author: PITTMAN, Judge. MOORE, Judge, BRYAN, Judge,

text:
    James B. KOVAKAS v. Rebecca L. KOVAKAS.
    2050780 and 2060229.
    Court of Civil Appeals of Alabama.
    May 23, 2008.
    Certiorari Quashed Jan. 9, 2009 Alabama Supreme Court 1071242.

      Stephen W. Shaw of Redden, Mills & Clark, Birmingham, for appellant.
    Douglas L. Key and Foster D. Key of Key Greer Frawley & Harrison, Birmingham, for appellee.
   On Application for Rehearing

PITTMAN, Judge.

This court’s opinion of February 1, 2008, is withdrawn, and the following is substituted therefor.

James B. Kovakas (“the husband”) appeals from a judgment divorcing him from Rebecca L. Kovakas (“the wife”) that, among other things, divided the parties’ marital property and awarded primary physical custody of the parties’ child to the wife (case no. 2050780). The husband also appeals from the denial of his Rule 60(b), Ala. R. Civ. P., motion (case no. 2060229).

The parties were married on November 16, 2002; their only child, a son, was born on July 9, 2004. The parties separated in August 2004, and three months later the husband filed a complaint seeking, among other things, a divorce from the wife, custody of the child, and an equitable division of the parties’ assets and an allocation of the parties’ debts. The following month, the wife filed an answer and a counterclaim requesting that the trial court award her, among other things, custody of the child and an equitable division of the marital assets. The wife also requested a hearing to determine the matters of child support and physical custody of the child during the pendency of the divorce action; the trial court conducted a hearing and entered an order addressing those issues on February 22, 2005.

The trial court conducted an ore tenus proceeding and accepted testimony and documentary evidence as to the claims asserted in the parties’ pleadings on October 17, 2005. The trial court rendered a judgment on December 16, 2005, that was entered into the electronic case-management system on January 9, 2006. In that judgment, although the parties were awarded joint legal custody of the child, the wife was awarded primary physical custody, the husband was awarded standard visitation, and the husband was instructed to pay $750 per month in child support. The divorce judgment awarded the wife the parties’ only jointly owned parcel of property, a house situated on 19 acres located in Shelby County (“the farm”). After awarding one motor vehicle to the wife, the judgment awarded the husband the parties’ remaining motor vehicles, as well as real property, residences, and a mobile-home park — most of which had been owned by the husband before the marriage. The judgment also ordered each party to be responsible for debts in his oilier name and ordered the husband to pay the wife $22,853, part of which was intended to cover a portion of the wife’s attorney fee.

The husband filed a postjudgment motion on February 7, 2006. Following a hearing on that motion, the trial court purported to amend the divorce judgment on May 9, 2006, to include additional visitation for the husband with the child until the child begins attending kindergarten; the trial court denied all the husband’s other requests in his postjudgment motion. Although the trial court purported to add additional visitation for the husband with the child, that amended judgment was entered on the 91st day after the husband had filed his postjudgment motion; because the 90-day period for ruling on that motion was not validly extended, that purported amendment was void. See, e.g., Rule 59.1, Ala. R. Civ. P.; see also Nunnery v. Nunnery, 587 So.2d 1214, 1214 (Ala.Civ.App.1991). The husband filed a timely notice of appeal on June 19, 2006, and asserts that the trial court erred when it (1) awarded the wife primary physical custody of the parties’ child despite awarding the parties joint legal custody of the child; (2) divided the marital property in a manner that, he claims, is inequitable; and (3) directed the husband to partially defray the wife’s legal costs.

After the appeal was taken, the husband filed in the trial court a motion pursuant to Rule 60(b), Ala. R. Civ. P., in which he contended that the wife had lied during the divorce proceedings and that, therefore, the judgment could not stand. The husband has also appealed from the trial court’s denial of that motion; the husband’s appeals have been consolidated.

The trial court heard extensive testimony regarding the parties’ lavish lifestyle during their short marriage. The evidence indicated that, approximately six months after the parties were married, the wife sold her home in New York for $472,000. The wife testified that she had divided that money into three accounts: the sum of $100,000 was deposited into a savings account in her name, an identical amount was deposited into a savings account in the husband’s name, and the remaining funds were deposited into the parties’ joint checking account.

Before the marriage, the husband had worked as a flight attendant; during the marriage, he worked as a real-estate broker. Before the parties were married, the husband had purchased and operated a mobile-home park in Wilsonville. The parties disagreed as to the amount of income produced by that business property during the marriage; the husband estimated that, at the time of trial, he received around $250 per month from the mobile-home park, but the wife stated that he earned at least $850 per month. The husband also owned two houses in Columbiana, one of which served as the marital residence for the parties.

At some point during the marriage, the parties jointly purchased the farm; the husband testified that the reason the parties had purchased the farm was because that property was located directly across from his parents’ house. The farm was purchased for $339,000, with a down payment of $72,000 provided by the wife from her own funds. The remainder of the purchase price was financed with a mortgage loan. The house at the farm was in need of renovation, and the wife spent money from the parties’ joint checking account to renovate the house. By the time of trial, the parties agreed that they had invested an additional sum of $300,000 into the property, but the renovation was incomplete. The husband testified that the parties had listed the farm for sale before trial for over $600,000, but the property did not sell at that price; the husband stated that he did not believe the farm would sell for a large enough sum for the parties to recoup their total investment.

The husband first asserts that the trial court erred in awarding the physical custody of the parties’ child to the wife. He references the Supreme Court’s decision to abolish the “tender-years presumption” (see Ex parte Devine, 398 So.2d 686 (Ala.1981)) and extrapolates from that decision a mandate that he should receive custody of the parties’ child. We note that in a divorce case, when the evidence has been presented ore tenus, the judgment of the trial court will be presumed correct and will not be reversed unless it is unsupported by the evidence so as to be plainly and palpably wrong. See Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000), and Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995). In original divorce actions, the parties stand on an equal footing with no presumption of entitlement to custody inuring to either parent. See Ex parte Couch, 521 So.2d 987, 989 (Ala.1988); see also Smith v. Smith, 727 So.2d 113, 114 (Ala.Civ.App.1998).

The primary concern in making an initial determination of child custody incident to a divorce action is the best interests of the child; to that end, the trial court is given discretion in awarding custody and establishing visitation, and its determination of such matters will not be reversed absent a clear showing that the trial court acted outside its discretion. See Somers and Scholl, supra. Several factors are to be considered by the trial court when making a custody determination, including the age and sex of the child; the child’s emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including their age, character, stability, mental and physical health, and their respective home environments. Ex parte Devine, 398 So.2d at 696-97.

In this case, the evidence established the fact that the wife had been the primary caregiver for the parties’ child. Although the husband argued that he had developed a visitation schedule that allowed each party to have physical custody of the child four days a week during alternating weeks, that schedule was not favored by the wife and was not adopted by the trial court. The bulk of the testimony at trial regarding custody centered on each party’s belief that he or she would be the better custodial parent; each party also suggested reasons why the child’s interests would be served by not awarding primary physical custody to the other party. The husband tried to portray the wife as flighty, scatter-brained, and financially irresponsible. The wife testified that the husband was overly controlling and intolerant of little mistakes, especially those made by an energetic toddler. She stressed that his irregular work schedule and demanding temperament made him less capable of handling the daily problems that arise when raising a child. Because the trial court hfeard disputed testimony as to which party would be the better custodial parent for the child and determined, based upon an application of the Ex parte Devine factors, that the wife would make the better custodian, we cannot conclude that the trial court erred in awarding physical custody of the child to the wife.

The husband also asserts that the trial court divided the parties’ assets in a manner that, he claims, was inequitable. Dividing marital property and determining whether to award alimony are matters within the sound discretion of the trial court, and the judgment of the trial court is presumed correct when based upon evidence received in an ore tenus proceeding. Ex parte Durbin, 818 So.2d 404, 408 (Ala.2001); Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala.Civ.App.1993). The law is well settled that “ ‘ “property divisions are not required to be equal, but must be equitable in light of the evidence, and the determination as to what is equitable rests within the sound discretion of the trial court.” ’ ” Ex parte Drummond, 785 So.2d 358, 361 (Ala.2000) (quoting Morgan v. Morgan, 686 So.2d 308, 310 (Ala.Civ.App.1996), quoting in turn Duckett v. Duckett, 669 So.2d 195, 197 (Ala.Civ.App. 1995)); see also Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996). When dividing marital property and determining the need for alimony, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and any fault of the parties contributing to the breakup of the marriage. Golden, 681 So.2d at 608; see also Ex parte Elliott, 782 So.2d 308, 311-12 (Ala.2000). In examining whether the trial court acted within its discretion in dividing the parties’ property, the proper question to be resolved is whether the property division was equitable under the facts of the case. See Golden, supra.

The record establishes the fact that the parties lived together as a married couple for 21 months. During that time, the wife sold her separately owned home in New York for $472,000 and used proceeds from that sale to purchase the farm. The divorce judgment awarded the farm to the wife and made her solely responsible for paying the mortgage secured by that property. Although the husband admitted that throughout the marriage the parties had lived in a house that he had purchased before the marriage, the judgment awarded that house, a second house, and the husband’s mobile-home park to the husband.

The trial court had to determine how to split the marital assets and debts so that each party received a commensurate financial benefit; the wife had requested a substantial share of the marital assets based upon her financial contributions to the marriage. The husband was awarded all the real property he had owned before the marriage, including the home used by the parties as the marital residence, and all the parties’ remaining properties apart from the farm, including the mobile-home park (which he operated as an income-generating business). However, the husband was ordered to pay the wife $22,853 as compensation for a portion of the wife’s money that the trial court determined had been spent by the husband for his business and as partial compensation for the wife’s attorney.

