy the imposition of an unauthorized split sentence by revoking a defendant’s probation, however, would prevent that defendant from being able to move to withdraw his guilty plea and thus would treat him differently than the defendants in Simmons[ v. State, 879 So.2d 1218 (Ala.Crim.App.2003),] and Morris[ v. State, 876 So.2d 1176 (Ala.Crim.App.2003),] were treated — i.e., after the circuit court conducts a resentencing, the defendant would not have the assistance of appointed counsel to move to withdraw his guilty plea under Rule 14.4(e), Ala. R.Crim. P.; instead, an indigent defendant would have to raise, pro se in a Rule 32 petition, the issue that the defendant’s guilty plea was involuntary.”

123 So.3d at 538-39.

First, the voluntariness of Enfinger’s guilty plea is not a jurisdictional issue and is not, at this point, properly before this Court. See Fincher v. State, 837 So.2d 876 (Ala.Crim.App.2002) (holding that a challenge to the voluntariness of a guilty plea is not jurisdictional). Instead, the only issue before this Court is whether the manner in which Enfinger is currently executing his sentence is illegal, and, as detailed above, Enfinger is now properly executing a legal sentence.

Second, the record does not show that the manner in which Enfinger was to execute his sentence was part of his guilty plea. As the majority notes:

“[A]lthough the record indicates that Enfinger was convicted of sexual abuse of a child under 12 as the result of a ‘plea bargain’ (C. 8),[] the record is unclear as to whether Enfinger’s sentence was part of the plea bargain. Thus, ‘it is impossible for this Court to determine whether resentencing [Enfinger] will affect the voluntariness of his plea.’ Austin [v. State,] 864 So.2d [1115,] 1118 [ (Ala.Crim.App.2003) ].”

123 So.3d 539. The desire to see that En-finger has counsel to raise a possible hypothetical issue that is collateral to the issue before this Court in this appeal is, in my opinion, insufficient to justify overlooking the fact that Enfinger is currently executing a legal 20-year sentence in a proper manner. In other words, whether or not Enfinger gets counsel to raise a possible, future claim that is unrelated to this appeal does not justify deciding the merits of a moot issue.

Finally, as the majority recognizes, En-finger can, if the split sentence was part of a plea bargain, challenge the voluntariness of his guilty plea in a postconviction petition pursuant to Rule 32, Ala. R.Crim. P. Further, Enfinger may, based on the procedural history of this case, be able to overcome the procedural bars contained in Rule 32.2, Ala. R.Crim. P. See Ex parte Ward, 46 So.3d 888, 897 (Ala.2007); Ex parte Pierce, 851 So.2d 606, 616 (Ala.2000). During Rule 32 proceedings, Enfinger may, if it is true, establish that the split portion of his sentence was part of his plea bargain; therefore, the illegality of the split rendered his plea involuntary. With another remedy available, this Court should not overlook the fact that the impropriety in the manner in which Enfinger was to execute his sentence is now moot.

Because the illegality in the execution of Enfinger’s sentence has been corrected, the issue upon which the majority reverses the circuit court’s judgment is moot. Accordingly, I respectfully dissent.

      . On February 22, 2012, this Court remanded this case to the circuit court for that court to supplement the record on appeal with a copy of the sentencing order in CC-08-74. (Record on Return to Remand, C. 21.)

      . As stated above, the State concedes that Enfinger’s sentence "is not authorized by law” and requests that this Court remand this case to the circuit court for that court to resentence Enfinger. (State’s brief, p. 5.)

      . Although Enfinger also argues on appeal that the circuit court erred in revoking his probation because, he says, "the State denied him due process by failing in its duty to obtain the registration information required under § 15-20A-7 as mandated and within the time specified by § 15-20A-9(a)(l),” our holding that Enfinger must be resentenced renders moot the issue whether the revocation of his probation was inappropriate.

      . I note that the record does not establish that Enfinger pleaded guilty as part of a plea bargain. Rather, the only indication that Enfinger pleaded guilty pursuant to a plea bargain is a statement made by Enfinger's counsel in a motion to reconsider the revocation of En-finger's probation.