author: PITTMAN, Judge.

text:
    Kathy JUDGE v. Timothy JUDGE.
    2070482.
    Court of Civil Appeals of Alabama.
    Jan. 30, 2009.

      Thomas J. Jarvinen, Huntsville, for appellant.
    Stephen M. Kennamer, Scottsboro, for appellee.
   PITTMAN, Judge.

Kathy Judge (“Kathy”), the surviving spouse of Claude Judge (“Claude”), appeals from the judgment of the Jackson Circuit Court determining that a house and lot located at 801 South Houston Street in Scottsboro (“the house”) was not owned in fee simple by Claude at the time he died on June 18, 2004, and thus could not be included in Claude’s estate.

Claude died intestate and was survived by Kathy and by his two children, Jade Judge (“the daughter”) and Timothy Judge (“the son”). Claude had been married three times. Claude first married Charlotte Judge (“Charlotte”) on October 3, 1967, and the son was born of their marriage. A judgment was entered divorcing Claude and Charlotte and incorporating an agreement between those parties in July 1979; the son was approximately six years old at that time. That divorce agreement states, in pertinent part:

“5. That [Charlotte] execute and deliver to [Claude] a deed conveying all her right, title and interest in and to [the house] ... owned by said parties in Scottsboro, Alabama. That [Charlotte] shall have the right to occupy said house ... as a home until such time as she might re-marry. Should [Charlotte] remarry, then at such time, [Claude] shall have the option to sell said house ... with the net proceeds, after deducting only the amount necessary to pay the mortgage now existing on said property, to be payable to the said son of the parties ... if he is 21 years of age at the time of such sale. If [the son] is not 21 years of age at the time of such sale, then said funds shall be deposited in an interest bearing trust account for the benefit of the [the son] with the provision that said funds cannot be withdrawn without the written consent of both [Charlotte] and [Claude] until such time as [the son] reaches the age of 21 years, at which time said funds, together with accrued interest, shall become the absolute property of [the son].
“6. During the time [Charlotte] shall occupy the house ... hereinabove referred to, [Claude] shall pay the house payment on the mortgage upon said property which is presently approximately $165.00 per month which shall be considered as child support for [the son] during the minority of [the son]. If said house ... is sold under the provisions of Section 5 herein during the minority of [the son], then [Claude] shall pay to the clerk of this court $165.00 per month during the remaining minority of [the son] to be paid over to [Charlotte] for the support and maintenance of [the son].”

(Emphasis added.)

Charlotte testified that her understanding of the agreement had been that the son would receive the house, either in trust or in fee simple, on his 21st birthday and that she “wouldn’t have signed the papers [if the parties’ intention had been] otherwise.” Charlotte married another man when the son was 18 years old, but Claude did not sell the house at that time. Moreover, the record indicates that when the son reached the age of 21, title to the house was not transferred to the son.

Claude later married a second woman, Gay Evelyn Johnson Judge (“Evelyn”), but they divorced in February 1980; no children were born of their marriage. Evelyn did not testify at trial, but both Kathy and the son stipulated that her testimony would have been that the house was to be held in trust for the son until he turned 21 years old.

Claude then married Kathy in August 1992, and the daughter was born of their marriage. Kathy filed a complaint seeking a divorce from Claude on January 17, 2003; however, Claude died before a final divorce judgment was entered. In the numerous filings of documents in the estate action and in the divorce action, Kathy never requested the house; for example, Kathy never even mentioned the house in her divorce complaint. Moreover, Claude, in his response to Kathy’s divorce complaint and in his counterclaim in the divorce action, did not mention the house. Additionally, in a document filed by Claude in the circuit court entitled “Inventory and Appraisement,” under a heading labeled “Property Held in Trust for Third Parties,” Claude mentioned only a doll collection and a “piggy bank.” Kathy filed a petition for letters of administration as to the intestate estate of Claude, and the probate court entered an order granting those letters of administration and naming Kathy as administratrix. The son filed a petition tor removal of the estate from the probate court to the circuit court, which was granted. The circuit court ordered Kathy to file an amended inventory and accounting of Claude’s estate. The son filed a motion to remove Kathy as adminis-tratrix of Claude’s estate on May 25, 2005. On August 19, 2005, Kathy filed an amended inventory of the estate, in which she did not list the house; however, that same day, she filed another inventory of the estate, which included the house, and averred that its value was $60,000. The son filed an objection on July 20, 2006, to the inventory in which he claimed that the house was his property and not estate property.

Importantly, the record indicates that, during Claude’s life, he continued to use the house as his own property without any challenges by Charlotte or the son to that use; even after the son had reached 21 years of age, the record indicates, the son did not file any actions or motions in the divorce action involving Claude and Charlotte in which he claimed any interest in the house, nor was any proceeding initiated to force the sale of the house and to distribute the proceeds from such a sale to the son. In fact, Claude had obtained loans secured by a mortgage on the house as recently as 2001, had resided in that home on occasion, and had helped rear the daughter in that home.

After a pretrial conference, a guardian ad litem was appointed to represent the heirship interests of the daughter. The circuit court conducted an ore tenus hearing on June 21, 2007, and issued an order on September 13, 2007, finding that the house was the son’s sole property and was not estate property. The order concluded that the house w7as not due to be distributed to Claude’s hems as part of his estate. In posttrial proceedings, Kathy filed an objection to a notice of sale of the house and filed a motion to direct the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P., which was granted on October 11, 2007. Kathy timely appealed to the Alabama Supreme Court; that court transferred her appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Kathy contends on appeal that the circuit court erred in interpreting the language in the judgment divorcing Claude and Charlotte so as to have created a trust for the son in which the son would own the house in fee simple and in determining that, therefore, the house was not part of Claude’s estate. We agree with Kathy.

This court reviews de novo a trial court’s determination whether an agreement incorporated into a divorce judgment is ambiguous. See Meyer v. Meyer, 952 So.2d 384, 391 (Ala.Civ.App.2006). In R.G. v. G.G., 771 So.2d 490 (Ala.Civ.App.2000), this court stated:

“ ‘[A] settlement agreement which is incorporated into a divorce decree is in the nature of a contract.’ Smith v. Smith, 568 So.2d 838, 839 (Ala.Civ.App.1990). A divorce judgment should be interpreted or construed as other written instruments are interpreted or construed. Sartin v. Sartin, 678 So.2d 1181 (Ala.Civ.App.1996) ‘The words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from them.’ Id. at 1183. Whether an agreement is ambiguous is a question of law for the trial court. Wimpee v. Wimpee, 641 So.2d 287 (Ala.Civ.App.1994). An agreement that by its terms is plain and free from ambiguity must be enforced as written. Jones v. Jones, 722 So.2d 768 (Ala.Civ.App.1998). An ambiguity exists if the agreement is susceptible to more than one meaning. Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990). However, if only one reasonable meaning clearly emerges, then the agreement is unambiguous. Id. Finally, if a provision of an agreement is certain and clear, it is the duty of the trial court to determine its meaning, and the court’s determination is afforded a heavy presumption of correctness and will not be disturbed unless it is clearly erroneous. Id,”

771 So.2d at 494. See also Ex parte Little-page, 796 So.2d 298, 301 (Ala.2001); Van Allen v. Van Allen, 812 So.2d 1276, 1277 (Ala.Civ.App.2001); and Granger v. Granger, 804 So.2d 217, 219 (Ala.Civ.App.2001).

Alabama appellate courts have stated that a court will not look beyond the four corners of a written instrument unless the instrument contains latent ambiguities. E.g., Martin v. First Nat’l Bank of Mobile, 412 So.2d 250, 253 (Ala.1982). “[A] latent ambiguity is one that ‘appear[s] only as the result of extrinsic or collateral evidence showing that a word, thought to have but one meaning, actually has two or more meanings.’ ” Meyer, 952 So.2d at 392 (citing 11 Richard A. Lord, Williston on Contracts § 33:40, at 816 (4th ed.2003)).

In this case, although ample testimony was presented to explain what Charlotte believed the agreement stated, we cannot discern a latent ambiguity in that agreement after thorough examination, and we have not been directed by the son to any term of the agreement that could properly be viewed as latently ambiguous; thus, we cannot properly look beyond the four corners of the pertinent divorce judgment in interpreting its language. See Martin, 412 So.2d at 253. The agreement in this case states that if Charlotte remarried, Claude would have “the option to sell [the] house” (emphasis added), and the proceeds would then to go to the son either directly, if the son had reached the age of 21, or indirectly through a trust. Charlotte remarried when the son was 18 years old, and although Claude had the option to sell the house, he chose not to sell. No language in the agreement mandated that the title to the house would automatically pass to the son at a certain age or that the house would necessarily be sold when the son reached the age of 21. The condition precedent for the son’s receiving the funds derived from the house was Claude’s selling the house; however, since that never occurred, the son did not obtain any interest in the house or its potential proceeds. The pertinent divorce-judgment provision envisions only the son’s receiving the profits obtained from selling the house; the son did not, under that judgment, receive a fee-simple interest in the house.

We conclude that the circuit court erred in determining that the son acquired a fee-simple ownership interest in the house based upon the provisions of the judgment divorcing Claude and Charlotte. The house, therefore, is properly considered a part of Claude’s estate so as to be subject to distribution among all Claude’s heirs, including the son and the daughter. Based on the foregoing facts and authorities, the judgment of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    C.E.W. v. P.J.G.
    2070934.
    Court of Civil Appeals of Alabama.
    Jan. 30, 2009.

      James P. Atkinson, Florence, for appellant.
    Patricia M. Miles, Florence, for appellee.
   THOMPSON, Presiding Judge.