The husband’s primary contention is that the wife should not have received the farm without a requirement that he be paid for his share of the equity in that property. However, the husband admitted during the trial that all the money the parties had used to renovate the farm had been drawn from the parties’ joint account, into which the wife had deposited over $250,000 of the proceeds from the sale of her home in New York. In addition, the husband admitted that he had not earned a large income during the marriage, that the wife’s separate money had paid for the down payment on the farm and many of the renovations to the house located on the farm, and that, at the time of trial, the house on the farm still was uninhabitable and needed at least another $25,000 worth of work to make it habitable.

The husband noted that although he had earned between $18,000 and $50,000 as a real-estate broker during the three years preceding the trial, his mobile-home park had generated monthly income, after expenses, up to $1,500 for the family during that same period. He also opined that he should receive some payment for his “sweat equity,” i.e., for services he had performed toward renovating the farm. However, the husband also testified that the parties had spent far more on purchasing and renovating the farm than they would be able to realize from selling it in its uninhabitable condition. The husband also stated his belief that in order to sell the farm in its uninhabitable condition, the parties would have to “take a loss” on the sale. Under that view of the evidence, the trial court was required to determine how to apportion between the parties the “loss” that the husband expected the parties to suffer as a result of selling the farm.

A property division that appears to favor one party over another (as the husband contends exists here) does not necessarily indicate an abuse of discretion by the trial court. Dobbs v. Dobbs, 534 So.2d 621, 623 (Ala.Civ.App.1988); see also Fell v. Fell, 869 So.2d 486, 486-97 (Ala.Civ.App.2003). Although the values of the husband’s separately owned properties and his business property were disputed at trial, we conclude that the trial court could properly have determined from the evidence that the total value of the properties awarded to the husband was substantially equal to the net value of the farm, especially when considering that the parties would never recover their total investment in that property. Moreover, the husband and the wife agreed that the original down payment on the farm as well as a large portion of the money used to renovate the farm had been derived from the wife’s proceeds obtained from selling her separately owned home a few months after the parties had married.

“The only limitation on a trial court’s broad discretion in dividing the marital estate is that the property division and alimony award must be equitable under the circumstances of the particular case; the task of determining what is equitable falls to the trial court.” Hall v. Hall, 895 So.2d 299, 303 (Ala.Civ.App.2004); see also Durbin, supra. In addition, this court is not allowed to reweigh the evidence or to substitute its judgment for that of the trial court. See Somers, supra; see also Tompkins v. Tompkins, 843 So.2d 759, 764 (Ala.Civ.App.2002). In light of the fact that the wife brought nearly half a million dollars into the marriage and the husband was awarded all other real estate and business assets of the marriage apart from the farm, we conclude that the wife was entitled to receive whatever amount the parties could realize from the sale of the farm. Thus, we conclude that the trial court did not err in awarding the farm to the wife.

The judgment also ordered the husband to pay the wife $22,853, representing both compensation for a portion of the wife’s money that, the trial court determined, had been spent by the husband for his business and an attorney-fee award. The husband contends that the trial court improperly ordered him to pay that amount. His sole argument in that regard is that the wife’s present income and share of the marital estate is sufficient to enable her to pay her own legal and incidental expenses. It is well settled that the award of an attorney fee in a divorce action is a matter within the sound discretion of the trial court. See Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991); Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986). In determining whether to award an attorney fee in a divorce action, the trial court should consider, among other things, the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. See McClelland v. McClelland, 841 So.2d 1264, 1272 (Ala.Civ.App.2002). Based upon the fact that the wife had obligated most of her separate assets to purchase and renovate the farm, and had obtained only part-time employment by the time of trial, whereas the husband had been awarded two houses and an income-producing business property in addition to his realty business, we cannot conclude that the trial court abused its discretion in ordering the husband to assist the wife in paying certain outstanding legal costs and fees. A review of the relative financial positions of the parties indicates that the trial court could have properly determined that the husband should assist the wife with those specific expenses during the time that the farm, which constituted her sole principal asset after the divorce, was being marketed for sale.

The husband also asserts that the trial court erred in denying his Rule 60(b), Ala. R. Civ. P., motion; that motion was filed on September 9, 2006, nearly nine months after the entry of the original divorce judgment, and about four months after the trial court had purportedly amended the divorce judgment on May 9, 2006, in response to the husband’s Rule 59, Ala. R. Civ. P„ motion. Assuming, without deciding, that the husband’s Rule 60(b) motion was properly before the trial court despite the husband’s failure to obtain leave from this court until after that motion was filed, we conclude that the trial court did not act beyond its discretion in denying that motion.

In his Rule 60(b) motion, the husband sought relief from the parties’ divorce judgment based upon his allegations that the wife had possibly begun an intimate relationship with a married man during the pendency of the parties’ divorce litigation. The husband contends that the wife should not have been awarded primary physical custody of the parties’ minor child because, he says, the wife “hid” her alleged inappropriate behavior and thereby “lied” to the court; thus, he says, the wife obtained primary physical custody of the parties’ child by way of fraud.

“ ‘The only issue we consider on an appeal from the denial of a Rule 60(b) motion is whether, by denying the motion, the trial court abused its discretion.’” Ex parte Phillips, 900 So.2d 412, 418 (Ala.2004) (quoting Wood v. Wade, 853 So.2d 909, 912 (Ala.2002)). Therefore, an appeal from the denial of a Rule 60(b) motion “ “does not present for review the correctness of the judgment that the movant seeks to set aside, but presents for review only the correctness of the order from which the appeal is taken.” ’ ” Phillips, 900 So.2d at 419 (quoting Wood v. Wade, 853 So.2d at 913, quoting in turn Satterfield v. Winston Indus., Inc., 553 So.2d 61, 63 (Ala.1989)). Thus, we must determine only whether the trial court acted outside the limits of its discretion in denying the husband’s Rule 60(b) motion.

The allegations in the husband’s Rule 60(b) motion are based on excerpts from a deposition of the wife taken in June 2006 regarding different activities that she undertook between January and October 2005 and a pair of depositions taken during April and May 2006 of one of the wife’s male acquaintances, Samuel Louis Diamond, concerning his activities during the same period. In those depositions, taken in preparation for a hearing in Diamond’s divorce action, the wife and Diamond admitted to attending parties and other events together intermittently in 2005, during whieh time Diamond was married to another woman. However, not one of the excerpts provided by the husband concerns any activity that occurred before the parties had separated in August 2004 or before the husband had filed his complaint seeking a divorce from the wife.

Initially, we note that the husband does not state any reason why the deposition evidence he offers as “newly discovered evidence” in his Rule 60(b) motion could not have been presented to the trial court before September 2006. Moreover, acts of adultery do not bar an award of custody to the party who committed adultery; in order to deprive a parent of custody on the basis of that parent’s adultery, there must be evidence that the adultery had a direct bearing upon the welfare of the child. J.H.F. v. P.S.F., 835 So.2d 1024, 1029 (Ala.Civ.App.2002). We conclude that even if the husband’s Rule 60(b) motion had brought evidence of the wife’s potential adultery to the trial court’s attention in a timely manner, the trial court could properly have concluded that the motion failed to state any sufficient ground to set aside the parties’ divorce judgment.

The husband also contends that the trial court improperly denied his Rule 60(b) motion without holding a hearing. We note that the husband did not request a hearing in the body of his motion or in a separate filing. The husband requested only that the trial court set aside the divorce judgment and set the ease for a new trial. When a party fails to request a hearing, “to deny his motion without a hearing [is] not error.” Maples v. Maples, 599 So.2d 625, 626 (Ala.Civ.App.1992); see also Kilpatrick v. Kilpatrick, 678 So.2d 1185, 1186 (Ala.Civ.App.1996). Even when a hearing is requested, a hearing need not be held if the motion for relief “clearly is without substance and [is] merely an attempt to burden the court with frivolous contentions.” Waldron v. Fikes, 378 So.2d 1138, 1139 (Ala.Civ.App.1979); see also Bradford v. Bradford, 628 So.2d 732, 734 (Ala.Civ.App.1993). Given the nature of the allegations presented in the husband’s Rule 60(b) motion, we can find no circumstances warranting relief in this case. We conclude, therefore, that the trial court could properly deny the husband’s Rule 60(b) motion without a hearing.

Based upon the foregoing facts and authorities, the trial court’s divorce judgment is due to be affirmed. The trial court’s denial of the husband’s Rule 60(b) motion is also due to be affirmed.

The wife’s request for the award of an attorney fee on appeal is denied.

2050780 — APPLICATION OVERRULED; OPINION OF FEBRUARY 1, 2008, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

MOORE, J., concurs in part and dissents in part, with writing.

BRYAN, J., concurs in the result in part and dissents in part, with writing.

2060229 — APPLICATION OVERRULED; OPINION OF FEBRUARY 1, 2008, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

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

BRYAN, J., concurs in the result, with writing.

MOORE, Judge,

concurring in part and dissenting in part in case no. 2050780 and concurring in case no. 2060229.

Although I concur with the main opinion’s affirmance of the trial court’s divorce judgment with regard to the division of the parties’ property, the award of custody of the child to the wife, and the award of an attorney fee to the wife, and the main opinion’s affirmance of the trial court’s denial of the husband’s Rule 60(b), Ala. R. Civ. P., motion, I disagree with the main opinion’s decision to uphold the provision in the divorce judgment automatically reducing the husband’s visitation once the child starts kindergarten. See 12 So.3d at 698 n. 5.

The husband cites Hovater v. Hovater, 577 So.2d 461, 465 (Ala.Civ.App.1990), and Korn v. Korn, 867 So.2d 338 (Ala.Civ.App.2003), in support of his argument that the trial court erred by including in the divorce judgment a provision that automatically reduces the husband’s visitation once the child starts kindergarten. In Hovater, this court expressed its disapproval of automatic reversionary clauses with regard to custody. This court reasoned that custody determinations are based primarily on the best interests of the child and that it is reversible error for a trial court to order a change of custody based on the occurrence of a future contingency because that change would necessarily be “premised on a mere speculation of what the best interests of the children may be at a future date.” 577 So.2d at 463. The court in Hovater noted that the law provides that the trial court may always enter a future judgment changing custody if a material change of circumstances occurs such that a change of custody would materially promote the best interests of the child and outweigh the traumatic effects of uprooting the child. 577 So.2d at 464. See also Korn, 867 So.2d at 345 (reversing judgment containing automatic custodial rever-sionary clause).

