author: PER CURIAM.

text:
    STATE of Alabama v. 825 ELECTRONIC GAMBLING DEVICES et al.
    1151024
    Supreme Court of Alabama.
    December 23, 2016

      Luther Strange, atty. gen., and Andrew L. Brasher, deputy atty. gen. and John L. Kachelman III, asst. atty. gen., for appellant.
    John M. Bolton III, Montgomery; and Charlanna W. Skaggs of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee Greenetrack, Inc.
   PER CURIAM.

The State of Alabama appeals the Greene Circuit Court’s judgment denying its petition for forfeiture of certain electronic-gambling devices and records of Greenetrack, Inc., naming as respondents 825 Electronic Gambling Devices, Greene-track, Inc., Bally Gaming, Inc., Cadillac Jack, Inc., and International Game Technology, Inc. (“IGT”). We reverse the judgment and render a judgment in favor of the State.

Facts and Procedural History

On November 4, 2003, the voters of Greene County ratified Amendment No. 743 (now Local Amendments, Greene County, § 1 (Off. Recomp.)), which provides, in pertinent part, that “[bjingo games for prizes or money may be operated by a nonprofit organization in Greene County.” After the adoption of Amendment No. 743, Greenetrack installed electronic-gaming devices at its facility in Greene County, also known as “Greene-track.”

In December 2008, Governor Bob Riley issued Executive Order No. 44, which created the Governor’s Task Force on Illegal Gambling. Agents of the task force conducted an undercover investigation at Greenetrack to determine whether the machines at Greenetrack were illegal gambling devices. The investigation led the task-force agents to believe that the machines constituted slot machines, which are illegal in Alabama, see § 13A-12-27 and § 13A-12-20(10), Ala. Code 1975. Beginning on July 1, 2010, law-enforcement agents removed from Greenetrack 825 gaming machines, the servers to which the machines were attached, and assorted paper and electronic records of gaming activity, including various documents, computers, and manuals related to the operations of Greenetrack. On August 4, 2010, the State filed an amended petition for civil forfeiture seeking forfeiture of the seized items. On April 11 and 12, 2016, the circuit court conducted a bench trial.

At trial, witnesses for the State presented testimony about the investigation and the seizure of the gaming machines, which were manufactured by Bally, Cadillac Jack, and IGT; the servers; and the records. Lieutenant Mike Reese, a former employee of the Alabama Alcohol Beverage Control Board who worked on the task force, testified with regard to the play of the gaming devices seized from Greene-track. The record provides:

“[Assistant attorney general]: Lt. Reese, with respect to the play of this game, you came up to the machine and you indicated that there [were] certain buttons and other areas on that machine.
“What did you have to do as a player to play this 24 Caret Gold machine?
“[Lt. Reese]: You had to put either cash—cash bills or a voucher into a slot. And it would take it into the machine, it would pull it in, and then it would credit on the screen how much money you put in or depending on whatever you had on the voucher. And the voucher could say $3.40. You slide it in, and it would credit the play for $3.40. And then you would have to start the machine itself.
“[Assistant attorney general]: ....
“Whenever you inserted that into the machine, either the money or the voucher, what did you have to do next to initiate playing on the machine?
“[Lt. Reese]: You had to start the actual play of the machine by hitting a button. It could be ‘daub’ or ‘play.’ It would say sometimes ‘play daub’ on the same button. You’d have to hit it. And then when you did that, the machine would start operating.
((
“[Assistant attorney general]: Now, during the course of playing this game, did you have to take any action while playing the game in any way, form, or fashion?
“[Lt. Reese]: Well, you didn’t have to. Once you started it, if you didn’t want to, you didn’t have to do anything else. But to actually win, you would have to daub it several times.
“What the screen showed in the video, it would tell you and say, ‘Daub now.’ So you would hit the button again. And then after you hit it, it would then stop, the reels would stop on the lower—what we call the player’s plexy. That was where the rails were. It would stop. “[Assistant attorney general]: Now, at any time, did you have any kind of control or ability to change the game or interact inside that game while it was running?
“[Lt. Reese]: No, you did not.
“[Assistant attorney general]: Was it a game of chance?
“[Lt. Reese]: Absolutely.
“[Assistant attorney general]: Any actions that you took, did it determine any kind of outcome of the game?
“[Lt. Reese]: As I said, the only thing you could do is to begin play. And then once you began play, it was solely up to the machine itself whether you won or lost.
“THE COURT: Now, one last question.
“If you were distracted and not looking at that machine when it said ‘daub,’ you could sleep your win?
“[Lt. Reese]: Yes, you could.
“[Assistant attorney general]: But with respect to these games, I just wanted to differentiate, if I could, any distinctive differences between these games. So if you could tell the Court anything that played differently, that’s fine. But if they all played substantially the same, that’s fine too. ...
“[Lt. Reese]: Yes, sir. They all—they played the same. You had to start the machine by hitting a button, even the one that you had to hit one time. But you had to start with the action of hitting the button and then they would elicit something of value if you won. And it would exert—not cash, but they would exert vouchers that you would then have to either play on the machines or go cash out. So, characteristically, yes, they all played the same.
“[Lt. Reese]: Every machine that I observed at Greenetrack all had bingo cards on them. Every one of them. They all played the same. And the people that I watched, including other agents, had to insert cash or vouchers into the machines, vouchers having value on it, and then they played the same way. ...
“[Assistant attorney general]: Were you required to look at that 5-by-5 grid in any way to mark it or signify that a number had been called?
“[Lt. Reese]: No, sir, I did not.
“[Assistant attorney general]: Did you hear anyone calling out numbers or values related to the play of the games whenever you were playing these machines?
“[Lt. Reese]: No, I did not.
“[Assistant attorney general]: How quickly did the numbers appear on the screen?
“[Lt. Reese]: Instantaneously. And by ‘instantaneously,’ as soon as you hit the. machine, the ball would drop. Second daub, you could do it like (indicating) and the game would be over in a matter of three seconds.
“[Assistant attorney general]: Were you able to respond in any way whenever the numbers appeared there on the game screen?
“[Lt. Reese]: No, sir, you were not.
“[Assistant attorney general]: Did the machines give you any time to react to one number in any way before the next one was drawn?
“[Lt. Reese]: Well, they were instantaneous. The first three fell at the same time, and then the second batch fell, and it could be 15 to 30 balls instantaneous. You couldn’t mark it one by one. They all fell at the same time.
“[Assistant attorney general]: Were you required to know what kind of pattern you were looking for in playing this game on this machine?
“[Lt. Reese]: You were not.
“[Assistant attorney general]: Were there any players, or did you ever announce bingo?
“[Lt. Reese]: No, sir, I did not.
“[Assistant attorney general]: Did you hear anyone else whenever you were playing the games in the facility announce that they had bingoed?
“[Lt. Reese]: Never.
«
“[Assistant attorney general]: ... In playing the game, was there any way to try and signify that you had a bingo, like you had a game-winning pattern when, in fact, you did not?
“[Lt. Reese]: No sir.”

