author: PER CURIAM. THOMPSON, Presiding 'Judge, THOMAS, Judge, MOORE, Judge,

text:
    Stuart C. DUBOSE v. Allison T. DUBOSE
    2150021
    Court of Civil Appeals of Alabama.
    September 30, 2016

      James M. Gaines and Nancy ,S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.
    Lynn F. McConnell, Fairhope, for appel-lee. <
   On Application for Rehearing

PER CURIAM.

The ppinion of July 15, 2016, is withdrawn, and the following is substituted therefor. .

Stuart C. Dubose (“the husband”) appeals from , a judgment of the Clarke Circuit Court '(“the trial. court”) entered in this divorce-case,'which began eight years-ago:when, in March 2008, Allison T. Du-bose (“the wife”) filed a complaint for a divorce from the husband. During the pen-dency of this litigation, the partiés have béen before this court on multiple occasions; however, a full procedural ‘history is not necessary for the resolution of the issues in this áppeal. The instánt' appeal arises out of the judgment the trial court entered on remand, pursuant to this court’s directive in Dubose v. Dubose, 172 So.3d 233 (Ala. Civ. App. 2014) (“Dubose III”).

We first note that, at the husband’s request, the records from all of the proceedings below have been incorporated as part of the record in this appeal. In Dubose III, this court was unable to determine whether the “imputed child support of $645” the trial court had calculated was the total child-support obligation for the parties’ minor child or only the husband’s child-support obligation. We also could not determine from the record how the trial court had arrived at the amount of $645. Thus, we reversed the judgment on the issue of child support and remanded the cause for the trial court to enter a child-support judgment In compliance with Rule 32, Ala, R. Jud. Admin. Id. at 240.

We also remanded the cause for the trial court to make a determination as to the ownership of certain personal property, including firearms, a tractor, a bulldozer, a backhoe, and a bull, that the husband had contended belonged to his father, Melton Dubose (“Melton”). Upon making that determination, the trial court was then to make the appropriate disposition of that property in its judgment. Id. at 244.

Also in Dubose III, this court affirmed the award of attorney fees to the wife; however, we reversed that portion of the judgment ordering the husband to pay “all attorney fees.” On remand, the trial court was directed to take evidence regarding the amount and reasonableness of the wife’s attorney fees and to establish a specific sum that the husband was required to pay toward the wife’s attorney fees. Id. at 247. The remainder of the trial court’s judgment, which, among other things, divided marital property, was affirmed. Id. at 248.

The trial court complied with the mandate from this court, and on April 30, 2015, it entered a judgment on remand. In that judgment, the trial court determined that certain firearms, the bull, and the bulldozer were not marital assets subject .to division. However, the trial court found, a 90-horsepower tractor and a Caterpillar backhoe were marital assets, and those two farm vehicles were awarded to the wife. In the judgment on remand, the trial court also awarded the wife $11,250 toward her attorney fees. Additionally, it imputed monthly gross income of $5,000 to the wife, it imputed monthly gross income of $6,300 to the husband, and it ordered the husband to pay $645 a month in child support retroactive to March 2010. All other provisions of the judgment that had been the subject of Dubose III remained in full force and effect.

The husband filed a timely motion to alter, amend, or vacate the judgment on remand. The trial court denied the motion without a hearing, and the husband filed a timely notice of appeal.

On appeal, the husband contends that the trial court erred in denying his postjudgment motion before affording him an opportunity to be heard on that motion. As the husband points out, Rule 59(g), Ala. R. Civ. P., provides that postjudgment “motions remain pending until ruled upon by the court (subject to the provisions of Rule 59.1) but shall not’be ruled upon until the parties have had opportunity to be heard thereon.” Additionally, this court has held that,

“[generally,- a movant who requests a hearing on his or her postjudgment motion is entitled to such a hearing. Rule 59(g), Ala. R. Civ. P.; Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). A trial court’s failure to conduct a hearing is error. Flagstar Enters., 779 So.2d at 1221.”

Dubose v. Dubose, 964 So.2d 42, 46 (Ala. Civ. App. 2007).

However,

“this court has recognized an. exception to the general rule that the denial of. a ■postjudgment motion without conducting a requested hearing is reversible error. See Gibert v. Gibert, 709 So.2d 1257, 1258 (Ala. Civ. App. 1998) (‘Á trial court errs by not granting a hearing when one has been requested pursuant to Rule 59(g); however, that error is not necessarily reversible error,’). ‘On appeal, ... if an appellate court determines that there is no probable merit to the motion, it may affirm based on the .harmless error rule.’ Palmer v. Hall, 680 So.2d 307, 307-08 (Ala. Civ. App. 1996); see also Lowe v. Lowe, 631 So.2d 1040, 1041 (Ala. Civ. App. 1993) (‘Denial of a Rule 59 motion without a hearing is reversible error if the movant requested a hearing and harmful error is found.’). The Alabama Supreme Court has stated:
“‘Harmless error occurs, within the context of a Rule 59(g) motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to thé movant, by application of the same objective standard of review as that applied in the trial court.’
“Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). However, ‘[w]hen there is probable merit -to the motion, the error cannot be considered harmless.’ Dubose [v. Dubose], 964 So.2d [42] at 46 [ (Ala. Civ. App. 2007)].”

Wicks v. Wicks, 49 So.3d 700, 701 (Ala. Civ. App. 2010).

Each of the issues the husband raised in his postjudgment motion is also raised on appeal. Therefore, we will consider each issue to determine whether the refusal to hold a hearing on the postjudgment motion constituted harmless error or whether there is probable merit to any of the issues presented.

First, the husband contends that the trial court’s finding that the 90-horse-power tractor and the backhoe were marital property subject to division is not supported by the evidence. Specifically, the husband asserts that both farm vehicles belonged to his father, Melton, and that, therefore, the trial court could not properly award them to the wife as part of the division of marital property.

“Á divorce judgment that is based on evidence presented ore tenus is afforded a presumption of correctness. Brown v. Brown, 719 So.2d 228 (Ala. Civ. App. 1998). This presumption of correctness is based upon the trial court’s unique position to observe the parties and witnesses firsthand and to evaluate their demeanor and credibility. Brown, supra; Hall v. Mazzone, 486 So.2d 408 (Ala. 1986). A judgment of the trial 'court based on its findings of facts will be reversed only where it is so unsupported by the evidence as to be plainly and palpably wrong. Brown, supra. However, there is no presumption of correctness in the trial court’s application of law to the facts. Gaston v. Ames, 514 So.2d 877 (Ala. 1987).”

Robinson v. Robinson, 795 So.2d 729, 732-33 (Ala. Civ. App. 2001).

As to the property still in dispute, 1.e., the tractor and the backhoe, Melton testified' that the husband had purchased the 90-horsepower tractor in November 2005 for $50,671 and that the husband had given that tractor "to Melton in 2006. Melton testified that the husband wanted to “write off’ the tractor and that he had wanted Melton to have it. No further explanation was given as to how or why the husband intended to “write off’ the tractor. As to the backhoe, Melton testified that the husband turned it over in a creek in May 2008. When the backhoe was pulled out of the creek, Melton said, it was’ not operational. A repairman told Melton that he would pay Melton $9,000 for the backhoe. Melton testified that he then gave the husband $9,000 and produced a bill of sale, dated May 30, 2008, which was after the wife had filed her complaint for a divorce. The signature on the bill of sale is illegible, but it purports to be signed by the husband’s attorney in fact, pursuant to a power of attorney. The bill of sale indicates that ownership of the backhoe was transferred from the husband to DuBose Family Farms LLC, Melton’s limited-liability company. Melton testified that he then paid approximately $15,000 to have the backhoe repaired.

As we stated in Dubose III, “[t]he general -rule is that a trial court in a divorce action lacks jurisdiction to divide property legally titled in the name of a third party not joined in the divorce action. Roubicek v. Roubicek, 246 Ala. 442, 449, 21 So.2d 244, 251 (1945).” 172 So.3d at 243.

The husband filed a motion to alter, amend, or vacate the judgment, arguing that the evidence was insufficient to support the trial court’s determination as to the ownership of the tractor and the backhoe. The husband requested a hearing on the contentions made in the postjudgment motion.

Based on the evidence before us, we cannot say that there is no probable merit to the husband’s assertion that Melton is the owner of the tractor or the backhoe, such that he was not entitled to a hearing on the postjudgment motion raising this argument. See Wicks, supra. Accordingly, we reverse that portion of the judgment finding that the 90-horsepower tractor and the backhoe were marital property and awarding those vehicles to the wife, and we remand the cause to the trial court for it to hold a hearing as the husband requested, in accordance with Rule 59(g), Ala. R. Civ. P.

Likewise, on appeal, as he did in his postjudgment motion, the husband argues that the-trial court erred in its award of child support. The husband correctly notes that the wife did not submit a CS-41 child-support-obligation income statement/affidavit form as directed and that the trial court did not complete a CS-42 child-support-guidelines form to determine child support, as required by Rule 32, Ala. R. Jud. Admin. Instead, the trial court imputed monthly income of $5,000 to the wife and “a minimum of’ $6,300 a month to the husband based on the information in the record. The husband argued that the trial court should not have imputed income to the wife, but should have determined her actual income, and that the trial court should not have imputed income to the husband because he was not voluntarily unemployed and no evidence supported the imputed-income amount. See Rule 32(B)(5), Ala. R. Jud. Admin. The wife subsequently submitted a CS-41 form containing the imputed-income amounts determined by the trial court in the judgment on remand before the trial court ruled on the postjudgment motion.