The main opinion states that the rever-sionary clauses in Hovater and Korn are distinguishable from the reversionary clause in the present case because the reversionary clause in the present case involves visitation, not custody. 12 So.3d at 698 n. 5.1 note, however, that this court has previously found the reasoning in Ho-vater and Korn to be equally applicable to automatic reversionary clauses concerning visitation. In Long v. Long, 781 So.2d 225 (Ala.Civ.App.2000), this court, citing Hovater, reversed a judgment containing a provision providing for an automatic modification of visitation after six months had passed. 781 So.2d at 227. This court noted that there was no evidence to indicate that, in six months, there would be a change of circumstances warranting a modification of visitation and that there was no basis to determine future events. Id.

Similarly, in the present case, there is no basis for determining future events. Further, there is no evidence to indicate that, when the child starts school, there will have been a change of circumstances that would warrant the specific modification of visitation set forth in the divorce judgment. If the visitation schedule set out in the divorce judgment turns out to be contrary to the child’s best interests once the child starts school, one or both parents should recognize that fact and petition the trial court for a modification of the visitation schedule. However, if the parents discover that the child’s best interests are served by continuing the same visitation schedule even after the child starts school, they, and the child, should have a right to maintain that schedule. The trial court should not make that decision for the parties at this time based on its speculation as to the effect of a future change of circumstances on the child.

The trial court’s judgment with regard to the change in the husband’s visitation schedule is “premised on a mere speculation of what the best interests of the child[ ] may be at a future date.” Hovater, 577 So.2d at 463. Accordingly, that provision should have no effect. I, therefore, would reverse the trial court’s divorce judgment insofar as it provides for an automatic change of the husband’s visitation schedule once the child starts school.

BRYAN, Judge,

concurring in the result in part and dissenting in part in case no. 2050780 and concurring in the result in case no. 2060229.

I dissent insofar as this court affirms the divorce judgment providing an automatic reversionary clause regarding visitation. I join Judge Moore’s special writing with respect to that issue. Otherwise, I concur in the result.

      . Neither party has raised an issue relating to the amended judgment.

      . We note that June 19, 2006, was exactly 42 days from May 8, 2006, which was the date on which the husband's postjudgment motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P.

      . Later, the husband testified that his mobile-home park had generated up to $1,500 per month for the family during the parties' marriage.

      . It is important to note that neither party testified that the other party was unfit or would be an improper custodian for the child.

      . Although the husband cites Korn v. Korn, 867 So.2d 338 (Ala.Civ.App.2003), and Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990), for the proposition that the trial court improperly included an automatic-reversion clause in its judgment that will reduce the husband’s extended visitation to "standard” visitation after the child begins school, we note that those cases only address automatic custody-modification reversion clauses and are therefore distinguishable from this case.

      . While the husband's postjudgment motion was pending, the wife requested a court order to allow her to accept a contract to sell the farm for $452,000 and to proceed to closing; the trial court granted that request upon the condition that the proceeds from the sale be maintained in her attorney’s trust account pending resolution of the husband's post-judgment motion and a possible appeal.

      . Alabama law is well settled that "alimony in gross” is compensation for a recipient spouse's inchoate marital rights; it may also represent a division of the fruits of the marriage when liquidation of a couple's jointly owned assets is impracticable. Ex parte Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974).

      . Although neither the trial court in its judgment nor the parties in their briefs mention “alimony in gross,” the award of the farm and the other financial awards may be viewed as compensation for the wife’s inchoate marital rights. Ex parte Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974).

      . The husband obtained the necessary leave from this court to file that motion in the trial court on September 15, 2006, six days after filing the motion. See Rule 60(b), Ala. R. Civ. P.


source: Caselaw Access Project

author:
THOMPSON, Presiding Judge.
      MOORE, Judge,

license: Public Domain

text:
    Anthony Wayne DUNN v. Cynthia A. DUNN.
    2070591.
    Court of Civil Appeals of Alabama.
    Dec. 31, 2008.

      Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for appellant.
    Clatus Junkin and Charles E. Harrison of Junkin, Pearson, Harrison & Junkin, LLC, Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. In Dunn v. Dunn, 972 So.2d 810, 811-12 (Ala.Civ.App.2007) (“Dunn v. Dunn I”), this court set forth the procedural history of the parties’ divorce action as follows:

“Anthony Wayne Dunn (‘the father’) sued Cynthia A. Dunn (‘the mother’) for a divorce and sought a division of the parties’ property and an award of custody of the parties’ two minor children. The mother answered and counterclaimed, seeking, among other things, an award of custody of the children. On August 24, 2005, the trial court entered an order divorcing the parties and reserving all other issues for a later determination. A guardian ad litem was appointed to represent the children.
“On January 3, 2006, the trial court entered an order in which it, among other things, awarded each party custody of one of the two children, waived child support, and fashioned a visitation schedule. In that January 3, 2006, order, the trial court addressed and divided some, but not all, of the marital property. Accordingly, the January 3, 2006, order did not constitute a final judgment. See Blankenship v. Blankenship, 963 So.2d 112 (Ala.Civ.App.2007) (a divorce order that did not divide the marital property or marital debt was not sufficiently final to support an appeal); and Grubbs v. Grubbs, 729 So.2d 346, 347 (Ala.Civ.App.1999) (concluding that an order that failed to divide all the parties’ marital property was nonfinal). The father filed a purported post-judgment motion on February 1, 2006. However, ‘[a] true postjudgment motion filed pursuant to Rule 59(e)[, Ala. R. Civ. P.,] may only be made in reference to a final order or judgment. Rule 59(e); Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003); see also Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999).’ First Southern Bank v. O’Brien, 931 So.2d 50, 52 n. 3 (Ala.Civ.App.2005).
“On May 18, 2006, the trial court entered a final judgment in which it fully addressed the issue of a property division and disposed of the remaining issues pending between the parties. We note that the father erroneously asserts that the May 18, 2006, judgment was a nullity because, he contends, it was entered outside the 90 days allowed by Rule 59.1, Ala. R. Civ. P., which sets forth time limits for ruling on a valid postjudgment motion. We conclude, however, that the May 18, 2006, judgment constituted the final judgment in this matter. The father filed his notice of appeal on June 6, 2006, and, therefore, the appeal was taken from a final judgment and was timely filed. See Rule 4(a)(1), Ala. R.App. P. (an appeal must be filed within 42 days of the entry of a final judgment).

In Dunn v. Dunn I, supra, this court affirmed the custody and property-division provisions of the trial court’s divorce judgment.

Thereafter, on October 12, 2007, Cynthia A. Dunn (“the wife”) filed a motion to interplead funds and a motion to enforce the trial court’s divorce judgment. The wife paid $28,976.80 into the court; that amount represented the proceeds from the sale of the parties’ marital home. In her October 12, 2007, motion to enforce the divorce judgment, the wife alleged that a dispute had arisen between the parties regarding the manner in which the trial court’s January 3, 2006, and May 18, 2006, orders, which were part of the final divorce judgment, provided for the disbursement of the proceeds from the sale of the marital home. The wife set forth an argument supporting her position in that dispute. On November 20, 2007, Anthony Wayne Dunn (“the husband”) filed a motion for a judgment on the pleadings, arguing that his interpretation of the divorce judgment supported that motion. The wife filed an opposition to the arguments the husband had asserted in his motion for a judgment on the pleadings, and the husband responded to that opposition.

With regard to the division of the parties’ property, the divorce judgment ordered, among other things, that the husband pay the wife $12,272.34, representing her portion of his interest in a limited-liability company (“the LLC”), from the proceeds of the sale of the marital home. The trial court’s divorce judgment also ordered that the proceeds from the sale of the marital home be used to repay the parties’ marital debt. In this action, the parties dispute whether the proceeds from the sale of the marital home should first be applied to pay the wife her interest in the LLC or whether the proceeds from the sale of the marital home should first be applied to the repayment of marital debt. The confusion arises from the different treatment of those issues in the January 3, 2006, order and the May 18, 2006, order and from this court’s characterization of the property division, which did not address whether the interest in the LLC awarded to the wife was to be paid from the proceeds of the marital home. See Dunn v. Dunn I, 972 So.2d at 816-17.

The trial court’s January 3, 2006, order in the divorce action provided, in relevant part:

“This Court has previously ordered that the marital home be turned over to a licensed real estate broker. Said real estate broker shall have six (6) months within which to sell the home. In the event that the home is not sold within the six month period, the Clerk is hereby directed to sell the home at public action after advertising said property for a period of three consecutive weeks in a newspaper of general circulation in Fay-ette County. The [husband] shall be responsible for making the mortgage payments on the marital home until such time as the home is sold.
“Be it further ORDERED that the [husband] shall pay to the [wife] one-half of his one-third interest of the equity in the [LLC] from his portion of the sale of the marital home. If there is not enough equity in the marital home to accomplish this, the [husband] shall have ninety (90) days within which to pay said sum to the [wife]. The Court hereby calculates the [husband’s] one-third interest as Three Hundred Thirty-Four Thousand Dollars ($334,000) less the Two Hundred Sixty Thousand Three Hundred Sixty-six Dollars ($260,366), leaving an excess of Ninety Nine Thousand Six Hundred Thirty-four Dollars ($99,634). Therefore, [the husband]’s one third interest would be Thirty-three Thousand Two Hundred Eleven and 33/100 Dollars ($33,211.33) and one-half of said sums which the [husband] is Ordered to pay to the [wife] would be Sixteen Thousand Six Hundred Five and 67/100 Dollars ($16,606.67).
“It is further ORDERED, ADJUDGED and DECREED that the [wife] is awarded the time share property owned by the parties which is located in New Orleans, Louisiana, and that the [husband] shall execute whatever documents necessary to transfer all right, title and interest over to the [wife].”