On cross-examination, Lt. Reese stated that the bingo balls displayed on the machines were video representations, that the balls were drawn and would fall electronically, and that the claiming of the prizes was done, electronically. Lt. Reese also stated that if the machine being played did not win the game, the machine would identify numerically the machine that won the game. He explained that when a person initiated a machine and there were not enough machines engaged to play, the machine would post a message stating “waiting for other players,” Lt. Reese further explained that, although the machines of the other players playing the game were identified on a player’s machine, a player could not determine who else was involved in the game. Lt. Reese testified that he believed the machines seized at Greene-track were slot machines.

Greenetrack presented testimony from Richard LaBrocea, Senior Director of Engineering at Gaming Laboratories International (“GLI”). The circuit court certified him as an expert to testify “as to the generally accepted practices, methodologies and protocols for forensic software analysis, compliance testing and classification of, electronic games and amusement devices,” The following excerpt from La-Brocca’s testimony explains the evolution of what he refers to as “electronic marking devices”:

[Greenetrack’s counsel]: Now, when did [cards] give way,. so to speak, to the development of electronic games? When did that occur?
“[LaBrocea]: ... [Actually starting late ’80s, ’90s, you started seeing electronic marking devices making their way into the field. Those devices basically replaced the paper product with a reusable product. That also assisted the players in completing certain aspects of the game.
“[Greenetrack’s counsel]: And when you use the term ‘electronic marking device’ how did they first appear in the ’80s and ’90s, as you described?
“[LaBrocca]: They first appeared as simple portable devices that a player could check out at a bingo hall. Those devices were then given to a player, and they would be not much more than a screen and several buttons that allowed them to view the packet they bought. And the packet would basically be all of the bingo cards for a session of bingo.
“The device itself would bring to the forefront certain elements of the game at a given point in time and allow .the player to advance through that game, aiding him in marking the cards relevant to that particular ball draw.
“[Greenetrack’s counsel]: ... [I]s this what we’ve been referring to as a bingo-minder?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: Now, when did bingo-minders evolve into what I call player stations, or upright electronic marking devices?
“[LaBrocca]: There were really two different types of upright marking devices. The first was the portable devices went [sic] to tabletop or desktop versions of them, which is beneficial to facilities that did not move around. Obviously, the portables allowed them to be transitioned from facility to facility, site to site. But there was a risk of losing them, breaking them, dropping them, damaging them, et cetera.
“So for a site that had fixed facilities, they would go to a tabletop version, which was nothing more than the same type as the portable, it was just permanently mounted to a table. That then evolved into what you see today as fully stand-alone, upright physical devices that are, you know, five foot tall and include their own bottom. They’re not necessarily mounted to a table, but have a seat in front of the device itself.”

He explained that each of the stand-alone machines identified with a unique number of other machines playing the same game. He further explained that the'early electronic-marking machines did not require a player to pay attention to the numbers as they were drawn because the player-aid aspect alerted a player that some sort of action would be beneficial to his or her game. LaBrocca testified that a player could “sleep” a bingo using an electronic-marking machine because a player had to recognize that his or her card had a matching pattern and take some physical action to claim the game. According to LaBrocca, the “entertaining display,” i.e., spinning reels displayed on the machines, had no impact on the outcome of the game. He' explained that, even though the machines had a spinning-reels display, each machine also had a representation of a bingo card, the button presses, and the caller board. LaBrocca testified that, at the request of the sheriff of Greene County, GLI tested the machines being played at Greenetrack, determined that they complied with Amendment No. 743, and issued letters of approval for the manufacturers—Bally, Cadillac Jack, and IGT. The record reflects:

“[Greenetrack’s counsel]: Mr. LaBrocca, on the games that GLI examined and certified in this case, did each of the games have a device number that was available to the player?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: And where was that available to the player?
“[LaBrocca]: Usually directly on the screen or otherwise printed and affixed to the front or visible surface of the machine.
“[Greenetrack’s counsel]: And is that number different from the bingo game number you talked about earlier?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: Now, what is the significance of the unique device number that was available to the player?
“[LaBrocca]: The device number is unique to the physical asset, so this particular terminal—unique idéntifier name, if you will, the bingo game is unique to the instance of play.
“[Greenetrack’s counsel]: On these games, could a player change his bingo card if he didn’t like the card he was displayed?
“[LaBrocca]: Yes. Before staking a wager, you would be able to tap the bingo card and it would cycle through whatever bingo cards were available.
“[Greenetrack’s counsel]: And on these games, are the winning bingo patterns also available to the player?
“[LaBrocca]: They are.
“[Greenetrack’s counsel]: And how are they displayed to the player?
“[LaBrocca]: Depending on the software in question, you would either hit the ‘help’ button or the ‘pays’ button, and you would be able to cycle through all available patterns.
“[Greenetrack’s counsel]: And would the help screen display to the player the winning pattern and the amount of any potential award for matching a particular pattern?
“[LaBrocca]: Yes, it would.
“[Greenetrack’s counsel]: And would that be true for the IGT games, the Cadillac Jack games, and the Bally games?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: So did GLI verify in its testing and certification in this case that the games offered in the IGT, Cadillac Jack, and Bally games played a common game?
“[LaBrocca]: Correct. If you were enrolled in a game, you both collectively received the same ball draw.
“[Greenetrack’s counsel]: Did GLI verify for the Bally games, the IGT games and the Cadillac Jack games that the balls were drawn in random fashion?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: Did GLI also determine whether or not the balls were drawn one by one for the Bally, IGT, [and] Cadillac Jack games?
“[LaBrocca]: Yes. We did.
“[Greenetrack’s counsel]: And what did you conclude?
“[LaBrocca]: They were drawn one by one and each selection was random and unpredictable.
“[Greenetrack’s counsel]: And finally, Mr. LaBrocca, did GLI also determine that the balls that were displayed to the players on the IGT, Cadillac Jack, and Bally games were displayed to the player one by one?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: And what did you determine?
“[LaBrocca]: They were.
“[Greenetrack’s counsel]: Did GLI also determine whether the bingo games it tested from IGT, Cadillac Jack, and Bally were communal or competitive games requiring more than one player to play?
“[LaBrocca]: Yes. All three vendors had configurable settings, starting at a minimum of two for the number of players that would be joined into a game.
“[Greenetrack’s counsel]: ... Are there differences between slot machines and bingo games, sir?
“[LaBrocca]: Yes.
“[Greenetrack’s counsel]: Can you describe those for the Court?
“[LaBrocca]: We’ve discussed bingo games fairly significantly throughout the last two days. Slot machines, when you’re playing a slot machine, you as the player are playing against a mathematical algorithm singularly, not collectively, against that game. There is no—with people playing that game, there’s no common ball draw at all. There’s no ball draw at all. Instead, what you’re faced with is a wager on a random chance that certain symbols, combinations, cards are going to yield a given prize.
“[Greenetrack’s counsel]: Would it be fair to say that in a slot machine, you’re playing against the house, and in a bingo game, you’re playing against other players?
“[LaBrocca]: That’s true.
“[Greenetrack’s counsel]: Mr. LaBrocca, just one more question. In your experience, what are the essential characteristics of the game commonly known as bingo?
«
“[LaBrocca]: So I believe it distills down to a group of players competing to be the first to match a predesignated pattern that is selected by a ball drop.”