The husband’s arguments against the child-support determination appear to have merit. The trial court imputed income of $5,000 to the wife even though it had received undisputed evidence indicating that her actual income exceeded that amount. Nothing in Rule 32 allows a trial court to reduce the actual income of a parent for any reason when computing child support. The wife could not .submit a CS-41 form after the entry of the. judgment to provide a basis for the trial court’s plainly incorrect $5,000 income amount. The trial court impliedly found the husband to be voluntarily unemployed, which it could do despite the fact that the husband later qualified for Social Security disr ability benefits. See Hudson v. Hudson, 178 So.3d 861 (Ala. Civ. App. 2014). However, the evidence in the record does not support a finding that the husband can earn monthly income of $6,300 based on his: current circumstances. The trial court can consider income produced from financial and other assets in determining child support, but the record does not contain any evidence of the income produced from the assets the husband maintains. Perhaps the trial court could impute income to the husband from the assets he has concealed, but the trial court would have had to comply with Rule 32(A), Ala. R. Jud. Admin., in order to deviate from the child-support guidelines, which it did not do, and the record would have to contain some evidence indicating that the assets could produce income at the rate imputed.

For these reasons, we conclude that there is probable merit to the issues regarding the computation of the husband’s child-support obligation. Therefore, the trial court erred in refusing to hold a hearing on those issues, which were raised in the husband’s postjudgment motion. Accordingly, we reverse the judgment on remand as to the issue of child support, and we remand the cause for the trial court to conduct a hearing on the issues related to child support that the husband raised in his postjudgment motion. See, e.g., Weiss v. Nave, 148 So.3d 1086, 1089 (Ala. Civ. App. 2014); Henderson v. Henderson, 123 So.3d 974, 979 (Ala. Civ. App. 2013).

The husband also contends that, in the judgment on remand, the trial court erred in ordering the husband to pay $11,250 toward the wife’s attorney' fees. In DuboSe III, we held that the trial court had not abused its discretion in ordering the husband-to pay at least a portion of the wife’s attorney fees, but we remanded the cause- for the trial court to establish a specific amount of the fees to be awarded. As we stated in Dubose III:

“•‘“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and; absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala. Civ. App. 1994). ‘Factors to be considered by the trial court when awarding such fees include the financial- circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the-services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala. Civ. App. 1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala. Civ. App. 1986).”
“ ‘Glover v. Glover, 678 So.2d 174, 176 (Ala. Civ. App. 1996).
“Frazier v. Curry, 104 So.3d 220, 228 (Ala. Civ. App. 2012).”

172 So.3d at 245-46. See also Deas v. Deas, 747 So.2d 332, 337, (Ala. Civ. App. 1999)(“In determining whether to award an attorney fee [in a divorce action], the trial court considers equities similar to those which govern the division of property—the - earning, capacity of the parties, their financial circumstances, and the results of the litigation.”).

After outlining the evidence presented in the case regarding the assets of the parties, much of which is set forth above, we then stated in Dubose III:

“Furthermore, the trial court noted in the judgment that, during the course of the litigation,
“ ‘the [husband] has been in violation of numerous discovery orders and has been in constant contempt throughout this divorce- proceeding; has refused to engage in any discovery whatsoever claiming he did not have access to records or that the [wife] had them[,] and other action showing his utter contempt for these proceedings^] which this court finds unacceptable and-will deal with accordingly.’
“Considering the length of the parties’ marriage, the husband’s conduct in hiding assets and in litigating this matter, and the husband’s apparent financial ability to pay the wife’s attorney fees, we cannot say that the trial court abused its discretion in ordering the husband to •pay at least a portion of the wife’s attorney fees, However, we agree with’ the husband that the trial court erred in not setting a specified sum as‘the amount the husband' had to pay toward those attorney fees. This court has held that a trial court may not order’one party to pay anpther party’s attorney fees without first receiving evidence of the amount of those fees and then determining the reasonableness of that amount. A.B. v. J.B., 40 So.3d 723, 735 (Ala. Civ. App. 2009). There is no evidence in the record indicating that the trial court considered the amount or reasonableness of the wife’s attorney fees before ordering that the husband be responsible for paying those fees. Accordingly, that portion of the judgment ordering the husband to,pay ‘all attorney fees’ is reversed. On remand, the trial court is directed to take evidence on the amount of fees, to consider the reasonableness of those fees, and to establish a specific sum that the husband must pay toward the wife’s attorney fees.”

172 So.3d at 246-47.

On appeal, the husband argues that, despite our conclusion in Dubose III that the trial court had not abused its discretion in awarding the wife attorney fees, the award was improper because, he says, the wife failed to demonstrate that she had a financial need for the award..

We first point out that our holding that the trial court did not abuse its discretion in ordering the husband to pay at least a portion of the wife’s attorney fees became the law of the case. The trial court was directed only to establish the amount of the attorney fees to be awarded.

“ ‘Under the doctrine of the “law of the case,” whatever is once established between the same parties in the same case continues to be the law of that case, whether or not correct on general principles, so long' as the facts on which the decision was predicated continue,to be the facts of the case.’ Blumberg v. Touche Ross & Co., 514 So.2d 922, 924 (Ala. 1987). See also Titan Indem. Co. v. Riley, 679 So.2d 701 (Ala. 1996). ‘It is well established that on remand the issues decided by an appellate court become the “law of the case,” and that the trial court must comply with the appellate court’s mandate.’ Gray v. Reynolds, 553 So.2d 79, 81 (Ala. 1989).”

Southern United Fire Ins. Co. v. Purma, 792 So.2d 1092, 1094 (Ala. 2001).

The trial court complied with this court’s directive on remand. The .wife’s .attorney submitted to the trial court an itemized billing statement reflecting the work, he had done from the inception of this matter in March 2008 through the trial that was held in November 2009. The total amount of attorney fees for that time was $49,813. In its judgment on remand, the trial court stated:

“This Court has reviewed the attorney fee bill submitted in this case and the [husband’s] response thereto, along with the evidence and testimony received throughout this case; based upon same, the Court finds a reasonable amount [the husband] shall pay towards attorney fees incurred by the [wife] is $11,250.”

The judgment on remand does not indicate that the trial court, intended to award the wife attorney fees solely based on her financial need. As mentioned, there are a number of- other, reasons' the trial court could have believed the husband should pay a share of the wife’s attorney fees. For example, the record indicates .that the husband refused to comply with a number of discovery requests, which resulted in the wife’s having to file motions to compel his compliance. The wife also sought to have the- husband held in contempt of court for his refusal to.abide by court orders. The trial court granted the wife’s requests. The trial court made reference to the husband’s conduct in the judgment of March 3, 2014—the judgment at issue in Dubose III, supra—saying:

“[T]he [husband] has been in violation of numerous discovery orders and has been in constant contempt throughout this divorce proceeding; has refused to engage in any discovery whatsoever claiming he did not have access to records or that the [wife] had, them[,] and other action showing his utter contempt for these proceedings!],] which this court finds unacceptable and will deal with accordingly.”

Further, the record on appeal in Dubose v. Dubose, 72 So.3d 1210 (Ala. Civ. App. 2011), the first appeal of this case, which, as noted earlier, is included in the record in the instant appeal, comprises more than 4,500 pages, which' is an extraordinarily large record in a divorce action. Based on the record before us, the trial court reasonably could have believed that the husband’s conduct during the litigation unnecessarily prolonged the matter or increased litigation costs, including attorney fees.

Although, in his brief on' appeal, the husband addresses the issue of financial need, one of the factors we ordered the trial court to consider in Dubose III, the husband does not argue that the trial court abused its discretion in awarding the wife an attorney fee based on the other factors set forth in Dubose III, such as the conduct of the parties or the results of the litigation. Thus, any argument the husband could have made on appeal challenging the award of attorney fees on those grounds is deemed waived. See Gary v. Crouch, 923 So.2d 1130, 1136 (Ala. Civ. App. 2005) (“[T]his court is confined in its review to addressing the arguments-raised-by the parties in their- briefs oh appeal; arguments not raised by the parties are waived.”); see also Palmer v. Palmer, 192 So.3d 12 (Ala. Civ. App. 2015) (same).

Moreover, because the trial court did not set out the factual basis for its award of attorney fees, we cannot conclude that the trial court failed to consider the wife’s financial need in making the award. The evidence indicated that the wife earned approximately $70,000 a year. Although the wife has apparently been' able to support herself on her income' alone, the amount of the attorney fees she incurred during the first two years this matter was pending is more than two-thirds of her annual salary. The trial court ordered the husband to pay the wife approximately 23% of the total attorney fees she had incurred through the initial trial of this case. Again, based on the record before us, even if the trial court did consider the wife’s financial need in making its attorney-fee award, we cannot conclude that the trial court abused its discretion in doing so. Accordingly, we hold that the trial court did not abuse its discretion in ordering the husband to pay the wife $11,250 toward her attorney fees. As to this issue, we conclude that the trial court’s failure to hold a hearing on the husband’s post-judgment motion constituted harmless error.

For the reasons set forth above, that portion of the judgment on remand determining that the tractor and the backhoe were marital property and awarding those items to the wife and that portion of the judgment determining the amount of the husband’s child-support obligation are reversed, and the cause is remanded for further proceedings. That portion of the judgment on remand awarding the wife attorney fees is affirmed.

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

APPLICATION GRANTED; OPINION OF JULY 15, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

Pittman and Donaldson, JJ,, concur.

. Thompson, P.J., concurs in part and . dissents in part, with writing.

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

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

THOMPSON, Presiding 'Judge,

concurring in part and dissenting in part.

On appeal, as he did in his postjudgment motion, Stuart C. Dubose (“the husband”) argues that the evidence does not support the trial court’s determinations that, for the purposes of calculating child support, Allison T. Dubose (“the wife”) had an imputed monthly income of $5,000 and that he had an imputed monthly income of $6,300. Specifically, the husband states that the evidence indicated that the wife earned $5,500 a month and that he has had no income at all since 2008. He also states that no evidence was presented that would support a conclusion that he could earn $6,300 a month.