C.E.W. (“the father”) appeals a judgment terminating his parental rights to K.B.T. (“the child”). The allegations in the pleadings filed in this matter indicate that the child’s mother was killed in an automobile accident and that the child has been in the custody of P.J.G. (“the great-aunt”) since September 2005. In April 2007, the father filed a petition seeking to have his paternity of the child adjudicated. On June 14, 2007, the juvenile court entered an order adjudicating the father’s paternity..

Thereafter, the parties reached an agreement allowing the father supervised visitation with the child and requiring him to pay child support. On August 3, 2007, the juvenile court entered an order incorporating the terms of that visitation and support agreement. In its August 3, 2007, order, the juvenile court also required the father to meet certain conditions before the next 90-day review hearing in the matter. Those conditions included that the father obtain stable employment, find a stable residence, have no further arrests or problems with the law, and submit to random drug testing.

On August 28, 2007, S.B. (“the paternal grandmother”) moved to intervene in the matter; in that motion, the paternal grandmother also sought an award of custody of the child. In September 2007, the great-aunt filed a petition seeking to terminate the father’s parental rights. The father responded by denying the material allegations of that petition.

On October 16, 2007, the juvenile court entered an order granting the paternal grandmother’s motion to intervene. However, in its October 16, 2007, order, the juvenile court suspended the father’s visitation rights because of the father’s failure to comply with the conditions for visitation set forth in the August 3, 2007, order. The juvenile court later awarded the paternal grandmother visitation with the child. Thereafter, the paternal grandmother filed a motion seeking to have the great-aunt held in contempt; in that motion, the paternal grandmother alleged that the great-aunt had interfered with her court-ordered visitation. In response, the great-aunt moved to suspend the paternal grandmother’s visitation, arguing that the paternal grandmother had violated certain conditions for her visitation.

The juvenile court conducted an ore ten-us hearing on the great-aunt’s petition to terminate the father’s parental rights. On June 16, 2008, the juvenile court entered a judgment terminating the father’s parental rights. In that judgment, the juvenile court found that the child was dependent, that the father had failed to provide necessary care and support for the child, that the father had abandoned the child, and that the father had failed to maintain any relationship with the child. The juvenile court also concluded that no viable alternatives to the termination of the father’s parental rights existed and that the best interest of the child would be served by the termination of the father’s parental rights. The father timely appealed.

The father was the only witness who testified at the termination hearing. The father testified that he had not visited the child pursuant to the August 3, 2007, order because he thought the parties were still negotiating the terms of the agreement upon which the order was based and that he did not believe that that order had “got put through.” The father’s testimony indicates that he objected to the imposition of the child-support portion of the August 3, 2007, order. The father was unemployed, and he testified that he had not had a job in many years. The father stated that he could not support himself or the child.

The father’s attorney objected to a question inquiring whether the father had difficulty finding employment because he was a convicted felon, and the juvenile court sustained that objection. The father then answered a number of questions, including some from his own attorney, concerning his previous incarcerations. That testimony indicated that the father had been incarcerated for three years in the juvenile system, apparently in Alabama. When the father was 18 years old, he began serving time in a correctional facility in Tennessee, and he was incarcerated in that facility for 4/é years. After his release from the Tennessee prison, the father returned to Alabama. The father testified that he was incarcerated in the Lauderdale County detention center for approximately two months in 2007 and was again incarcerated in February 2008. The father testified that, at the time of the termination hearing, he was again serving time in the Lauderdale County detention center. The father explained that he was incarcerated for failure to appear on outstanding warrants, one of which pertained to a domestic-violence charge. The record contains no evidence pertaining to the nature of the other charges for which the father had been incarcerated during his lifetime.

The father testified that he had known the child’s mother for approximately one month before he was sent to prison in Tennessee; he stated that, during the time he was in prison, the child’s mother had sent him a letter informing him she was pregnant. The father testified that he had never seen the child, but he stated that he had been prevented from doing so. The father acknowledged that he had not complied with the conditions in the August 3, 2007, order; he explained that “I have not adjusted. I’ve not had an easy time adjusting to society. No, it’s not going too good.”

The father also testified that he has another child, the half brother of the child at issue in this matter, who is in the custody of that child’s mother. The father had seen that child before, but he stated that he did not see that child regularly. The father stated that he wanted to see the child at issue in this case and to have her know her half toother. The father was supportive of the paternal grandmother’s request to visit the child, and he stated that the paternal grandmother is “great with the kids.” The father then acknowledged that he is “not a very family-oriented person.”

On appeal, the father first raises an evidentiary issue. The father argues that the juvenile court erred in allowing the great-aunt’s attorney to question him regarding his incarcerations. Numerous questions were asked of the father on the subject of his previous incarcerations. However, the father’s attorney objected to the questioning only twice. In those objections, the attorney stated only that the questions were “improper,” and he did not specify the grounds upon which he was objecting. See Rule 103(a), Ala. R. Evid. (requiring a timely objection that specifies the specific ground on which it is based). Regardless, the juvenile court sustained the objections the father made. However, the great-aunt’s attorney asked additional questions concerning the father’s history of incarcerations, and the father did not object to those questions. The father did not file a motion in limine regarding, or seek a continuing objection with regal’d to the subject of, the father’s incarcerations. Accordingly, we conclude that any challenge to the testimony to which the father failed to object was waived. See Dutton v. Dutton, 490 So.2d 1249, 1250 (Ala.Civ.App.1986) (“Generally, matters not objected to at trial cannot be raised for the first time on appeal.”); Costarides v. Miller, 374 So.2d 1335, 1337 (Ala.1979) (same).

The father also argues that the juvenile court erred in concluding that there were no viable alternatives to the termination of his parental rights.

“In order to terminate parental rights upon a nonparent’s petition, a court must make several findings: First, the court must determine that the child is dependent according to clear and convincing evidence. Second, the court must find that there exists no viable alternative to termination of the parental rights. Ex parte Beasley, 564 So.2d 950 (Ala.1990).”

A.N.S. v. K.C., 628 So.2d 734, 735 (Ala.Civ.App.1993); see also C.J. v. Marion County Dep’t of Human Res., 5 So.3d 1259 (Ala.Civ.App.2008) (same).

The father relies on Ex parte Beasley, supra, in which our supreme court held:

“The two-prong test that a court must apply in a parental rights termination case brought by a custodial parent consists of the following: First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered. (As earlier discussed, if a nonparent [such as the great-aunt in this case], including the State, is the petitioner, then such a petitioner must meet the further threshold proof of dependency.)
“Once the court has complied with this two-prong tesbr-that is, once it has determined that the petitioner has met the statutory burden of proof and that, having considered and rejected other alternatives, a termination of parental rights is in the best interest of the child — it can order the termination of parental rights. Such a construction of the Uniform 1984 Child Protection Act clearly comports with the stated purpose for the Act.”

Ex parte Beasley, 564 So.2d at 954-55

Our supreme court recently reiterated that the party seeking to terminate parental rights has the burden of proving both prongs of the test set forth in Ex parte Beasley, supra. Ex parte T.V., 971 So.2d 1, 4-5 (Ala.2007). In that case, our supreme court explained:

“Justice Smith’s dissent suggests that we have ignored the trial court’s factual findings regarding T.V.’s past and present inability to care for her child. 971 So.2d at 17-20. In fact, it is these factual findings that form the basis of our holding that N.V. continues to be a dependent child. However, this Court must review not only whether N.V. remains dependent, but ulso whether the trial court considered and rejected, based on clear and convincing evidence, the possible viable alternatives before terminating T.V.’s parental rights. See Ex parte Ogle, 516 So.2d [243] at 247 [ (Ala.1987) ] (holding that the party attempting to terminate a parent’s parental rights has the burden to prove, by clear and convincing evidence, that there are no viable alternatives); J.D. v. Tuscaloosa County Dep’t of Human Res., 923 So.2d 303, 307 n. 1 (Ala.Civ.App.2005) (‘When a nonparent such as DHR seeks to terminate parental rights, it must establish by clear and convincing evidence not only that the children are dependent but also that no viable alternative to termination of the parental rights exists.’); D.O. v. Calhoun County Dep’t of Human Res., 859 So.2d [439] at 443 [ (Ala.Civ.App.2003) ] (‘A nonparent who seeks to terminate a parent’s parental rights must prove by clear and convincing evidence that the children are dependent and that there are no viable alternatives to the termination of parental rights.’); A.M. v. Lamar County Dep’t of Human Res., 848 So.2d 258, 259 (Ala.Civ.App.2002) (same). The need to consider all viable alternatives is rooted, in part, in the recognition that the termination of parental rights is a drastic step that once taken cannot be withdrawn and that implicates due process. Thus, the Beasley two-pronged test is designed to protect the welfare of the child while also protecting the rights of parents. [Ex parte] Beasley, 564 So.2d [950] at 952 [ (Ala.1990) ]. The requirement that clear and convincing evidence support the determination to terminate parental rights is based on the need to protect the due-process rights of the parents. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The party seeking to terminate a person’s parental rights thus has the burden of producing clear and convincing evidence that there are no viable alternatives to the termination of paren,-tal rights. Ex parte Ogle, 516 So.2d at 247; see also K.W. v. J.G., 856 So.2d 859, 874 (Ala.Civ.App.2003) (holding that the party seeking to terminate the parental rights of another bears the burden of proving that termination of those rights is the appropriate remedy).
“Further, as noted above, the Court of Civil Appeals has ‘consistently held that the existence of evidence of current conditions or conduct relating to a parent’s inability or unwillingness to care for his or her children is implicit in the requirement that termination of parental rights is based on clear and convincing evidence.’ D.O., 859 So.2d at 444. It is because the termination of parental rights implicates ‘[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child,’ Santosky, 455 U.S. at 753, 102 S.Ct. 1388, that such an exacting level of certainty based on evidence of the parent’s current situation is required. Thus, 'while we must presume under the ore terms rule that the trial court’s factual findings are correct, that rule does not relieve this Court of its responsibility to ensure that those facts clearly and convincingly warrant the termination of parental rights.”

