text:
    E.S.R., Jr. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2060800.
    Court of Civil Appeals of Alabama.
    March 28, 2008.
    Rehearing Denied June 13, 2008.

      E.S.R., Jr., pro se.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst, at-tys. gen., for appellee Department of Human Resources.
   MOORE, Judge.

E.S.R., Jr. (“the father”), appeals from an order dated May 30, 2007, denying his motion for relief from a series of judgments entered by the Madison Juvenile Court. We affirm.

Jurisdiction

Although neither party has raised the issue of jurisdiction before this court, “ ‘jurisdictional issues are of such significance that a court may take notice of them ex mero motu. Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002).’ ” D.V.P. v. T.W.P., 905 So.2d 853, 855 (Ala.Civ.App.2005) (quoting Heaston v. Nabors, 889 So.2d 588, 590 (Ala.Civ.App.2004)).

This appeal arises from juvenile proceedings; therefore, the Rules of Juvenile Procedure govern this action. Rule 1(A), Ala. R. Juv. P. Rule 1(B), Ala. R. Juv. P., provides:

“All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after the entry of judgment and shall not remain pending for more than 14 days.”

In this case, the juvenile court entered a series of judgments between October 5, 2003, and August 25, 2006, in a dependency proceeding. The father filed a notice of appeal on August 29, 2006. On February 19, 2007, while his appeal was pending, the father filed a motion with this court for leave to file a Rule 60(b), Ala. R. Civ. P., motion with the juvenile court. This court granted the motion on February 28, 2007. The father’s court-appointed counsel filed a document entitled “Motion for Relief from Judgment” on March 6, 2007. The juvenile court set that motion for a hearing on May 18, 2007. However, on May 7, 2007, the father filed his own “Motion for Relief from Judgment,” along with a motion to strike the March 6, 2007, “Motion for Relief from Judgment.” The juvenile court held a hearing on the father’s motions on May 18, 2007, and entered an order denying the motions on May 30, 2007.

The father’s postjudgment motions are deemed to have been filed on February 19, 2007. See Rule 60(b) (“If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court.”). In the first motion, the father sought to have two judgments, one entered on December 15, 2005, and one entered on August 25, 2006, set aside on the grounds of mistake and excusable neglect as set out in Rule 60(b)(1), newly discovered evidence as set out in Rule 60(b)(2), misconduct of an adverse party as set out in Rule 60(b)(3), and ineffective assistance of counsel under Rule 60(b)(6). In the second motion, the father sought to have five judgments set aside on the ground that the judgments were void as set out in Rule 60(b)(4), that they had been procured by fraud upon the court, and that he had received ineffective assistance of counsel under Rule 60(b)(6). If the Rule 60(b) motions are considered “post-judgment” motions, pursuant to the strict terms of Rule 1(B), the juvenile court could not entertain them because they were not filed with 14 days of the entry of any of the judgments being challenged.

However, in Ex parte R.S.C., 853 So.2d 228, 233-34 (Ala.Civ.App.2002), this court held that Rule 60(b) motions do not fall within Rule 1(B) because they form “a collateral attack on the judgment” that “does not affect the finality of the judgment or suspend its operation.” Based on R.S.C., the failure of the father to file his Rule 60(b) motions within 14 days of the entry of the challenged judgments does not automatically divest the juvenile court of jurisdiction.

Although the time limitations established in Rule 1(B) do not apply, the father still had to comply -with the time limitations set out in Rule 60(b). Rule 60(b) states that motions for relief from a judgment based on reasons set out in subdivisions (1), (2), and (3) “shall be made within a reasonable time and ... not more than four (4) months after the judgment, order, or proceeding was entered or taken.” See Bryant v. First Tuskegee Bank, 866 So.2d 1139, 1142 n. 1 (Ala.Civ.App.2002), overruled on other grounds, Ex parte Full Circle Distrib., L.L.C., 883 So.2d 638 (Ala.2003). Hence, the juvenile court did not have jurisdiction to consider the father’s motions asserting grounds under Rule 60(b)(1), (2), and (3) that were filed well beyond four months after the entry of the final August 25, 2006, judgment.

In Ex parte E.D., 111 So.2d 113 (Ala.2000), our supreme court held in a termination-of-parental-rights case that “under certain circumstances,” when a parent cannot reasonably file a claim of ineffective assistance of counsel within the period established for the filing of motions for a new trial, a parent may file a Rule 60(b)(6) motion - based on ineffective assistance of counsel within a reasonable time following the judgment. Ill So.2d at 116. The court also noted that'“Rule 60(b) allows a trial court to entertain an independent action ‘within a reasonable time and not to exceed three (3) years after the entry of the judgment,’ ” id., to, among other things, “set aside a judgment for fraud upon the court.” Rule 60(b). Our supreme court also ruled in Ex parte Full Circle Distribution, L.L.C., supra, that a motion for relief from a void judgment filed pursuant to Rule 60(b)(4) may be made at any time after rendition of the judgment. Taking these cases together, it appears that the juvenile court did have jurisdiction to consider the father’s motions to set aside the judgments as void under Rule 60(b)(4), to set aside the judgments based on ineffective assistance of counsel under Rule 60(b)(6), and to set aside the judgments due to fraud upon the court under Rule 60(b). Therefore, on this appeal, we review the judgment on the father’s Rule 60(b) motions only to determine if the juvenile court erred in failing to grant the father’s motions on those grounds.

Rule 60(b) (Ip) Claims

The father argues that the juvenile court erred in failing to declare five judgments void. The father argues that the first judgment, entered on October 8, 2003, is void because of lack of personal jurisdiction and that the judgments entered on April 6, 2004, October 31, 2005, May 2, 2006, and August 25, 2006, are void because they were procured in a manner inconsistent with due process.

When considering an appeal from the denial of a Rule 60(b)(4) motion,

“ ‘[t]he standard of review ... is not whether there has been an abuse of discretion.... If the judgment is valid, it must stand; if it is void, it must be set aside. A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties, or if it acted in a manner inconsistent with due process.’ ”

Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1062 (Ala.2006) (quoting Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala.1991)). The father, as the party asserting lack of personal jurisdiction and lack of due process, had the burden of proving those grounds. See Seymore v. Taylor, 716 So.2d 1216 (Ala.Civ.App.1997).

On October 8, 2003, the juvenile court adopted the order of a referee, finding E.S.R III (“the child”) and two of his half siblings dependent and awarding shelter-care custody to the Madison County Department of Human Resources (“DHR”). The father argues that the October 8, 2003, judgment is-void because, he says, he was not provided service of summons and was not notified of his right to counsel before the September 5, 2003, hearing upon which the October 8, 2003, judgment was based.

When a child is not released from shelter care as provided in Ala.Code 1975, § 12-15-58, the law requires a petition to be filed within 72 hours to determine whether continued shelter care is required. Ala.Code 1975, § 12-15-60(a). Pursuant to Ala.Code 1975, § 12-15-60(b):

“Notice of the detention or shelter care or other care hearing, either oral or written, stating the time, place and purpose of the hearing and the right to counsel shall be given to the parent, guardian or custodian if they can be found ....”

Although Rule 13, Ala. R. Juv. P., provides that “[sjervice of summons shall be pursuant to the Alabama Rules of Civil Procedure” and that summons “shall be served at least 24 hours before the hearing on the merits,” that rule only applies when service of summons is required by law. Section 12-15-60, Ala.Code 1975, plainly does not require service of summons, but only oral or written notice. Thus, the mere fact that the record does not contain a return of service of summons is not dispositive.

According to the judgment, the court determined that “notice of the Shelter Care hearing stating time, place and purpose of the hearing and the right to counsel has been given to the natural parents.” The record does not contain a transcript of the September 5, 2003, hearing. In the absence of a transcript, this court presumes that the juvenile court had before it sufficient evidence to sustain its findings. See Differ v. State, 962 So.2d 876, 877 (Ala.Civ.App.2007). Based on this presumption, we must conclude that the juvenile court received some information that the father had received proper notice of the hearing and his right to counsel. Although the father alleges that he did not learn of the dependency proceedings until October 24, 2008, the father did not file any affidavit or deposition testimony in support of that contention. The father instead requested the juvenile court to accept his unsworn statements as evidence because he was acting as his own counsel. The father did not cite to the juvenile court or to this court any legal authority to the effect that representations of a pro se litigant may be treated as sworn testimony. See D.M. v. Walker County Dep’t of Human Res., 919 So.2d 1197, 1207 n. 6 (Ala.Civ.App.2005) (“‘[W]e cannot create legal arguments for a party based on un-delineated general propositions unsupported by authority or argument.’” (quoting Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992))).