Portions of the procedural history of this case are helpful to an understanding of the issues related to- the calculation of the husband’s child-support obligation. In the first appeal of this case, this court dismissed the appeal in April 2011 because the appeal was not from a final-judgment. Specifically, we determined that the- trial court had not calculated the husband’s child-support obligation. Dubose v. Dubose, 72 So.3d 1210 (Ala. Civ. App. 2011) (“Dubose I”). The order -at issue in that appeal was entered on March 29, 2010. In Dubose I, we wrote:

“With regard to the calculation of child ' support in this case, the trial court’s order stated:
“ ‘Child support shall be paid to the [wife] in accordance with Rule 32[, Ala. R. Jud. Admin.,] modification tables effective January 1, 2009. The income for the parties will be[,] for the [wife,] her 2007 tax return showing a gross ineome of $70,292[,] and the [husband’s] gross income as defined by said Rule 32 shall be the average of [his]-'gross income for his 2006, 2007, and 2008 income-tax years. The [husband] will provide to the [wife]’s attorney these tax returns prior to the signing of this agreement for the calculation of child support. This ... figure will be divided by 12 for a monthly income that will be used along with the [wife’s] income to establish a monthly child support for [the minor child].
“‘An interim child-support amount shall be set at $400' per month for the parties’ minor child, by agreement of the [husband]. The court reserves the right to raise or lower this amount upon motion of any party and proof of [the husband]’s income.
“ ‘[The husband] - shall submit the above information within 30 days.’
“Thus, although the order required the husband to pay child support and provided the manner in which child support ultimately was to be calculated, the order did not provide the exact amount of the husband’s child-support obligation beyond providing for an ‘interim’ amount of child support pending the ordered calculations. We also note that a subsequent paragraph of the order provided that ‘neither party shall pay monthly child support payment[s].’ ”

72 So.3d at 1211-12.

Moreover, the record indicates that when she filed her complaint in 2008,- the wife filed a Form CS-42, part of the documentation. necessary under the child-support guidelines set out in Rule 32, Ala. R, Jud. Admin. That form, dated March 24, 2008, indicates that, at that time, the wife’s monthly gross income was $5,500 and the husband’s monthly gross income was $8,621.54.

In the third appeal of this case, we again reversed the judgment of the trial- court on, among other issues, the issue of child support. Dubose v. Dubose, 172 So.3d 233, 239-40. (Ala. Civ. App. 2014)(“Dubose III”). Regarding the child support awarded in the trial court’s judgment of March 3, 2014, we wrote;

“The husband contends th'át the trial court erred when it imputed ‘child support’ rather than imputing ‘income’ in the judgment. The husband asserts that the undisputed evidence indicated that, other than Social Security disability benefits, he had not earned any aneóme since 2009 and that, because of his physical condition, he cannot be gainfully employed. The husband contends that the wife did not present evidence to refute his inability to work.,
, “In the judgment, the trial court pointed out that the husband testified that he had no income, while other, evidence indicated that, up until 2008, the husband had earned income of approximately $2 million. Accordingly, the trial court ‘impute[d] child support in the amount of $645’ a month, which was to be applied retroactively from March 5, 2010, the date the trial court rendered an order (the order was not actually entered .until March 29, 2010) setting an interim amount of child support of $400 a month, until the child’s 19th birthday in November 2011.
“Rule 32(C)(2), Ala. R. Jud. Admin., sets forth the manner in which child •support is calculated, stating:’
“‘A total child-support obligation is determined by adding the basic child-support obligation, work-related childcare costs, and health-insurance costs. The total child-support obligation shall be divided between the parents in proportion to their adjusted gross incomes. The obligation of each parent is computed by multiplying the total child-support obligation by each parent’s percentage share of their combined adjusted gross income. The custodial parent shall be presumed- to spend his or her share directly on the child.’
“The judgment does not make clear whether the ‘imputed child support’ referenced in the judgment is the total child-support obligation or whether it is the amount thé trial court deemed to be the husband’s share. To complicate matters, the next paragraph of the judgment states that ‘neither party shall pay monthly child support payment,’ and it sets forth the procedure the trial court will use ‘if in the future it is determined [child support is] to be due'.’ The same paragraph indicates that the wife’s attorney had completed the income affidavits and other forms required pursuant to Rule 32, Ala. R, Jud. Admin. However, during the hearing on the issue of child support after this' court dismissed the husband’s first appeal in this- case, the wife’s attorney told the trial court he had not prepared the required forms but that he could prepare an income affidar vit to provide to the court. The husband states in his appellate brief that neither the wife nor the trial court submitted the forms required by Rule 32 for determining- child support. In our review of the voluminous record in this case, we could not locate an income affidavit from the wife or a standardized ‘child-support-guidelines form’ (Form CS-42), both of which are required to be included in the record. Rule 32(E), Ala. R. Jud. Admin, -The wife has-not provided this court with a brief on appeal; thus, the husband’s assertion that the proper child-support forms were not completed is not refuted.
“Even if the required forms are not contained in the record, this court may affirm a child-support award if we are able to determine, from the evidence in the record, how the trial court reached its child-support calculation. Hayes v. Hayes, 949 So.2d 150, 154-55 (Ala. Civ. App. 2006). In this case, however, this court is unable to determine from the evidence in the record how the trial court determined the husband’s child-support obligation. Moreover, we note that in its order of March 29, 2010, the trial court ordered the husband to pay interim child support of $400 a month for the parties’ youngest child. That child reached the age of 19 years in November 2011, more than two years before the final judgment was entered. Accordingly, we reverse the judgment as to this issue, and we remand the case for the trial court to enter a child-support judgment that complies with Rule 32, Ala, R. Jud. Admin., enabling this court, if a subsequent appeal is filed, to determine how the trial court calculated the husband’s child-support obligation and to provide a meaningful review as to the propriety of that obligation. C.M.M. v. S.F., 975 So.2d 975, 982 (Ala. Civ. App. 2007); Wilkerson v. Waldrop, 895 So.2d 347, 348-49 (Ala. Civ. App. 2004).”

Dubose III, 172 So.3d at 239-40.

In the instant appeal, the-husband has again challenged the child support ordered in the judgment entered on remand from Dubose III. In the judgment on remand, dated April 30, 2015, the trial court wrote:

“The [husband] has submitted a CS-41 form to assist the Court in making a child support determination. The [wife] has not. However, the record contains sufficient income information to determine the parties’ income and impute same. This Court imputes income to the [wife] of $5,000 (44%) monthly gross income. Additionally, the record contains .income and other relevant information sufficient for this Court to impute a minimum income to the [husband] of $6,300 (56%) monthly gross income. Therefore, the monthly child-support amount for the [husband] is $645 per month applied retroactively from March 29,2010.”

The main opinion concludes that “the evidence in the record does not support a finding that the husband can earn monthly income of $6,300 based on his current f circumstances.” 230 So.3d at 1143. I respectfully disagree.

At the 2008 hearing during which the wife testified as to her salary, which is the amount the husband wants the courts to use when calculating child' support, the husband testified that his net monthly income was approximately $4,800. The child-support form dated March 24, 2008, which the wife submitted when she filed the divorce complaint, indicated that, at that time, the husband’s monthly gross ihcome was $8,621.54. However, the husband contends that he is disabled as the result of injuries to his back and neck, which he suffered in 2003. In the accident, the recliner in which the husband was sitting collapsed, ejecting him and consequently breaking his neck and back. The husband claims that he has been ih constant pain since that time. It is also undisputed that, despite his disability, the husband campaigned for and was elected to the circuit bench in 2006 and took office in January 2007. The husband was removed, from his position as a circuit judge and was disbarred from the practice,of law in 2008. The husband asserts that , he has had no income since 2008. Dubose III, 172 So.3d at 236.

However, as set forth in Dubose III, there was evidence indicating that the husband had accrued assets of nearly $2 -million from 2006 through 2008, the year the divorce complaint was filed. The- -wife presented evidence indicating that, in 2007, the husband had deposits of $1,121,374,90 apart from his judge’s salary. Dubose III, 172 So.3d at 237-38. At the hearing, the husband denied knowing the source of all of the money, asserting that loan proceeds accounted for some of the deposits. Id. Despite the general rule that the obligor’s ability to pay is always considered when establishing or modifying an award of child support, Rule 32 provides a trial court the authority to impute income to a parent if that court finds that the parent is voluntarily unemployed or underemployed. See Rule 32(B)(5), Ala. R. Jud. Admin. (“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based, on that parent’s imputed income.”).

“ ‘The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed “is to be made from the facts presented according to the judicial discretion of the trial court.” ’ Clements v. Clements, 990 So.2d 383, 394 (Ala. Civ. App. 2007) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala. Civ. App. 1992), and citing Rule 32(B)(5), Ala. R. Jud. Admin.).”

Bittinger v. Byrom, 65 So.3d 927, 934 (Ala. Civ. App. 2010).

In a footnote to the judgment on remand in which the trial court imputed income of $6,300' a month to the husband, the trial court stated:

“Testimony and evidence revealed that the [husband] has advanced degrees, farming, boat racing, investments, etc., that produce income for and on behalf of ■the [husband]. Testimony' also pointed out that the [husband] continued to be active despite his alleged physical condition prohibiting him from working; [the husband] continued to engage in physical activities and was/is not so physically disabled that he cannot hold a job.”

Thus, the trial court implicitly, if not expressly, found that the husband is voluntarily unemployed. “A trial court may validly impute income to a parent pursuant to Rule 32(B)(5) without expressly finding that the parent is voluntarily unemployed or underemployed.” G.B. v. J.H., 915 So.2d 570, 574 (Ala. Civ. App. 2005).

As mentioned, the husband contends that he is unable to work because he is disabled and has been disbarred. This court has held that a parent’s reasons for being unemployed are matters for consideration in determining his or her ability to pay child support. See, e.g., Alred v. Alred, 678 So.2d 1144, 1146 (Ala. Civ. App. 1996) (in a proceeding to modify child support, the fact that the father was unemployed and incarcerated was a matter for consideration in determining his ability to pay child support). However, if the parent “nevertheless has property or funds available to him [or her], support may be awarded therefrom.” Id. (citing Smith v. Smith, 631 So.2d 252 (Ala. Civ. App. 1993)). See also Rule 32(B)(2), Ala. R, Jud. Admin, (defining “gross income” to include “income from any source,” including, but not limited to, employment-related income, and income derived from sources such as dividends, interest, trusts, gifts, and prizes).