On cross-examination, LaBrocca testified that the electronic machines allowed a player to increase his or her bets or stakes on a single game of bingo while the game was being played. LaBrocca admitted that the only way to increase a bet when playing in games where the numbers are called one by one and a player physically marks his or her card is by purchasing multiple cards for the same game. He explained that, when a person is playing the electronic games at issue, the wagering is normalized by the system. LaBrocca stated that, although a player is playing in a group when using an electronic device, the value a player may wager on a given card may differ among the players of the game. LaBrocca further testified that, depending upon the machine being played, the amount awarded as the game-ending prize could be a percentage of the total money wagered, and the consolation prizes or interim prizes would not be derived necessarily from the total value of the wager across multiple machines but from house money.

LaBrocca admitted that the players using the electronic devices do not have any kind of meaningful interaction with other players of the game. LaBrocca further testified that a player could, without knowing the pattern needed to win the game, press the button three times to play the game, that there was no way for a player to mark each ball drop individually on the screen, that a player could not mismark an alphanumeric or similar designation of the screen, that the machine, not a person, announced the win, and that a player did not have to shout “bingo” to win the game.

Standard of Review

“When a judge tries a case without a jury, we apply the following standard of review:
“<“[W]hen a trial court hears ore terns testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly. unjust.” Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). “ ‘The presumption of correctness, however,- is rebuttable and may be overcome where there is insufficient, evidence presented to the trial court to sustain its judgment.’” Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985)). “Additionally, the ore ten-us rule does not extend to cloak with a presumption of correctness a trial judge’s conclusions of law or' the incorrect application of law to the facts.” Id.’
“Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005).”

State v. $223,405.86, 203 So.3d 816, 822 (Ala. 2016).

Discussion

The State contends that the circuit court erred in holding that the elements of “bingo”—as set forth in Barber v. Cornerstone Community Outreach, Inc., 42 So.3d 65 (Ala. 2009), and elaborated' upon in Houston County Economic Development Authority v. State, 168 So.3d 4 (Ala. 2014) (“HEDA”), to which we hereinafter refer as “the Cornerstone-HEDA elements”— do not apply to the game played pursuant to Amendment No. 743. The appellees contend that because Amendment No. 743 provides definitions for the game of “bingo” and the equipment used to play .the game, Amendment No. 743 .-authorizes electronic-bingo games, and the Cornerstone-HEDA elements do not apply.

Amendment No. 743 authorizes the operation of bingo games by nonprofit organizations in Greene County. Amendment No. 743 defines the game of “bingo” as follows:

“That specific kind of game commonly known as bingo in which prizes are awarded on the basis of designated numbers or symbols on a card or electronic marking machine conforming to numbers or symbols selected at random.”

Amendment No. 743 also defines the “equipment” used in the game, stating:

“The receptacle and numbered objects drawn from it, the master board upon which such objects are placed as drawn, the cards or sheets bearing numbers or other designations'tó be covered and the objects used to cover them or electronic ■card marking machines, and the'board or signs, however operated, used to announce or display the numbers or designations as they are drawn.”

Because bingo is a form of lottery prohibited by Ala. Const. 1901, .Art. IV, § 65, Amendment No. 743 is an exception to the general prohibition in § 65 and, therefore, must be narrowly construed. HEDA, 168 So.3d at 9; Cornerstone. In addition to this fundamental principle of “narrow construction,” we also recognized in Cornerstone the need, “‘except where the language of a constitutional provision requires otherwise,’” to “‘look to the plain and commonly understood meaning of the terms used in [the constitutional] provision to discern its meaning.’” State v. $223,405,86, 203 So.3d at 841 (quoting Cornerstone, 42 So.3d at 79).

Amendment No. 743 itself defines “bingo” as “[t]hat specific kind- of game commonly known as bingo.” In Cornerstone, HEDA, and other similar cases over the past seven years, this Court has held that the unadorned term “bingo” means simply “the game commonly or traditionally known as bingo.” 42 So.3d at 86. In Cornerstone, we explained that this game includes the following characteristics:

“1. Each player uses one or more cards with spaces arranged in five columns and five rows, with an alphanumeric or similar designation assigned to each space.
“2. Alphanumeric or similar designations are randomly drawn and announced one by one.
“3. In order to play, each player must pay attention to the values announced; if one of the values matches a value on one or more of the player’s cards, the player must physically act by marking his or her card accordingly.
“4. A player can fail to pay proper attention or to properly mark his or her card, and thereby miss an opportunity to be declared a winner.
“5. A player must recognize that his or her card has a ‘bingo,’ i.e., a predetermined pattern of matching values, and in turn announce to the other players and the announcer that this is the case before any other player does so.
“6. The game of bingo contemplates a group activity in which multiple players compete against each other to be the first to properly mark a card with the predetermined winning pattern and announce that fact.”

42 So.3d at 86.

In State v. Greenetrack, Inc., 154 So.3d 940, 959-60 (Ala. 2014), this Court considered “the game commonly known as bingo” and the Cornerstone characteristics in light of the definition of bingo provided in Amendment No. 743, stating:

“Amendment No. 743, just like the amendment at issue in [Barber v.] Cornerstone [Community Outreach, Inc., 42 So.3d 65 (Ala. 2009),] and bingo amendments applicable to other counties, speaks of and permits the playing of ‘bingo games’ (provided that a number of other restrictions, including charitable purposes, are met). We identified in Cornerstone and we reaffirm today that the game of ‘bingo’ as that term is used in local constitutional amendments throughout the State is that game ‘commonly or traditionally known as bingo,’ 42 So.3d at 86, and that this game is characterized by -at least the six elements we identified in Cornerstone. Id.
“There is, however, at least one notable difference between Amendment No. 743 and the comparable amendments in most other counties—namely the fact that the ‘card’ required for the playing of bingo may be ‘an electronic marking machine.’ ...
“In Cornerstone, we explained that, among other things, the game commonly or traditionally known as bingo involved ‘each player’ utilizing a ‘card’ with a certain pattern and universe of alphanumeric or other designations and that each player must respond to the random drawings of these designations, by an ‘announcer’ by manually marking this card. 42 So.3d at 86. Clearly, the ‘bingo’ at issue in this case does not employ a ‘card’ in the sense of a flat rectangular or square object made of paper, cardboard, or some similar material on which the required designations are printed. ... [T]he provisions for ‘electronic marking machines’ in .Amendment No. 743 ... allow bingo to be played in Greene County without the necessity of such a card. ...
“The question, however, is whether the ability to employ an ‘electronic marking machine’ obviates all the other criteria of bingo this Court has recognized. Clearly, it does not. By way of explanation, we reiterate and affirm our discussion of Amendment No. 743 in Cornerstone itself:
“ ‘In contrast to the use of merely the term “bingo games,” ... Amendment No. 743 ... legalizes in Greene County a form of bingo that would include an “electronic marking machine” in lieu of a paper card. Even [Amendment No. 743], which is the only amendment in Alabama we have located that makes any reference to the use of electronic equipment of any form, contemplates a game in all material respects similar to the game of bingo described in § 45-8-150(1), [Ala. Code 1975,] .... Amendment No. 743 begins by saying that “bingo” is “[t]hat specific kind of game commonly known as bingo.” The definition then explains that bingo is a game “in which prizes are awarded on the basis of designated numbers or symbols on a card or electronic marking machine conforming to numbers or symbols selected at random.” Moreover, the equipment contemplated by Amendment No. 743 for use in a bingo game is entirely different than the equipment at issue here. Specifically, Amendment No. 743 defines “equipment” for the game of bingo as follows:
“‘“The receptacle and numbered objects drawn from it, the master board upon which such objects are placed as drawn, the cards or sheets bearing numbers or other designations to be covered and the objects used to cover them or electronic card marking machines, and the board or signs, however operated, used to announce or display the numbers or designations as they are drawn.” ’
“Cornerstone, 42 So.3d at 79-80. Clearly, the fact that an ‘electronic marking machine’ can be substituted for a paper card under the terms of Amendment No. 743 does not eliminate the requirement that, in all other respects, the game of bingo permitted by that amendment be the game traditionally known as ‘bingo.’ ”

(Footnote omitted.) See also State v. $223,405.86, 203 So.3d at 839-40 (recognizing that this Court reaffirmed in Greenetrack “that the references to ‘bingo’ in the local bingo amendments, including ... Amendment No. 743 applicable to Greene County, are references to the ‘traditional game of bingo’ and the nonexhaustive list of six elements of that game as set out in Cornerstone” and HEDA and that, although the use of “electronic marking machines” rather than a “card” was permitted in Amendment No. 743, that fact did not eliminate the requirement of the presence of the other characteristics of bingo set forth in Cornerstone and HEDA). We have once again considered the plain language set forth in Amendment No. 743 and adhere to our earlier determinations. The definition of bingo provided in Amendment No. 743 specifically identifies the game as the “specific kind of game commonly known as bingo.” Although Amendment No. 743 permits the use of an electronic-marking machine or electronic-card-marking machine, this allowance does not negate the requirement that the “game commonly known as bingo” must include the other Cornerstone-HEDA elements. As we recently observed in reference to an earlier iteration of this very case: “ ‘[0]ur analysis in Cornerstone is applicable to the other local bingo constitutional amendments in this State.’ ” State v. $223,405.86, 203 So. 3d at 841 (quoting HEDA, 168 So.3d at 18, citing in turn Greenetrack, 154 So.3d at 959 (emphasis omitted)). And as we further noted in State v. $223,405.86:

“This Court is not at liberty, to deviate from the plain meaning of the term ‘bingo’ nor from the principle of narrow construction heretofore noted. It simply cannot feasibly be maintained that Alabama’s local bingo amendments permitting charitable ‘bingo,’ by their repeated use of this same unadorned term in amendment after amendment; communicate an array of different meanings. ... At best, it would be unseemly, and at worst illogical and impracticable, not to mention contrary to a proper understanding of the role of the judiciary, for this and other courts of this State to undertake to attribute some potentially different meaning to each of the 17 local bingo amendments, despite the fact that each of them uses the same language.”

203 So. 3d at 842-43. And, of course, our conclusion here as to the meaning of the term “bingo” is reinforced by the specific reference in Amendment 743 to “the game commonly known as bingo,” the very meaning we have repeatedly extended to “the unadorned term ‘bingo.’ ” 203 So. 3d at 840.

As we stated in HEDA:

“[T]he game traditionally known as bingo is not one played by or within an electronic or computerized machine, terminal, or server, but is one played outside of machines and electronic circuitry. It is a group activity, and one that requires a meaningful measure of human interaction and skill. This includes attentiveness and discernment and physical, visual, auditory, and verbal interaction by and between those persons who are playing and between the players and a person commonly known as the ‘announcer’ or ‘caller,’ who is responsible for calling out the randomly drawn designations and allowing time between each call for the players to check their cards and to physically mark them accordingly.”

168 So.3d at 18. As to the last criterion, we also made clear that the player must pay attention to and respond separately to each value announced as it is called out and that there must be “individual, one-by-one, physical marking of numbers by the player as the game progressed].” 168 So.3d at 15. “Furthermore ... a player who believes he or she has won a game of bingo must declare this fact ‘to the other players and the announcer’ ” by way of a “verbal announcement.” 168 So.3d at 14, 15.

In short, even though Amendment No. 743 permits the use of an “electronic marking machine” or an “electronic card marking machine” in lieu of a paper card, nothing in the plain language of Amendment No. 743 eliminates the requirement of meaningful human interaction and skill by the player when playing the game or any of the other elements of bingo as explained in Cornerstone and HEDA, including the fundamental requirement of a game not played by or within the electronic circuitry of a machine. (Indeed, some of those other elements are specifically contemplated by the bingo-equipment list found in the language of Amendment No. 743 itself.) Therefore, the ■ circuit court erred in holding that the other Cornerstone-HEDA elements do not ápply to bingo as that term is defined in Amendment No. 743.

The State further contends that the circuit court erred in holding that the game played -on the machines seized at Greenetrack satisfy , the .six Cornerstone-HEDA elements. Although Amendment No. 743 permits a player to - physically mark an electric screen rather than a paper card when playing the game, the other Cornerstone characteristics of the game remain the same. State v. $223,405.86, 203 So. 3d at 837.