971 So.2d at 8-9 (emphasis added).

In this case, the burden was on the great-aunt, as the party petitioning to terminate parental rights, to present evidence in support of each part of the two-pronged test discussed in Ex parte Beasley, supra. Ex parte T.V., supra. The only evidence presented at the termination hearing was the testimony of the father. That testimony concerned only the issue whether grounds existed pursuant to § 26-18-7, Ala.Code 1975, to warrant the termination of the father’s parental rights. The record contains no evidence on the issue whether there existed viable alternatives to the termination of the father’s parental rights. Thus, the record does not support a conclusion that the great-aunt met her burden with regard to the two-pronged test for the termination of parental rights, nor does it indicate that there was any evidence upon which the juvenile court could evaluate alternatives to the termination of the father’s parental rights. See Ex parte Beasley, supra; Ex parte T.V., supra. Based on the foregoing, we must reverse the juvenile court’s judgment terminating the father’s parental rights.

REVERSED AND REMANDED.

PITTMAN and THOMAS, JJ., concur.

BRYAN and MOORE, JJ., concur in the result, without writing.

      . After the entry of the June 16, 2008, judgment, the father sent a June 23, 2008, handwritten letter to the juvenile court stating, in part, that he was "writing to [the court] to appeal this final [judgment] terminating my parental rights.' The letter contains a notation from the juvenile court purporting to “deny” the filing on that same date, June 23, 2008. The father then, on July 7, 2008, filed a second document, titled "notice of appeal," indicating his desire to appeal the termination judgment and requesting a court-appointed attorney to represent him in the appeal. Both notices of appeal filed by the father are timely. The record also contains an untimely notice of appeal form, filed on July 11, 2008, by the father’s court-appointed attorney.

      . We do not express an opinion whether the testimony on the subject of the father's incarcerations was properly admissible.


text:
    B.V. and D.V. v. MACON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2070785.
    Court of Civil Appeals of Alabama.
    Jan. 30, 2009.

      Robert D. Drummond, Jr., Fairhope, for appellant.
    W. Gregory Ward, Lanett, for appellee.
   THOMPSON, Presiding Judge.

B.V. and D.V. appeal from an order of the Macon Juvenile Court (hereinafter “the trial court”) dismissing them petition seeking custody of their foster child, J.C. (“the child”).

In February 1990, the Macon County Department of Human Resources (“DHR”) filed a petition in which it alleged that the child, who at that time was less than six months old, was a dependent child pursuant to § 12-15-1(10), Ala.Code 1975. On March 12, 1990, the trial court found the child to be dependent and placed the child in the custody of DHR. The child, who is severely disabled, was subsequently placed in foster care in the home of B.V. and D.V.

On April 7, 2000, B.V. and D.V. filed a motion to show cause as to why DHR should not be held in contempt based on what they alleged was DHR’s negligent and willful conduct in providing inappropriate care for the child. They also filed a motion for an emergency dispositional hearing. DHR subsequently moved to dismiss B.V. and D.V.’s motion to show cause on the basis that B.V. and D.V. did not have standing to bring an action against DHR. In support of its motion, DHR cited § 12-15-65(a), Ala.Code 1975, which provides:

“[Fjoster parents who have been approved by the Department of Human Resources providing care to a child shall be given notice and an opportunity to be heard in any hearing to be held with respect to a child in their care, except that no such person shall be made a party to the case by virtue solely of such notice and opportunity to be heard.”

The record indicates that, at a hearing on B.V. and D.V.’s motion to show cause, counsel for DHR argued, among other things, that B.V. and D.V. should be required to file a motion to intervene pursuant to Rule 24, Ala. R. Civ. P.; however, B.V. and D.V. did not do so at that time. On May 18, 2000, the tidal court dismissed B.V. and D.V.’s motion to show cause, finding that they lacked standing to prosecute the motion because they were foster parents. B.V. and D.V. did not seek appellate review of the trial court’s decision to dismiss their motion to show cause.

On September 27, 2000, S.C., the child’s maternal grandmother, filed a petition seeking custody of the child. Two months later, on November 30, 2000, B.V. and D.V. filed a petition seeking custody of the child. The record indicates that the November 30, 2000, custody petition filed by B.V. and D.V. was not verified, as required by § 12-15-52, Ala.Code 1975. On the motion of B.V. and D.V., the trial court consolidated the two custody petitions and instructed counsel for the parties to notify the trial court once the matter was ready for trial. On January 3, 2001, DHR answered B.V. and D.V.’s custody petition.

On February 20, 2001, the trial court, apparently in response to a petition for emergency relief filed by B.V. and D.V., entered an order reaffirming the award of legal custody of the child to DHR. The trial court further ordered that S.C. and B.V. and D.V. share physical custody of the child. On September 20, 2001, in response to a renewed motion for emergency relief filed by B.V. and D.V., the trial court ordered that the child remain in the physical custody of B.V. and D.V., pending a final hearing, and awarded S.C. scheduled visitation with the child. On December 6, 2001, DHR filed a motion for emergency relief seeking to change the child’s placement and to place the child with S.C. pending a final hearing. The record indicates that the child had experienced behavioral problems while attending a public school in Baldwin County, the county in which B.V. and D.V. resided at the time, and that the Baldwin County School Board had advised DHR that it could no longer meet the child’s needs in its special-educational program. The record reveals that the trial court did not rule on DHR’s motion for emergency relief, and the child remained in the physical custody of B.V. and D.V. until the final hearing in this matter.

DHR, B.V. and D.V., and S.C. took no further action for a number of years. On January 19, 2007, DHR filed a motion requesting that the trial court return physical custody of the child to DHR. On March 27, 2007, the trial court entered the following custody order:

“The child is currently 17 years of age, and he was born with serious, permanent medical problems. Shortly after the child’s birth, DHR filed a dependency petition, and the child was adjudicated dependent. The child has remained dependent from then until now. DHR held full legal custody of the child for most of the child’s life. ...
“As part of a 2001 temporary agreement, the court agreed to allow [DHR, B.V. and D.V., and S.C.] to split custody with legal custody to be held by DHR and physical custody to be temporarily shared by [S.C.] and [B.V. and D.V.]. Until then, DHR had held full legal custody. That temporary agreement was to be in place only until the court could hear the pending custody petitions based on an emergency petition for relief filed by [B.V. and D.V.].
“The conditions alleged in the emergency petition are no longer applicable to this case, and therefore, there is no longer any need for the temporary order. The pending custody petitions were set for trial on March 12, 2007. There is no longer any need for such a separation of legal and physical custody and, in fact, it was represented to the court that the separation has either caused or allowed problems. The court is also aware that under the statutory scheme, legal custody ‘vests in a custodian the right to have physical custody of the child and to determine where and with whom the child shall live ....’ along with other duties and responsibilities. Ala.Code [1975,] § 12-15-1(17). It is clearly in the child’s best interest that full legal custody as defined in Ala. Code [1975,] § 12-15-1(17) be held solely by DHR, and that is so ordered effective immediately. The court announced this order in open court and there was no objection by any party.”

The trial court further stated that it “continued the petitions for custody by the child’s family and the foster family” and stated that it would reset those petitions for a hearing upon a motion filed by any party.

On March 17, 2008, DHR filed a motion to dismiss B.V. and D.V.’s November 30, 2000, custody petition. In its motion to dismiss, DHR argued, among other things, that B.V. and D.V. lacked standing to petition for custody of the child and that, therefore, the trial court was without jurisdiction to consider the custody petition filed by B.V. and D.V. On May 8, 2008, the trial court entered an order granting DHR’s motion to dismiss. In its order, the trial court questioned whether B.V. and D.V. had standing to bring- a petition for custody, and it found, in pertinent part, that B.V. and D.V. had failed to file a motion to intervene in the dependency action. B.V. and D.V. timely appealed.

On appeal, B.V. and D.V. contend that the trial court erred when it dismissed their petition for custody on the basis that B.V. and D.V., as foster parents, were precluded from petitioning for custody of the child. In response, DHR contends that B.V. and D.V. failed to intervene in the dependency proceeding, and, therefore, that they were without standing to seek custody.

Rule 24, Ala. R. Civ. P., which governs intervention, states, in pertinent part:

“(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
“(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common....
“(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the parties as provided in Rule 5[ Ala. R. Civ. PJ. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought.”

(Emphasis added.)

The record on appeal contains no motion to intervene filed by B.V. and D.V. in the dependency proceeding. Although the record indicates that the trial court treated an earlier pleading as a motion to intervene by B.V. and D.V., the record reveals that the trial court denied B.V. and D.V.’s purported request to intervene. B.V. and D.V. did not appeal the denial of their purported motion to intervene. See Mars Hill Baptist Church of Anniston, Alabama, Inc. v. Mars Hill Missionary Baptist Church, 761 So.2d 975 (Ala.1999) (recognizing that the denial of a motion for permissive intervention or for intervention as of right is an adjudication of a case or controversy and, therefore, appealable as a final order).