In the judgment of -March 3, 2014, the trial court expressly stated that it did not find believable the husband’s testimony that he did not have access to approximately $1.3 million in gold- and other precious metals. The trial court also found that there had been deposits of more than $2,302,234.39 made to the husband’s bank account from 2005 through 2008. Additionally, the trial court noted that, during the time the husband said he was disabled, he ran for circuit judge and was elected to that position. As discussed in Dubose III, those findings were' supported by the evidence.

Based .on the record before us, in my opinion, in entering the judgment on. remand, the trial court did not err in finding that the husband is able to work, albeit not as an attorney. I note that the gross monthly income of $6,300 a month that the trial court imputed to the husband is $2,321.54 less than the gross monthly income of $8,621.54 that the husband was-earning at the time the divorce complaint was filed. Additionally, the evidence indicates that the husband has sufficient assets from which child support may be awarded. Smith, supra. Accordingly, based on the facts of this case, I cannot say that the trial court abused its discretion in imputing gross monthly income of $6,300 to the husband.

. The main opinion also seems to suggest that any assets or resources the husband has from which he can pay child support must be incoming-producing assets that provide income at the rate.the trial court imputed to the husband. Id.

“A child has a fundamental right under our law to support from that child’s parents that the parents themselves cannot waive. State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala. Civ. App. 1995). ‘All minor children have a fundamental right to parental support and that right is deemed to be a continuing right until the age of majority.’ Ex parte State ex rel. Summerlin, 634 So.2d 539, 541 (Ala. 1993); see also Bank Independent v. Coats, 591 So.2d 56, 60 (Ala. 1991) (‘[Tjhe public policy of this state [provides] • that parents cannot abrogate their responsibilities to their minor children by mutual agreement between themselves so as to deprive their minor children of the support to which they are legally entitled.’).”

Hawkins v. Cantrell, 963 So.2d 103, 105-06 (Ala. Civ. App. 2007). Just as parents cannot waive child support by mutual agreement, I do not believe that a parent with significant assets can avoid his or her child-support obligation merely because those assets do not produce income. I agree with the Maryland Court of Special Appeals’ well-reasoned explanation as to why a trial court should have discretion to consider non-income-producing assets when determining child support:

“[I]f á parent voluntarily decreases his or her income in order to avoid support payments, a court may find that a parent has become voluntarily impoverished, and impute income based on assets readily adaptable to income ■ production. Alternatively, in instances where the income of a parent is not adequate to provide support to a child sufficient to meet the standard.of living established during the marriage, and the parent has assets that 'could be converted into- income-producing assets, a court might look to the parent’s assets to determine above-the-guidelines support. We do not agree, however, that the mere ownership of non-income-producing assets alone constitutes a basis for reliance upon those assets in determining child support. Moreover, the decision to devote assets to capital growth, rather than income production, should be within the discretion of a parent, as long as the children are provided reasonable support, consistent with that provided during the marriage or other relationship.”

Barton v. Hirshberg, 137 Md. App. 1, 20, 767 A.2d 874, 884 (2001)(emphasis added).

More recently, the Nebraska Supreme Court has also considered whether non-income-producing assets should be considered in determining child support. That court wrote:

“Other courts have recognized that the parties’assets—including those that are not currently producing income—are relevant to the support calculation.
“Courts generally factor non-ineome-producing assets into the child support calculation in one of two ways. First, courts sometimes impute to the parent’s income a hypothetical reasonable rate of return from a nonproducing or under-producing asset. The rationale is that funds devoted to unproductive assets have untapped earning potential. Courts do not have to defer to a parent’s investment decisions, and the parent’s choice to devote resources to growth instead of income must sometimes yield to the child’s best interests.
“The second way courts consider non-income-producing assets is as a reason to deviate from the presumptive child support formula. For deviations, the theory is that- parents should sometimes liquidate assets to meet their paramount obligation to support their children. Relevant factors include the obligor’s total wealth, the custodial parent’s total wealth, the children’s needs, and whether liquidating the asset would interfere with the obligor’s livelihood or ability to earn income.” • *

Stekr v. Beecham, 291 Neb. 883, 888-89, 869 N.W.2d 347, 351-52 (2015)(footnotes omitted).

In this case, the trial 'court found that the husband had hidden significant asséts. Those assets are currently not producing income.‘The husband should not be able to insulate his financial resources, which in this case appear to be considerable, simply because he elects- not to place those assets in income-producing ventures. Accordingly, I also disagree with the main opinion’s holding that, before the husband’s assets can be considered in determining child support, evidence must be presented “indicating that the assets could produce income at the rate imputed.” 230.So.3d at 1143.

Because I conclude that substantial evidence supports the trial court’s decision to impute $6,300 a month to the husband, I believe that the trial court’s failure to hold a hearing on the husband’s postjudgment motion as to this issue is harmless error.

The husband also challenges on appeal the trial court’s decision to impute income to the wife. The record indicates that, on June 17, 2015, approximately six weeks after the judgment on remand was entered, the wife filed child-support forms indicating that her monthly gross income was $5,000. On the CS-41 form, the wife’s attorney noted that the form was “prepared in accordance with income figures of [the wife] and [the husband] determined by Judge McMillan in Order on Remand dated April 30, 2015. Also in- accordance with Orders of this Court said amount of child support is retroactive to March 2010.” Furthermore, in her brief to this court in the current appeal, the wife again states that she filed the' CS-41 form “that conforms to her monthly gross income of $5,000 as determined by the trial court in the Order on Remand.”

The sequence for determining the amount .of child support to be awarded has béen reversed in this case. The trial court is to determine the amount of child support owed by reviewing the parties’ affidavits regarding the amount of money they earn. The parties are not to complete their forms based on the income the trial court “imputes” to them.

On appeal, the husband asserts that the trial court cannot impute income to the wife, when there is evidence of her income and there is no suggestion that -she is voluntarily unemployed or underemployed. I agree. Rule 32(C), Ala. R. Jud. Admin,, sets forth the way child support is to be calculated, using the combined monthly gross income of both parents. Rule 32(B)(5), Ala. R. Jud. Admin., allows the trial court to estimate or impute income “[i]f the court finds that , either parent is voluntarily unemployed or underemployed.” That rule further provides:

“In determining the amount of income to be imputed to a parent who is unemployed- or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community.”

Rule 32(B)(5).

Because there is no contention or evidence to suggest that the wife is unemployed or underemployed, I agree with the conclusion in the main opinion that the trial court must calculate child support using the wife’s actual income. There .is no basis for imputing income to the wife in this case.

As to the amount' of income the trial court purported to “impute” to the wife, the record shows that, in the March 29, 2010, judgment, the trial court found that the wife’s 2007 gross annual income (the last full year before she filed for divorce in March 2008) was- $70,292. That annual income results in a monthly gross income of $5,857.66. At a hearing on April 7, 2008, the wife testified that she earned $325 a day doing title research and reports. Later in that same hearing, the wife said that she earned a net income of between $2,000 and $3,000 a month. She also acknowledged that her monthly income for 2007 ranged from a low of $5,200 to a high- of $7,150. Most months, the wife earned at least $6,000.

Because the wife improperly completed . her income affidavit to reflect the amount of income the trial court had imputed to her rather than stating her actual income, and because this court cannot determine how the trial court derived the figure of $5,000 to use as the wife’s gross monthly income, the record clearly demonstrates that the trial court errédin calculating the husband’s child-support obligation by imputing income of $5,000 a month to the wife. However, because the record clearly demonstrates the basis for the trial court’s error as to this issue, and.this .court can and should reverse the judgment for that reason, I believe that remanding the cause for the trial -court to reconsider the judgment in light of the facts set forth herein is a better alternative- in this casé than remanding the cause for the trial court to hold a hearing on the husband’s post-judgment motion.

This case has been in litigation since 2008, and there has yet to be a final, judgment of divorce that has been affirmed on appeal. Under the circumstances of this case, I would reverse the trial court’s judgment insofar as it determined child support, but I would provide a thorough explanation as to how the trial court erred in imputing , income rather than remand the cause for a hearing on the husband’s post-judgment motion. Therefore, I dissent as to this issue. As to the remaining issues addressed in the main, opinion,. I concur.

THOMAS, Judge,

concurring ip part and dissenting in part.

I write to. express my agreement with Presiding Judge Thompson’s analysis regarding the significant, “hidden assets” of Stuart.C. Dubose (“the husband”). I believe that, in determining child-support obligations, trial courts should be able, to consider financial resources that are not currently producing income if those assets could be income-producing ventures. Like Presiding Judge Thompson, I find persuasive the reasoning of Barton v. Hirshberg, 137 Md. App. 1, 20, 767 A.2d 874, 884 (2001), and Stekr v. Beecham, 291 Neb. 883, 888-89, 869 N.W.2d 347, 351-52 (2015). Accordingly, I disagree with the determination of the main opinion that there was not sufficient evidence supporting consideration of the husband’s assets in determining his child-support obligation. In all other respects I concur in the main opinion.

MOORE, Judge,

concurring in part, concurring in the result in part, and dissenting in part.

Following the remand of this, case by this court in Dubose v. Dubose, 172 So.3d 233 (Ala. Civ. App. 2014) (“Dubose III”), the Clarke Circuit Court (“the trial court”) entered a judgment (“the amended judgment”) clarifying the property within the marital estate, explaining its child-support order, and specifying the amount of attorney’s fees awarded to Allison T. Dubose (“the wife”). Stuart C. Dubose (“the husband”) filed a postjudgment motion under Rule 59, Ala. R. Civ. P., arguing that the trial court had made various errors in the amended judgment and requesting Oral argument on that motion. Specifically, the husband maintained that the trial court had erred (1) in classifying a 90-horsepow-er tractor as marital property contrary to the evidence, (2) in classifying a backhoe as marital property contrary to the evidence, (3) in imputing income to the parties when determining child support, and (4) in awarding the wife an amount of attorney’s fees contrary to the evidence. Determining that it had complied with this court’s mandate in Dubose III, the trial court denied the postjudgment 'motion without a hearing.