Our review of the record reveals that the evidence does not support the circuit court’s conclusion that the game played on the machmes seized at Greenetrack satisfy the characteristics of the game of bingo set forth in Cornerstone. Without attempting to note every difference between the Cornerstone-HEDA elements and the characteristics of the machines at issue here, we note the following differences. As to the first element, the evidence demonstrated that the game at Greenetrack did not require a player to mark the alphanumeric or similar designations announced by the ball drop on an electronic screen. As to the second and third requirements, the announcement of the alphanumeric or similar designations was made by the machine, not a human, and was not made one-by-one. Moreover, the automated game did not provide the player with sufficient time to recognize the alphanumeric or similar designation, compare the announcement to the screen, and mark the screen in the appropriate square. Indeed, the evidence established that the alphanumeric or similar designations, which were announced by the drop of balls by the machine, occurred almost simultaneously, preventing a player from recognizing each drop and responding accordingly. Thus, the machine, not the player, paid attention to the announced drops, and the machine, hot the player, marked the screen. As to the fourth requirement, the evidence established that a player could not mismark his or' her screen or affect the outcome of the game if he or she failed to pay attention to the ball drop. As to the fifth requirement, the evidence indicated that a player did not have to recognize any winning or game-ending pattern or orally announce when he or she had achieved the same; rather, the machine recognized the winning pattern. As to the sixth requirement, the evidence established that, even though the machine displayed the numeric identification of the machine of the player who won the game, it was impossible for a player to know whom -he or she was playing against or to -identify the winner of the game. Thus, the- evidence does not reflect, as required by our precedents, including Cornerstone and HEDA, that the player— not the machine—engages- in actual game play. See HEDA, 168 So.3d at 17. Indeed, the evidence, when viewed in its totality, establishes that the electronic machines operated similarly to slot .machines with minimum action from the player-and with an entire game taking no more than a few seconds. Because evidence-establishes that the games being played on-the seized machines do not satisfy the characteristics set forth in Cornerstone, the circuit court’s judgment is palpably erroneous.

Conclusion

In State v. $223,405.86, this Court emphasized, and we now reaffirm:

“There is no longer any room for uncertainty, nor justification for continuing dispute, as to the meaning of [the term ‘bingo’]. And certainly the need for any further expenditure of judicial resources, including the resources of this Court, to examine this issue is at an end. All that is left is for the law of this State to be enforced.”

203 So. 3d at 845.

The circuit court’s judgment is reversed, and a judgment is rendered in favor of the State so that the seized equipment and records are forfeited to the State.

REVERSED AND JUDGMENT RENDERED.

Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.

      . Our reference in this opinion to some of the characteristics of "bingo'' described by this Court in HEDA is not intended as an abandonment of any of the characteristics not explicitly referenced.

      . A player's failure to press a button does not satisfy Cornerstone's fourth characteristic that "[a] player can fail to pay proper attention or to properly mark his or her card, and thereby miss -an opportunity to be declared a winner.” See 168 So.3d at 10, 15.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Lauren Alyse HYCHE v. Shanon Cruz HYCHE
    2150774
    Court of Civil Appeals of Alabama.
    December 2, 2016
    Lisa M. Ivey, Jasper; .and James R. Beaird, Jasper, for appellant.
    J. David Hood of Jackson, Fikes, Hood & Brakefield, Jasper, for appellee.
   THOMAS, Judge.

Lauren Alyse Hyche (“the mother”) appeals a judgment of the Walker Circuit Court (“the trial court”) in which the trial court, among other things, divorced her from Shanon Cruz Hyche (“the father”), awarded the parties joint legal and physical custody of their son (“the child”), and ordered the father to pay child support. We affirm the trial court’s judgment in part, reverse it in part, and remand this cause to the trial court.

Background

The parties were married on June 2, 2012, and the child was born on August 20, 2013. The mother filed a divorce complaint on October 23, 2015, requesting, among other things, that she be awarded “care, custody!,] and control” of the child. The father answered the mother’s complaint and counterclaimed, requesting, among other things, that the parties be awarded joint legal and physical custody of the child. In December 2015, the trial court entered a pendente lite order that set out, in relevant part, the father’s scheduled “periods of physical custody” and required the father to pay the mother $400 per month as child support.

A trial was held on May 11, 2016, and the trial court entered a judgment the next day divorcing the parties and, among other things, awarding them joint legal and physical custody of the child and requiring the father to pay the mother $458 per month as child support. The mother filed a timely notice of appeal. On appeal, the mother argues that the trial court’s judgment should be reversed because its award of joint custody is improper and because its calculation of the father’s child-support obligation is incorrect.

Analysis

The mother first argues that the trial court’s judgment should be reversed because its award of joint custody “was not supported by the evidence, was not in the child’s best interest, was plainly and palpably, wrong, and exceeded the trial court’s discretion.”

“It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.”

§ 30-3-150, Ala. Code 1975.

‘“[0]ur review of custody determinations based on ore tenus evidence is quite limited; the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong.’ Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).
“In Graham v. Graham, 640 So.2d 963, 964 (Ala. Civ. App. 1994), this court wrote:
“ ‘In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala. Civ. App. 1990). The trial court’s overriding consideration is the children’s best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala. Civ. App. 1986). The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala. Civ. App. 1987). Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).’ ”

Harris v. Harris, 59 So.3d 731, 734-35 (Ala. Civ. App. 2010).

In addition, § 30-3-152, Ala. Code 1975, provides, in pertinent part:

“(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent,
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.
“(b) The court may order a form of joint custody without the consent of both parents, when it is in the best interest of the child.”

In its judgment, the trial court stated the following, in pertinent part:

“In reaching a decision regarding the custody of the [child], the parties stood on an equal footing such that neither parent enjoyed a favorable presumption. The paramount and controlling concern of the Court was the best interest of the child. The Court weighed the age and sex of the parties’ [child]; the [child’s] emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including age, character, stability, mental and physical health, and their respective home environments. [The parties] will have joint legal and physical custody of [the child].”

In light of its findings, the trial court’s judgment provided:

“[The parties] will have joint legal custody of [the child]. Both parents will discuss with each other and agree on major decisions concerning the child, including, but not limited to academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care. If the parents are unable to agree on a decision, [the mother] will have the primary authority and responsibility for the final decision.
“[The parties] will have joint physical custody of [the child] in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.”

The mother testified that, at the time of the trial, she and the child were living at her mother and stepfather’s house in Cor-dova. She stated that, before she filed her divorce complaint, she had been the child’s primary caregiver and that the father had not done “a whole lot” for the child. She said that, pursuant to the trial court’s pen-dente lite order, the child had recently been spending time with each party separately and that she felt that doing so had been “really hard on him,” specifically stating: “He acts out more, his routine is thrown off, he don’t go to bed on time like he did. He’s ill.” She contrasted the child’s behavior during the divorce litigation with his behavior during the parties’ marriage, during which time the child had reportedly-done “[v]ery well.”

The mother opined that awarding her sole physical custody of the child would be in his'best interest. She based her conclusion, in part, on her belief that doing so would provide the child with more stability and a better routine and schedule, stating: “I think he needs one home.” Regarding the parties’ work schedules, the mother testified that the father worked for Alabama Power Company, Inc,, that he usually worked 12-hour shifts, -and that his schedule generally alternated between 3 and 4 workdays each week. She also stated that- he had been required to work additional or different shifts during the pen-dency of the divorce litigation. The mother, however, worked for a pet-grooming and pet-boarding business that she had started, and she characterized her employment schedule as more flexible than the father’s.