In the absence of any evidence indicating that the father did not receive proper notice of the shelter-care hearing, the juvenile court did not err in failing to find that it lacked personal jurisdiction over the father at the time it entered the October 8, 2003, judgment.

The father next argues that the juvenile court deprived him of his due-process rights as the presumed father of the child. When it filed its shelter-care petition on September 5, 2003, DHR referred to the father as the “putative father” of the child. On October 31, 2003, the juvenile court ordered paternity testing. The results of DNA testing revealed a 99.99% probability that the father was the biological father of the child; those results were filed with the juvenile court on December 1, 2003. However, the juvenile. court did not adjudicate the father to be the biological father of the child until February 6, 2006. The father claims that in the interim the juvenile court failed to recognize that he was presumed to be the natural father of the child by virtue of his taking the child into his home and openly holding out the child as his natural child. See Ala.Code 1975, § 26-17-5(a)(4).

In Neal v. Neal, 856 So.2d 766 (Ala.2002), our supreme court explained that a judgment is void if it is entered in a manner inconsistent with due process of law. 856 So.2d at 781 (quoting Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978)). In that context, “ ‘due process of law means notice, a hearing according to that notice, and a judgment entered in accordance with such notice and hearing.’ ” 856 So.2d at 782 (quoting Frahn v. Greyling Realization Corp., 239 Ala. 580, 583, 195 So. 758, 761 (1940)). Relying on Neal, the supreme court, in Ex parte Third Generation, Inc., 855 So.2d 489 (Ala.2003), held that a judgment is void only if it is entered without procedural due process.

The father fails to show how his procedural-due-process rights have been violated. Throughout the dependency proceedings, the juvenile court afforded the father notice and an opportunity to be heard, as well as the right to counsel at the state’s expense. From the outset of the case, the juvenile court provided the father the same procedural rights as any legal father. The father has not cited any action taken by DHR or any ruling made by the juvenile court that deprived him of procedural-due-process rights on the basis that he was merely the putative father of the child.

The father next asserts that he was denied the right to discovery, the right to cross-examine witnesses for the state, and the right to subpoena witnesses and to present their testimony. In J.D. v. Tuscaloosa County Department of Human Resources, 923 So.2d 303, 311 (Ala.Civ.App.2005), this court implied that the guarantee of procedural due process entitles a parent in a deprivation case with the right to discovery, to cross-examine witnesses, and subpoena power. Thus, we assume, without deciding, that a judgment in a dependency proceeding would be void if a juvenile court denied a parent these basic procedural rights. However, we conclude that the father has not proven his allegations.

The record discloses that the juvenile court denied only two of the father’s discovery requests: (1) a motion to compel the mother to submit to a mental evaluation, and (2) a motion for the production of a videotaped interview of C.T., a half sibling of the child. The juvenile court denied the motions after DHR raised valid objections to each discovery request. “It is well settled that discovery matters are within the discretion of the trial court.” Home Ins. Co. v. Rice, 585 So.2d 859, 862 (Ala.1991) (citing Ex Parte Fielder, 528 So.2d 325 (Ala.1988)). A juvenile court’s judgment may be reversed for the court’s failure to order discovery if that failure constitutes an abuse of discretion. Id. In this case, we find that the juvenile court followed proper procedure and did not exceed its discretion in denying the father’s discovery requests. However, even if the juvenile court had exceeded its discretion by erroneously failing to grant a discovery request, such error does not amount to the kind of deprivation of due process that would render any subsequent judgment void. See Ex parte R.S.C., 853 So.2d at 235 (“It is important to note that a judgment is not void simply because it is erroneous, because Rule 60(b) is not intended as a substitute for appeal.”).

The father has utterly failed to prove that the juvenile court denied him the right to cross-examine adverse witnesses. After a thorough review of the record, we have found no instance in which the juvenile court ruled that the father could not cross-examine witnesses for DHR, the mother, or the children. The father has not cited to any portion of the record to support this claim. See Rule 28(a)(7), Ala.R.App. P. (requiring appellant to make “appropriate references to the record” in its statement of facts). The father filed his appellate brief pro se; “however, a pro se litigant must comply with legal procedures and court rules. Black v. Allen, 587 So.2d 349 (Ala.Civ.App.1991).” Schwartz v. Schwartz, 835 So.2d 1017, 1018 (Ala.Civ.App.2002).

The father has likewise not cited any ruling of the juvenile court denying him the right to subpoena witnesses or to call and examine his own witnesses. The juvenile court did deny the father’s motion requesting the court obtain the address of Y.M. (“the mother”) so that the father could serve a subpoena on R.M., the mother’s eldest son who the father suspected was living with the mother. The mother objected to the motion on the ground that R.M. did not reside with her and that the father was using the motion as a subterfuge to circumvent a protection-from-abuse order preventing him from obtaining her address. Rule 45, Ala. R. Civ. P., which governs the issuance of trial subpoenas, does not require a lower court to obtain the address of the person to be subpoenaed on behalf of a party. Moreover, based on the facts of this case, the juvenile court had good reason not to reveal the mother’s address to the father based on the existing protection-from-abuse order. Even if the juvenile court had erred in denying the motion, such error is not the type of error that will render a judgment void under Neal, supra. A judgment is not void simply because of some erroneous ruling made by the lower court that may be reviewed on appeal. See Bryant v. Tuskegee Bank, 866 So.2d 1139 (Ala.Civ.App.2002), overruled on other grounds, Ex parte Full Circle Distribution, L.L.C., supra.

For the foregoing reasons, we conclude that the father did not prove that any of the judgments entered by the juvenile court should have been set aside as void judgments. Therefore, we find that the juvenile court did not err in failing to grant the father’s Rule 60(b)(4) motion.

Rule 60(b) Fraud Claims

As held by our supreme court, relief from a judgment may be granted “ ‘either by motion or in an independent action, in any situation in which it could have been had by one of the ancient remedies.’ ” Ex parte Waldrop, 395 So.2d 62, 63 (Ala.1981) (quoting Wright & Miller, Federal Practice and Procedure: Civil § 2687 (1973)). Accordingly, the juvenile court could consider the father’s Rule 60(b) motion seeking to set aside its judgments based on fraud upon the court.

In his Rule 60(b) motion, the father charged the mother, DHR, and the guardian ad litem with committing multiple acts of fraud upon the court. However, merely because the father has characterized certain conduct as “fraud upon the court” does not make it so. See Greathouse v. Alfa Fin. Corp., 732 So.2d 1013, 1016 (Ala.Civ.App.1999). In Hall v. Hall, 587 So.2d 1198 (Ala.1991), the supreme court stated:

“ ‘Fraud on the court’ has been defined as ‘fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.’ 7 J. Moore, Moore’s Federal Practice § 60.33 (2nd ed.1990). Such fraud must be ‘extrinsic,’ that is, perpetrated to obtain the judgment, rather than ‘intrinsic.’ Brown v. Kingsberry Mortgage Co., 349 So.2d 564 (Ala.1977). In discussing ‘fraud on the court,’ the Eleventh Circuit Court of Appeals stated:
“ ‘Perjury is an intrinsic fraud which will not support relief from judgment through an independent action. See United States v. Throckmorton, 8 Otto 61, 98 U.S. 61, 25 L.Ed. 93 (1878); see also Great Coastal Express [v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America], 675 F.2d [1349] at 1358 (4th Cir.1982); Wood v. McEwen, 644 F.2d 797 (9th Cir.1981). Under the Throckmorton doctrine, for fraud to lay a foundation for an independent action, it must be such that it was not in issue in the former action nor could it have been put in issue by the reasonable diligence of the opposing party. See Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 425, 43 S.Ct. 458, 465, 67 L.Ed. 719 (1923). Perjury by a party does not meet this standard because the opposing party is not prevented from fully presenting his case and raising the issue of perjury in the original action.
“ ‘ “Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible.... Fraud on the court is therefore limited to the more egregious forms of subversion of the legal process, ... those we cannot necessarily expect to be exposed by the normal adversary process.”
‘Great Coastal Express, 675 F.2d at 1357.’
“Travelers Indemnity Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir.1985).”

587 So.2d at 1200-01.

The vast majority of the father’s claims can only be categorized as accusations of intrinsic fraud. The father basically asserts that the mother initially lied to DHR and the juvenile court about the circumstances leading to the summary removal of the children from the home and that later, during her rehabilitation period, the mother misrepresented her living arrangements, her history of domestic violence, and her employment status. The father claims that DHR misrepresented the nature of his crimes as well as the criminal proceedings against the child’s paternal grandmother and her mental condition. The father contends that the guardian ad litem concealed an incident in 2005 in which the mother left the children outside her home while she slept on the sofa. We need not decide whether the father offered any actual evidence to support these accusations because, even if he had, he would have succeeded only in proving intrinsic fraud, which will not support a Rule 60(b) motion to set aside a judgment. The father was given an opportunity during the dependency proceedings to convince the juvenile court of the falsity of these alleged misrepresentations. Therefore, relief under Rule 60(b) is not the proper remedy.