The trial court’s May 18, 2006, order, which resolved the issues that remained pending in the divorce action, provided, in relevant part:

“The Court entered a Final Order on [January 3, 2006], The [father] filed a Motion for a New Trial or in the Alternative to Alter, Amend or Vacate Judgment. The Court having considered the Motion and the argument of counsel finds the Motion should be granted in part and denied in part, it is THEREFORE, ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
“1. The Court finds that the [husband] has a one-third interest in [the] LLC. The Court hereby calculates the [husband’s] interest as follows: The property owned by [the] LLC was appraised at Three Hundred Thirty Four Thousand Dollars ($334,000) less the debt owed of Two Hundred Sixty Thousand Three Hundred Sixty-Six Dollars ($260,366) leaving an excess of Seventy Three Thousand Six Hundred Thirty-Four Dollars ($73,634). Therefore, the [husband’s] one-third interest in [the] LLC is Twenty Four Thousand Five Hundred Forty Four and 67/100 Dollars ($24,544.67). The [wife’s] interest in [the] LLC being Twelve Thousand Two Hundred Seventy Two and 34/100 Dollars ($12,272.34).
“The Court finds that the testimony at trial indicated the parties own a condominium in New Orleans, Louisiana, that has a value of Fifteen Thousand Dollars ($15,000).
“The [husband] is awarded all right title and interest in [the] LLC and the [wife] is divested of the same. The [wife] is awarded the time share property owned by the parties which is located in New Orleans, Louisiana. The [husband] is divested of all right title and interest in the condominium in New Orleans, Louisiana, and shall execute whatever documents necessary to transfer all right, title and interest to the [wife].
“2. The Court finds that the parties have marital debt consisting of a note and mortgage at the Citizens Bank of Fayette on the marital home, credit card debt, and a personal loan at the Citizens Bank. The [husband] has made all the payments on the marital debts since the parties’ separation in May 2004. The [husband] is ordered to continue to make payments on the parties’ marital debt until the marital home is sold.
“3. Upon the sale of the marital home, the proceeds will be applied first to the costs associated with the sale of the marital home, the debt owed on the marital home and then the remaining marital debt of the parties. If the proceeds from the sale of the marital home are not sufficient to pay the marital debt, the [husband] is ordered to pay the remainder of the marital debt and to hold the [wife] harmless for the same. If the proceeds from the sale of the marital home exceed the marital debts the party’s will split the proceeds equally-
“5. All provisions of the Courts previous Order not changed by this Order remain in full force and effect.”

Before the trial court, the wife argued that the May 18, 2006, order did not alter that portion of the January 3, 2006, order that required the husband to pay the wife for her interest in the LLC from the proceeds of the marital home. The wife cited the last paragraph of the May 18, 2006, order that states that any provisions in the January 3, 2006, order not changed by the May 18, 2006, order would remain in effect. The husband contended, however, that paragraph 2 of the May 18, 2006, order altered the January 3, 2006, order by requiring that the marital debts should be paid first from the proceeds of the sale of the marital home.

In its February 11, 2008, judgment in this action, the trial court noted several undisputed facts, among which was the fact that the husband had failed to pay the wife the $12,227.34 for her interest in the LLC within 90 days of the sale of the marital home or within 90 days of the issuance of the decision of this court in Dunn v. Dunn I. The court also noted that the case had been “tried extensively” earlier. The court then stated:

“The Court finds that the submission of the [husband] evinces a clear misunderstanding of the proper operation of this Court’s orders of January 3, 2006, and May 18, 2006. The intent of the Court in the two orders of January 3, 2006, and May 18, 2006, was to establish a property division whereby the marital home would be sold, and whereby the [wife] would be paid $12,272.34 out of the sale of the marital home, with that figure representing one-half of one-third of the value of the [LLC], and with the [husband] being left vested in the actual title to the [LLC].”

The husband timely appealed the trial court’s February 11, 2008, judgment.

As an initial matter, we note that the father relied on Rule 12(c), Ala. R. Civ. P., in moving for the entry of a judgment in his favor. Pursuant to Rule 12(c), a party may move for a judgment on the pleadings. The parties’ pleadings contained quotations from the orders at issue in this matter, and the parties relied on those quotations in asserting their respective positions. Our courts have stated that “[a]ny exhibits attached to a pleading are considered a part of the contents of the pleading.” Tuscaloosa City Bd. of Educ. v. American/Owens, Inc., 486 So.2d 405, 407 (Ala.1986); see also McCullough v. Alabama By-Prods. Corp., 343 So.2d 508, 510 (Ala.1977) (“Under Alabama law, an exhibit attached to a pleading is not only a part of it, but, in case of a variance between the allegations of the pleading and the exhibit attached thereto, the contents of the exhibit control.”). Similarly, exhibits or documents quoted in pleadings, as in this case, may be considered part of the contents of the pleadings for the purpose of Rule 12(c).

“ ‘A Rule 12(c) motion for judgment on the pleadings disposes of a case when the material facts are not in dispute.’ McCullough v. Alabama By-Prods. Corp., 343 So.2d 508, 510 (Ala.1977). ‘When such a motion is made, the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.’ B.K.W. Enterprises, Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala.1992). Moreover, a judgment on the pleadings is subject to de novo review, and the facts in the complaint are to be accepted as true and are to be viewed in the light most favorable to the nonmoving party. See Ortega v. Christian, 85 F.3d 1521, 1524-25 (11th Cir.1996).”

Harden v. Ritter, 710 So.2d 1254, 1255-56 (Ala.Civ.App.1997).

On appeal, the husband argues that the trial court erred in reaching its February 11, 2008, judgment. Specifically, the husband contends that the trial court’s judgment constituted an impermissible modification of the property-division provisions of the divorce judgment. A trial court loses jurisdiction to modify a property division in a divorce judgment 30 days after the entry of the judgment. Hocutt v. Hocutt, 491 So.2d 247, 248 (Ala.Civ.App.1986). This court has held, however, that if the provisions of a property settlement are vague or ambiguous, a judgment interpreting or clarifying the property settlement does not constitute a modification of the property settlement. Williams v. Williams, 591 So.2d 879, 880 (Ala.Civ.App.1991); see also Granger v. Granger, 804 So.2d 217, 219 (Ala.Civ.App.2001); Grayson v. Grayson, 628 So.2d 918 (Ala.Civ.App.1993). Further, a trial court has the inherent power to interpret, clarify, and enforce its orders and judgments. Granger v. Granger, supra; Patterson v. Patterson, 518 So.2d 739, 742 (Ala.Civ.App.1987).

We disagree with the husband’s argument that the trial court’s January 3, 2006, order and its May 18, 2006, order were, when considered together, clear and unambiguous with regard to the payment to the wife for her interest in the LLC. The January 3, 2006, order clearly stated that the wife was to be paid for her interest in the LLC from the proceeds of the sale of the marital home. The May 18, 2006, order stated that it intended to leave in place all unaltered provisions of the January 8, 2006, order. However, that order also provided that, upon the sale of the marital home, the proceeds of that sale were to be applied “first” to the repayment of marital debt.

“If there is uncertainty in a judgment the court must construe it so as to express the intent of the trial judge, which intent can be derived from the provisions of the judgment.” Erbe v. Eady, 406 So.2d 936, 938 (Ala.Civ.App.1981) (citing Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978)). The January 3, 2006, order required the payment of the wife’s interest in the LLC from the proceeds of the sale of the marital home and, if the proceeds of the sale of the marital home were not sufficient to pay for that interest, the husband had 90 days to pay the wife for her interest in the LLC. A reasonable interpretation of the two orders at issue is that the wife’s interest in the LLC must be paid from the proceeds of the sale of the marital home. That conclusion is buttressed by the trial court’s statement in its February 11, 2008, judgment that it intended that result. Accordingly, to the extent that the February 11, 2008, judgment requires that the husband pay the wife her interest in the LLC from the proceeds of the sale of the marital home, the judgment is due to be affirmed.

However, as the husband points out in his appellate brief, the provisions of the May 18, 2006, order required that the remaining marital debt be paid, to the extent possible, from any amounts remaining from the proceeds of the sale of the marital home. In its February 11, 2008, judgment, the trial court ordered that the wife be paid for her interest in the LLC from the proceeds of the sale of the marital home and that the remaining proceeds then be divided. It is clear from the provisions of the May 18, 2006, order however, that the intent of the trial court in entering its divorce judgment was that, after the payment to the wife for her interest in the LLC from the proceeds of the sale of the marital home, the remaining proceeds from that sale were to be used to repay the parties’ marital debt, to the extent possible. The May 18, 2006, order further provided that, if any proceeds from the sale of the marital home remained after the payment to the wife and the repayment of the parties’ marital debt, that amount was to then be divided equally between the parties. Accordingly, we conclude that the trial court erred in ordering that, after the wife was compensated for her interest in the LLC, the remaining proceeds of the sale of the marital home were to be divided between the parties rather than applied to the repayment of the parties’ marital debt. Therefore, as to this issue, we reverse the trial court’s judgment and remand the cause for the entry of a judgment consistent with this opinion.

The parties’ requests for an attorney fee are denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

MOORE, J., concurs in part and dissents in part, with writing.

MOORE, Judge,

concurring in part and dissenting in part.

I concur with the main opinion to the extent that it concludes the trial court erred by ordering that the proceeds from the sale of the marital home (“the proceeds”) were to be divided between the parties before the parties’ marital debts were paid. Otherwise, I respectfully dissent from the main opinion because I agree with the husband’s argument that the January 3, 2006, order and the May 18, 2006, order, when read together, are clear and unambiguous with regard to the order of distribution of the proceeds.