Regarding the- parties’ relationship and its impact upon - the child, we note the mother’s testimony regarding the father’s actions that she said had contributed to their divorce: “The way. he talked to me, not helping any, trading trucks all the time, [and] the tax stuff not getting paid like it was supposed to.” She testified that, in the child’s presence, the father had called her “dumb-dumb [and] ignorant” and had said that she “wasn’t worth killing.” She stated that, after hearing the father say those things, the child had be-: gun to call her “dumb-dumb and would use words saying stuff like that.”

The mother also testified that the father had viewed pornography during their marriage. She recounted discovering proof of such activity on the father’s cellular telephone', the father’s initial denial of such activity, - and the father’s later admission that he had done so after she had- confronted him with the proof that she had discovered. She also admitted, however, that she had watched pornography with the father during their honeymoon.

Regarding their ability to cooperate with one another, the mother testified that she and the father had been unable to work together to solve problems related to the child during, their marriage, that they had been unable to do so during the pendency of the divorce litigation, and that she believed that they would be unable to do so in the future. She specifically stated that the parties had .not been able to agree upon the child’s proper shoe size, the clothes that he should wear, or the amount of medicine that he should take; she did not believe that administering the “full dose” of over-the-counter medications to the child was always necessary. However, when asked by the trial court: “Have you shown any abilities in the past to cooperate with [the father] in regards to [the child]?,” she responded: “Yes.” "The mother also admitted that the father is a good father to the child, that he loves the child, and that he takes good care of the child when the child is with him. Although, during the pai-ties’ marriage, the father’s mother had also helped care for the child three days each week while the parties were working, the mother testified that she had not allowed the father’s mother to do so after the parties had separated in October 2015.

The mother testified ’ that she had an extensive support system of friends and family that could help her take care of the child, which included her mother, her grandparents, her sister, her aunts, and her employee. The mother’s mother also testified and corroborated several-aspects of the mother’s testimony, specifically noting that the parties had had disagreements regarding the child and that the father had “mostly talked over [the mother] and wouldn’t let her voice any kind of opinion” during their disagreements. She agreed that the mother had been the child’s primary caregiver during the parties’ marriage, stating: “I never saw [the father] do anything for [the child].” The mother’s grandfather also testified that the mother had been the child’s primary caregiver during the parties’ marriage.

The father testified that he also lived in Cordova, that he was an assistant plant-control operator for Alabama Power, and that he worked 12-hour shifts from 6:00 p.m. until 6:00 a.m., and he stated: “I’m on night shift nightly and I work 4 days one week, off 3 days that week. The next week I work 3, off 4 days that week." Regarding his family, the father testified that his brother, his sister, his parents, and his grandparents had been involved with the child, and he testified generally regarding the positive activities that they had participated in with the child. The father also noted that his parents, and his grandparents were available to assist him with caring for the child and working around his work schedule.

The father testified that, after the child was born, the mother had stopped working for approximately six months in order to care for the child. After that time, the mother’s mother and the father’s mother had volunteered to care for the child, and the parties had created a schedule that provided for the child’s care and location on each day of each week. The father testified that there had never been any problems with the arrangement that the parties had reached.

Regarding the circumstances that contributed to the parties’ divorce, the father testified:

“I made mistakes myself as everybody does, and I’m young. She made mistakes and wouldn’t own up to them and didn’t want to talk about them, and that become a problem that we couldn’t talk and work stuff out.... Like trading trucks. I knew she didn’t really want me to but, you know, she also cosigned on the truck, so it didn’t look like it was that big of a deal .... I usually worked six to seven days a week. And at two different times in the marriage I worked two jobs to provide and keep a nice car and be able to go and do things, and no thankfulness, no thank you, I appreciate what you’re doing or anything like that..,. The porn deal. And I didn’t admit to it at first but when I did, after that, I stopped and I didn’t look at it since.... I’m going to say in the total marriage, we probably watched it ten to fifteen times together.”

The father admitted that the mother had been the child’s primary caregiver during their marriage. He also admitted that he had called the mother dumb and had stated that she “wasn’t worth killing” in front of the child. He said that he understood that saying those things in front of the child did not promote the child’s affection for the mother and that he should not have said them. He agreed that he had become more involved with the child’s care after the mother had filed her divorce complaint than he had been during their marriage.

When asked by his attorney why he believed that the parties should be awarded joint legal and physical custody of the child, the father stated:

“Because both of us are good parents that love [the child], and neither one of us drink or smoke or do anything bad like that, and I think it should be equal for [the child] to see both of us the same amount of time.... When [the child] gets older—my dad coached me all the way through football and I would like to do the same for [the child] and have that bond with him like I had with my own dad.... I want to teach him how to hunt and fish as my dad did and be a good role model and keep him in church and involved in church and drama, choirs like I done when I was younger. That’s about all I can think of.”

Upon questioning by the trial court, the father also testified that he understood that it was important for the child to have a schedule and that he understood the importance of encouraging the child to love the mother.

On appeal, the mother essentially argues that the trial court should have interpreted the evidence presented in particular ways or placed more emphasis on certain portions of the evidence. In support of her argument, the mother has cited Bonner v. Bonner, 170 So.3d 697 (Ala. Civ. App. 2015); D.M.P.C.P. v. T.J.C., 138 So.3d 296 (Ala. Civ. App. 2012); Alexander v. Alexander, 65 So.3d 958 (Ala. Civ. App. 2010); Morgan v. Morgan, 964 So.2d 24 (Ala. Civ. App. 2007); Parker v. Parker, 946 So.2d 480 (Ala. Civ. App. 2006); Gonzalez v. Gonzalez, 908 So.2d 255 (Ala. Civ. App. 2004); Speakman v. Speakman, 627 So.2d 963 (Ala. Civ. App. 1993); Murph v. Murph, 570 So.2d 692 (Ala. Civ. App. 1990); Hall v. Hall, 577 So.2d 469 (Ala. Civ. App. 1990); Cokely v. Cokely, 469 So.2d 635 (Ala. Civ. App. 1985); and Hollingsworth v. Wright, 369 So.2d 18 (Ala. Civ. App. 1979).

In most of those cases, however, this court determined that a trial court had acted within its discretion because the record evidence had supported the trial courts’ decisions regarding custody of the children at issue, and we therefore affirmed the judgments in that regard. Among the cases that the mother has relied upon, we reversed the trial court’s custody determination in only Gonzalez, supra, a plurality opinion that the mother has discussed in greater detail in her appellate brief.

The mother points to the facts of Gonzalez that she contends are “strikingly” similar to the facts of this case, namely that, in that case, the mother had been the children’s primary caregiver, the father, in that case, had only recently become more involved with the children as a result of the divorce litigation, the father had been verbally abusive toward the mother, and the father admitted to having viewed por.nography. Id. at 257-63. However, the trial court in Gonzalez had awarded the father sole physical custody of the parties’ three children, rather than, as in this case, awarding joint physical custody. Id at 257.