The husband argues as the first point in his appellant’s brief to this court that the trial court committed reversible error in ruling on his postjudgment motion without conducting a hearing. Generally speaking, after a trial court amends a judgment, a party has a-right to file a postjudgment motion to contest any prejudice to his or her substantive rights resulting from the amendments. See Ex parte Dowling, 477 So.2d 400, 404 (Ala. 1985). That rule applies when a trial court amends a final judgment in compliance with remand instructions from an appellate court. Vinson v. Piedmont Hous., Inc., 198 Ga. App. 814, 815, 403 S.E.2d 96, 97 (1991). “[I]f a party requests a hearing on its motion! ] for a new trial, the court must grant the request. Rule 59(g), Ala. R. Civ. P.” Flagstar Enters., Inc. v. Foster, 779 So.2d 1220, 1221 (Ala. 2000). However, any error in failing to grant a hearing on a post-judgment motion would not require reversal if the error is harmless.

“Harmless error occurs, within the context of a Rule 59(g)[, Ala. R. Civ. P.,] motion, where there is either no probable merit in the grounds asserted in the motion, or where the appellate court resolves the issues presented therein, as a matter of law, adversely to the mov-ant, by application of the same objective standard of review as that applied in the trial court.”

Greene v. Thompson, 554 So.2d 376, 381 (Ala. 1989). Thus, I analyze each ground asserted in the husband’s' postjudgment motion according to the same objective standard of review used by the trial court in order to determine whether the trial court committed reversible error in denying the postjudgment motion without a hearing as to that ground. See Terminix Int’l Co., Ltd. v. Scott, 142 So.3d 512 (Ala. 2013) (remanding for hearing on issue of arbitrator bias, which had probable merit, but ruling that issue of arbitrator error in failing to apply limitation of remedies and damages contained in termite-services contract would not need to be addressed on remand because it lacked probable merit).

Property Division

In his postjudgment motion, the husband maintained that undisputed evidence proved that his father, Melton Dubose, had legitimately acquired ownership of the backhoe and the 90-horsepower tractor awarded to the wife. The husband contended that the trial court had violated the due-process rights of Melton by awarding the wife his property in a case in which he was only a witness, not a party. See Bonner v. Bonner, 170 So.3d 697 (Ala. Civ. App. 2015).

Rule 61, Ala. R. Civ. P., provides:

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

(Emphasis added.) The husband did not allege that the error in classifying the backhoe and the tractor as marital property adversely affected his substantial rights, such as by rendering the property division inequitable. He asserted only that the ownership rights of Melton, a nonparty, had been impaired. According to Rule 61, the trial court must have disregarded that alleged error in ruling on the husband’s postjudgment motion. Applying that same objective standard of review on appeal, this court must also disregard,that alleged error. Moreover, we lack jurisdiction to independently consider the point because the husband does not have standing to assert on appeal Melton’s rights. See J.S. v. Etowah Cty. Dep’t of Human Res., 72 So.3d 1212, 1223-24 (Ala. Civ. App. 2011) (a party does' not have standing to assert on appeal that the underlying judgment prejudices the rights of a third party). I therefore dissent from the main opinion insofar as it reverses the judgment based on the award of the backhoe and the tractor to the wife.

Child Support

In his postjudgment motion, the husband noted that the wife did not submit a CS-41 child-support-obligation income statement/affidavit form as • directed and that the trial court did not complete a CS-42 child-support-guidelines form to determine child support, as required by Rule 32, Ala. R. Jud. Admin. Instead, the trial court imputed monthly income of $5,000 to the wife and “a minimum of’ $6,300 a month to the husband based on the information in the record. The husband argued that the trial court should not have imputed income to the wife, but should have determined her actual income, and that the trial court should not have imputed income to-, the husband because he was not voluntarily unemployed and no evidence supported the imputed-income ■ amount. See Rule 82(B)(5), Ala. R. Jud. Admin. The wife subsequently submitted a CS-41 form containing the imputed-income amounts determined by the trial court in the amended judgment before the trial court ruled on the postjudgment motion.

I agree with the main opinion that the husband’s arguments against the child-support determination appear to have merit. The record suggests that the trial court incorrectly reduced the actual income of the wife without any lawful basis. The trial court, concluding that the husband was voluntarily unemployed, also imputed monthly income of $6,300 to the husband without any evidence indicating that he is able to earn that income. Rule 32(B)(5), Ala. R. Jud. Admin., provides, in pertinent part:

“If the court finds that either parent is voluntarily unemployed' ■ or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall- calculate child support based on that parent’s imputed income. In determining the amount ■' of -income to be imputed to a 'parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent's recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in . the community.” -

“In cases of voluntary underemployment, the amount of income to be imputed to the parent is a question of fact to be decided based on the evidence presented to the trial court.” Stone v. Stone, 26 So.3d 1228, 1231 (Ala. Civ. App. 2009) (emphasis added).

In this case, the amended judgment suggests that the trial court believed that the husband could work, but the amended judgment does not explain how the trial court determined from the evidence that the husband could earn as much as $6,300 per month given his disbarment and physical problems. As the main opinion concludes, the trial court could have imputed income from the assets that the husband concealed. 230 So.3d at 1143. The judges who dissent as to this issue, relying on law from other- jurisdictions, argue that the trial court could have imputed--a reasonable interest rate that could be derived from those assets or could have deviated from the child-support guidelines by imputing income that could be derived from liquidating the husband’s assets. 230 So.3d at 1151-52 (Thompson, P.J., concurring in part and dissenting in part); see also 230 So.3d at 1153-54 (Thomas, J., concurring in part and dissenting in part). Even if Alabama law permitted the trial court to adopt an interest rate without any evidence, which has never been decided, the amended judgment does not express that the trial court did so in this case. Also, the trial court did not comply with Rule 32(A), which requires any deviation from Rule 32 to be explained in writing in the record. Obviously, it would be unjust to deprive a child of child support from income a parent conceals, but the trial court must comply with the law when correcting that injustice. Given' the circumstances, at a minimum, the husband is entitled to a hearing on his postjudgment motion to question the method by which the trial court calculated his income.

Attorney Fees

In Dubose III, this court reviewed the trial court’s order that the husband pay all of the wife’s attorney’s fees. The court determined that the trial court had not erred “in ordering the husband to pay at least a portion .of the wife’s attorney fees,” 172 So.3d at 247, but remanded the case because the trial court did not consider the amount or reasonableness of the fees. On remand from this court’s decision in Du-bose III, the trial court ordered the wife’s attorney to submit an itemized bill for the services he had rendered in the divorce action. The wife’s attorney submitted a billing statement, dated November 30, 2009, itemizing his services from March 18, 2008, through November 25, 2009, totaling $49,813.50, which had accumulated at an hourly rate of $175. Evidence in the record shows that the wife had paid $5,000 of those fees and that the wife’s attorney had disbursed to himself three amounts totaling $17,000 from his attorney’s trust account, which was funded by the sale of coins collected by the husband. The trial court ordered the husband to pay $11,250 as “a reasonable amount” of the wife’s attorney’s fees. The husband argued in his postjudgment motion that the evidence did not show that the wife had a need for him to pay her attorney’s fees or that he had the ability to pay those fees.

I agree with the main opinion that the trial court could have awarded the wife attorney’s fees without regard for “financial need” if such an award of fees consti-. tuted a sanction for contempt, see Ala. Code 1975, § 30-2-54, or for the violations of the trial court’s discovery orders. See Rule 37(b)(2)(D), Ala. R. Civ. P. In the amended judgment, the trial court did not specify the basis for the award of attorney’s fees, but, in his postjudgment motion, the husband did not seek clarification on that point, make any argument that he was not in contempt, or make any argument that he had not violated the discovery orders. Even if he had, those arguments, having not been raised in his previous appeal, would have been barred under the law-of-the-case doctrine. See Scrushy v. Tucker, 70 So.3d 289 (Ala. 2011) (party that did not raise issue in original appeal could not later, raise issue in subsequent .proceedings). The evidence shows that the husband has the ability to pay the fees awarded to the wife. Under these circumstances, the husband failed to show probable merit in his postjudgment motion.

However, I do not join any aspect of the main opinion implying that a trial court can, independently of § 30-2-54 or Rule 37(b)(2)(D), award attorney’s fees solely on the basis that one party’s “conduct during the litigation unnecessarily prolonged the matter or increased litigation costs, including attorney fees.” 203 So.3d at 1146. I also do not agree that, in assessing the wife’s need for the husband to pay her attorney’s fees, a court should consider only the wife’s salary and not any of her assets. 203 So.3d at 1146. Because the husband’s postjudgment lacked probable merit under the posture of this case, I do not explain the reason for my disagreement at length other than to say that those propositions are not supported by the law on attorney’s fees in divorce cases as established by our supreme court. See McNutt v. Beaty, 370 So.2d 998, 1000 (Ala. 1979); Silver v. Silver, 269 Ala. 517, 520, 113 So.2d 921, 924 (1959); Couch v. Couch, 247 Ala. 70, 72, 22 So.2d 599, 600 (1945); Savage v. Savage, 246 Ala. 389, 392, 20 So.2d 784, 786 (1945); Mancil v. Mancil, 240 Ala. 404, 405, 199 So. 810, 811 (1941); Brady v. Brady, 144 Ala. 414, 39 So. 237 (1905); and Ex parte Smith, 34 Ala. 455 (1859).

Conclusion

I dissent from the reversal of the amended judgment as to the property division. I concur that the case should be remanded for a hearing on the husband’s postjudgment motion in regard to the child-support award. I also concur that the judgment should be affirmed as to the award of attorney’s fees, but not for the reasons stated in the main opinion.