In the January 3, 2006, order, the husband was ordered to pay to the wife one-half of his interest in the LLC from his portion of the proceeds. That order also provided that if there was not enough equity in the marital home for the husband to pay the wife her interest in the LLC, he must still do so within 90 days of the sale of the marital home. The January 3, 2006, order, however, did not provide the manner in which the husband’s share of the proceeds was to be determined, nor did it provide the order in which the proceeds were to be distributed.

In the May 18, 2006, order, the trial court completed the January 3, 2006, order by setting forth the order in which the proceeds were to be distributed and the manner in which the husband’s share of the proceeds were to be determined. The May 18, 2006, order provides that the proceeds were to be applied in the following order: (1) to pay the costs associated with the sale of the marital home, (2) to pay the debt associated with the marital home, and (3) to pay other marital debts. If any proceeds remained, they were to be divided equally between the husband and the wife.

Reading the January 3, 2006, order and the May 18, 2006, order together, it is clear that the proceeds are to be distributed in the order set forth in the May 18, 2006, order and that the husband’s share of the proceeds are to be determined after the aforementioned debts are paid. According to the January 3, 2006, order, the wife’s interest in the LLC was to be paid from the husband’s share of the proceeds. There is nothing in either the January 3, 2006, order or the May 18, 2006, order to suggest that the proceeds are to be applied first to paying the wife for her interest in the LLC.

Based on the foregoing, I conclude that the January 3, 2006, order and the May 18, 2006, order were clear and unambiguous with regard to the order of distribution of the proceeds and that the trial court’s February 11, 2008, judgment was an impermissible modification of the final judgment entered in the parties’ divorce action. I would reverse the trial court’s judgment and remand the cause with instructions to enter a judgment providing for the distribution of the proceeds as set forth above.

       Because the father asserted that the May-18, 2006, judgment was a nullity, the arguments in his brief to this court address only the January 3, 2006, order. We address the father’s appeal as if the arguments in his brief were asserted with regard to the May 18, 2006, final judgment.”

      . The order actually specifies that the wife's interest in the LLC be paid from the husband's portion of the proceeds of the sale of the marital home. However, the wife has not challenged the trial court’s judgment on appeal, and, therefore, we do not address that issue.

      . Because the issue was not raised on appeal, I express no opinion as to whether the May 18, 2006, order nullified the husband's obligation to pay the wife for her interest in the LLC.


author: BASCHAB, Presiding Judge.

text:
    Jerry GUNN v. STATE of Alabama.
    CR-06-1017.
    Court of Criminal Appeals of Alabama.
    June 29, 2007.

      Jerry Gunn, pro se.
    Kim T. Thomas, deputy atty. gen. and gen. counsel, and Greg Biggs, asst. atty. gen., and asst, counsel, Department of Corrections, for appellee.
   BASCHAB, Presiding Judge.

The appellant, Jerry Gunn, an inmate incarcerated at St. Clair Correctional Facility, filed a petition for a writ of habeas corpus, arguing that he has not been credited with sufficient time for the time he spent in jail awaiting trial. After the Alabama Department of Corrections (“DOC”) responded, the circuit court summarily dismissed the petition. This appeal followed.

The appellant argues that the circuit court erroneously summarily dismissed his petition. In his petition, he asserted that he was arrested in Connecticut pursuant to an Alabama extradition warrant for first-degree robbery on November 13, 1995; that the extradition warrant was served on him on February 14, 1996; that he was turned over to Alabama authorities on February 23, 1996; that he was sentenced in Talladega County for first-degree robbery on July 2, 1996; that he has not been credited with all of the time he was incarcerated awaiting trial on the first-degree robbery case; and that he is entitled to credit for all of the time he spent incarcerated in Connecticut awaiting trial on the first-degree robbery case.

“A petition for a writ of habeas corpus is the proper method by which to test whether the State has correctly calculated the time an inmate must serve in prison. Swicegood v. State, 646 So.2d 158 (Ala.Cr.App.1993). Section 15-18-5, Ala.Code 1975, requires that a convicted person be ‘credited with all of his actual time spent incarcerated pending trial for such offense. The actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.’ ”

Graves v. State, 710 So.2d 535, 536 (Ala.Crim.App.1997). Furthermore,

“[wjhen the State responds to a habeas corpus petition merely by making broad, general arguments that do not address the petitioner’s specific claims, the State has failed to refute the facts alleged by the appellant and those facts must therefore be taken as true. Swicegood. See also Boutwell [v. State, 488 So.2d 33, 34 (Ala.Crim.App.1986) ] (‘The State offered no facts which contradict those set out in the petition. Therefore, the unre-futed facts set out in the petition must be taken as true.’).”

Mintz v. State, 675 So.2d 1356, 1357-58 (Ala.Crim.App.1995).

In this case, DOC did not refute the appellant’s specific allegation that he is entitled to additional credit for the time he spent incarcerated in Connecticut awaiting trial. Rather, it attached an affidavit from Kathy Holt, the Correctional Records Director for DOC, in which she stated that DOC gives jail credit as certified by the circuit clerk; that it had given the appellant 130 days of jail credit, as certified by the Talladega County Circuit Clerk; and that it had properly calculated the appellant’s minimum release date.

We addressed a similar situation in Quick v. State, 983 So.2d 414, 415 (Ala.Crim.App.2007), as follows:

“Quick appeals from the circuit court’s dismissal of his petition for a writ of habeas corpus, in which he challenges the calculation of credit for time he spent in jail before trial.
“Quick argues that he was not credited with the proper amount of time for the time he served in jail while awaiting trial. Specifically, Quick claims that he has been continuously incarcerated since he was arrested for burglary in 1995 and that the clerk is crediting him only with jail time accrued from the date of his acquittal on the charge of capital murder to the date he was sentenced on his burglary convictions.
“The State moved to dismiss Quick’s petition. In support of its response, the State offered the affidavit of Kathy Holt, correctional records director for the Department of Corrections, averring that Quick received 213 days of jail credit for each burglary conviction based on the certified report of the clerk of the circuit court in which Quick was convicted and sentenced, as required by § 15-18-5, Ala.Code 1975. Attached to the affidavit were certified copies of the clerk’s forms indicating the amount of credit Quick had accrued for time served. The trial judge subsequently dismissed the petition for the writ of habeas corpus.
“Section 15-18-5, AIa.Code 1975, requires that ‘actual time spent incarcerated pending trial shall be certified by the circuit clerk or district clerk on forms to be prescribed by the Board of Corrections.’ Although the State’s response indicates that the Department awarded the jail credit as certified by the circuit clerk, the State’s response does not sufficiently address the substance of Quick’s claim in his petition: that the clerk of the sentencing court either miscalculated or misreported the correct amount of pretrial jail time on the forms submitted to the Department of Corrections.
“Quick has alleged that he was not given jail credit for the years he spent in jail between his arrest in 1995 and his sentencing in 2003. His petition has sufficient merit to necessitate a hearing to determine whether the circuit clerk correctly calculated and reported Quick’s jail credit and to ascertain how much time Quick did spend in jail pending trial on his burglary charges. See Frazier v. State, 800 So.2d 606 (Ala.Crim.App.2000)(petition had sufficient merit to necessitate a hearing to determine whether jail credit was correctly calculated and reported); John son v. State, 681 So.2d 1104 (Ala.Crim.App.1996)(inmate was entitled to evidentiary hearing to determine whether pretrial jail time was properly calculated and reported). Accordingly, this case is remanded to the trial court with directions that the court hold a hearing on this issue.”

The appellant’s argument that he has not been properly credited with all of the time he spent incarcerated awaiting trial on the first-degree robbery case may be meritorious. See § 15-18-5, Ala.Code 1975; Culbreth v. State, 966 So.2d 912 (Ala.Crim.App.2007). Accordingly, we remand this case to the circuit court with instructions that it conduct an evidentiary hearing on the appellant’s petition. If the circuit court determines that the appellant is not entitled to any additional credit, it shall make specific findings of fact explaining why he is not entitled to such credit. If the appellant is entitled to credit for additional time he spent incarcerated awaiting trial, then the circuit court should grant the petition, and the appellant should be given the additional credit against his sentence. 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 56 days after the release of this opinion. The return to remand shall include the circuit court’s specific, written findings of fact and a transcript of the evidentiary hearing.

REMANDED WITH INSTRUCTIONS

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

       Note from the reporter of decisions: On August 10, 2007, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


text:
    STATE of Alabama v. Quinon Demon FREEMAN.
    CR-06-0943.
    Court of Criminal Appeals of Alabama.
    June 29, 2007.
    Rehearing Denied Aug. 17, 2007.
    Troy King, atty. gen., and Tracy Daniel, asst. atty. gen., for appellant.

      William J. Underwood, Tuscumbia, for appellee.
   BASCHAB, Presiding Judge.

The appellee, Quinon Demon Freeman, was indicted for first-degree unlawful possession of marijuana, a violation of § 13A-12 — 213(a)(1), Ala.Code 1975. On December 6, 2006, he filed a motion to suppress evidence law enforcement officers seized from his person. After conducting a hearing, the trial court granted the appellee’s motion to suppress. This appeal followed.

The State argues that the trial court erroneously granted the appellee’s motion to suppress evidence law enforcement officers seized from his pocket. Specifically, it contends that the appellee gave officers general consent to search his person and that his consent included a search of his pockets.

During the suppression hearing, Officer Drew Harless of the Florence Police Department testified that, on September 24, 2006, he received a call from dispatch regarding shots being fired from a motel; that dispatch advised him that the shots may have come from the third floor; and that he, Officer Kevin Jackson, and Sergeant Robert Richey responded to the call. He also testified that, after they arrived, he and the other officers started up the stairs; that, as they were going from the first floor to the second floor, they saw the appellee coming down the stairs; that Jackson stopped the appellee; that he was the last officer going up the stairs; and that Jackson sent the appellee down to him.