In reversing the trial court’s custody determination in Gonzalez, two judges concluded that an award of sole physical custody, the very relief that the mother in this case has requested, to the father was improper based on the evidence that had been presented regarding, among other things, the children’s relationship with the mother. Id. at 263. In other words, the main opinion in Gonzalez does not stand for the proposition that an award of joint custody under those circumstances would have been improper; rather, it stands for the proposition that an award of sole physical custody to the father under those circumstances was improper. As such, this court’s reversal of the trial court’s custody determination in Gonzalez does not compel a conclusion that the trial court’s custody determination in this case should be reversed.

Because “we are ‘charged only with determining whether the evidence was sufficient to support the trial court’s judgment’ and not with determining whether there was a sufficient basis for a different judgment than that entered by the trial court,” we conclude that the trial court acted within its discretion in awarding joint legal and physical custody of the child and that its judgment was not plainly and palpably wrong such that it warrants reversal. Henning v. Henning, 26 So.3d 450, 455 (Ala. Civ. App. 2009)(quoting Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004)). In its judgment, the trial court expressly stated that it had considered the age and sex of the child; the child’s emotional, social, moral, material, and educational needs; and the characteristics of the parties, including their age, character, stability, mental and physical health, and their respective home environments. Based on the evidence presented, the trial court could have determined that, given the child’s young age at the time of trial and the relationship that he had established with the parties and their respective faiqilies, his best interest would be promoted through continuing and regular contact with his paternal and maternal families.

Indeed, although the mother relies upon her testimony regarding the difficulties that the child had experienced during the divorce litigation as evidence of the “disruptive effect” that an award of joint custody would have on the child, the trial court could have viewed that same testimony as evidence indicating that the reduced maintenance of his familial relationships resulting from the parties’ divorce was negatively impacting the child. The trial court could have therefore determined that an award of joint physical custody would continue to foster the child’s established relationships, and therefore his best interest, to the extent possible in light of the practical realities of the parties’ divorce. Furthermore, we also note that the evidence presented would have supported a finding by the trial court that each party was capable of adequately caring for the child and providing for his needs. Thus, we conclude that the trial court’s resolution of the factors set forth in its judgment is supported by the record and does not warrant reversal.

We next consider each of the factors enumerated in § 30-3-152(a), Ala. Code 1975. First, the parties did not agree on joint custody. Second, although the mother testified that the parties were unable to cooperate and make decisions jointly, her testimony was disputed by the father, and, when questioned by the trial court, the mother conceded that the parties had been able to cooperate in the past. Third, the evidence presented would have supported a finding that each party regarded the other as a good parent and that the parties were therefore capable of encouraging love, affection, and contact between the child and the other parent. Fourth, no evidence was presented regarding any history of abuse, domestic violence, or kidnapping. Fifth, the parties both testified that they were living in Cordova at the time of the trial. In light of the foregoing, we cannot conclude that the factors enumerated in § 30-3-152(a) foreclosed the trial court’s award of joint custody under § 30-3-152(b), Ala. Code 1975, and its judgment cannot be reversed for that reason.

We next turn to the mother’s argument that the trial court’s judgment should be reversed because it incorrectly calculated the father’s child support. Citing Mosley v. Mosley, 770 So.2d 638, 641 (Ala. Civ. App. 2000), the mother specifically contends that the trial court erred because its calculation deviated from' the Rule 32, Ala. R. Jud. Admin., guidelines without explaining the reason for its deviation. See also Hayes v. Hayes, 949 So.2d 150, 154 (Ala. Civ. App. 2006). Regarding the parties’ incomes and child support, the trial court’s judgment stated: “[The mother] ... is employed ... making . approximately $2,167.00 per month. [The father] is employed ... with a monthly income of $6,944.00.... [The father] will pay [the mother] $458.00 in child support .... The child support amount is in accordance with Rule 32[, Ala. R. Jud. Admin.].” The record also contains a copy of a completed Form CS-42 that indicates that it was prepared by the trial court on the day of the trial. In that document, the trial court noted that the mother’s monthly gross income was $2,167, that the father’s monthly gross-income was $6,649, and that the father’s recommended child-support obligation was therefore $713.34 after an adjustment for the father’s monthly $157 payment of health insurance for the child.

In his appellate brief, the father also states: “The trial court’s award of child support does not appear to comply with Rule 32[, Ala. R. Jud. Admin.]; therefore[,] this case should be remanded to the trial court- in order for it, to properly determine the correct amount of the father’s child support obligation in accordance with said rule.” We note that the amount of the father’s income is recorded differently in the trial court’s judgment .and’in its Form CS-42. However, application of the Rule 32 guidelines using either figure would result in an award of child support greater-than the $458 set forth in the trial court’s judgment.

Therefore, we must reverse the trial court’s child-support award, and we remand .this cause for the trial court to properly determine the father’s child-support obligation in compliance with Rule 32, Ala. R. Jud. Admin. “The trial court may, in its discretion, compute the obligation according to the guidelines or expressly state the reasons why a deviation from the guidelines is necessary in this case.” Hayes, 949 So.2d at 154-55. In. all other respects, the trial court’s judgment is affirmed.

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

Thompson, P.J., and Pittman, Moore, and Donaldson, JJ., concur.


author: PITTMAN, Judge.

text:
    EX PARTE Victoria Thomaston CATO (In re: William Lee Cato v. Victoria Thomaston Cato)
    2150950
    Court of Civil Appeals of Alabama.
    December 2, 2016

      Kathryn C. Gentle of Crew Gentle Law, P.C., Birmingham, for petitioner.
    Charles H. Dunn of Boyd, Fernambucq, Dunn & Fann, P.C.f Birmingham, for respondent
   PITTMAN, Judge.

. . Victoria Thomaston Cato (“the wife”) has petitioned this court for a writ of mandamus directing the Jefferson Circuit Court to grant the wife’s motion for leave to amend her answer to a divorce complaint, which will allow her to assert ,a counterclaim. We grant the wife’s petition in part and deny it in part.

Procedural History

The wife and William Lee Cato (“the husband”) were married in 1988. In April 2015, the husband filed a complaint requesting the trial court to divorce him from the wife and to order “a fair and equitable division of all property acquired by the parties during the marriage.” The wife filed an answer to the husband’s complaint, but she did not assert a counterclaim.

A trial was commenced in June 2016. The husband, who was the first witness called to testify, was questioned, by his counsel regarding the value of the marital assets, and he testified as to how he would like the trial court to divide those assets. On cross-examination, the husband responded to questions regarding his alleged dissipation of assets and alléged adulterous behavior. The husband, however, objected when the wife’s counsel questioned him regarding one of his retirement accounts. As the basis for his objection, the husband pointed out that the wife had not filed a counterclaim, which prompted a discussion among the trial court and the parties that resulted in a continuance of the trial so the parties could submit legal memorandums as to whether the wife should be allowed to amend her answer to assert a counterclaim.