B.V. and D.V. cite this court’s decisions in S.P. v. E.T., 957 So.2d 1127 (Ala.Civ.App.2005), J.P. v. S.S., 989 So.2d 591 (Ala.Civ.App.2008), and J.W. v. N.K.M., 999 So.2d 526 (Ala.Civ.App.2008), in support of them contention that any person is permitted to petition a juvenile court regarding custody of a child who is otherwise properly within the jurisdiction of the juvenile court. In S.P. v. E.T., supra, the child’s paternal aunt and the child’s foster mother petitioned for custody of the child, but they did so only after moving the juvenile court to intervene in a dependency proceeding initiated by the State DHR. The juvenile court subsequently granted the paternal aunt’s and the foster mother’s petitions to intervene. Likewise, in J.P. v. S.S., supra, the child’s aunt and uncle moved to intervene in a dependency action and filed a petition seeking custody of the child; the juvenile court granted the motion to intervene. In J.W. v. N.K.M., supra, the child’s great-aunt initiated a dependency proceeding and also sought an award of custody of the child. Unlike the parties in S.P. v. E.T. and J.P. v. S.S., the record contains no motion filed by B.V. and D.V. to intervene in the dependency proceeding, nor did B.V. and D.V. initiate a dependency proceeding as did the great-aunt in J.W. v. N.K.M.

B.V. and D.V. failed to successfully intervene in the instant case, and, therefore, they are not parties in this case.

“‘Unless a person is a party to a judgment, he can not appeal from that judgment. That fundamental principle is one of the oldest in Alabama jurisprudence.’ Daughtry v. Mobile County Sheriff’s Dep’t, 536 So.2d 953, 954 (Ala.1988). ‘One must have been a party to the judgment below in order to have standing to appeal any issue arising out of that judgment.’ Mars Hill Baptist Church of Anniston v. Mars Hill Missionary Baptist Church, 761 So.2d 975, 980 (Ala.1999) (emphasis added).”

Boschert Merrifield Consultants, Inc. v. Masonite Corp., 897 So.2d 1048, 1051-52 (Ala.2004). B.V. and D.V. lack standing to appeal from the trial court’s judgment. As a result, the notice of appeal filed by B.V. and D.V. failed to invoke the appellate jurisdiction of this court and we must dismiss the appeal. McCollum v. Keating, 5 So.3d 1283 (Ala.Civ.App.2008).

B.V. and D.V. also contend on appeal that their failure to verify the November 30, 2000, custody petition did not deprive the juvenile court of jurisdiction. Because we are dismissing the appeal on the basis that the juvenile court lacked jurisdiction to consider the petition, we need not address this issue.

APPEAL DISMISSED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

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

      . Section 12 — 15—52(b), Ala.Code 1975, provides, in pertinent part, that "[aj petition [filed in the juvenile court] ... shall be verified by the person who signs it.”

      . A copy of B.V. and D.V.'s petition for emergency relief is not included in the record on appeal.


text:
    Linda Gail COLBURN v. Raymond Earl COLBURN.
    2070743.
    Court of Civil Appeals of Alabama.
    Jan. 30, 2009.
    Jason T. Fleishman of Fleishman Law Firm, Tuscaloosa, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Presiding Judge.

Linda Gail Colburn (“the mother”) appeals from an order of the Bibb Circuit Court conferring on Raymond Earl Col-burn (“the father”) primary physical custody of their children. For the reasons stated herein, we dismiss the appeal.

The mother filed a complaint for a divorce from the father on July 14, 2005. She sought, among other things, sole custody of the parties’ three minor children (“the children”). The father answered the mother’s complaint, asserted a counterclaim for a divorce, and, among other things, sought a joint-custody arrangement in which he would have primary physical custody of the children.

On December 5, 2005, following a hearing, the trial court entered a pendente lite order establishing that the parties would have joint custody of the children with the father acting as the children’s primary physical custodian. The order set out a schedule of visitation for the mother and required the mother to pay monthly child support in the amount of $206 to the father. On February 23, 2006, the trial court appointed a guardian ad litem to represent the children’s interests.

On July 13, 2006, following a trial, the trial court entered an order divorcing the father and the mother but reserving jurisdiction to decide the other pending issues. The trial court kept in place the custody arrangement for the children previously set forth in its December 5, 2005, order, pending a final judgment in the case.

On September 7, 2006, following a hearing, the trial court entered a judgment ordering that the father and the mother exercise “true split custody” of the children and establishing a schedule for custody of the children. It determined that, because of its joint-physical-custody award, neither party would be required to pay child support. The trial court stated in its judgment that its decision not to award child support to either party was “a departure from Rule 32, Ala. R. Jud. Admin., as the Rule does not take into consideration the granting of joint legal and physical custody.” The judgment also effected a property division between the father and the mother.

On September 12, 2006, the trial court, apparently on the motion of the father, entered an order setting aside its September 7, 2006, judgment and appointing a new guardian ad litem to represent the children’s interests. The trial court put back in place the pendente lite custody arrangement established in the December 5, 2005, order until such time as the new guardian ad litem made a recommendation to the court regarding custody of the children and the trial court entered an order regarding custody.

On October 2, 2006, after the new guardian ad litem presented a recommendation to the court with regard to custody of the children, the trial court entered a judgment in which it rescinded its September 12, 2006, order, ordered that the September 7, 2006, judgment was to be “in full force and effect,” and ordered the father, the mother, and the children to participate in counseling.

On October 5, 2006, the father filed a motion to vacate the October 2, 2006, judgment pursuant to Rule 59(e), Ala. R. Civ. P. The father argued that the trial court had improperly considered the guardian ad litem’s report because, he asserted, the report did not constitute legal evidence and the court had not provided him the opportunity to rebut the statements in the report or to cross-examine the guardian ad litem. He also argued that the trial court’s decision not to order the payment of child support violated Rule 32, Ala. R. Jud. Admin., and that the record contained no current child-support forms supporting the court’s decision not to award child support.

On January 3, 2007, the mother filed a motion to hold the father in contempt for violating the terms of the September 7, 2006, judgment. She did not pay a filing fee when she filed that motion. The father filed an answer to the mother’s motion to hold him in contempt and a “counterclaim” seeking to hold the mother in contempt for violating the trial court’s orders. He, likewise, did not pay a filing fee when filing his response and “counterclaim.”

On January 22, 2007, the trial court purported to enter a “final decree of divorce” in which it denied the father’s motion to vacate the October 2, 2006, judgment but modified the times at which each party would exercise physical custody of the children.

On June 11, 2007, the trial court held a hearing on the parties’ motions to hold each other in contempt. In an order dated June 21, 2007, the trial court purported to deny both parties’ motions, to set forth additional terms governing the manner in which the parties were to communicate with one another and to conduct the physical-custody exchanges of the children, to further modify the time at which each party would exercise physical custody of the children, and to put measures in place to help ensure that the parties and the children would abide by the terms of the custody arrangement.

On April 7, 2008, the trial court entered an order in which it purported to rescind its previous orders and judgment regarding custody of the children, to grant the parties joint legal custody of the children, to grant the father primary physical custody of the children, to establish a visitation schedule for the mother in the event the parties could not agree on her visitation with the children, and to order the mother to pay monthly child support to the father. The mother timely appealed this order.

The mother contends that the trial court lost jurisdiction over the case after the father’s motion to vacate the October 2, 2006, judgment was denied by operation of law. Thus, she argues, the trial court was without jurisdiction when it entered the April 7, 2008, order and that order is void. We agree.

As previously noted, the trial court entered an interlocutory order divorcing the parties on July 13, 2006, reserving for a later judgment the division of the parties’ marital property and issues related to the custody of the children. On September 7, 2006, the trial court entered a final judgment in the case resolving the outstanding matters between the parties. Although the trial court set its September 7, 2006, judgment aside on September 12, 2006, the trial court reinstated that judgment in its October 2, 2006, judgment. The father’s postjudgment motion, filed on October 5, 2006, was denied by operation of law on January 3, 2007, 90 days after he had filed it. See Rule 59.1, Ala. R. Civ. P. At that point, the trial court lost jurisdiction over the case. See Petrey v. Petrey, 989 So.2d 1128, 1133 (Ala.Civ.App.2008).

As previously indicated, in January 2007 each party filed a motion seeking to have the other held in contempt. However, because the parties filed their motions after the entry of a final judgment in the case, their motions constituted independent proceedings over which the trial court could gain jurisdiction only if the parties paid the filing fees required to commence such proceedings. See Kaufman v. Kaufman, 934 So.2d 1073, 1081-82 (Ala.Civ.App.2005). This court was presented with a similar situation in Kaufman, supra. In that case, the court wrote:

“A motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee. Opinion of the Clerk No. 25, 381 So.2d 58 (Ala.1980); see also Wilcoxen v. Wilcoxen, 907 So.2d 447 (Ala.Civ.App.2005). In Wilcoxen v. Wilcoxen, supra, the trial court entered a judgment divorcing the parties. The husband filed a contempt petition during the time the wife’s postjudgment motion was pending. The trial court denied the wife’s postjudgment motion and scheduled a hearing on the husband’s contempt petition; the wife appealed the divorce judgment. This court noted that the pendency of the husband’s contempt petition, along with another contempt petition filed after the entry of the postjudgment order, did not affect the finality of the divorce judgment from which the wife appealed because the contempt petition initiated a ‘ “separate and independent proceeding” from the underlying action.’ Wilcoxen v. Wilcoxen, 907 So.2d at 449 n. 1 (quoting Opinion of the Clerk No. 25, 381 So.2d at 59).
“In this case, the husband filed his petition seeking the imposition of sanctions based on the wife’s allegedly contemptuous conduct after the entry of the final judgment of divorce. A motion or petition seeking the imposition of sanctions based on a finding of contempt initiates an independent proceeding that requires the payment of a filing fee. Opinion of the Clerk No. 25, supra; see also Wilcoxen v. Wilcoxen, supra. The payment of a filing fee is a jurisdictional act. Farmer v. Farmer, 842 So.2d 679, 681 (Ala.Civ.App.2002). The husband did not pay a filing fee in support of his July 1, 2004, motion. Therefore, the husband did not properly invoke the jurisdiction of the trial court, and its September 22, 2004, contempt order is void for want of subject-matter jurisdiction.”