Harless testified that he detained the appellee to see if he had any weapons; that he asked the appellee if he had heard any gunshots, and the appellee said that he had not; that he asked the appellee if he could search his pockets, and the appellee said he could; and that he found nine small plastic baggies containing a green, leafy substance in the appellee’s right front pants pocket. He also testified that he was detaining the appellee for the officers’ safety and well-being; that he intended to pat down the appellee to see if he had any weapons; that he was only concerned about a weapon; that he asked for consent to search the appellee’s pockets so he could be one hundred percent sure that he did not have a weapon; and that, when he asked for consent to search the appel-lee’s pockets, he just asked for permission to search his pockets, and he did not specify that he was searching for weapons or anything else. Finally, he testified that, if the appellee had refused to give him consent to search his pockets, he would not have gone into his pockets.

The appellee testified that, on the day in question, he was leaving the fourth floor of the motel; that, as he was going down the stairs, the law enforcement officers were coming up the stairs; that the first officer detained him and passed him to Harless; that Harless asked him if he could search him for weapons; that Harless did not ask him if he could search his pockets; that Harless said that they had heard gunshots; and that he thought Harless was more concerned about a pistol.

In its order granting the motion to suppress, the trial court found as follows:

“This cause came before the Court on the defendant’s motion to suppress the marihuana found on the defendant’s person as the fruit of an illegal search. The Court took testimony and received briefs. The evidence presented at the suppression hearing indicated the following:
“Late in the evening of September 24, 2006 the Florence Police Department was notified of a report that there had been a gunshot fired at the City Lodge in downtown Florence, possibly from the third floor. Officers Drew Harless, Kevin Jackson and Robert Richey responded and began to ascend the outside stairs toward the third floor. Between the first and the second floor they encountered this defendant, Quinon Freeman, descending the same stairs. The officers asked if he had heard gunshots and Mr. Freeman answered that he had not. There was no evidence that Mr. Freeman was acting in a suspicious manner. Nevertheless the defendant was stopped and Officer Harless requested permission to search. The defendant readily consented and Officer Harless found nine small plastic bags of marihuana in his front right pants pocket. Officer Harless subjectively believed he had permission for an unrestricted search of the defendant’s person. Mr. Freeman subjectively believed he had given permission for a limited search for weapons only.
“The testimony of Officer Harless was unequivocal on one point: The officers had no reasonable suspicion that Mr. Freeman had committed any illegal activity and they did not have probable cause to search his pockets. The stop of Mr. Freeman by law enforcement was nevertheless justified because he could potentially implicate others in criminal activity. Police officers coming upon the scene of a recently committed crime may lawfully freeze the situation and obtain identifications and an account of the circumstances from the persons present. Such an encounter does not, however, justify a search of the pockets of the potential witness. Here the State relies on the defendant’s consent to justify the search.
“The officers asked Mr. Freeman if he had heard gunshots. He said he had not. They asked if they could search him. He said they could. The conversation was evidently no more extensive than that. Therefore the question is how extensive a search did Mr. Freeman consent to? It is clear that the officers were responding to a call concerning gunshots and there was no indication that anyone was suspected of possession of drugs. In Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), concerning the permissible scope of a search in response to consent, the Court opted for a standard of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the subject? Here the defendant was asked about gunshots and then was requested to consent to a search. Reason and common sense leads this Court to conclude that the officers were interested in searching for weapons, the defendant understood the officers were interested in searching for weapons, he consented to a search for weapons and the scope of the search is limited to a search for weapons. The search of Mr. Freeman’s pockets cannot be justified on probable cause and exigent circumstances and was beyond the scope of the consent obtained. It was, therefore, illegal and the evidence seized is due to be suppressed.”

(C.R. 36-38.)

In State v. Hill, 690 So.2d 1201, 1203-04 (Ala.1996), the supreme court stated the following with regard to standards of review to be applied when reviewing a trial court’s ruling on a motion to suppress:

“As a preliminary matter, we note that there has been some debate regarding the applicable standard of appellate review. In its unpublished memorandum, the Court of Criminal Appeals showed great deference to the trial court’s decision to suppress the evidence of the cocaine and marijuana. It stated: “ ‘[A] trial court’s ruling on a motion to suppress will not be disturbed unless it is “palpably contrary to the weight of the evidence.” Patterson v. State, 659 So.2d 1014 (Ala.Cr.App.1995). The trial court is in a far better [sic] than this court to rule on the merits of a motion to suppress. Sullivan v. State, 23 Ala.App. 464, 127 So. 256 (1930). The trial court’s ruling [on] the motion to suppress was not palpably wrong.’
“The State contends that the deference of the Court of Criminal Appeals to the judgment of the trial court was unwarranted. It claims that an appellate court should review de novo the trial court’s finding that ‘reasonable suspicion’ was lacking, because the facts in the case are not in dispute. We agree.
“The trial judge made his ruling following a hearing at which he heard oral testimony only from Officer Bailey. We stated in Ex parte Agee, 669 So.2d 102 (Ala.1995):
“ “Where evidence is presented to the trial court ore tenus in a nonjury case, a presumption of correctness exists as to the court’s conclusions on issues of fact; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Odom v. Hull, 658 So.2d 442 (Ala.1995). However, when the trial court improperly applies the law to the facts, no presumption of comctness exists as to the court’s judgment. Ex parte Board of Zoning Adjustment of the City of Mobile, 636 So.2d 415 (Ala.1994).’
669 So.2d at 104. ‘Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court’s application of the law to those facts.’ Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge’s ruling in this case was based upon his interpretation of the term ‘reasonable suspicion’ as applied to an undisputed set of facts; the proper interpretation is a question of law.
“Hill counters with the argument that some facts are disputed, and he argues that the judge’s assessment of credibility was a key factor in his decision to suppress. It is true that, absent clear error, the trial court’s credibility choices on issues of fact at suppression hearings are binding on this Court. Powell v. State, 624 So.2d 220 (Ala.Cr.App.1993). However, Hill has not indicated what facts are in dispute. He presented no evidence at the hearing, and there was no evidence that conflicts with or tends to undermine the testimony given by Bailey. Hill also adopted the statement of facts as set out in the State’s brief, under Rule 39(k), Ala. R.App. P., adding only that the car was actually owned by Hill’s brother and that when it appeared that Heard might attempt to flee Bailey told Heard that he had a police dog in his vehicle, although Bailey had no such dog. But these two facts are not relevant to the question whether the officer had a ‘reasonable suspicion’ at the time he stopped the car. Thus, we review de novo the trial court’s ruling on the issue and the judgment of the Court of Criminal Appeals. Ex parte Agee, supra.

(Emphasis added.)

“ ‘The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of “objective” reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?’ Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991).”

Bender v. State, 687 So.2d 219, 221 (Ala.Crim.App.1996).

Applying the objective reasonableness standard set forth in Jimeno, the trial court found that the officers were interested in weapons, that the appellee understood that he was consenting to a search for weapons, and that the scope of the search was limited to a search for weapons. However, the testimony at the suppression hearing did not indicate that Harless asked the appellee if he could pat him down or frisk him. Rather, the undisputed testimony at the suppression hearing indicated that Harless asked the appellee if he could search him. A typical, reasonable person would have understood that a search for weapons could include a search of the pockets. Further, Harless testified that he was only concerned about a weapon and that he searched the appellee’s pockets so he could be one hundred percent certain that the appellee did not have a weapon. Therefore, Harless’ search did not exceed the scope of the appellee’s consent, and the trial court erred when it granted the appellee’s motion to suppress the evidence Harless seized from his pocket. Accordingly, we reverse the trial court’s judgment and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.


text:
    William Lamar MILLS v. STATE of Alabama.
    CR-06-0984.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2007.
    William Lamar Mills, pro se.
    Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

The appellant, William Lamar Mills, alleges that, in February 1995, he pled guilty to first-degree murder; that the trial court sentenced him to serve a term of life in prison; and that he did not appeal his conviction. On February 5, 2007, he filed a Rule 32 petition, alleging that his sentence has expired. Without requiring a response from the State, the circuit court summarily denied the petition. This appeal followed.

The appellant argues that he is being held in custody after his sentence has expired. Specifically, he contends that he

“was extradited/transferred, through no fault of his own and involuntarily, to a private prison in the State of Louisiana, to the care, custody, and control of Gary Copes, District Warden for LCS Corrections Services, Inc., a private correctional services corporation, which effectively terminated and expired the Petitioner’s sentence, as it pertains to the physical custody and incarceration of the Petitioner, imposed by the Court.”

(C.R. 9.)

In Olim v. Wakinekona, 461 U.S. 238, 245-46, 103 S.Ct. 1741, 1745-46, 75 L.Ed.2d 813 (1983), the United States Supreme Court held:

“Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State. Often, confinement in the inmate’s home State will not be possible. A person convicted of a federal crime in a State without a federal correctional facility usually will serve his sentence in another State. Overcrowding and the need to separate particular prisoners may necessitate interstate transfers. For any number of reasons, a State may lack prison facilities capable of providing appropriate correctional programs for all offenders.”

(Footnote omitted.)