The father claims that DHR sabotaged the home study of the child’s paternal grandparents. The father contends that the South Carolina Division of Social Services (“DSS”) originally approved the home of the paternal grandparents for placement of the child on March 11, 2004. The father maintains that after it received the favorable March 11 report, DHR instructed DSS to delay filing the report until after an upcoming March 29, 2004, hearing, that DHR then improperly sent DSS a copy of the pornographic videotape DHR alleged the father had made, and that, as a result, on March 16, 2004, DSS issued an unfavorable home study. At the hearing on the Rule 60(b) motion, DHR’s attorney denied that DHR had ever had a copy of the videotape or that it had sent the videotape to DSS. The father offered no evidence to refute that statement. The March 16 report does not mention the videotape; it bases DSS’s recommendation on the paternal grandmother’s failure to submit to requested psychological testing and the lack of sufficient income of the paternal grandparents. The evidence does not bear out the father’s contentions.

The father also claims that DHR committed fraud upon the court by allowing the mother to maintain telephone contact ■with C.T. after the mother’s visitation rights were suspended in August 2005. The father contends that the mother used her telephone privileges to collaborate with C.T. on a story that would explain away an alleged incident of lack of supervision so as to defeat DHR’s and the court-appointed judicial advocate’s investigation into the incident. The father also maintains that DHR switched C.T. to a counsel- or DHR controlled in order to influence C.T.’s statements in favor of DHR’s permanency plan. Even assuming such acts could be categorized as extrinsic fraud, which is doubtful, the juvenile court did not err in failing to set aside the judgment based on these arguments, which are wholly based on the father’s speculations and not on any evidence.

Lastly, the father claims that DHR’s attorney threatened his attorney and the guardian ad litem with the loss of future appointments if they did not agree with DHR’s plan to return the child to the mother and that, as a result, the guardian ad litem colluded with DHR’s attorney to achieve DHR’s desired permanency goal for the children. The father did not support this allegation with an affidavit or other competent evidence. DHR’s attorney and the guardian ad litem flatly denied that any threat had been made. Moreover, DHR’s attorney pointed out that he has no control over court appointments in dependency proceedings. The record contains absolutely no evidence to support the father’s accusation.

Accordingly, the juvenile court did not err in failing to grant the father relief based on his Rule 60(b) motion.

Rule 60(b)(6) Claims

The father next argues that all the judgments should be set aside because, he says, he was denied effective assistance of counsel. The father complains in his first motion for relief from judgment that his attorney did not subpoena any witnesses on his behalf, did not question DHR’s caseworkers, did hot create a record to support an appeal, did not cross-examine the mother or the guardian ad litem, and did not offer the paternal grandparents as a placement option for the child. In his second motion for relief from judgment, the father further asserts that his attorney did not present any evidence on his behalf, failed to reveal a conflict of interest arising after the alleged threat made by DHR’s attorney to withhold future appointments from him if he did not agree to DHR’s permanency plan, misrepresented his ability to compel the juvenile court to hold a hearing and accept the father’s evidence, misstated that he could appeal all the judgments at the end of the proceedings, and failed to move to hold witnesses in contempt for failing to respond to subpoenas.

As for the failure of the attorney to reveal the alleged threats made by DHR’s attorney and to notify the father of his resulting conflict of interest, we have already concluded that the father did not present any evidence to prove the threats ever occurred. Consequently, the record does not support the father’s assertion that his attorney ever had a conflict of interest that he would have been required to disclose.

As to the father’s other points, we note that, to prevail on a claim of ineffective assistance of counsel, a party must show (1) that his or her counsel’s performance was deficient and (2) that he or she was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Woods v. State, 957 So.2d 492 (Ala.Crim.App.2004), the court said:

“ ‘In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. at 2069. In fact, the Court explained that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id.’

957 So.2d at 503 (quoting Thomas v. State, 511 So.2d 248, 255 (Ala.Crim.App.1987)). A parent asserting ineffective assistance of counsel bears a heavy burden of proving that there is a reasonable probability that the outcome of his or her case would have been different but for counsel’s performance. Brooks v. State, 695 So.2d 176, 182 (Ala.Crim.App.1996), aff'd, 695 So.2d 184 (Ala.1997). “ ‘The decision to grant or to withhold Rule 60(b)(6) relief being discretionary, the trial court’s decision will not be reversed except for an abuse of that discretion. Textron v. Whitfield, 380 So.2d 259 (Ala.1979).’ ” Ex parte Citizens Bank, 879 So.2d 535, 537 (Ala.2003) (quoting Smith v. Clark, 468 So.2d 138, 140 (Ala.1985)).

The father argues that, but for the omissions of his attorney, the child probably would have been placed into the care of the paternal grandparents early in the case, avoiding a prolonged stay in foster care, and that the paternal grandparents, not the mother, probably would have obtained permanent legal custody of the child.

The record reveals that the child and his half siblings were placed into foster care originally as an emergency measure after the mother entered a domestic-violence shelter and the father was incarcerated. DHR quickly developed a plan to reunite the child and his half siblings with the mother with a concurrent plan of placing the child and his half siblings with a suitable relative. The evidence shows that DHR considered placing the child with the paternal grandparents early in the dependency proceedings. However, DSS initially identified two major obstacles to placement with the paternal grandparents — the paternal grandmother’s refusal to submit to the psychological testing required by DHR and the lack of sufficient income. The record reveals the paternal grandmother did not submit an acceptable psychological-evaluation report until at least late January 2005, if at all. The father has failed to explain how his attorney could have convinced the juvenile court to place the child with the paternal grandparents in 2004, given the circumstances.

By March 2005, another concern arose when the paternal grandmother was arrested for making threats against a public official and for committing aggravated domestic violence. Although the father’s attorney could have proven that one of the criminal charges had been nol prossed, his failure to do so did not cause the juvenile court to keep the child in foster care instead of placing the child with the paternal grandparents. At that time, the juvenile court still had sufficient undisputed evidence before it to indicate that the paternal grandparents could not meet the needs of the child and, hence, were not qualified to receive and care for the child as required by law. See Ala.Code 1975, § 12-15-71(a)(3)c. By the time the child had been returned to the physical custody of the mother on December 16, 2005, the paternal grandparents had not provided evidence of sufficient income to care for the child. No matter how diligent, the father’s attorney could not have overcome the facts that rendered the paternal grandparents unable to receive and care for the child.

The record also reveals that the juvenile court received a great deal of evidence regarding the mother’s deficiencies, including her initial failure to accept any responsibility for the dependency of the child and his half siblings, her initial reluctance to cooperate with reunification efforts, her psychological problems, her lack of adequate parenting skills, her long-term domestic-violence history, her prolonged housing and income problems, her history of drug use, her propensity to associate with violent and criminally active men, and her problems raising R.M. The juvenile court also received evidence of the concerns raised by the mother’s living arrangements with R.B. and R.M. Other than having his attorney pursue the unfounded allegations that the mother was an accomplice to the pornographic videotaping of C.T., the father has not detailed precisely what additional evidence his counsel could have or should have presented to the juvenile court to prove the mother’s unfitness to parent the child.

The father also fails to cite any evidence that the attorney could have or should have presented to convince the juvenile court that the mother had not successfully rehabilitated. The record shows that DHR and the guardian ad litem consistently investigated and questioned the completeness of the mother’s progress and that they presented their concerns to the juvenile court. The record further shows that the juvenile court cautiously proceeded with reunification by first allowing the mother supervised visitation, then unsupervised visitation once a week, then physical custody with DHR protective supervision, then a slow transition to legal custody accompanied by over a dozen conditions, and then finally unrestricted legal and physical custody. By August 2006, the mother had stabilized, was living in a suitable home, had been maintaining a steady and adequate income, had successfully completed all the counseling and psychological evaluations required by the juvenile court, had passed all of her parenting classes, had not tested positive for illegal drugs in two years, had committed to avoiding harmful relationships, and was safely and properly raising the child and his half siblings without state assistance. The juvenile court did not close its file until it was convinced not only that the mother could safely care for the children without state intervention, but that, in fact, she had been doing so for a significant period. In the face of the evidence of the mother’s rehabilitation, it is difficult to see how the father’s attorney could have convinced the juvenile court to deny the mother custody of the child.

Furthermore, in all probability, the judgments of the juvenile court would not have been reversed by this court had the father instituted appeals within 14 days of the entry of each judgment. See Rule 1(B), Ala. R. Juv. P. A thorough review of the record does not disclose any reversible error committed by the juvenile court in conducting the various hearings, in ruling on discovery and other motions, in making its findings of dependency, or in rendering its various orders for the disposition of the child. We cannot conclude that this court would have reversed the juvenile court for failing to place the child with the paternal grandparents at any point in the dependency proceedings or for granting physical and legal custody to the mother.