Id. at 1082 (footnote omitted).

As in Kaufman, supra, neither the father nor the mother paid a filing fee in the present case when filing their respective motions to hold each other in contempt. As a result, the filing of those motions did not vest the trial court with jurisdiction after the father’s Rule 59 motion was denied by operation of law on January 3, 2007. Furthermore, our review of the record fails to disclose any other possible basis for the trial court’s exercise of jurisdiction to modify the custody arrangement between the parties following January 3, 2007.

Because the trial court did not retain jurisdiction of this case after the father’s Rule 59 motion to vacate the October 2, 2006, final judgment was denied by operation of law, and because no postdivorce proceeding has been initiated by either of the parties vesting the trial court with jurisdiction to modify the custody arrangement set out in its October 2, 2006, judgment, the trial court did not have jurisdiction to enter the April 7, 2008, order. As a result, that order is void. See Vann v. Cook, 989 So.2d 556, 559 (Ala.Civ.App.2008) (holding that “[a] judgment entered by a court lacking subject-matter jurisdiction is absolutely void”).

A void judgment will not support an appeal, and “an appellate court must dismiss an attempted appeal from such a void judgment.” Id. As a result, the mother’s appeal is dismissed and the trial court is instructed to vacate its order of April 7, 2008.

APPEAL DISMISSED WITH INSTRUCTIONS.

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

      . Although the record does not contain a copy of a motion, the court's September 12, 2006, order references a motion filed by the father.

      . Pursuant to Rule 59.1, Ala. R. Civ. P., the father's motion to vacate had already been denied by operation of law on January 3, 2007.

      . See note 2, supra.


text:
    Randy GEORGE v. Jacqueline GEORGE.
    2070224.
    Court of Civil Appeals of Alabama.
    Jan. 30, 2009.

      V. Wylynn Gilmore Phillippi, Grove Hill, for appellant.
    Richard S. Manley, Demopolis, for ap-pellee.
   THOMPSON, Presiding Judge.

Jacqueline George (“the wife”) filed a complaint seeking a divorce from Randy George (“the husband”). In her complaint, the wife alleged that the husband had committed adultery, and she sought, among other things, an equitable property division and an award of alimony. The husband answered and counterclaimed, also seeking, among other things, an equitable property division and an award of alimony.

The trial court conducted an ore tenus hearing on March 7, 2007. Later, in response to correspondence sent to the trial court by the wife, the trial court conducted a second hearing. On July 2, 2007, the trial court entered a judgment divorcing the parties, fashioning a property division, and ordering the husband to pay the wife periodic alimony. On July 13, 2007, the trial court entered an order clarifying the periodic-alimony provision of the divorce judgment.

The husband filed a postjudgment motion on July 25, 2007. On October 21, 2007, the trial court, apparently incorrectly concluding that the postjudgment motion had been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., denied the postjudgment motion, concluding that it was “moot.” The husband timely appealed.

The parties were married for 32 years. Two children were born of the parties’ marriage. One child was a minor at the time the wife filed her complaint, but that child had reached the age of majority in the same month in which the trial court entered the divorce judgment.

The husband is disabled as a result of an injury he received in the military and as a result of a later on-the-job injury. The husband receives military-disability income in the amount of $2,400 per month, Social Security disability income in the amount of $1,057 per month, and retirement income from an employer in the amount of $214 per month. The husband’s total monthly income is $3,671. The wife is employed as a security guard, and she occasionally works as a substitute teacher. The wife’s average monthly income is approximately $1,063. The wife testified that she has had colon cancer and that she has diabetes and high blood pressure.

The parties own a house and 2.8 acres of property on which the house is located. The wife testified that she and her family members began the construction of the house. The husband received a lump-sum settlement of a workers’ compensation claim, and it appears that the proceeds of that settlement were used to complete the construction of the house. The parties mortgaged the marital home several times, using the proceeds of subsequent mortgages to repay the previous mortgages. At the time of the March 7, 2007, hearing in this matter, the mortgage indebtedness on the marital home totaled approximately $188,400. The parties valued the marital home at $205,000.

The wife insisted that she simply signed the mortgage papers but that she had no idea what the husband did with the proceeds of the mortgages. The husband disputed that testimony; he stated that he used the proceeds from the various mortgages to repay debts the parties had incurred for items such as furniture for the house.

In 2008, the husband filed a petition for bankruptcy protection. The wife testified that she did not know about the bankruptcy proceeding until approximately three years after it had been filed. The husband disputed that he had not informed the wife of his intention to file for bankruptcy protection. According to the husband, the wife became very angry when he attempted to speak to her about their financial situation and that he decided to proceed with filing bankruptcy. It is undisputed that the parties’ substantial unsecured debt was obtained in the husband’s name and that the wife was not listed as an obligor on any of the unsecured debt that was subject to the bankruptcy proceeding. Pursuant to the plan instituted by the bankruptcy court, the husband was ordered to pay a monthly payment of $771 toward his debts; in addition, the husband was to pay $1,458 per month toward the mortgage indebtedness on the marital home.

At the time of the March 7, 2007, hearing, the wife drove a Nissan truck that was free from indebtedness. The wife testified that she made monthly payments of approximately $170 per month for a vehicle driven by the parties’ youngest child, who was in college at the time of the parties’ divorce. The husband drove a vehicle that he valued at the time he filed his bankruptcy petition at $23,000; the bankruptcy petition indicated that that vehicle was subject to indebtedness of $19,950. The husband’s vehicle was one of the assets subject to the bankruptcy proceeding. The husband testified that he also made monthly contributions toward the support of the parties’ younger child.

The wife had an account with Edward Jones, an investment company, with a balance of $22,258.24 at the time of the March 7, 2007, hearing. The wife testified that she received those funds after her former employer went out of business. The wife denied that the funds were from a retirement account; she insisted that the money had been a gift to her from her former employer. The wife had used funds from that account to pay some bills during the parties’ marriage and during the time the divorce action was pending in the trial court. The trial court found that the Edward Jones account was a marital asset.

After the March 7, 2007, hearing, the wife sent a letter to the trial court stating that she was dissatisfied with the evidence she was allowed to present at the hearing and requesting that she be allowed an opportunity to provide additional evidence. The trial court conducted a second hearing on May 21, 2007, at which it allowed the wife to elaborate on some evidence she had presented in the first hearing. This court’s review of that evidence indicates that it was cumulative of the evidence presented at the original, March 7, 2007, hearing.

In its July 2, 2007, divorce judgment, the trial court, among other things, awarded each party the vehicle in his or her possession and awarded the wife the Edward Jones account. The court awarded each party a one-half interest in the marital home, awarded the wife possession of the marital home, and ordered the husband to continue to make all the mortgage payments through the bankruptcy court. In addition, the trial court ordered the husband to pay the wife $300 per month in periodic alimony for a period of four years.

During the hearing on the husband’s postjudgment motion, the trial court expressed an intention to suspend the husband’s periodic-alimony obligation for a period of 20 months, which corresponded to the remaining length of time that the husband had to continue making the $771 monthly payments to the bankruptcy court. However, the trial court did not enter a postjudgment order modifying its divorce judgment.

On appeal, the husband contends that the trial court erred in conducting the May 21, 2007, hearing. The husband contends that the trial court should not have considered additional evidence after the conclusion of the evidence in the March 7, 2007, hearing. However, the husband did not object before the trial court or argue to that court that the second hearing was improper. The husband may not raise this issue for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.”).

The husband also contends that the judgment should be reversed based on the fact that the trial judge who determined this matter has been removed from office by the Court of the Judiciary. Specifically, the husband alleges that part of the trial judge’s defense before the Court of the Judiciary was that he suffered from diminished capacity. However, the husband did not file a motion pursuant to Rule 60(b), Ala. R. Civ. P., in the trial court seeking relief from the divorce judgment on the basis of a purported incapacity of the trial judge at the time of the entry of the divorce judgment. A ruling on such a motion is necessary for appellate review of such an argument, because this court may not address an issue not presented to the trial court and raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d at 410. Further, the husband has not identified any facts or made any allegations indicating that the trial judge was under any impairment when he ruled in this matter. We decline to reverse the divorce judgment based on this argument.

The husband also contends that the trial court’s property division is inequitable and constitutes an abuse of discretion. The issues of property division and alimony must be considered together. “ ‘[A] property division and the [award of] periodic alimony are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either issue.’ ” Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995) (quoting Montgomery v. Montgomery, 519 So.2d 525, 526 (Ala.Civ.App.1987)). See also Ex parte Foley, 864 So.2d 1094, 1097 (Ala.2003); Pate v. Pate, 849 So.2d 972, 976 (Ala.Civ.App.2002); and Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). Factors the trial court should consider in its award of alimony and in its division of property include the earning ability of the parties; their ages and health; their station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the marriage. Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). A division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).

At the time of the divorce judgment, both parties were 53 years old. The wife testified that she has health concerns including high blood pressure and diabetes. It is undisputed that the husband is disabled. The parties were married for 32 years. Although the wife alleged misconduct on the part of the husband, she presented no evidence substantiating that claim.

The trial court awarded both parties a one-half interest in the marital home. However, it awarded the wife the sole right of possession of the marital home. In addition, the trial court awarded the parties’ only liquid asset, the $22,258.24 in the Edward Jones account, to the wife. The trial court, in effect, ordered the husband to be solely responsible for the debt accumulated during the parties’ marriage.