      . For those interested in the complete procedural history, see Dubose v. Dubose, 72 So.3d 1210 (Ala. Civ. App. 2011); and Dubose v. Dubose, 132 So.3d 17 (Ala. Civ. App. 2013). In addition to those appeals and the appeal in Dubose v. Dubose, 172 So.3d 233 (Ala. Civ. App. 2014), the husband has subfriitted two petitions for a writ of mandamus to this court in this case. Both petitions were denied. See Ex parte Dubose (No. 2080900, July 10, 2009), 58 So.3d 863 (Ala. Civ. App. 2009) (table); and Ex parte Dubose (No. 2130384, March 19, 2014), 177 So.3d 485 (Ala. Civ. App. 2014) (table).

      . On remand, the trial court found that a bull and a bulldozer whose ownership was disputed belonged to Melton. Melton had testified that he had paid the husband $45,000 for the bulldozer. A check dated Februaiy 27, 2008, made payable to the husband from Melton corroborated Melton’s testimony. The trial court also found that several specific firearms were not marital property.

      . I agree that, because Melton was not a party to the divorce action, the trial court lacked jurisdiction to award the wife the tractor and the backhoe as marital property. See Roubicek v. Roubicek, 246 Ala. 442, 449, 21 So.2d 244, 251 (1945). I also note that Melton, as a nonparty, is not bound by the amended judgment. See Boswell v. Boswell, 189 So.2d 854, 861 (Ala. 1966). However, I do not agree that this court can consider those points in this appeal because the appeal is brought solely by the husband. I do not comment on the procedure that Melton should follow to secure his property rights.


source: Caselaw Access Project

author: WISE, Justice.

license: Public Domain

text:
    EX PARTE Stuart C. DUBOSE (In re Stuart C. Dubose v. Allison T. Dubose)
    1160046
    Supreme Court of Alabama.
    November 10, 2016
    James M. Gaines and Nancy S. Gaines of Gaines & Gaines, LLC, Magnolia Springs, for petitioner.
   WISE, Justice.

The petition for the writ of certiorari is denied.

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

WRIT DENIED.

Stuart, Bolin, Parker, and Main, JJ., concur.


author: BURKE, Judge.

text:
    Christopher CASE v. STATE of Alabama
    CR-15-0252
    Court of Criminal Appeals of Alabama.
    September 9, 2016
    Rehearing Denied March 17, 2017.

      D.E. “Skip” Brutkiewicz, Jr., and Joseph S.Dennis, Mobile, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, ásst. atty. gen., for' appellee.
   BURKE, Judge.

Christopher Case pleaded guilty to felony murder, a violation of § 13A-6-2(a)(3), Ala. Code 1975, and was sentenced to 20 years’ imprisonment. On. May 22, 2015, Case filed a timely petition for postconviction relief pursuant to Rule. 32, Ala. R. Crim. P., challenging his guilty plea. The circuit court summarily dismissed that petition on October 21, 2015. This appeal follows.

In establishing that there existed a factual basis for the trial court to accept Case’s guilty plea, the State proffered the following facts at the'gtiilty-plea colloquy:

“[0]n January 11th, 2012 the victim, Andrew Saxon, was shot and killed during a burglary committed at his residence on North University Boulevard here in Mobile County. An investigation by Detective Charles Bagsby of the Mobile Police Department and others determined that the defendant, Mr. Case, was one of''the participants in the original scheme to. commit the burglary.”

(R2. 7-8.) Case agreed with the State’s rendition of what the evidence would show and agreed that those facts, if proven, would satisfy the elements of felony murder.

In his Rule 32 petition, Case claimed, among other things, that the “Constitution of the United States and the Constitution of the State of Alabama require a new trial and, if applicable, a new sentencing proceeding.” (C.-11.) The -basis of that claim was Case’s contention that his plea was not entered knowingly and voluntarily . because, he .said, the trial court failed to correctly inform him of the minimum sentence he could receive upon pleading guilty. Case attached to his petition a copy of the transcript from his guilty-plea colloquy that reveals the following exchange:

“THE COURT: You understand, that you were indicted in this case for felony murder and Burglary in the 2nd Degree. Today you’re going to be entering a Plea of Guilty to the charge of felony murder?
“MR. CASE: Yes, ma’am,
“THE COURT: [Defense counsel] has explained to you what the State would have to prove in order to find you guilty of that offense?
“MR. CASE: Yes, ma’am.
“THE COURT: You understand that if you enter a Plea of Guilty to that offense that the range of punishment for this type of charge is 10 years to life?
“MR. CASE: Yes, ma’am.
“THE COURT: I assume he didn’t have the gun?
“[Defense counsel]: He didn’t go in the house, Judge.”

(C. 17-18.)

Thus, the trial court appears to have been under the impression that, because Case was not in possession of a gun, the minimum sentence that he could receive was 10 years’ imprisonment, However, at Case’s sentencing hearing, the trial court imposed a 20-year sentence and stated that “20 years is the minimum under the law, under the statute.” (C. 20.)

As noted, Case pleaded guilty to felony murder in violation of § 13A~6-2(a)(3), Ala.’Code 1975, which provides that

“a person commits the crime of murder if he or she does any. of the following:
“(3) He or she commits or attempts to commit ... burglary in the first or second degree ... and, in the course of and in furtherance of the crime that he or she is committing or attempting to commit, or in immediate flight therefrom, he or she, or another participant if there be any, causes the death of any person.”

Section 13A-5-6(a)(4), Ala. Code 1975, provides that a person convicted of “a Class A felony in which a firearm or deadly weapon was used or attempted to be used in the commission of the felony” is to be sentenced to a term of imprisonment “not less than 20 years.” “Murder is a Class A felony¡” § 13A-6-2(c), Ala. Code 1975. Thus, a person convicted of a murder in which a firearm was used can be sentenced to no less than 20 years’ imprisonment.

The fact that Case was not in possession of the gun is immaterial. In Moore v. State, 677 So.2d 819, 821-22 (Ala.Crim.App.1996), this Court held:

“In the, instant case, the fact that there was evidence at trial that the appellant’s accomplice, rather than the appellant, was in actual possession of the shotgun during the burglary does not remove the appellant from the application of § 13A-5-(a)(4), Code of Alabama 1975, The jury found the appellant guilty of burglary in the first degree; therefore, by ‘virtue of the jury’s verdict,’ Hammond[ v. State], 497 So.2d [558, 566 (Ala.Crim.App.1986) ], the trial court was required to enhance the appellant’s sentence pursuant to § 13A-5-6(a)(4), making the minimum sentence 20 years.”

A review of the record reveals some discrepancies as to whether Case went into the victim’s house or whether he remained in his vehicle while his accomplices completed the crime. However, that discrepancy is of no consequence because Case pleaded guilty to felony murder in which a firearm was used to kill the victim.

Case’s indictment charged that Case, “while committing or attempting to commit a Burglary in the first degree, and in the course of and in furtherance of said Burglary in the first degree he was committing or attempting to commit, or in immediate flight therefrom, he or another participant in the said crime, did cause the death of Andrew Saxon, to wit: by shooting him with a gun in violation of § 13A-6-2(a)(3) .... ” (C. 28)(emphasis added). Thérefore, the minimum sentence that Case could have received by pleading guilty as charged in the indictment was 20 years. Accordingly, the trial court was incorrect when it stated that the minimum sentence Case could have received was 10 years.

In its order dismissing Case’s Rule 32 petition, the circuit court held that “a party cannot assume inconsistent positions in the trial and appellate courts and, as a general rule will not be permitted to allege an error in the trial court proceedings, which was invited by him or was a natural consequence of his own actions.” (C. 53.) The circuit court noted:

“In this case, [Case] stated during the guilty plea colloquy that he did not possess a firearm. See [Case’s] Exhibit A.’ Based on this assertion, [Case] was advised for the offense of Felony Murder, his range of punishment was ten (10) years to life. See id. After the sentence hearing, [Case] moved this Court to reconsider that sentence. See State’s Exhibit ‘A.’ [Case] specifically argued, once again, that he was not in possession of a firearm and the minimum sentence was ten (10) years. See id. at p. 5. Thus, contrary to the position [Case] now takes, he was correctly advised of the minimum sentence he could receive during the guilty plea colloquy.”

(C. 53-4.) The circuit court ultimately concluded that Case “was advised of the correct range of punishment during the guilty-plea colloquy.” (C. 57.) That finding is incorrect. As noted above, the minimum sentence that Case could receive for his felony-murder conviction was 20 years.

In reviewing the record from the guilty-plea colloquy it appears that all of the parties, as well as the trial' court, were under the impression that Case’s sentence was not subject to enhancement under § 13A-5-6(a)(4), Ala. Code 1975. However, the trial court was aware of the crime that Case was charged with, as well, as the fact that a firearm was involved, see (C. 17-18), and had a duty to inform Case of the correct sentencing range. See Rule 14.4(a)(l)(ii), Ala. R. Crim. P. The fact that Case incorrectly argued, at the guilty-plea colloquy and in his motion for sentence reconsideration, that he did not possess a gun and was therefore eligible to receive a 10-year sentence is of no consequence and does not constitute invited error. It is the duty of the trial court, not the defendant, to apprise the defendant of the correct sentencing range prior.to the entry of a guilty plea.

In Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996), the appellant was informed that the minimum sentence that could be imposed was not less than 10 years when, in fact, the minimum sentence was not less than 20 years. This Court went on to hold:

“We believe that the erroneous information given to the appellant by the trial judge concerning the minimum sentence that could be imposed for a conviction of first degree robbery requires reversal. In Carter v. State, 291 Ala. 83, 277 So.2d 896 (1973), the Alabama Supreme Court held that ‘a defendant,- prior to pleading guilty, must be advised of the maximum and minimum potential punishment for his crime’ by the trial court in order to sustain a ruling that the defendant voluntarily entered a guilty plea. See, Gordon v. State, 692 So.2d 871 (Ala.Cr. App.[1996]); Pritchett v. State, 686 So.2d 1300 (Ala.Cr.App.1996); Knight v. State, 55 Ala.App. 565, 317 So.2d 532 (1975); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975). This holding is supported by Boykin and Rule 14.4, Ala. R. Crim. P. The rule that the trial judge conduct a colloquy with the defendant before accepting a guilty plea ensures that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.”