Because the father has failed to carry his heavy burden of proving he has been prejudiced by the alleged ineffective assistance of his counsel, we conclude that the juvenile court did not exceed its discretion in denying the father’s Rule 60(b)(6) motion on that ground.

Postjudgment Proceedings

The father next argues that the juvenile court committed multiple errors during the proceedings leading up to the denial of his Rule 60(b) motions and that his counsel ineffectively presented and argued his Rule 60(b) motions. We find no basis for reversing the judgment of the juvenile court based on these arguments.

The father argues that the juvenile court erred in denying him the right to represent himself at the hearing on his Rule 60(b) motions. Under § 10 of the Alabama Constitution of 1901, “no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party,” and state laws governing the practice of law are not to “be construed to prevent any person from conducting or managing his own case in any court in this state.” Ala.Code 1975, § 34-3-19. We need not decide whether the Constitution and § 34-3-19 grant an incarcerated parent the right to represent himself or herself on a Rule 60(b) motion because we find that the father waived any such right.

In analogous criminal cases, the courts have held that the right to self-representation must be asserted “ ‘at some time “before meaningful trial proceedings have commenced” and that thereafter its exercise rests within the sound discretion of the trial court.’ ” See Upshaw v. State, 992 So.2d 57, 61 n. 3 (Ala.Crim.App.2007) (quoting United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979)). Other cases emphasize that a criminal defendant may not wait to assert a right to self-representation until the point when it would disrupt the proceedings. See Mallory v. State, 225 Ga.App. 418, 422, 483 S.E.2d 907, 911 (1997). In this case, the father did not assert his right to self-representation until April 6, 2007, over three years after the dependency case had been initiated. The father also asserted his right after all trial proceedings had ended. After claiming the right to proceed pro se, he twice filed motions to continue the May 18, 2007, hearing date on his Rule 60(b) motions on the ground that he and/or his witnesses could not be prepared in time. Based on the circumstances, we find that the juvenile court did not err in denying the father’s motion to represent himself.

The father next maintains that the juvenile court erred in failing to grant him leave to take his own deposition for presentation at the May 18, 2007, hearing. The father cites the general rule that an incarcerated person has no right to be transported to a dependency proceeding but does have the right to present his or her testimony via deposition. See Pignolet v. State, 489 So.2d 588 (Ala.Civ.App.1986); Whitehead v. Bi-Petro Marketing, Inc., 356 So.2d 150 (Ala.1978). However, the father has not cited any cases that require a trial court to grant leave to an incarcerated person to take his or her own deposition for the purposes of presentation at a Rule 60(b) hearing. In analogous cases, under Rule 32.9, Ala. R.Crim. P., a judge presiding over a hearing to set aside a conviction on the ground of ineffective assistance of counsel has the discretion to take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing, in which case the presence of the petitioner is not required. The father has not indicated how the failure to grant him leave to take his deposition prejudiced his ability to preserve and present his testimony via affidavit. Hence, we conclude that the juvenile court did not commit reversible error on this ground.

The father next asserts that the juvenile court erred in not granting his discovery requests. However, the father has not cited any rule, statute, or caselaw requiring a juvenile court to renew discovery after trial proceedings have ended to allow a party to gather evidence to support a Rule 60(b) motion. It is not the function of this court to perform the appellant’s legal research. See K.W. v. State Dep’t of Human Res., 614 So.2d 452 (Ala.Civ.App.1992). Moreover, we review a trial court’s orders relating to discovery solely to determine whether the trial court exceeded its discretion. See Ex parte Fielder By and Through Neener, 528 So.2d 325, 326 (Ala.1988). It appears that the father was attempting to obtain discovery to prove the various alleged misrepresentations that we have already held would constitute intrinsic fraud if proven. Hence, as the juvenile court concluded, the requested discovery was irrelevant as that term is understood under Rule 26, Ala. R. Civ. P. The juvenile court did not exceed its discretion in failing to grant the father’s discovery motions.

The father further maintains that the juvenile court erred in failing to take “mandatory” judicial notice of certain facts asserted in the father’s various motions and certain facts contained in the exhibits attached to the motions. The father claims that Rule 201(d), Ala. R. Evid., requires a court to “take judicial notice if requested by a party and supplied with the necessary information.” However, the father overlooks Rule 201(b), Ala. R. Evid., which states:

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”

Pursuant to this standard, a court may take judicial notice of its own prior proceedings insofar as they are relevant to the question of law presented, see Slepian v. Slepian, 355 So.2d 714, 716 (Ala.Civ.App.1977), but there is no authority cited allowing a court to take judicial notice of extraneous facts that could have been presented in these proceedings. Moreover, assuming the juvenile court ignored those facts that it could have judicially noticed, the father has failed to explain how this action resulted in an erroneous denial of his Rule 60(b) motion. This court has examined the record in the prior appeal and in this appeal and has found no factual basis to support the father’s Rule 60(b) motion. We cannot conclude that, had the juvenile court performed a similar review, it would have decided any differently.

The father next asserts that the juvenile court erred in failing to grant his motion for a summary judgment. On May 9, 2007, the father filed a motion for a summary judgment, asserting that he was entitled to Rule 60(b) relief as a matter of law. Except for motions brought pursuant to Rule 60(b)(4), as discussed above, whether a movant has established grounds for relief under Rule 60(b) is a matter within the sound discretion of the trial court. Ex parte Wal-Mart Stores, Inc., 725 So.2d 279 (Ala.1998). The father has not cited to the court any rule or precedent establishing that a Rule 60(b) motion must be granted as a matter of law, as is the case for motions filed under Rule 56, Ala. R. Civ. P. Even if a party could obtain a summary judgment determining that he or she is entitled to Rule 60(b) relief, the father failed to comply with Rule 56 by properly supporting his motion with admissible evidence, see Rule 56(c)(1) and (e), Ala. R. Civ. P., and proving a prima facie case establishing one or more of the grounds for relief under Rule 60(b). See, generally, Richardson v. Kroger Co., 521 So.2d 934 (Ala.1988). Hence, the fact that DHR did not respond to his motion for a summary judgment did not mandate that the juvenile court enter Rule 60(b) relief for the father by default, as he contends. See Rule 56(e), Ala. R. Civ. P. (“If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against him.” (emphasis added)); see also Miles v. Foust, 889 So.2d 591, 595 (Ala.Civ.App.2004).

The father also argues that the denial of his Rule 60(b) motions should be set aside based on ineffective assistance of counsel at the May 18, 2007, hearing. The record reveals that the father’s court-appointed postjudgment counsel argued the Rule 60(b) motions before the juvenile court at the hearing. As pointed out in the father’s brief to this court, his counsel made several misstatements regarding the gravamen of his Rule 60(b) motions, which she never fully corrected during the hearing. However, the father has utterly failed to show how these mistakes were “the chief cause of his motion for relief from judgment being denied,” as he asserts in his brief. As set out above, to successfully assert ineffective assistance of counsel, the movant must show that he or she was prejudiced as a result of the deficient performance. Strickland, supra. As our thorough discussion of the substance of the father’s Rule 60(b) motions proves, grounds did not exist to justify the relief requested. No matter how well the father’s position was argued and presented, the fact remains that his Rule 60(b) motions were meritless. Hence, the judgment of the juvenile court denying the Rule 60(b) motions is not due to be reversed on this ground.

Previous Appellate Issues

The father last argues that this court erred in his previous appeal by accepting an incomplete record and that this court’s judgment was therefore void. We will not consider those issues on the appeal of the denial of the father’s Rule 60(b) motions by the juvenile court. See Rule 3(c), Ala. R.App. P.

AFFIRMED.

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

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

      . This court ultimately affirmed the judgments of the juvenile court, without a written opinion. See E.S.R., Jr. v. Madison County Dep’t of Human Res. (No. 2051057, June 1, 2007), 12 So.3d 170 (Ala.Civ.App.2007) (table).