We recognize that a property division pursuant to a divorce judgment does not have to be equal, only equitable. Golden v. Golden, supra; Crenshaw v. Crenshaw, 717 So.2d 422, 424 (Ala.Civ.App.1998). In this case, however, we must conclude that the property division is inequitable. The divorce judgment requires the husband to continue the $771 payment to the bankruptcy court, to be solely responsible for the $1,458 per month mortgage payment, and to pay the wife $300 per month in periodic alimony. After making the payments required under the divorce judgment, the husband will have $1,142 per month with which to pay for housing and to support himself. The wife’s total income after the divorce judgment will be her earnings of $1,063 per month, plus $300 per month in periodic alimony for the first four years, for a total of $1,363 per month. The wife will have no expense relating to her housing. There are no time limitations or conditions on the award to the wife of possession of the marital home or on the husband’s obligation to make the payments on the marital home, and the divorce judgment is silent on how or when the husband might benefit from his one-half interest in the marital home. Given the foregoing, we conclude that the property division so favors the wife as to render it inequitable. Accordingly, we reverse the trial court’s judgment and remand the cause to the trial court to reconsider the division of the parties’ marital property.

REVERSED AND REMANDED.

BRYAN, THOMAS, and MOORE, JJ., concur.

PITTMAN, J., recuses himself.

      . The husband's postjudgment motion would have been denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on October 23, 2007, the 90th day after the filing of the July 25, 2007, postjudgment motion.

      . Also, the husband has not asked this court for permission to seek relief from the divorce judgment. See Rule 60(b), Ala. R. Civ. P. (permission of an appellate court is needed to file a Rule 60(b) motion seeking relief from a judgment if an appeal from that judgment is pending in the appellate court).

      . The husband's total monthly income is $3,671. From that amount, the husband must pay $771 to the bankruptcy court, $1,458 for the mortgage indebtedness on the marital home, and $300 per month in periodic alimony, which leaves him a disposable income of $1,142 per month.


author: WISE, Judge.

text:
    Johnathan LONG v. STATE of Alabama.
    CR-06-1485.
    Court of Criminal Appeals of Alabama.
    April 4, 2008.

      Johnathan Long, pro se.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Johnathan Long, appeals from the circuit court’s denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P., in which he attacked his September 2003 guilty-plea convictions for kidnapping in the first degree, sodomy in the first degree, and robbery in the first degree, and his resulting sentences of 20 years’ imprisonment for each conviction, to be served concurrently. On June 23, 2006, this Court affirmed Long’s convictions and sentences by an unpublished memorandum. Long v. State (No. CR-05-0094), 978 So.2d 76 (Ala.Crim.App.2006) (table). A certificate ■ of judgment was issued on August 2, 2006.

On March 2, 2007, Long filed this, his first, Rule 32 petition, alleging: (1) that his guilty pleas were involuntary because, he says, he was coerced by counsel to enter the pleas; (2) that the trial court was without jurisdiction to render judgment or to impose his sentence because, he says, he was never indicted by a grand jury, his indictments were void, and the victim never filed any complaints or appeared before a grand jury; (3) that the trial court abused its discretion when it allowed him to plead guilty to charges for which there was insufficient evidence to support a conviction; (4) that his first trial counsel was ineffective because he allegedly failed to challenge the indictment, was complicit in his denial of a speedy trial, allowed DNA evidence to be destroyed, and conducted no pretrial investigation; (5) that his second trial counsel was ineffective because he allegedly failed to ask for a jury trial and coerced him into pleading guilty; and (6) that his appellate counsel was ineffective for failing to file a motion to withdraw his guilty pleas, a motion for new trial, and a writ of certiorari with the Alabama Supreme Court. On April 19, 2007, the State filed its response and a motion to dismiss, arguing that Long’s petition was both pro-eedurally barred and without merit. On May 14, 2007, the circuit court issued an order denying Long’s petition stating:

“[T]he Court having reviewed [Long’s] Rule 32 Petition and the response thereto provided by the District Attorney’s Office on behalf of the State of Alabama, finds that the petition is without merit. The petition is therefore denied and dismissed.”

(C. 3.) This appeal followed.

On appeal, Long reasserts the claims raised in his petition to the circuit court.

Long raises multiple claims in his first Rule 32 petition, including multiple claims of ineffective assistance of trial counsel. Long’s contentions that his counsel was ineffective appear to satisfy the specificity requirements set forth in Rules 32.3 and 32.6(b), Ala.R.Crim.P. Heidelberg v. State, 965 So.2d 799, 803 (Ala.Crim.App.2006). Because Long presented allegations that, if true, would entitle him to relief, the circuit court erred in summarily dismissing this petition. Ex parte Boatwright, 471 So.2d 1257 (Ala.1985).

We recognize the heavy caseload under which the trial courts of this State toil, and we are aware that Rule 32 petitions add to that already heavy burden. However, in this case, we are left with a petition that articulated at least some claims that were minimally sufficient grounds to warrant a response and an order stating no grounds for the denial of the petition.

This case is remanded to the circuit court with the instructions that the court enter a new order that specifically addresses Long’s claims. Should the circuit court deem it necessary to hold an eviden-tiary hearing addressing Long’s claims, the court’s return to remand shall include a transcript of those proceedings. We note that Rule 32.9(d), Ala.R.Crim.P., requires the trial court to “make specific findings of fact relating to each material issue of fact presented.” See also Ex parte Walker, 652 So.2d 198 (Ala.1994); and Smith v. State, 665 So.2d 954 (Ala.Crim.App.1994).

Finally, we note that

“ ‘if the court finds that a particular allegation fails to meet the requirements of specificity of Rule 32.6(b), we encourage the court to so note with particularity in its written findings. It is to do likewise if it finds that a particular allegation fails to state a claim or to present any material issue of fact or law that would entitle [the petitioner] to relief. In other words, the court’s written findings are to address individually each claim not precluded by Rule 32.2.’
“Harper v. State, 676 So.2d 949, 950 (Ala.Crim.App.1995), aff’d on return to remand, 698 So.2d 796 (Ala.Crim.App.1996) (table). Finally, if the court’s findings are based on its personal knowledge of [the petitioner’s] guilty-plea proceedings, then the order should so state. See Sheats v. State, 556 So.2d 1094, 1095 (Ala.Crim.App.1989).”

Dedeaux v. State, 976 So.2d 1045, 1049-50 (Ala.Crim.App.2005). These findings should be contained in the circuit court’s new order ruling on Long’s petition. The trial 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 of the release of this opinion.

REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, J„ concur.

SHAW, J., concurs in the result.

WELCH, J., dissents.

      . In affirming Long’s conviction, this Court stated:
      "Before entering his pleas, Long reserved the right to appeal the trial court’s order denying his motion to dismiss the charges. Long argued in support of his motion to dismiss that critical evidence had been destroyed and was, therefore, unavailable for additional testing. Accordingly, the sole issue presented on appeal is whether the trial court abused its discretion in denying Long’s motion to dismiss the indictments. See Hunter v. State, 867 So.2d 361, 362 (Ala.Crim.App.2003) (’[wjhether a trial court's denial of a motion to dismiss an indictment was error is reviewed under an abuse-of-discretion standard of review').
      "The record reveals the following pertinent facts. On November 4, 2001, the victim, L.D.M., was kidnapped, sexually assaulted, and robbed by three black males. Among other pieces of evidence gathered by the State, a DNA sample was taken from the victim's blue jeans and a sock. The State sent that sample to the Alabama Department of Forensic Sciences ('DFS') for testing, along with a blood sample from Long. DFS received the samples on November 19, 2001, and December 6, 2001, and released its report on August 6, 2002, in which it concluded that DNA found on the victim’s jeans and sock matched Long's DNA.
      "On March 20, 2003, the trial court, on motion by Long, approved up to $2,500 for an independent test of the samples to be made and ordered the Bessemer Police Department to provide the evidence to the UAB School of Medicine's DNA testing lab. UAB received the victim's jeans and sock on March 28, 2003; it received Long's blood sample on April 25, 2003. On May 7, 2003, UAB released its report in which it also concluded that Long could not be excluded as a possible contributor to the sample taken from the victim's sock and that the DNA found on the victim's jeans matched Long's DNA.
      “On September 23, 2003, Long entered conditional guilty pleas to first-degree robbery, first-degree kidnapping, and first-degree sodomy. Sentencing was deferred pending Long's cooperation with the State in prosecuting the other men involved in the assault and a recommendation by the State as to the sentences. On November 9, 2004, UAB faxed a copy of a form to Long's attorney, Garry Abbott, seeking permission to destroy the evidence in its possession. Abbott executed that form and returned it to UAB on November 9, 2004, assuming, according to the trial court, that he was agreeing only to the destruction of the blood sample that had been provided by Long. On June 20, 2005, Long filed a motion seeking to enforce an agreement that he said he had with the State that he would receive 20-year split sentences in exchange for his cooperation. The trial court denied that motion, but set aside his guilty pleas and set the case for trial.
      “At a pre-trial hearing on September 13, 2005, Long, who was then represented by new counsel, moved to dismiss the charges, arguing that UAB’s destruction of the evidence precluded him from having the DNA sample from the victim's jeans and sock tested again by an independent lab. Long argued that the lab at UAB had lost its accreditation at the time it analyzed the sample and that he was prejudiced by his inability to have the sample independently tested by an accredited lab. Long also argued that he was prejudiced by the fact that his previous attorney, Abbott, had a conflict of interest, in that he might be called as a witness by the State to testify that he had approved the destruction of the evidence. The State argued that it did not order the destruction of the evidence and that it was not culpable in connection with the destruction of the evidence. No evidence was presented as to the accreditation status of UAB's DNA lab at the time it analyzed the DNA sample taken from the victim’s clothes. Although it expressed concern over the destruction of the evidence, the trial court denied Long’s motion to dismiss and accepted Long’s guilty pleas.
      "For this Court to find a violation of due process because the evidence was destroyed by UAB, we must consider 1) the culpability of the State, 2) the materiality of the destroyed evidence, and 3) the sufficiency of the other evidence, in order to determine whether Long suffered substantial prejudice. See, e.g., Grimsley v. State, 678 So.2d 1197 (Ala.Crim.App.1996), discussing Ex parte Gingo, 605 So.2d 1237 (Ala.1992). The record in the present case indicates that the State was in no way responsible for the destruction of the evidence. Long's attorney authorized UAB to destroy the DNA sample taken from the victim's clothes. Although UAB had been in possession of the evidence for over a year and a half when it received authorization from Abbott to destroy the evidence on November 9, 2004, Long had entered conditional guilty pleas on September 23, 2003, based, at least in part, on UAB’s test results that implicated him in the assault on the victim. As the trial court noted, the State could have taken steps to retrieve or secure the evidence after UAB released its report; however, based on our examination of the record, we find no bad faith on the part of the State and no culpability that would weigh heavily in Long’s favor. Furthermore, Long received from UAB an independent analysis of the DNA sample taken from the victim’s clothes. The results of that analysis were not favorable to Long. Although Long's counsel asserted that UAB had lost its accreditation at the time it performed its analysis, no evidence was introduced to substantiate that assertion. Thus, because he offered no evidence indicating that the UAB analysis was unreliable, Long did not establish that the destroyed evidence was material to his defense. For all that appears in the record, Long asked for, and received, an independent analysis of the evidence. Finally, although there was no trial, the record suggests that the State could have submitted other evidence of guilt at trial. The record indicates that the victim was able to give the police a physical description of each of the men who assaulted her. Witnesses also saw Long at one of the locations where the assault occurred, i.e., an abandoned trailer, and items relevant to the case, i.e., a walkie talkie and a towel ‘from a motel' (R. 4), were found in Long's vehicle when he was arrested. The victim reported to the police that her attackers had communicated with walkie talkies. The towel may have come from the Marriott Hotel in Homewood, where the assault on the victim apparently began. In addition. Long made a statement to the police ‘that he didn't hurt the women [sic] and asked what was in it for him if he told who else was involved.' (R. 4.)
      “Based on our review of the record, we conclude that the State was not culpable in the destruction of the evidence and that the evidence destroyed was not so critical to the defense as to deny Long due process and make his convictions fundamentally unfair.
      "As for Long's argument that he was denied conflict-free counsel because Abbott had authorized UAB to destroy the evidence, the record indicates that Long was not represented by Abbott when he entered his guilty pleas on September 13, 2005. Long had new counsel at that stage of the proceedings. We find no merit in this argument."