Also, in Turner v. Riley, (No. 06-0065CG-C, May 22, 2006) (S.D.Ala.2006) (not reported in F.Supp.2d), the United States District Court for the Southern District of Alabama addressed a similar argument as follows:

“Petitioner complains that in 2003 he was transferred to Tallahatchie Correctional Facility (hereinafter ‘TCF’) in Tutwiler, Mississippi, pursuant to the Interstate Corrections Compact (hereinafter ‘ICC’), Alabama Code §§ 14-13-1, et seq. (1985). [The Alabama Department of Corrections] allegedly entered into a contract with Corrections Corporation of America (hereinafter ‘CCA’) to transfer petitioner along with 1400 other Alabama inmates to TCF.
“Petitioner ... alleges that Alabama lost jurisdiction over him when he was transferred to CCA and thus CCA could not legally detain him....
“... [I]n a case with facts similar to the allegations at hand, Evans v. Holm, 114 F.Supp.2d 706 (W.D.Tenn.2000), a waiver of jurisdiction was found not to occur when an inmate was transferred from the convicting state to a private correctional institution in another state pursuant to a contract between the convicting state and the institution. Id. at 713. The Evans court opined that ‘[a] prisoner has a legally protected interest in the conduct of his keeper but not in his keeper’s identity.’ Id. at 711 (quoting Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir.), cert. denied,, Leslie v. Litscher, 528 U.S. 954, 120 S.Ct. 379, 145 L.Ed.2d 296 (1999)).”

(Footnote omitted.)

Finally, the Alabama Code does not appear to prohibit the State from contracting with private correctional facilities for the placement of inmates.

We agree with the reasoning of the courts in Turner and Evans, and we likewise conclude that the State of Alabama did not lose jurisdiction over the appellant when it transferred him to a private prison facility in Louisiana. Therefore, the appellant’s argument to the contrary is without merit, and we affirm the circuit court’s judgment.

AFFIRMED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

      . The appellant raises additional arguments in his brief to this court. However, because he did not first present them to the circuit court, they are not properly before this court. See Whitehead v. State, 593 So.2d 126 (Ala.Crim.App.1991); Morrison v. State, 551 So.2d 435 (Ala.Crim.App.1989).


author: WELCH, Judge.

text:
    Armond Joseph JACKSON v. STATE of Alabama.
    CR-06-0169.
    Court of Criminal Appeals of Alabama.
    Dec. 21, 2007.

      Armond Joseph Jackson, pro se.
    Troy King, atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   WELCH, Judge.

Armond Joseph Jackson appeals from the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for post-conviction relief. Jackson stated in his petition that in 1983 he pleaded guilty to capital murder and was sentenced to life imprisonment without the possibility of parole. He further stated in his petition that this Court affirmed his conviction and sentence on direct appeal on April 24, 1984. See Jackson v. State, 452 So.2d 895 (Ala.Crim.App.1984).

Jackson filed the present Rule 32 petition on September 1, 2006. In his petition, Jackson alleged: (1) that the indictment failed to show the concurrence of at least 12 grand jurors; (2) that the petit jurors were not sworn; (3) that the venire was not sworn; (4) that he was denied his right to be present at a critical stage of the trial (initial voir dire); and (5) that the trial court failed to define reasonable doubt to the jury in its jury instructions. Without requiring a response from the State, the circuit court issued an order summarily denying Jackson’s petition on the basis that Jackson’s challenge to the indictment was a nonjurisdictional claim that was barred by the limitations period in Rule 32.2(c), Ala.R.Crim.P., and that the remaining claims were nonjurisdictional claims that had been raised and addressed in Jackson’s prior petition and thus were barred by the prohibition against successive petitions in Rule 32.2(b), Ala. R.Crim.P.

I.

With regard to claim (1), as set out above, we note simply that the exhibits Jackson attached to his Rule 32 petition clearly establish that the foreperson of the grand jury signed the indictment against Jackson. It is well settled that the signature of the grand jury foreman signifies the concurrence of 12 or more grand jurors. See, e.g., Birdsong v. State, 929 So.2d 1027 (Ala.Crim.App.2005). Therefore, summary denial of his petition as to this claim was proper.

II.

With regard to claims (4) and (5), as set out above, summary denial was also proper. As presented in the petition, these claims do not allege jurisdictional transgressions. See Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003) (a challenge to a trial court’s jury instructions on reasonable doubt is subject to the procedural bars in Rule 32.2); Rule 9.1(b), Ala. R.Crim. P. (right to be present is waivable); Robitaille v. State, 971 So.2d 43 (Ala.Crim.App.2005) (personal jurisdiction may be waived); D.W.L. v. State, 821 So.2d 246 (Ala.Crim.App.2001) (absence from jury selection concerns personal jurisdiction and is therefore waivable; it does not impinge on the jurisdiction of the trial court over the subject matter of the ease). Claims that can be waived are not jurisdictional and therefore are subject to the procedural bars in Rule 32.2, Ala.R.Crim.P. See, e.g., Strickland v. State, 771 So.2d 1123, 1125 (Ala.Crim.App.1999). Accordingly, as the circuit court found, they are subject to the prohibition against successive petitions as provided in Rule 32.2(b), Ala.R.Crim.P. Therefore, summary denial of these claims was proper.

III.

Finally, with regard to claims (2) and (3), as set out above, i.e., that the petit jurors were not sworn and that the venire was not sworn, the circuit court found these claims to be successive. The State contends that this finding is correct, averring that these claims, as well as claims (4) and (5), are “verbatim copies of the arguments contained in his previous Rule 32 petition.” (State’s brief at p. 6.)

In Brooks v. State, 845 So.2d 849 (Ala.Crim.App.2002), this Court stated:

“It is well settled that ‘[t]he failure to administer the oath to the jury renders the jury’s verdict a nullity,’ Dyson v. State, 722 So.2d 782, 785 (Ala.Crim.App.1997), and that ‘if the jury or any member thereof was not sworn, it was not the verdict of a jury.’ Fowler v. State, 261 Ala. 262, 263, 74 So.2d 512, 513 (1954). See also Hines v. State, 238 Ala. 575, 192 So. 423 (1939); Melton v. State, 45 Ala. 56 (1871); and Hill v. State, 582 So.2d 1165 (Ala.Crim.App.1991). However, in Ex parte Deramus, 721 So.2d 242 (Ala.1998), the Alabama Supreme Court recognized that there is a difference in a situation in which no oath is given to jurors at all arid a situation in which there is merely a defect in the oath. In Deramus, the jury venire was administered an oath before voir dire examination, but the petit jury was not administered an additional oath after it was empaneled. The Alabama Supreme Court characterized this as a defective-oath situation, not a no-oath-at-all situation, and recognized that ‘ “any defect in the administration of the oath”’ is reversible error only if ‘ “some objection was taken ... during the progress of the trial, based on [that] defect,” ’ 721 So.2d at 244, quoting § 12-16-173, Ala. Code 1975. Because the appellant had not objected to the defect during trial, the Court held that the appellant’s claim that his conviction was void because the petit jury had not been sworn had been waived. Similarly, this Court has held that claims that the venire was not sworn before voir dire examination are waivable, thus implicitly recognizing that such situations are also defective-oath situations and not no-oath-at-all situations. See, e.g., Fortner v. State, 825 So.2d 876 (Ala.Crim.App.2001); Bryant v. State, 739 So.2d 1138 (Ala.Crim.App.1998); and Sumlin v. State, 710 So.2d 941 (Ala.Crim.App.1998). Because only nonjurisdictional issues can be waived, see, e.g., Mitchell v. State, 777 So.2d 312 (Ala.Crim.App.2000), it is clear that any claim based on a defect in an oath is nonjurisdictional and, therefore, is subject to the procedural bars in Rule 32.2. On the other hand, a claim that no oath was administered at all — i.e., the jury venire and the petit jury were not sworn — would be a jurisdictional issue because, as noted above, a verdict rendered by jurors who have never been sworn is a nullity.”

Brooks v. State, 845 So.2d at 850-51 (footnotes omitted).

In the present petition, claim (2) (that the petit jury was unsworn) and (3) (that the jury venire was unsworn), together present a jurisdictional question, i.e., that no oath was administered at all.

In the previous petition, on which the circuit court relied to find the present claims successive, Jackson argued only that the venire was unsworn. (Supp. C.R. 9-10.) See also this Court’s no-opinion affirmance of the denial of that petition. Jackson v. State (No. CR-02-0866, August 22, 2003), 886 So.2d 183 (Ala.Crim.App.2003) (table) (holding that Jackson’s claim was not jurisdictional because he argued only that the venire was not sworn). The Alabama Supreme Court recently held that, “[although our eases have previously stated that jurisdictional claims cannot be precluded as ‘successive,’ that exception to Rule 32.2(b) applies only to jurisdictional claims not previously raised and adjudicated on the merits.” Ex parte Trawick, 972 So.2d 782, 784 (Ala.2007). Because the jurisdictional transgression alleged in the present petition was not raised in the prior Rule 32 petition, the prohibition against successive petitions contained in Rule 32.2(b) is not applicable. Thus, the State’s assertions on appeal are not well taken, and the circuit court erred in summarily denying Jackson’s claim in the present petition on that procedural ground.

As is noted above, the circuit court summarily denied Jackson’s petition without requiring a response from the State; the sole basis for the denial of those claims was that the claims were successive. Here, Jackson’s claims (2) and (3) are not refuted by the record before this Court. Therefore, we must remand this case for further proceedings. On remand the circuit court may require the State to respond specifically to Jackson’s claims (2) and (3) from his petition. The circuit court may, at its discretion if it determines it appropriate or necessary, conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala. R.Crim.P. The return to remand shall include the circuit court’s written findings of fact and, if applicable, the State’s response and/or a transcript of the evidentiary hearing. The circuit court shall take all necessary action to see that the clerk of the circuit court makes due return to this court at the earliest possible time and within 63 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN and WISE, JJ., concur. SHAW, J., concurs in the result.

       Note from the reporter of decisions: On March 28, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


text:
    Damien Eibe THOMPSON v. STATE of Alabama.
    CR-07-0314.
    Court of Criminal Appeals of Alabama.
    Aug. 29, 2008.

      William J, Moore, Enterprise, for appellant.
    Troy King, atty. gen., and Madeline H. Lewis, asst. atty. gen., for appellee.
   WELCH, Judge.