      . As a general rule, a party may not file successive Rule 60(b) motions. See Englebert v. Englebert, 791 So.2d 975, 976 (Ala.Civ.App.2000). However, as this court staled in Pinkerton Security & Investigations Services, Inc. v. Chamblee, 934 So.2d 386, 390-91 (Ala.Civ.App.2005):
      "Alabama caselaw has placed a significant limitation upon the availability of relief under Rule 60(b) where a movant has previously sought relief under that rule. As stated by the Alabama Supreme Court in Ex parte Keith, 111 So.2d 1018 (Ala.1998), 'fajfter a trial court has denied a post-judgment motion pursuant to Rule 60(b), that court does not have jurisdiction to entertain a successive postjudgment motion to "reconsider” or otherwise review its order denying the Rule 60(b) motion.’ 771 So.2d at 1022 (emphasis added). In other words, a party who has previously filed an unsuccessful motion seeking relief under Rule 60(b) may not properly file a second motion in the trial court that, in effect, requests the trial court to revisit its denial of the first motion, such as by reasserting the grounds relied upon in the first motion. See Wadsworth v. Markel Ins. Co., 906 So.2d 179, 182 (Ala.Civ.App.2005) (‘Successive Rule 60(b) motions on the same grounds are generally considered motions to reconsider the original ruling and are not authorized by Rule 60(b).'); but see McLendon v. Hepburn, 876 So.2d 479, 483 (Ala.Civ.App.2003) (second Rule 60(b) motion held procedurally proper because second motion requested relief based on an 'entirely different ground’ than first motion, raising an issue ‘that could not even have been raised' when original judgment was entered).”
      In this case, because the juvenile court had not ruled on the first Rule 60(b) motion and because the second Rule 60(b) motion raised new grounds upon which the judgments could have been set aside, the general rule against successive Rule 60(b) motions does not apply.

      . Based on the similarities between the facts of E.D. and the facts of this case, we find that the father could not have reasonably filed his Rule 60(b)(6) motion within 14 days of the entry of the final judgment in the underlying case and that he filed his Rule 60(b)(6) motion within a reasonable time. The record shows that the father's trial attorney withdrew after the father filed his the notice of appeal in August 2006, and the father did not receive an appointed appellate attorney until February 2007. As in E.D., supra, the father’s appellate attorney never had an opportunity to file a motion for a new trial based on ineffective assistance of counsel within the 14-day period set out in Rule 1(B). Within a week of her appointment, the father’s appellate attorney filed a motion with this court seeking leave to file a Rule 60(b) motion, and she actually filed the motion within a week of receiving leave.

      . The father's motions attack only one judgment entered more than three years prior to February 19, 2007; however, he does not attack that judgment on the ground of fraud upon the court. The other judgments the father challenges were all entered within the three-year period set out in Rule 60(b).

      . We note that even if the October 8, 2003, judgment was declared void, that holding would not benefit the father. In multiple subsequent judgments entered after the father was provided counsel, notice, and an opportunity to be heard, the juvenile court found that the child remained dependent and awarded temporary legal custody to DHR. Those judgments would remain in effect, leaving the father in the same legal position as existed after the October 8, 2003, judgment.

      . The father asserts that DHR requested paternity testing and that DHR misrepresented to the court that it wanted the paternity testing because the child's paternal grandmother insisted she would not be considered for placement without proof of the father's paternity. However, the court record indicates that paternity testing was ordered “on oral motion made on behalf of the alleged father of the child” on October 24, 2003. Moreover, the father attached to his "Motion for Relief from Judgment” an October 9, 2003, letter from the paternal grandmother in which she requested paternity testing. Her request immediately preceded her statement that she intended to be considered as a placement option for the child. It can be reasonably inferred from that letter that the paternal grandmother wanted to confirm the father's paternity before accepting placement of the child.

      . The father asserts that the juvenile court denied his right to discover evidence that would have proven that he had not committed sexual abuse. However, the father does not cite any ruling by the juvenile court barring the father from pursuing such discovery.

      . The father’s stated purpose for requesting the mental evaluation was to prove that the mother suffered from antisocial personality disorder. The mother had already submitted to two psychological evaluations, and DHR had submitted a letter from a psychologist indicating that the mother had shown no signs of antisocial personality disorder and that further evaluation was not necessary to rule out that diagnosis. The father’s stated purpose for requesting the videotape was to glean information that the mother had been complicit in the father’s crime of manufacturing a pornographic videotape of C.T. DHR objected on the basis that the father had failed to notify die local district attorney’s office (who maintained the videotape) of the request and on the basis that local criminal authorities had already reviewed the videotape and had apparently found no evidence that the mother had been involved in the father's crime.

      .The father claims he issued 30 subpoenas over the course of the three years of the dependency proceedings, but the record does not contain any evidence to support that contention or any evidence that those subpoenas had actually been served. The father also claims that none of his subpoenaed witnesses testified; however, the father has not asserted that the juvenile court prevented them from testifying. The record contains a transcript of only one hearing, at which no witnesses were called by any party.

      . In the motion, the father asserted that he had addressed the subpoena to R.M.’s last known address, the home of R.M.'s natural father.

      . Rule 1(A), Ala. R. Juv. P., provides, in pertinent part, that ‘‘[i]f no procedure is specifically provided in these rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to the extent not inconsistent herewith.”

      . The father asserts that the mother concealed that R.B., her former paramour, was living with her in 2004 and that R.M., who the father and the guardian ad litem described as a convicted sex offender, resided with her throughout the dependency proceedings.

      . The father also claims that DHR lied about being unable to locate C.T.'s father, thus denying C.T.'s father of his rights. The father has no standing to assert an error on behalf of C.T.’s father. See generally W.T.H. v. 915 So.2d 64, 72 (Ala.Civ.App.2005) (recognizing the general rule that a litigant may not claim standing to assert the rights of a third party).

      . Actually, the March 11 report makes no conclusion as to the suitability of the home of the paternal grandparents, but expressly leaves that decision to DHR.

      . The court file indicates that DHR filed the March 16, 2004, home study in the juvenile court on March 29, 2004.

      . The record does not contain any psychological evaluation of the paternal grandmother, but a motion indicates that the father intended to submit a favorable psychological evaluation on January 25, 2005.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Ex parte Lynn ADAMS. (In re Fleet Force, Inc. v. Lynn Adams).
    2061164.
    Court of Civil Appeals of Alabama.
    April 11, 2008.

      William L. Utsey of Utsey & Utsey, Butler; and Max Cassady of Cassady & Cassady, P.C., Fairhope, for petitioner.
    David Neal of Bedford, Rogers & Bowling, P.C., Russellville, for respondent.
   PITTMAN, Judge.

Lynn Adams (“the employee”) petitions for a writ of mandamus directed to the Franklin Circuit Court compelling, among other things, that court to transfer an action brought in that court pursuant to the Alabama Workers’ Compensation Act (now codified at § 25-5-1 et seq., Ala.Code 1975) by Fleet Force, Inc., to the Choctaw Circuit Court. We deny the petition.

In March 2007, Fleet Force filed a complaint in the Franklin Circuit Court alleging that it was a corporation doing business in Franklin County and that the employee was an individual residing in Toxey, Alabama, who had claimed to have suffered an injury arising out of and in the course of her employment with Fleet Force in November 2004 while in Albuquerque, New Mexico. Fleet Force further alleged that the parties were subject to the Act, that Fleet Force had paid compensation to and had conferred medical and rehabilitation benefits upon the employee pursuant to the Act, and that the parties disputed the existence and extent of any permanent physical impairment and any vocational disability resulting from the injury to the employee. Fleet Force requested that the Franklin Circuit Court enter a judgment determining, among other things, whether the employee had suffered a compensable injury under the Act, whether the employee’s claimed physical difficulties stemmed from a workplace injury, and whether Fleet Force was responsible for providing medical and vocational benefits under the Act.

Later that month, the employee filed a motion seeking a transfer of the case to Choctaw County on the basis that venue did not lie in Franklin County or, in the alternative, that venue was proper in Choctaw County based upon considerations of convenience and justice (see generally Ala.Code 1975, § 6-3-21.1). The employee filed affidavits in support of her motion in which she testified, in pertinent part, that she had resided in Choctaw County “each day that [she] was ever employed by” Fleet Force and that many of her prospective witnesses were also located far from Franklin County; she also filed affidavits of two of those prospective witnesses indicating their inability to attend a trial in Franklin County. Fleet Force then filed a response in which it contended that the employee had signed an employment agreement providing that the venue for determining any disputes between the parties to the agreement would be Franklin County; the employee filed a reply to Fleet Force’s response and moved to strike the alleged employment agreement on the purported bases (1) that the response was untimely filed and (2) that her signature on the agreement was forged. The employee then filed an answer to Fleet Force’s complaint in which she admitted that Fleet Force was a corporation doing business in Franklin County and that she had been injured in Albuquerque, New Mexico.