       Note from the reporter of decisions: On October 17, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On December 5, 2008, that court denied rehearing, without opinion. On February 13, 2009, the Supreme Court denied certiorari review, without opinion (1080356).


author: WELCH, Judge.

text:
    Jerry Kenneth GLASS v. STATE of Alabama.
    CR-06-2058.
    Court of Criminal Appeals of Alabama.
    May 30, 2008.

      Joe W. Morgan III, Birmingham, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WELCH, Judge.

Jerry Kenneth Glass was convicted of four counts of reckless endangerment, a violation of § 13A-6-24, Ala.Code 1975, and one count of criminal mischief in the second degree, a violation of § 13A-7-22, Ala.Code 1975; all the counts arose out of one incident in which Glass intentionally struck a vehicle from behind with his vehicle. Glass was sentenced to 32 months in jail on each count, the sentences to be served consecutively. The trial court split the sentence, and ordered Glass to serve 12 months and suspended the 4 remaining years for 2 years.

The evidence adduced at trial tended to show the following. In the spring of 2007, Glass’s wife left him, and Glass believed she was seeing another man. Glass’s behavior became erratic. One night in the week before the incident made the basis of this prosecution, Glass telephoned a friend, Melanie Phillips, and asked her to drive him to a restaurant because he believed that his wife would be there with the man. Phillips testified that as they drove, Glass kept looking into cars and asking her to follow some, looking for his wife. In the restaurant parking lot, Phillips said, Glass would look into cars or go up to groups of people leaving the restaurant thinking his wife was with them. Phillips eventually left Glass in the parking lot at about 11:00 p.m. She then telephoned his parents and described his behavior to them.

Christy Claunch, an assistant manager at the restaurant, testified that she received a telephone call from Glass’s father asking her to check on Glass. She said she found Glass in the parking lot, and that he ran toward her from some bushes. He yelled at her to stay away from a certain car, because, Glass told her, it belonged to his wife. Claunch said that actually, the car belonged to one of her employees. She said that Glass also believed that he saw his wife in several cars in the parking lot. She waited with Glass until his parents arrived. Glass then got in their car and left.

Claunch described Glass as “scruffy,” and she said that he was nervous and excited. She testified that she did not smell any alcohol about him, but that, based upon his behavior, she suspected he was under the influence of drugs.

Some nights later, on the night of March 17 or in the early morning hours of March 18, 2007, a group of four teens who had attended the senior prom at Lexington High School were traveling back and forth on Highway 71 going to a friend’s house for a post-prom party after having picked up a video game at another friend’s house. Josh Hunt was driving the group in his father’s Ford F-150 pickup truck.

Phillips and several other people, including Glass’s sister, Amanda, were at Glass’s house that same night. Amanda said that Glass received a telephone call from his wife and that his wife apparently taunted Glass about his Chevrolet Tahoe sport-utility vehicle. Phillips said the group at Glass’s house saw a white pickup truck drive down the highway in front of the house three times, and Glass became convinced that his wife was in the truck. He left the house and drove off in the Tahoe, following the pickup truck.

Hunt testified that as he was returning to the party, he saw a truck pull up behind him flashing its headlights. Hunt said he pulled over to the side of the road, put his head out the driver’s side window, and saw Glass, whom he knew, walking toward him. Glass was “screaming and hollering,” and Hunt drove off. Glass got back into the Tahoe and chased Hunt’s pickup truck down the highway.

Hunt said that as they traveled down the highway, Glass began bumping the back end of the truck with his Tahoe. The bumps got progressively harder. Hunt said Glass would let a short distance develop between the vehicles, then Glass would accelerate and hit the truck. Hunt estimated that the truck was hit between 5 and 10 times. Eventually Glass turned around and Hunt and his friends continued on to their friend’s house.

Diane Gower, who lives near Glass, testified that on the night of the prom at Lexington High School, she was awakened about 1:00 a.m. by the sound of her door slamming. She said Glass was at her door saying that he had chased a truck he thought was his wife was in so that he could run it off the road, but that his wife had not been one of the occupants. Gower said that Glass told her he had been drinking and that he did not want to be arrested for driving under the influence of alcohol but that he planned to turn himself in the next morning. Gower confirmed that Glass smelled of alcohol and that he acted as though he was drunk.

Ronnie Hunt, Josh’s father, testified that he allowed Josh to drive the Ford F-150 the night of the prom. He said that he had an estimate from a body shop that repairs to the truck as a result of the incident would cost about $2,000.

I.

Glass contends that the trial court erred in denying his motion for a mental examination to determine his competence on the night of the offense. Specifically, Glass argues that he presented sufficient evidence at a hearing on his motion to call into question his competency on that night.

“ “ ‘A defendant does not have a right to a mental examination whenever he requests one, and, absent such a right, the trial court is the screening agent of such requests. Robinson v. State, 428 So.2d 167 (Ala.Crim.App.1982); Beauregard v. State, 372 So.2d 37 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979). The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant’s mental competency, and this is a matter within the discretion of the trial court. Miles v. State, 408 So.2d 158 (Ala.Crim.App.1981), cert. denied, 408 So.2d 163 (Ala.1982). In determining whether an investigation into the defendant’s [competency] is required, the trial court must determine if any factual data establish a reasonable ground to doubt the defendant’s [competency]. Beauregard, 372 So.2d at 43. Where the trial court finds that the evidence presents no reasonable grounds to doubt the defendant’s [competency], the standard of appellate review is whether the trial court abused its discretion. Id.”
“ ‘Cliff v. State, 518 So.2d 786, 790 (Ala.Crim.App.1987). See also Stewart v. State, 562 So.2d 1365 (Ala.Crim.App.1989); Russell v. State, 715 So.2d 866 (Ala.Crim.App.1997); Ala. R.Crim.P. 11.’
“Ingram v. State, 779 So.2d 1225, 1270-71 (Ala.Crim.App.1999), aff’d, 779 So.2d 1283 (Ala.2000).”

Harrison v. State, 905 So.2d 858, 861 (Ala.Crim.App.2005).

“Only when the evidence presents a sufficient doubt as to the defendant’s sanity is an investigation into his sanity required. Buttram v. State, 338 So.2d 1062 (Ala.Crim.App.1976); Gales v. State, 338 So.2d 436 (Ala.Crim.App.), cert. denied, 338 So.2d 438 (Ala.1976); Buttram v. State, 57 Ala.App. 425, 329 So.2d 114, cert. denied, 295 Ala. 394, 329 So.2d 116 (1976).
“ ‘Before the trial judge suspends the normal course of criminal proceedings and conducts a jury inquiry into the “fact of sanity” there must come to his attention factual data, tending to show “reasonable ground to doubt (the accused’s) sanity.” The court has discretion to determine if the underlying factual basis said to exist does in fact exist, and whether such factual basis constitutes “reasonable ground to doubt (the accused’s) sanity.” ’ Brinks v. Alabama, 465 F.2d 446, 450, (5th Cir.1972), cert. denied, 409 U.S. 1130, 93 S.Ct. 940, 35 L.Ed.2d 263 (1972).
“Where the trial court finds that there are no reasonable grounds to doubt the accused’s sanity, the standard of appellate review is whether the trial judge abused his discretion. Pace v. State, 284 Ala. 585, 226 So.2d 645 (1969); Wheeler v. State, 47 Ala.App. 457, 256 So.2d 197 (1971).
“In determining whether a reasonable doubt as to sanity exists, the trial judge may make investigation and hear evidence. Thomas v. State, 357 So.2d 1015, 1018 (Ala.Crim.App.1978).”