Heard, 687 So.2d at 213. Accordingly, the trial court’s erroneous information in the present proceedings rendered Case’s guilty plea involuntary. Claims regarding the voluntariness of a guilty plea may be raised in a timely filed Rule 32 petition. See Cantu v. State, 660 So.2d 1026, 1029 (Ala.1994)(“We hold that even though a defendant could file a motion under the provisions of Rule 14 to withdraw a plea of guilty and could appeal a trial court’s ruling on that motion, the defendant would not be precluded from raising, in a timely filed post-conviction proceeding, the question of the voluntariness of' the guilty plea.”).

“The standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition.” Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). “ ‘ “ ‘A judge abuses his discretion only when his decision is based on an erroneous conclusion of law or where the record contains no evidence on which he rationally could have based his decision.’ ” ’ ” Hodges v. State, 926 So.2d 1060, 1072 (Ala.Crim.App.2005)(quoting State v. Jude, 686 So.2d 528, 530 (Ala.Crim.App.1996), quoting in turn Dowdy v. Gilbert Eng’g Co., 372 So.2d 11, 12 (Ala.1979), quoting in turn Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225 (9th Cir.1975). However, “when- the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). It is undisputed that the trial court informed Case that the minimum sentence he could receive was 10 years’ imprisonment. As explained above, that was incorrect. Therefore, the circuit court erred in finding that Case’s Rule 32 petition failed to state a claim and that it raised no issue of material fact or law. (C. 57.)

Although an evidentiary hearing was not conducted in this matter, all the facts necessary to dispose of Case’s involuntary guilty plea claim are contained in the record. Thus, remanding the case with instructions that the circuit court conduct an evidentiary hearing is unnecessary and would be a waste of scarce judicial resources. Accordingly, the judgment of the circuit court is reversed, and this case is remanded with instructions that the circuit court grant Case’s petition and allow him to withdraw his guilty plea and proceed to trial.

Case also raised two ineffective-assistance-of-counsel claims in his petition. Given that we are reversing the circuit court’s judgment on the issue discussed above, we need not address those issues.

REVERSED AND REMANDED.

Kellum, J., concurs. Welch, J., concurs in the result. Windom, P.J., and Joiner, J., dissent.

      . "R2” denotes the second supplemental record on appeal.

      . The full transcript of Case’s guilty-plea colloquy and sentencing hearing are included in the supplemental record on appeal.

      . Judge Joiner has observed that both this Court and the Alabama Supreme Court have long used such an approach when the facts underlying a claim are not in dispute. See Canyon v. State, 218 So. 3d 871, 876 (Ala.Crim.App.2015)(Joiner, J., dissenting and citing Williams v. State, 104 So.3d 254, 265-66 n. 5 (Ala.Crim.App.2012)).


author: PER CURIAM..

text:
    IN RE: CERTIFICATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC17-1936
    Supreme Court of Florida.
    [November 22, 2017]
   PER CURIAM..

This opinion fulfills our constitutional obligation to determine the State’s need for additional judges in fiscal year 2018/2019 and to certify our “findings and recommendations concerning such need” to the Legislature. Certification is “the sole mechanism established by our constitution for a systematic-and uniform assessment of this need.” In re Certification of Need for Additional Judges, 889 So.2d 734, 735 (Fla. 2004). In this opinion, we are certifying a need for two additional circuit court judges, two additional county court judges, and none in the district -courts of appeal as discussed below. We are also decertifying^ the need for thirteen county-court judgeships.

TRIAL COURTS

The Florida Supreme Court continues to use a weighted caseload system as a primary basis for assessing judicial need for the trial courts. Using this objective threshold standard, we have examined case filing and disposition data, analyzed various judicial workload indicators, applied a three-year average judicial need, and considered judgeship requests submitted by the lower courts including all secondary factors identified by each chief judge for support of’ their requests. We have also incorporated a rigorous judicial workload per judge threshold analysis and an allowance for administrative time spent by chief judges and county court- timé spent on county election canvassing boards. Applying this methodology,' this Court certifies the need for four additional judgeships statewide, two of which are in circuit court and two in county court. See Appendix. We are also decertifying thirteen county court judgeships. See Appendix.

As noted in previous opinions,' our judges and court staff continue to work diligently to administer justice, promptly resolve disputes, and ensure that children, families, and businesses receive the proper amount of judicial attention for their cases. They do-. so despite a demonstrated need for additional judges since 2007 and with a smaller staffing complement.

Our most recent analysis of trial" court statistics from fiscal year 2015/2016 to preliminary data for fiscal year 2016/2017 indicates a ten percent increase in county civil filings (excluding civil traffic infractions), a five percent increase in circuit civil filings (excluding real property/mortgage foreclosures), a three percent increase:in probate filings, and a two percent increase-in dependency filings. At the same time, criminal traffic filings (including driving under the influence) declined-by, 16 percent, civil traffic infractions declined by six percent, county criminal filings declined by five percent, juvenile delinquency filings declined by five percent, and felony filings experienced a two percent decline.

Similar downward filing trends are occurring- nationally and we continue to closely monitor filing trends throughout the state as filings relate to judicial case weights and influence workload analysis. It is notable, however, that the opioid epidemic is severely impacting communities in Florida and across the country. Ninety-one Americans die every day from an opioid overdose. This epidemic has influenced’ Florida’s child welfare system and hás resulted in an increased number of dependency court cases throughout the state. Many trial courts have established Early Childhood Courts for families affected by the opioid epidemic by offering a continuum of evidence-based services, including Child-Parent Psychotherapy—an intervention aimed at healing trauma. According to the Florida Department of Law Enforcement, Florida Medical Examiners Report, in 2016, six of the seven Florida counties with the most opioid-related deaths have an Early Childhood Court in place.

Notwithstanding the decreases to some filing categories, our judicial workload-per-judge analysis indicates that additional circuit court and county court judgeships are necessary in some areas.

Chief judges have identified many workload trends that are affecting court operations throughout the state. Several of the chief judges cited the additional workload associated with the continuing expansion of problem-solving courts (e.g., Adult Drug Court, Veterans’ Court, Mental Health Courts, and Early Childhood Courts), We recognize that various studies have shown that well-conducted problem-solving courts, such as drug courts, have beSn shown to reduce recidivism and provide better outcomes for participants. Yet, these courts also require significantly more judicial time on the front end due to more frequent status hearings and multidisciplinary team meetings, typically over an extended period of time. Other chief judges' noted the impact of complex civil litigation, high jury trial rates, and self-represented litigants. Collectively, these factors affect court time and court resources.

The chief judges have also noted that the number and frequency of court interpreting events protract case disposition times. Florida is an ethnically and culturally diverse state with thousands of non-English speaking residents who access our courts each year. This demand is expected to increase in coming years. This Court is mindful of the demographic changes occurring in Florida and has implemented rigorous steps to ensure that the quality of court interpreting services remains high by requiring credentialed interpreters to provide interpreting services and also by implementing video remote interpreting services in ten circuits using credentialed interpreters which we would like to expand further. The application of this technology demonstrates the court system’s commitment to cost containment, innovation, and improved service delivery, while meeting due process of law requirements.

Similar efforts are occurring using software applications such as Open Court and the Integrated Case Management System developed by the Eighth Judicial Circuit. Both software platforms are open source and have tremendous potential for cost containment and the avoidance of vendor dependency issues associated with the purchase of specialized technology. We encourage the Legislature to favorably consider our Legislative Budget Request for technology as it demonstrates the judicial branch’s commitment to apply technology in our service delivery staffing models, to help minimize our requests for additional full-time equivalent positions.

Nevertheless, chief judges advise that the lack of sufficient support staff positions contributes to slower case processing times, crowded dockets, and longer waits to access judicial calendars. Additional case management staff is a priority for the judicial branch. Accordingly, we fully support the trial courts’ Legislative Budget Request that seeks additional funding for case managers, as these positions are integral to case disposition, docket, management, and pending caseload reduction.

On a related matter, chief judges have advised us that because in-court administrative staff, both case managers and in-court clerk’s office staff, has been either reduced or eliminated due to budget reductions, many trial court judges are now performing in-court administrative duties such as managing the court record, handling exhibits, swearing witnesses, filing documents-, and making notations in the case management systems. Judges performing ministerial and administrative functions is not the best use of judicial time and supports the need for additional case management assistance that is best supplied by case managers. ■

Several of the chief judges also advised that they are experiencing difficulty in securing senior judges to serve within their circuits. While the Court believes that our senior judge day allotment may be sufficient, there simply are not enough- senior judges available to take the assignments. We remain concerned that the one-year sit-out provision for retiring judges is therefore impeding the court system’s ability to secure senior judges in different regions throughout the state. We encourage the Legislature to revisit the one-year sit-out requirement, as it is detrimental to Florida’s court system and the administration of justice.

Our analysis, using the previously described judicial workload per judge threshold methodology, indicates that there is a positive need for additional circuit court and county court judgeships. In those circuits and counties where the need exceeds the current number of authorized judicial positions, the ■ workload impact can vary depending on the total number of judges in a circuit available to absorb the excess work. Our threshold methodolbgy suggests a judicial need when the ratio per judge is greater than 1.10. In practical terms, this means that judges must share excess workload, leaving each judge with a total of 1.10 full-time equivalent of judicial work prior to a circuit court or county court being considered for a new judgeship.

The analysis also revealed that judicial need is less than the current number of authorized positions among county court judgeships. That determination is made through an examination of quantitative and qualitative secondary factors. A reduction in judicial need is initially presumed to occur in any court where the workload per judge is below 0.90. Judicial positions should be subtracted until the ratio is at or above 0.90. To better assess whether we should decertify any trial court judgeships, we conducted an analysis of secondary factors identified by the chief judge of each affected county. The factors that might weigh against decertification included geography, number of branch courthouses, access to justice concerns, and other factors listed in the Florida Rules of Judicial Administration. After careful consideration of all factors, we are certifying the need for two additional circuit court judge-ships in the Ninth Judicial Circuit and two additional county court judgeships in Hills-borough County.