On August 3, 2007, the trial court denied the employee’s request to transfer the case to Choctaw County. The employee filed on September 14, 2007, a petition for a writ of mandamus, seeking an order of this court directing the trial court to (1) transfer the case to Choctaw County on the basis that Franklin County is an improper venue; (2) transfer the case to Choctaw County on the basis of the doctrine of forum non conveniens; and (3) strike the employment agreement that was allegedly signed by the employee and that had purportedly specified Franklin County as the venue for hearing any disputes between the parties. Because the employee’s mandamus petition seeks relief in a matter in which this court has appellate jurisdiction, i.e., a workers’ compensation action, and has been filed within 42 days after the entry of the order denying the employee’s motion to transfer, which is a presumptively reasonable time, we have jurisdiction to consider that petition. See Ex parte Gamble, 709 So.2d 67, 71 (Ala.Civ.App.1998), and Rule 21(a)(3), Ala.R.App. P. Our Supreme Court, in Ex parte Scott Bridge Co., 834 So.2d 79, 80-81 (Ala.2002), set forth the following principles that govern our review of the petition:

“A petition for the writ of mandamus is the proper method by which to seek review of a denial of a motion for a change of venue. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). [An appellate court] reviews a petition for a writ of mandamus challenging a ruling on venue under an abuse-of-discretion standard. Id.
“ ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’
“Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987).”

Accord Ex parte Cavalier Home Builders, L.L.C., 920 So.2d 1105, 1108 (Ala.Civ.App.2005).

Before the inception of the Act in 1919, employees desiring to obtain compensation from unwilling employers for injuries arising out of and in the course of employment were required to prosecute actions in tort and prove that the injuries were the fault of the pertinent employers; frequently, those actions failed because of the difficulty in proving negligence and the availability of affirmative defenses to defendant employers. See generally Steven W. Ford & James A. Abernathy II, “Historical Development of Alabama’s Workers’ Compensation Law,” 61 Ala. Law. 48 (2000). Under the Act, employees no longer may assert rights they held at common law to pursue a complete recovery of all damages recoverable in tort in a civil action against the employer, but in lieu of those rights they are afforded “immediate and certain medical care” and “immediate and certain limited compensation for disability” under the Act’s remedial scheme. Id. at 52.

Although the Act largely supplanted the prevailing substantive rules and remedies in the area of workplace injuries, the framers of the Act elected to vest in a familiar place the authority to hear and determine controversies arising thereunder. In no fewer than three separate sections of the Act, the Legislature specified that such controversies were to be submitted to the circuit court that would have heard a tort claim before the Act became effective. For example, § 21(1) of the Act stated:

“In case of a dispute between employer and employee ... with respect to the right to compensation under this act or the amount thereof either party may submit the controversy to the circuit court of the county which would have jurisdiction of a civil case in tort between the same parties. Such controversy shall be heard and determined by such judge or judges of said court as would hear and determine a civil action between the same parties arising out of tori ...”

Act No. 245, 1919 Ala. Acts, § 21(1) (emphasis added). The Act further provided the following procedural directions:

“Either party to a controversy arising under this act may file a verified complaint in the circuit court of the county which would have jurisdiction of an action between the same pariies arising ovl of tori which shall set forth ... such ... facts as may be necessary to enable the court to determine what, if any, compensation the employee ... [is] entitled to under this act.”

Id,. § 28 (emphasis added). Finally, and most notably, the Act originally contained a section in which the term “the court” was specifically defined as “the circuit court which would have jurisdiction in an ordinary civil case involving a claim for the injuries or death in question.” Id. § 36(2)(m) (emphasis added).

Although the Act has been amended on numerous occasions since its original enactment in 1919, it continues to retain the principle that actions to determine the compensation to be awarded to injured employees under the substantive provisions of the Act should be brought in the same court that would have considered a tort action concerning the injury had the Act not been passed. See, e.g., Ex parte Cavalier Home Builders, 920 So.2d at 1106 n. 1 (noting that “[v]enue of actions brought under the Act is the same as that applicable in tort actions generally”). In particular, each of the quoted sections of the Act as originally enacted has been brought forward into our current Code. See Ala.Code 1975, §§ 25-5-81(a)(1), 25-5-88, and 25-5-1(18). Thus, since the passage of the Act, any party — employee or employer — desiring an adjudication of the rights and duties of the parties with respect to an injury arising out of and in the course of employment within the scope of the Act has been required to seek that adjudication from the same court that, had the Act not been adopted, would have heard an employee’s tort claim for damages against the pertinent employer with respect to the injuries or death in question.

The attachments to the employee’s mandamus petition indicate that Fleet Force is a corporation and is located in Franklin County. Because Fleet Force is a corporation, venue of a hypothetical tort action brought by the employee against Fleet Force would be governed by Ala.Code 1975, § 6-3-7, which specifies the proper venue for civil actions brought in Alabama courts against corporations. That section provides:

“(a) All civil actions against corporations may be brought in any of the following counties:
“(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

Application of § 6-3-7 to the facts of this case yields only one proper venue: Franklin County, the location of Fleet Force’s “principal office” within the meaning of § 6-3-7(a)(2). Because the injury that forms the basis of the employee’s workers’ compensation claim (and, therefore, the basis of her hypothetical tort claim) took place in New Mexico, the “events or omissions giving rise to the claim” did not occur in any Alabama county so as to render § 6 — 3—7(a)(1) applicable. Moreover, the attachments to the mandamus petition do not demonstrate that Fleet Force has any business location in, or does business by agent in, Choctaw County, the county in which the employee resides, so as to render venue proper there under § 6-3-7(a)(3). Finally, by its terms, § 6-3-7(a)(4), the catchall corporate-venue provision, is inapplicable because § 6-3-7(a)(2) applies to render venue proper in Franklin County.

The employee contends that because Fleet Force brought a civil action against her, an individual, seeking a determination of its potential liability under the Act, the controlling venue statute is Ala. Code 1975, § 6-3-2(a)(3), which pertains to venue in civil actions of a legal nature against individuals generally. If that section applied, venue would indeed be improper in Franklin County because § 6-3-2(a)(3) specifies that actions against individuals that are of a legal nature (as opposed to an equitable nature) are to be brought either in the county of the defendant’s residence (i.e., Choctaw County) or the county in which the act or omission complained of may have been done or may have occurred (a provision which, as we noted in connection with § 6-3-7(a)(1), can have no application in this case because the occurrence giving rise to the employee’s claimed right to workers’ compensation benefits took place in New Mexico).

However, the employee’s argument overlooks the relationship between general venue provisions, such as those contained in § 6-3-2, and special venue provisions, such as those contained in the Act. Alabama caselaw holds that general venue provisions, such as those generally specifying where proceedings in equity should be brought, do not control over statutes that provide for a particular venue in a specific class of actions, such as in divorce actions or actions to enforce a common-carrier permit. See Puckett v. Puckett, 174 Ala. 315, 320, 56 So. 585, 586 (1911) (divorce); Cooper Transfer Co. v. Alabama Pub. Serv. Comm’n, 271 Ala. 673, 675-76, 127 So.2d 632, 634-35 (1961) (common-carrier enforcement). Such holdings stem from the settled principles of statutory construction that (1) special provisions relating to specific subjects are to control general provisions relating to general subjects, and (2) when the law descends to particulars, special provisions are to be interpreted as exceptions to any general rules laid down to the contrary. See, e.g., Ex parte E.J.M., 829 So.2d 105, 108-09 (Ala.2001).

Moreover, the primacy of venue provisions in a specialized statute, such as the Act, over general venue provisions was recognized by the Minnesota Supreme Court in a decision interpreting that state’s workers’ compensation act, upon which Alabama’s Act was largely modeled. In State v. District Court of St. Louis County, 129 Minn. 423, 152 N.W. 838 (1915), the Minnesota Supreme Court rejected an employer’s contention that it had an absolute right, under a general venue statute pertaining to regular terms of court, to select a forum in which its employee’s workers’ compensation action would be heard. Noting that Minnesota’s workers’ compensation act contemplated that applications for relief were to be heard and decided summarily without regard to regular terms of court, the Minnesota Supreme Court ruled that “[pjroceed-ings under [the workers’ compensation] act are governed by the provisions contained in the act itself, and not by the general provisions cited by the [employer].” 129 Minn. at 425, 152 N.W. at 839. Because the Act was adopted by our Legislature from the workers’ compensation laws of Minnesota, the construction of those laws by Minnesota courts is particularly persuasive. See Ex parte Weaver, 871 So.2d 820, 825 (Ala.2003).

The Legislature has provided that actions may be brought by employers or employees under the Act to determine the benefits owed to an employee. The Legislature has also provided that such actions are to be heard by the circuit court that would have heard an ordinary tort claim arising from the injuries in question had the Act not become law. For that reason, the employee’s contention that venue is controlled by Ala.Code 1975, § 6-3-2(a)(2), fails.