Beauregard v. State, 372 So.2d 37, 43 (Ala.Crim.App.1979).

“In Ake v. Oklahoma, the United States Supreme Court held that ‘when a defendant demonstrates, to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination.... ’ Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).”

Burgess v. State, 962 So.2d 272, 291 (Ala.Crim.App.2005).

To show legal insanity at the time of the offense, Glass would have to demonstrate that he “suffered from a mental disease or defect preventing him from appreciating the nature and quality or wrongfulness of his acts.” Morris v. State, 956 So.2d 431, 442 (Ala.Crim.App.2005); Flowers v. State, 922 So.2d 938, 956 n. 4 (Ala.Crim.App.2005); § 13A-3-1(a), Ala.Code 1975.

In this case, the trial court held a hearing on Glass’s motion seeking a mental examination to determine his competency at the time of the offense. Glass presented evidence tending to show that in the week before the incident made the basis of this prosecution, he had exhibited odd behavior. His wife had left him, and he believed she was seeing another man. As a result, he was depressed and upset. Glass believed he saw his wife in various vehicles as he rode around town. He also believed that she would be at a certain restaurant one night, so he watched the cars in the restaurant parking lot, believing his wife to be in the cars or with people who were leaving the restaurant.

Phillips said that a few days after Glass had her drive him to the restaurant, she made an appointment for him to see a physician, Dr. Wompler. She testified that Dr. Wompler prescribed Ativan, an anti-anxiety medication, for Glass, but that Glass had an adverse reaction to the drug, and a prescription for Paxil was substituted for Ativan. Dr. Wompler did not testify at the hearing, but the prosecutor offered into evidence a letter written by Dr. Wompler stating he first prescribed anti-anxiety medication on March 12, 2007. Glass agreed to the admission of the letter, and it was received into evidence.

From this evidence, the trial court could have found that Glass failed to present a factual basis that there were reasonable grounds to doubt his sanity or competency at the time of the offense. Glass’s evidence indicated that he acted in an odd manner on one night about a week before he intentionally struck Hunt’s truck. Evidence regarding his behavior the night of the incident, however, tends to show that he was not acting oddly, but that he became agitated when his wife telephoned to taunt him about his Tahoe. He saw a truck pass his house a number of times and believed his wife was in it, so he went after the truck to confront her.

Glass presented no medical or expert testimony that would indicate that he suffered from a mental disease or defect and that he was unable to appreciate the nature and quality of the wrongfulness of his act.

Based on the evidence in the record, we find that the trial court did not abuse its discretion in finding that Glass failed to demonstrate that there were reasonable grounds to doubt his sanity at the time of the offense and that Glass’s sanity at the time of the offense would not be a significant factor at trial.

II.

Glass contends that he was not allowed to present a complete defense in this case because, he says, in denying his motion for a mental examination, the trial court improperly made the ultimate decision as to whether he in fact suffered from a mental disease or defect rather than deciding whether a mental examination was proper.

As mentioned above, “‘[a] defendant does not have a right to a mental examination whenever he requests one, and, absent such a right, the trial court is the screening agent of such requests. Robinson v. State, 428 So.2d 167 (Ala.Crim.App.1982).’ ” Ingram v. State, 779 So.2d 1225, 1270 (Ala.Crim.App.1999) (quoting Cliff v. State, 518 So.2d 786, 790 (Ala.Crim.App.1987)). Here, the trial court properly acted as the “screening agent” when it determined that there was insufficient evidence from which to find a reason to doubt Glass’s sanity at the time of the offense. We have already determined that the trial court did not abuse its discretion in denying Glass’s request for a mental examination. This issue is without merit.

III.

Glass contends that he was improperly convicted of and sentenced for multiple counts of reckless endangerment although, he says, he committed only a single offense and that those convictions and sentences therefore violate the prohibition against double jeopardy. Because the convictions violate double-jeopardy principles, Glass claims, the trial court did not have jurisdiction to sentence him for each conviction.

The Alabama Supreme Court has previously decided this issue adversely to Glass.

“In [Ex parte ] McKinney, [511 So.2d 220] [ (Ala.1987) ], the Alabama Supreme Court adopted the position of the majority of states that allow for multiple convictions when more than one person is injured as the result of a single act. In so holding, the McKinney court stated:
“ ‘Adoption of the majority view would place Alabama among those states that have recognized that punishment for a criminal act should be commensurate with the act itself and the injury caused by that criminal act. Absent statutory or constitutional obstacles to the adoption of the majority view, logic and reason persuade us to henceforth apply the principle that a single criminal act that causes injury to more than one person may constitute more than one offense and may support more than one prosecution and conviction.
“ ‘... [W]e also hold that henceforth §§ 13A-l-8(b) and 15-3-8 will allow more than one prosecution and conviction when more than one person is injured as a result of a single criminal act.’
“McKinney, supra, at 225.”

Sims v. State, 663 So.2d 975, 978 (Ala.Crim.App.1994). The Alabama Supreme Court has also explicitly recognized that the majority view adopted in McKinney also permits multiple convictions in cases in which the defendant acted with reckless intent. McKinney, 511 So.2d at 223.

Glass’s argument in this case ignores the fact that he placed the well-being of four people at risk when he rammed the pickup truck with his sport-utility vehicle. In other words, four people were harmed by his reckless conduct; therefore, under Ex parte McKinney, 511 So.2d 220 (Ala.1987), four convictions of reckless endangerment were warranted in this case. Furthermore, because Glass’s convictions did not violate double-jeopardy principles, the trial court properly sentenced him for each of the four counts of reckless endangerment for which he was convicted.

IV.

Glass contends that the State presented insufficient evidence to sustain his conviction for criminal mischief in the second degree. Specifically, Glass contends that the State failed to prove that the amount of damages incurred in the incident reached the threshold amount for a conviction of second-degree criminal mischief.

“A person commits the offense of criminal mischief in the second degree if, with intent to damage property, and having no right to do so or any reasonable ground to believe that he or she has such a right, he or she inflicts damages to the property in an amount which exceeds five hundred dollars ($500) but does not exceed two thousand five hundred dollars ($2,500).”

§ 13A-7-22(a), Ala.Code 1975.

During the trial of this case, Ronnie Hunt, the owner of the pickup truck, testified that he was going to have to pay $2,000 to have the damage to the truck repaired. Glass objected on the grounds of hearsay after the answer was given but did not move to strike the response; thus, any error in admitting hearsay evidence of the estimate to repair the vehicle was not preserved.

On appeal, Glass argues that evidence of repair cost is not a proper method of proving the amount of damage to property under § 13A-7-20-23, Ala.Code 1975.

Glass did not present this specific argument to the trial court, and thus it was not preserved for the purpose of appeal.

A motion for a new trial will not preserve for appellate review issues that arose during trial that were not objected to at the time they arose. See Trawick v. State, 431 So.2d 574, 578-79 (Ala.Crim.App.1983) (“The grounds urged on a motion for a new trial must ordinarily be preserved at trial by timely and specific objections.”). The motion for a new trial was denied on the day it was filed, apparently without a hearing.

V.

Glass was convicted and adjudged guilty of five separate Class A misdemeanors. The trial court sentenced him to 5 consecutive 12-month terms in the county jail. However, the court then treated the 5 separate sentences as one 5-year sentence and suspended all but 12 months of the sentence under the split-sentence act. The court did not impose any probationary term on Glass during the period of the suspension.

There is no authority allowing the court to aggregate separate misdemeanor sentences and treat them as one sentence in the aggregate under the split-sentence act.

If a sentence is outside the limit provided by statute then no objection has to be made to preserve this issue for review. Ex parte Brannon, 547 So.2d 68 (Ala.1989). We are required to notice an illegal sentence and remand to the sentencing court for a proper sentence. See, e.g., Kennedy v. State, 929 So.2d 515, 523 (Ala.Crim.App.2005); and Mosley v. State, 986 So.2d 476 (Ala.Crim.App.2007).

Based on the foregoing, Glass’s convictions are affirmed. However, because his sentence is illegal, we remand this cause for the circuit court to resentence Glass in a manner consistent with this opinion. Due return shall be made to this Court within 35 days of the release of this opinion.

AFFIRMED AS TO CONVICTIONS; REMANDED AS TO SENTENCING.

BASCHAB, P.J., and McMILLAN and WISE, JJ., concur.

SHAW, J., concurs in the result.

       Note from the reporter of decisions: On August 22, 2008, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On October 10, 2008, that court denied rehearing, without opinion. On February 13, 2009, the Supreme Court denied certiorari review, without opinion (1080118).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Randolph WIGHTMAN, Respondent.
    No. SC08-1240.
    Supreme Court of Florida.
    July 2, 2009.
    Bill McCollum, Attorney General, Tallahassee, Florida, Robert J. Krauss, Bureau Chief, Anne Sheer Weiner, and Elba C. Martin-Schomaker, Assistant Attorneys General, Tampa, Florida, for Petitioner.
    J. Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction to review the decision of the Second District Court of Appeal in Wightman v. State, 982 So.2d 74 (Fla. 2d DCA 2008), based on express and direct conflict with State v. Generazio, 691 So.2d 609 (Fla. 4th DCA 1997), and Lazarowicz v. State, 561 So.2d 392 (Fla. 3d DCA 1990). After further consideration, we conclude that jurisdiction was improvidently granted. Accordingly, we hereby discharge jurisdiction and dismiss review.

It is so ordered.

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