Applying these same factors, we are also decertifying county court judgeships in the following counties: one county court judgeship in Alachua County, three county court judgeships in Brevard County, one county court judgeship in Charlotte County, one county court judgeship in Collier County, one county court judgeship in Es-cambia County, one county court judgeship in Leon County, one county court judgeship in Monroe County, two county court judgeships in Pasco County, one county court judgeship in Polk County, and one county court judgeship-in Putnam County. With the exception of Monroe County, where we are decertifying only one of the two county court judgeships that could potentially be decertified, the decertification includes counties we monitored last year that continue to demonstrate a negative need for two consecutive review cycles. Due to the impact of Hurricane Irma in Key West and the uncertainties related to litigation expected to occur in its aftermath, we will monitor the county court workload in Monroe County for an additional year as that county recovers and stabilizes.

Over the next twelve months, we will be closely monitoring the judicial workload of one circuit and nine counties that demonstrate'a negative need, but also identified supplemental factors recognized in rule 2.240, which influence against decertification, to determine whether additional de-certifications should occur in next year’s certification of need opinion.

It is important to note -that we did not certify the need for an additional county court judgeship in three counties where they were requested (Citrus, Flagler, and Lee) and we certified' only two couhty judgeships in Hillsborough, rather than the three requested, even though in all four requesting counties the judicial workload per judge demonstrates a need. We recognize that those county judges are currently shouldering what our data indicate to be more than a full-time judicial workload. Citrus, Hillsborough, and Lee counties demonstrated a current need, but were not certified additional judgeships, or in Hillsborough’s case is being certified one fewer judgeship than requested, due to the continued decline- in each county’s judicial workload .when compared to last year. Citrus County workload declined by fourteen percent, Hillsborough County workload declined by four percent, and Lee County workload declined by seven percent. Considering the possibility that this downward trend will continue, if this Court certified the need for an additional county court judgeship this year, we might be obligated to decertify the same county court judgeship in the near future. In Fla-gler ' County, the county court judicial workload per judge increased two percent when compared to last year. However, if an additional county court judgeship were certified this year, Flagler County’s judicial workload per judge would fall below the 0.90 threshold, thus putting this Court in the position of potentially decertifying the same county court judgeship in next year’s opinion.

The Court does not táke these steps lightly; rather, we do so recognizing that we must remain consistent in our application of the workload methodology and our obligations under Article V, section 9, of the. Florida Constitution.

DISTRICT COURTS OF APPEAL

In keeping with our policy of not requesting judgeships unless qualified and requested by the chief judge of a district court, we do not certify the need for any additional district court judges.

In the fiscal year 2017/2018 certification opinion, the Court expressed a concern with the judicial workload indicating possible overstaffing in the Third District Court of Appeal. See In re Certification of Need for Additional Judges, 206 So.3d 22, 36 (Fla. 2016). In addition, the Court requested input from the Third District Court of Appeal regarding staffing since that court does not employ a central staff model. Id.

We appreciate the thorough response to our inquiries from the .chief - judge of the Third District Court of Appeal. According to that response, the judicial workload within the Third District Court of Appeal includes a large amount of complex cases. The court handles, multiple appeals and petitions involving complex business litigation, class actions, forum non conveniens, tobacco liability cases, bad faith insurance claims, and public development. Forum non conveniens cases are often difficult because they include competing legal opinions regarding the law of foreign countries.

The percentage of cases heard at oral argument in the Third District Court of Appeal was also double the figures for the other' district courts of appeal, as documented by OPPAGA in its report issued in February of this year. Additionally, Mi'a-mi-Dade has been a primary destination for immigrant juveniles for the last two fiscal ' years. These cases present the judges in the Third District Court of Appeal with substantive legal questions and due process issues that merit and receive additional time and attention.

CONCLUSION

We have conducted both a quantitative and qualitative assessment -of trial court and appellate cpurt judicial workload. Using the case-weighted methodology and the application of other factors identified in Florida Rule of Judicial Administration 2.240, we certify the need for four additional trial court judges in Florida, consisting of two in circuit court and two in county court, as set forth in the appendix to this opinion. We are also recommending the decertification of thirteen county court judgeships, also identified in the appendix, and we certify no need for additional judges in the district courts of appeal.

It is so ordered.

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

APPENDIX

Trial Court Need

      . Article V, section 9, of the Florida Constitution provides in pertinent part:
      Determination of number of judges.— The supreme court shall establish by rule uniform criteria for the determination of the need for additional judges except supreme court justices, the necessity for decreasing the number of judges and for increasing, decreasing or redefining appellate districts and judicial circuits. If the- supreme court finds that a need exists for increasing or - decreasing the number of judges or increasing, decreasing or redefiní ing appellate districts and judicial circuits, it. shall, prior to the next regular session of the legislature, certify to the legislature its findings arid recommendations concerning such need, ■

      . Our certification methodology relies primarily on case weights and calculations of.available judge time to determine the need for additional trial court judges. See Fla. R. Jud. Admin, 2.240,

      . Centers for Disease Control and Prevention, Understanding the Epidemic, (last updated August 30, 2017), https://www.cdc.gov/drug overdose/epidemic/index.html.

      . Florida Behavioral Health Association, Florida's Opioid Crisis, (January 2017),'available at http://www.fadaa.orgdinks/Opioid% 20Me-dia% 20Kit_FINAL.pdf.

      . Shannon M. Carey, et al., What Works? The Ten Key Components of Drug Court: Research-Based Best Practices, 8 Drug Court 'Review 6, 6-42 (2012); Christopher Lowen-kamp & Edward Latessa, Evaluation of Ohio's CCA Funded Programs (2005) (unpublished report) (University of Cincinnati, Division of Criminal Justice); Deborah Koetzle Shaffer, Looking Inside the Black Box of Drug Courts: A Meta-Analytic Review, 28 Justice Quarterly 493, 493-521 (2011).

      . See In re Amends. to Fla. Rules for Certification & Regulation of Spoken Language Court Interpreters, 176 So.3d 256, 257 (Fla. 2015).

      . The Florida State Courts System’s Legislative Budget Request for Fiscal Year 2018/2019 is available on the Florida Fiscal Portal at http://floridafiscalportal.state.fl.us/.

      .The Florida State Courts System's Legislative Budget Request for Fiscal Year 2018/2019 is available on the Florida Fiscal Portal at http://floridafiscalportal.state.fl.us/.

      . See Fla. R. Jud. Admin. 2.240(b)(1)(B).

      . Eighth Judicial Circuit, Brevard County, Collier County, Duval County, Leon County, Miami-Dade County, Monroe County, Pinel-las County, Polk County, and Volusia County.

      , See Florida Legislature, Office of Program Policy Analysis and Government Accountability, A Review of the Florida District Courts of Appeal Boundaries and Workload, Report No. 17-05, February 2017, http://www.oppaga. state.fl,us/Summary.aspx?reportNum= 17-05.


text:
    Roderick PITTMAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5513
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017.
    Rehearing Denied April 13, 2017
   An appeal from an order of the Circuit Court for Alachua County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    James COKER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5450
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
    Rehearing Denied April 10, 2017
   An appeal from an order of the Circuit Court for Columbia County. Wesley R. Douglas, Judge.

AFFIRMED.


text:
    Josue POLYCARPE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5428
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017.
    Rehearing Denied April 10, 2017
   An appeal from an order of the Circuit Court for Leon County. James O. Shelter, Judge.

AFFIRMED.


text:
    Darrell THORNTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4950
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017.
   An appeal from an order' of the Circuit Court for Clay County. John H. Skinner, Judge.

AFFIRMED.


text:
    Keith M. SHANKLIN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4376
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017.
   An appeal from an order of the Circuit Court for Okaloosa County. Michael Flowers, Judge.

AFFIRMED.


text:
    Carol Marie MAHAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4055
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
   An appeal from an order of the Circuit Court for Escambia County. W. Joel Boles, Judge.

AFFIRMED.


text:
    Calimino WOODS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3809
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
   An appeal.from an order of the Circuit Court for Escambia County. Gary L. Ber-gosh, Judge.

AFFIRMED.


text:
    Thomas Lloyd LEDFORD, Jr., Appellant, v. Michelle R. LEDFORD, Appellee.
    CASE NO. 1D16-685
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
   An appeal from the Circuit Court for Union County. Stanley H. Griffis, Judge.

AFFIRMED.


text:
    Roy W. MINTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-0645
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
   An appeal from an order of the Circuit Court for Suwannee County, Paul S. Bryan, Judge.

AFFIRMED.


text:
    Dennis Dean ROBERTS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3421
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
   An appeal from the Circuit Court for Bradford County. Robert Groeb, Judge.

AFFIRMED.


text:
    Thomas DEWEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5687
    District Court of Appeal of Florida, First District.
    Opinion filed February 28, 2017
   An appeal from an order of the Circuit Court for Suwannee County. Paul S. Bryan, Judge.

AFFIRMED,


text:
    Lavelle Antonio COPELAND, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5600
    District Court of Appeal of Florida, First District.
    Opinion filed March 1, 2017
    Rehearing Denied April 10, 2017
   An appeal from an order of the Circuit Court for Duval County. Roberto Arias, Judge.

AFFIRMED.


text:
    Kwamin THOMAS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5597
    District Court of Appeal of Florida, First District.
    Opinion filed March 1, 2017
   An appeal from an order of the Circuit Court for Alachua County. Mark W. Moseley, Judge.

AFFIRMED.


text:
    Richard Lucas WILSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5541
    District Court of Appeal of Florida, First District.
    Opinion filed March 1, 2017
   An appeal from an order of the Circuit Court for Wakulla County. James 0. Shelter, Judge.

AFFIRMED.