The employee also contends that Franklin County is an inconvenient forum for parties and witnesses such that the trial court acted outside its discretion in declining to transfer the action to Choctaw County pursuant to Ala.Code 1975, § 6-3-21.1. However, § 6-3-21.1, by its terms, authorizes trial courts of general jurisdiction to transfer civil actions or civil claims that do not arise out of child-support or child-custody modification proceedings “to any court of general jurisdiction in which the action might have been properly filed ” (emphasis added). That statute thus places the burden upon a movant, such as the employee in this case, to establish, among other things, “that there is another county where venue is appropriate,” i.e., that the venue contended to be more convenient and just is, in fact, one in which the action might have originally been filed. Ex parte Volvo Trucks N. Am., Inc., 954 So.2d 583, 585 (Ala.2006) (emphasis removed). However, as we have noted, under the Act and under Ala.Code 1975, § 6-3-7(a), there is only one proper venue for Fleet Force’s action: Franklin County. For that reason, the employee’s contention that the case is due to be transferred under the doctrine of forum non conve-niens pursuant to § 6-3-21.1 necessarily fails.

Based upon our review of the materials presented in support of and opposition to the employee’s mandamus petition, and the applicable legal principles we have stated, we conclude that Fleet Force properly brought its action under the Act in Franklin County and that the employee has no clear legal right to secure the transfer of that action to Choctaw County as a matter of right under § 6-3-2(a)(3) or as a matter of discretion under § 6-3-21.1. Because the prevailing law affords only one Alabama forum in which an action under the Act can be maintained — Franklin County — whether the employment agreement submitted by Fleet Force specifying Franklin County as the proper forum for hearing disputes between the parties should be struck as a forgery is a moot issue that does not affect any substantial rights of the employee. Rule 45, Ala.R.App. P.; see also Ex parte T.R.S., 794 So.2d 1157, 1159 (Ala.Civ.App.2001) (mandamus will not issue when issue is moot). Therefore, we deny the employee’s petition for a writ of mandamus.

PETITION DENIED.

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


author: MOORE, Judge.

text:
    Timothy B. DECKER v. Linda L. DECKER.
    2070539.
    Court of Civil Appeals of Alabama.
    July 25, 2008.
    Rehearing Denied Aug. 29, 2008.
    Certiorari Denied Dec. 12, 2008 Alabama Supreme Court 1071667.

      W.N. Watson of Watson & Gillis, P.C., Fort Payne; and William Eric Colley, Fort Payne, for appellant.
    Randall W. Nichols and Shay N. Click of Massey, Stotser & Nichols, P.C., Birmingham, for appellee.
   MOORE, Judge.

Timothy B. Decker (“the former husband”) appeals from a judgment of the DeKalb Circuit Court declining to terminate his alimony obligation to his former wife, Linda L. Decker (“the wife”). We affirm.

Procedural History

This is the second time the parties have been before this court. See Decker v. Decker, 984 So.2d 1216 (Ala.Civ.App.2007) (“Decker I”). In Decker I, we set forth the following pertinent procedural history:

“The parties were divorced by a judgment of the DeKalb Circuit Court on February 7, 2003. The divorce judgment provided, among other things, that the former husband pay the former wife $3,500 per month as periodic alimony and maintain a $500,000 life-insurance policy on his life naming the former wife as the beneficiary. On August 27, 2004, the former husband filed a petition stating, in pertinent part:
“‘(3) Since the entry of the Final Judgment there has been a material change in circumstances which warrants a reduction in [the former husband’s] alimony obligation.
“ ‘(4) The Final Judgment ordered [the former husband] to maintain $500,000.00 of insurance on his life naming [the former wife] as beneficiary.
“‘(5) Since the entry of the Final Judgment there has been a material change in circumstances which warrants termination of the insurance policy.
“ ‘(6) Pursuant to paragraph seven (7) of the Final Judgment, [the former husband] was awarded various items of personal property from the marital home. [The former wife] has failed or refused to allow [the former husband] to take possession of said items or disposed [of] or destroyed the same. [The former husband] would request that this Court enter a judgment in his favor and against [the former wife] for the value of the items.
“ ‘(7) Pursuant to the Final Judgment, [the former husband] was awarded the marital residence. [The former wife] failed to vacate the marital property as ordered by this Court. Further, [the former wife] caused damage and harm to the property pri- or to vacating the same. [The former husband] would request that this Court enter a judgment in his favor and against [the former wife] for such damages.’
“On December 7, 2004, the former wife answered the petition and filed a counterclaim stating:
“ T. On February 7, 2003, this Court entered an Order directing the [former husband] to provide the [former wife] with a life insurance policy in the amount of $500,000.00;
“ ‘2. The [former husband] failed and refused to comply with said Order and on the 28th day of September, 2004, this Court made and entered an order directing the [former husband] to provide the [former wife], within 30 days from the date of the Order, a life insurance policy in the amount of $500,000.00, as previously ordered by the Court in the Order dated February 7, 2003;
“ ‘3. The [former husband] was further directed by the September 28, 2004[,] Order to pay the costs incurred in the cause;
“ ‘4. As of this date, the [former husband] has not provided the insurance policy nor has he paid the cost of such action as directed by the Court.
“ ‘Wherefore, [the former wife] respectfully prays judgment against the [former husband] as follows:
“‘A. That the court will find the [former husband] in contempt of this Court for failing to comply with the prior orders of this Court dated February 7, 2003[,] and September 28, 2004;
“ ‘B. That the Court will order the [former husband] to pay the [former wife’s] attorney for his services in this action; and “ ‘C. That this Court will make and enter such other and further orders which may be necessary in the premises.’
“On March 6, 2006, the former husband amended his petition to request a termination of his alimony obligation, alleging:
“ ‘[0]ne of the changed circumstances which has occurred since the last order in this cause is that the [former husband] has knowledge, information and belief and based on such knowledge, information and belief states as a fact, that the [former wife] has committed or engaged in certain conduct which under the laws of the State of Alabama would result in the termination of alimony.’
“On December 19, 2006, the trial court entered a judgment stating, in pertinent part:
“ ‘1. The [former husband] petitions the court for the termination or reduction of his periodic alimony payments. The [former husband] has failed to meet the burden of proof necessary to support a termination or reduction of said alimony. Accordingly, said petition is denied.
“ ‘2. The [former husband] petitions the court for relief due [to] the [former wife’s] damaging or removing certain properties awarded to him in the divorce decree. The [former wife] admits to the damage and removal of some of said properties. The parties greatly dispute the amount of damages due as a result of [the former wife’s] actions. The Court finds that neither party has sufficiently proven the amount of such damages, but that there is sufficient evidence to support a finding that the damages amount to at least Twenty Thousand Dollars. Judgment is hereby entered against the [former wife] and in favor of the [former husband] in the sum of twenty thousand and no/100 dollars together with applicable interest.
“ ‘3. The [former wife] counterclaimed against the [former husband] alleging his failure to insure his life for the benefit of the [former wife] as ordered in the decree. The testimony was that the [former husband] is in compliance with the order requiring the insurance except that he has not provided current proof of said insurance. The [former husband] shall immediately supply the same to the [former wife] and shall further supply proof of the continuation of said policy to the [former wife] upon reasonable request for the same.’
“The judgment did not dispose of the former wife’s counterclaim for contempt based on the former husband’s alleged failure to comply with the September 28, 2004, order requiring the former husband to pay certain costs.
“On January 16, 2007, the former husband filed a motion to alter, amend, or vacate the court’s judgment. That same day the former wife filed a motion for a new trial. On April 12, 2007, the trial court denied both parties’ postjudgment motions. On May 16, 2007, the former husband filed his notice of appeal.”

984 So.2d at 1217-19 (footnote omitted).

This court noted that, in its December 19, 2006, judgment, the trial court had not “dispose[d] of the former wife’s counterclaim for contempt based on the former husband’s alleged failure to comply with the September 28, 2004, order requiring the former husband to pay certain costs.” Decker I, 984 So.2d at 1218-19. Accordingly, we dismissed the former husband’s appeal on November 30, 2007. Id.

On December 3, 2007, the former husband moved the trial court to set the case for a final hearing and to allow him to present additional testimony on the issue whether his periodic-alimony obligation should be terminated. On February 5, 2008, the trial court held a hearing on the former husband’s motion but declined to allow the former husband to present additional testimony. On February 7, 2008, the trial court amended the December 19, 2006, judgment by dismissing the former wife’s counterclaim for contempt and denying all remaining requests for relief. The former husband filed his notice of appeal on March 6, 2008.

On appeal, the former husband argues that the trial court exceeded its discretion in declining to terminate his alimony obligation because, he says, he proved that the former wife had been cohabiting with a member of the opposite sex. He further argues that the trial court exceeded its discretion by disallowing him from presenting additional testimony at the February 5, 2008, hearing.