Damien Eibe Thompson was convicted of possession of a controlled substance, dihydrocodeinone, a violation of § 13A-12-212, Ala.Code 1975. Thompson was sentenced to five years in prison. The trial court also fined him $2,000 as a subsequent offender pursuant to the Drug Demand Reduction Assessment Act and ordered him to pay a $100 assessment to the Forensic Sciences Trust Fund.

The trial was scheduled for August 1, 2007; however, Thompson’s attorney had a conflict because he was scheduled to be in another trial in another county that same day. The Coffee Circuit Court granted a continuance and indicated that it would reschedule Thompson’s trial. Thompson’s attorney notified Thompson that his case would not be going to trial on August 1 and said that he would let him know when the trial was rescheduled.

The trial was rescheduled for August 8, 2007. Thompson’s attorney was notified of the new trial date; however, he was unable to get in touch with Thompson to tell him of the rescheduled date. On August 8, Thompson’s attorney was in court, and the case was called and a jury was struck, but the taking of evidence did not begin on that date. Thompson’s attorney advised the trial court that Thompson was not present. The trial court allowed Thompson’s attorney to try to locate him, but he was unsuccessful in the attempt.

In an order of August 10, 2007, the trial court found that Thompson had notice of that the trial had been rescheduled for August 8, that he had notice of the trial’s location, and that Thompson had been informed of his right to be present at the trial. The court also explicitly found that Thompson’s absence from jury selection “was voluntary and constituted an understanding and voluntary waiver of his right to be present.” (C. 60.) The August 10 order then scheduled the taking of evidence in Thompson’s case to begin on August 17, 2007. A failure-to-appear warrant was also issued for Thompson’s arrest.

Thompson’s attorney then filed a motion asking the court to reconsider or vacate its August 10 order on the ground that the attorney had not been able to get in touch with Thompson and that Thompson had not had notice of the August 8, 2007, date for jury selection in his case. Thompson was not present for trial on August 17, 2007.

In an order of November 19, 2007, the trial court again found that Thompson was aware of the time and place for trial and that he had voluntarily waived his right to be present. The trial court noted that Thompson’s attorney had sent Thompson a letter regarding the time and place of trial. However, our review of the record shows no evidence of the letter.

In the November 19 order, the court also wrote:

“[Thompson] at the hearing acknowledged that he knew the case was set for trial. The case action summary on the court information system indicates notice was sent to the Defendant and his attorney. The Defendant stated at the hearing that his address had changed but he did not notify the court.”

(C. 122.)

The trial court’s order does not specify the “hearing” at which Thompson “acknowledged that he knew the case was set for trial.” In reviewing the record, we find that the only instance in which Thompson appears and addresses the trial court is at the October 5, 2007, sentencing hearing. At the outset of the hearing, the following transpired:

“THE COURT: Mr. Thompson, you understand that you previously had a court date here for a trial, and you didn’t appear for trial? Do you understand that?
“THE DEFENDANT: I wasn’t here, yes, sir.”

(R. 185.)

Thompson’s acknowledgment that he was not at the trial does not equate to an acknowledgment that he knew when his case had been rescheduled for trial. Furthermore, the case-action summary also does not reflect that Thompson was sent notice of the rescheduled trial date. (C. 134-35.)

The record also provides conflicting information from Thompson’s own counsel. At the beginning of jury selection, Thompson’s attorney told the court,

“[Thompson] was at his residence and said he had to go to work [the day of docket call], and I told him I would announce it ready for trial. I don’t know why he’s not here. Like I said, as recent as yesterday, we talked to him to make sure he would be here this morning. We’ve had constant contact with him.”

(R. 8.) After the jury was struck, Thompson still was not present for trial. The trial court asked his attorney whether Thompson had been notified of the trial. The following discussion then took place between Thompson’s attorney and the trial court:

“MR. MOORE [Thompson’s attorney]: My secretary left a message ... with the telephone number that he gave to our office yesterday and told him that there would be a trial today and that he needed to be here. My secretary has not spoken to him personally that I’m aware of. I did not speak to him yesterday. We have in the past—
“THE COURT: Was he previously advised of this trial this week?
“MR. MOORE: We told him that court was the 6th, and then we called him back and told him that I would be in Troy doing a trial there and that we’d call him back and tell him when he needed to be here.”

(R. 51.) The trial court then found that Thompson’s absence from the trial was voluntary and continued without him.

Rule 9.1(a), Ala. R.Crim. P., provides that a defendant has “the right to be present at the arraignment and at every stage of the trial, including the selection of the jury, the giving of additional instructions pursuant to Rule 21, the return of the verdict, and sentencing.”

Rule 9.1(b) provides, in pertinent part:

“[A] defendant may waive the right to be present at any proceeding in the following manner:
“(i) With the consent of the court, by an understanding and voluntary waiver in open court or by a written consent executed by the defendant and by the defendant’s attorney of record, filed in the case.
“(ii) By the defendant’s absence from any proceeding, upon the court’s finding that such absence was voluntary and constitutes an understanding and voluntary waiver of the right to be present, and that the defendant had notice of the time and place of the proceeding and was informed of the right to be present.”

The Committee Comments to Rule 9.1(b), as quoted in Simpson v. State, 874 So.2d 575, 578 (Ala.Crim.App.2003), state:

“Section (b) allows a defendant to waive the right to be present. The defendant may make an express waiver in open court or may waive the right by voluntary absence from the proceeding. See Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973)
“Waiver of the right to be present must be clear and unequivocal. Waiver must be affirmative and positive in nature and made by the defendant personally. Consent or acquiescence of a defendant to a waiver of the right cannot be presumed but must affirmatively appear from the record. Berness v. State, 263 Ala. 641, 83 So.2d 613 (1955). Thus, section (b) allows the court to find an implied waiver only when the defendant has been present at the commencement of the trial and fails to appear at some later stage of the trial. Such a waiver may not be inferred if the defendant has never appeared at trial, except in the case of a minor misdemeanor, which by definition carries no threat of imprisonment. (Emphasis added [in Simpson ].)”

The Simpson court went on to explain why the Committee Comments stating that a defendant had to be present at the commencement of the trial before an implied waiver could be found are no longer necessarily valid.

“In Meadows v. State, 644 So.2d 1342 (Ala.Crim.App.1994), this court considered whether a defendant charged with a felony could be tried in absentia if he was not present at the beginning of trial. We held that, in the absence of affirmative evidence indicating that a defendant has voluntarily waived his right to be present, a defendant charged with a felony cannot be tried in absentia if he is not present at the beginning of his trial. In reaching this decision, we relied on the Committee Comments to Rule 9.1(b), quoted above, and on H. Maddox, Alabama Rules of Criminal Procedure (1990), in which former Justice Hugh Maddox concludes that a court cannot infer a waiver of the right to be present unless the defendant was present at the commencement of the trial. We also relied on Crosby v. United States, 506 U.S. 255, 113 S.Ct. 748, 122 L.Ed.2d 25 (1993), in which the United States Supreme Court held that the Federal Rules of Criminal Procedure do not permit the trial of a defendant who is not present at the beginning of trial. However, the Crosby Court declined to review Crosby’s claim that his trial in absentia was unconstitutional. Therefore, the states may consider this issue in light of their own statutes and procedural rules.
“The Committee Comments to Rule 9.1 and Justice Maddox’s treatise were based on a draft of Rule 9.1 which, like Rule 43, Fed. R.Crim. P., provided that the court may infer waiver of the right to be present if a defendant is absent after his trial has ‘commenced.’ However, Rule 9.1 adopted by the Alabama Supreme Court on May 31, 1990, does not include the ‘commenced’ language. Rule 9.1(b)(ii), Ala. R.Crim. P., currently provides that the court may find that a defendant’s absence was voluntary and that it constituted an understanding and voluntary waiver of his right to be present if the defendant had notice of the time and place of the proceeding and if the defendant was informed of his right to be present. When there is a conflict between a statement found in the committee comments and the plain language of a rule, the rule takes precedence. Ex parte Anderson, 644 So.2d 961 (Ala.l994)(interpreting Rule 27, Ala. R. Civ. P.).”

Simpson, 874 So.2d at 578-79 (footnote omitted).

“[A] defendant is entitled to be present at every stage of his trial; however, in a non-capital felony case, he may waive his right to continuous presence. Young v. State, 455 So.2d 208 (Ala.Crim. App.1984). This waiver must be made by him personally and must indicate an affirmative intention to waive his presence as, for instance, by voluntarily absenting himself from the trial itself. Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Berness v. State, 263 Ala. 641, 83 So.2d 613 (1955); Young v. State, supra; Haynes v. State, 40 Ala.App. 106, 109 So.2d 738, cert, denied, 268 Ala. 546, 109 So.2d 746 (Ala.1959). Where the offense is not capital, a defendant’s voluntary absence, after the trial has begun in his presence, does not void the proceedings up to that point nor prevent the trial court from trying the case to conclusion and operates as a waiver of his right to be present. Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973); Diaz v. United States, supra; Young v. State, supra. A defendant who voluntarily absents himself from his trial proceedings may not later seek to profit from his own action by attacking the validity of the judicial process. Thomas v. State, 395 So.2d 1105 (Ala.Crim.App. 1981).”

Arrington v. State, 773 So.2d 500, 502 (Ala.Crim.App.2000).

In this case, although the trial court’s order references facts that would support a finding that Thompson voluntarily absented himself from jury selection and the trial of his case, the record does not contain evidence in support of those facts. At this juncture, there is no affirmative evidence in the record indicating that Thompson had notice of the time and place of the trial after it was rescheduled. Accordingly, we remand this cause to the circuit court with directions for that court to hold an evidentiary hearing on the issue of whether Thompson waived his right to be present at jury selection and at trial. The circuit court’s return to remand shall include a transcript of the hearing.

The circuit court is further directed to take all necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN and WISE, JJ., concur. BASCHAB, P.J., and SHAW, J., concur in the result.

       Note from the reporter of decisions: On April 10, 2009, the Court of Criminal Appeals dismissed the appeal on Thompson's motion.