Facts

The former wife began dating Ken Archer in February 2002. At that time, Archer was a traveling sales representative; he traveled during the week and on some weekends. The former wife testified that her relationship with Archer was romantic and sexual. The former wife testified that she and Archer were open about their relationship and that everyone knew about that relationship. She testified that their relationship continued on and off for about four years but that she had also dated other men during that time.

During the first part of the former wife’s relationship with Archer, the wife lived in Rainsville, Alabama, and Archer lived in Chattanooga, Tennessee; Archer subsequently moved to Atlanta, Georgia. Archer usually stayed at the former wife’s residence two weekends every month, and they slept in the same bed. The former wife testified that she had spent the night at Archer’s residence when he lived in Chattanooga “maybe three times” and when he lived in Atlanta “a few times.”

In March 2004, the former wife moved in with her parents in Merritt Island, Florida. She continued her relationship with Archer while living with her parents. At some point, Archer relocated to Cocoa Beach, Florida, and, in January 2005, the former wife moved into a townhouse in Cocoa Beach. The former wife testified that she and Archer spent the night with each other but they did not have keys to each other’s residences. She testified that she has a key hidden outside her townhouse but does not believe that Archer knows about it. Archer later moved into the townhouse next to the former wife’s townhouse. Archer shared his townhouse with a roommate and the roommate’s child. The former wife testified that, after Archer moved next door, she and Archer continued to spend some nights at each other’s residences.

During their relationship, the former wife and Archer spent all but one Christmas together. Archer spent Thanksgiving with her and her family and friends in November 2005. The former wife and Archer exchanged gifts at Christmas, on Valentine’s Day, and on birthdays. When the former wife’s son got married, Archer stood in as a witness because the son’s best friend could not. The former wife accompanied Archer to his father’s funeral. She has met some of his family. When Archer’s uncle visited him, the former wife went out with a group of people to entertain him. When Archer was away on business, he telephoned the former wife daily. The former wife also traveled with Archer on some of his business trips. Within the year and a half preceding December 2005, the former wife had accompanied Archer on eight of his business trips and had gone on one vacation with him; Archer paid for the vacation. On the business trips, Archer paid for the former wife’s plane ticket, and the former wife paid for anything else she did. In December 2005, the former wife sent out a letter to her family and friends updating them on her life. She referred to Archer as her “boyfriend of three years.”

The former wife testified that Archer had never left clothing or personal items at her home. She stated that he may have tried to help her make a small repair to her home but that he had never financially assisted the former wife with repairs. He had never purchased any clothing for her but had purchased a “couple of little rings, charms,” and he took her out to dinner at least once a week. The former wife testified that, otherwise, Archer had not financially contributed to the former wife’s expenses. She testified that they very seldom ate at each other’s homes but that she had cooked him a “special dinner” once or twice and that he had tried to cook for her. She testified that she never washed his clothes and that she had ironed only once for him while they were in a hotel. She testified that she did not check his mail when he was out of town because his roommate did that. The former wife had driven Archer’s automobile, and Archer had driven her automobile “probably once or twice.” Archer had parked his boats at the former wife’s home during hurricanes.

The former wife testified that she and Archer had broken up two or three months before the trial. She testified that they had gotten back together and had then broken up again about a month before the trial. At the time of the trial, the former wife’s son and daughter-in-law lived with her in her townhouse.

I.

We first address whether the trial court exceeded its discretion by not terminating the former husband’s periodic-alimony obligation. The former husband argues that his periodic-alimony obligation should be terminated on the basis of the former wife’s cohabitation with Archer, pursuant to § 30-2-55, Ala.Code 1975.

“It is a question of fact for the trial court to determine as to whether a former spouse is living openly or cohabiting with a member of the opposite sex in order to authorize a termination of periodic alimony under § 30-2-55, Code of Alabama 1975. The burden of proof as to that matter is upon the party seeking relief under that code section. The trial court’s decision upon that issue will not be revised upon an appeal unless, after considering all of the evidence and the reasonable inferences therefrom, the trial court was palpably wrong. Rutland v. Rutland, 494 So.2d 662 (Ala.Civ.App.1986); Capper v. Capper, 451 So.2d 359 (Ala.Civ.App.1984); Penn v. Penn, 437 So.2d 1053 (Ala.Civ.App.1983); Peterson v. Peterson, 403 So.2d 236 (Ala.Civ.App.), cert. denied, 403 So.2d 239 (Ala.1981).
“1... [C]ohabitation requires some permanency of relationship coupled with more than occasional sexual activity between the cohabitants. In previous cases before this court in which alimony has been terminated pursuant to § 30-2-55, this permanency of relationship has manifested itself by the former spouse sharing a dwelling with a member of the opposite sex. Blackwell v. Blackwell, 383 So.2d 196 (Ala.Civ.App.1980); Ivey v. Ivey, 378 So.2d 1151 (Ala.Civ.App.1979); Parish v. Parish, 374 So.2d 348 (Ala.Civ.App.1979); cert. denied, 374 So.2d 351 (Ala.1979); Atkinson v. Atkinson, 372 So.2d 1106 (Ala.Civ.App.1979). Other factors, previously considered by this court, which indicate a permanency of relationship include ceasing to date other members of the opposite sex, Atkinson v. Atkinson, supra; payment of the former spouse’s creditors by a member of the opposite sex, Parish v. Parish, supra; and purchase of clothes for the former spouse by a member of the opposite sex, Parish v. Parish, supra.

Knight v. Knight, 500 So.2d 1113, 1115 (Ala.Civ.App.1986) (quoting Hicks v. Hicks, 405 So.2d 31, 33 (Ala.Civ.App.1981)).

The former husband cites Ex parte Ward, 782 So.2d 1285 (Ala.2000), in support of his position that the trial court should have found that the former wife had been cohabiting with Archer. In Ward, the trial court found that the former wife had not cohabited with a man despite evidence indicating that the former wife “had lived with a man in the same house for 12 years,” that the man had helped the former wife with expenses, and that the former wife and the man had had sexual relations. 782 So.2d at 1288. The supreme court concluded that the trial court had erred in failing to find cohabitation. Id. We note, however, that the facts in the present case are easily distinguishable from those in Ward because the former wife and Archer did not share a home and Archer did not help the former wife with her expenses.

We conclude that the facts in the present case are more analogous to the facts in Rutland v. Rutland, 494 So.2d 662 (Ala.Civ.App.1986). In Rutland, the evidence showed that the former wife spent the night with a man almost every week, had sexual relations with that man, went out socially with the man almost every weekend, cooked an occasional weekday meal for the man, and occasionally took trips with the man and shared a hotel room. 494 So.2d at 663. The man, however, did not keep any clothing or other personal items at the former wife’s home, he did not receive mail at the former wife’s home, and he did not materially or habitually help the former wife with her expenses. Id. Further, the former wife had occasionally dated other men, and the former wife and the man never shared a common residence. Id. The trial court concluded that although the former wife and the man “were regular social and sexual companions, such a conclusion does not necessarily dictate or require a finding that the former wife was living or cohabiting with him.” 494 So.2d at 663-64. Based on the evidence, the trial court found that the former wife had not cohabited with the man and declined to terminate the former husband’s periodic-alimony obligation. 494 So.2d at 662-63. On appeal, this court found that the trial court had acted within its discretion and affirmed the trial court’s judgment. 494 So.2d at 664.

In the present case, the former wife and Archer have spent the night together, have had sexual relations, have gone out on dates, have shared meals, and have taken trips together and shared a hotel room. Archer, however, did not keep any clothing or personal items at the former wife’s home, and he did not materially or habitually contribute to the former wife’s expenses. Fui’ther, the former wife testified that she has dated men other than Archer and that she and Archer have never shared a residence. Based on the foregoing, we conclude that the trial court acted within its discretion in declining to terminate the former husband’s periodic-alimony obligation.

II.

We next address whether the trial court exceeded its discretion in failing to reopen the case for the former husband to introduce additional evidence. “The decision of whether to reopen a case for additional evidence lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.” Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38, 46 (Ala.1990). The former husband argues that the trial court exceeded its discretion in declining to allow him to present additional evidence. He asserts that the evidence was unavailable at the 2006 trial because the witness whose testimony he desired to offer lived in Florida at that time and, therefore, could not have been subpoenaed to testify at the trial. The former husband asserts that the witness has since moved to Alabama and, therefore, could now be subpoenaed to testify. We note, however, that the former husband has not argued that the witness at issue would not have voluntarily testified at the 2006 trial despite her living in Florida. In fact, the husband submitted an affidavit that was apparently voluntarily executed by the witness. Accordingly, we cannot conclude that the trial court exceeded its discretion in failing to reopen the case for the presentation of additional evidence.

Based on the foregoing, we affirm the judgment of the trial court.

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

AFFIRMED.

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

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

      . Section 30-2-55, Ala.Code 1975, provides, in pertinent part:

        "Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.”