Thereafter, the wife filed a motion requesting the trial court to allow her leave to amend her answer to assert a counterclaim for a divorce, an equitable division of the marital property and the marital debts, an award of alimony, and an award of attorney’s fees. Alternatively, the wife requested the trial court to declare that “issues tried by implied consent should be treated as if they were raised in the pleadings.” The trial court denied the wife’s motion without stating its reasons for doing so.

Thereafter, the wife filed a “motion to reconsider and motion in limine,” in which she asserted, among other things, that she should at least be allowed to present evidence of the value of the marital property and of the parties’ earning capacities. The trial court entered an order purporting to deny the wife’s motion to reconsider, but ruling that she would be allowed to present “evidence on cross-examination as to the value of the marital assets.” Within the presumptively reasonable time for seeking review of the trial court’s order denying the wife’s initial motion seeking leave to amend, see Rule 21(a)(3), Ala. R. App. P., the wife timely petitioned this court for a writ of mandamus.

Discussion

“Mandamus is an extraordinary remedy and will be granted only where there is ‘(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ ”

Ex parte Ocwen Fed. Bank, FSB, 872 So.2d 810, 813 (Ala. 2003) (quoting Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala. 1991)). As the wife points out, our supreme court has indicated that appellate courts may issue the writ of mandamus if a trial court acts outside its discretion in denying a party leave to amend a pleading. See, e.g., Ex parte DePaola, 46 So.3d 884, 885 (Ala. 2010); and Ex parte Liberty Nat’l Life Ins. Co., 858 So.2d 950, 952 (Ala. 2003).

Rule 13(f), Ala. R. Civ. P., provides that, “[w]hen a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, the pleader may by leave of court set up the counterclaim by amendment.” The amendment of pleadings generally is governed by Rule 15, Ala. R. Civ. P. Under Rule 15(a), Ala. R. Civ. P., if a party desires to amend a pleading 42 days or less before the first setting of a case for trial, the party must obtain leave of court, “and leave shall be given only upon a showing of good cause.” Under Rule 15(b), Ala. R. Civ. P., which does not contain an express “good cause” requirement,

“[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party’s action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. An amendment shall not be refused under subdivision (a) and (b) of this rule solely because it adds a claim or defense, changes a claim or defense, or works a complete change in parties. The [cjourt is to be liberal in granting permission to amend when justice so requires.”

We agree with the wife that she should be allowed to amend her answer to assert a counterclaim for her equitable share of the parties’ marital property. The husband himself averred in his complaint that the parties had accumulated marital property, and he asked the trial court to equitably divide the same. Before the trial, the husband filed a motion requesting the trial court to enter an order ruling that certain specific property that he had inherited should not be considered marital property subject to division by the trial court.

During the trial, the husband testified regarding the value of the property that he considered to be marital property and specified to the trial court how he would like that property to be divided. The husband was also questioned, without objection, about dissipation of marital assets and his alleged adulterous behavior. It was not until the wife’s counsel questioned the husband about the value of a particular retirement account that the husband objected, purportedly based on the wife’s failure to file a counterclaim.

The husband acknowledges in his answer to the wife’s mandamus petition that, after the trial court initially denied the wife’s motion for leave to amend, the trial court entered an order specifically stating that “[t]he [husband’s] objection to the introduction of evidence on cross-examination as to the value of the marital assets is Overruled.” Consistent with that ruling, the husband suggests in his answer to the wife’s mandamus petition that the trial court has determined that the wife indeed will be allowed to seek her share of the marital assets, and the husband expressly concedes that the wife is entitled to do so.' Accordingly, we perceive no reason the wife should not have been allowed to formally amend her answer to assert a counterclaim for the equitable division of the marital property. Thus, we issue the writ of mandamus and direct the trial court to allow the wife to amend her answer to assert such a claim. Cf. Johnson v. Johnson, 444 So.2d 867, 869 (Ala. Civ. App. 1984) (holding that a wife’s divorce complaint was deemed amended under Rule 15(b) to include 'a claim for alimony because “alimony was an issue before the trial court and was presented to the court without objection”).

The husband argues that, even though the wife may make a claim for her share of the marital assets, she should not be allowed to amend her answer to assert a counterclaim for alimony. In Tounzen v. Southern United Fire Insurance Co., 701 So.2d 1148, 1150 (Ala. Civ. App. 1997), this court.stated that, under Rule,15(b), Ala. R. Civ. P., if an 'unpleaded issue is not tried by the'express or implied consent of the parties, “it is incumbent on the objecting party to show that the introduction of the evidence pertinent to issues not raised in the pleadings would in some way prejudice the objecting party’s case.” Sée also Committee Comments on 1973 Adoption of Rule 15, Ala. R. Civ. P. (“If the other party does object, but fails to persuade the court that he will be prejudiced in maintaining his claim, or defense, the court, must then grant leave to amend the pleadings to allow the evidence or the issue.”); Ammons v. Tesker Mfg. Corp., 853 So.2d 210, 216 (Ala. 2002) (“ ‘If a party objects to the introduction of evidence at the trial on the ground that it is not within the issues framed by the pleadings,. he must show that he would be actually prejudiced in maintaining his action or defense on the merits by the admission of the evidence.’ ” (quoting Hawk v. Bavarian Motor Works, 342 So.2d 355, 358 (Ala. 1977)) (emphasis omitted)); and Wal-Mart Stores, Inc. v. Robbins, 707 So.2d 284, 287 (Ala. Civ. App. 1997) (stating that our “supreme court has held that amendments should be liberally granted under [Rule 15(b) ], but not in situations where' the opposing party would be unduly prejudiced”). We also note that a leading • treatise on civil procedure in federal courts indicates that, although courts are hesitant to deny leave to amend an answer to allow a party to assert a previously omitted compulsory counterclaim, “[e]ven leave to amend to file a compulsory counterclaim may be denied ... if the delay in pleading the counterclaim is deemed prejudicial.” 6 Charles A. Wright et al,, Federal Practice and Procedure § 1430 (3d ed. 2010).

In Tounzen, this court held that the plaintiffs in that case, who had objected to the defendant’s offering evidence in support of a previously unpleaded affirmative defense, had demonstratéd prejudice by the trial court’s allowance of an amendment to the defendant’s answer raising that defense because the plaintiffs had not been afforded an opportunity to conduct discovery relevant to the defense. 701 So.2d at 1151. This court also noted that the trial court in Tounzen had- denied the plaintiffs’ request for a continuance, which had been sought in order to allow the plaintiffs to prepare for the tardily raised defense. "Id. Thus, this court reversed the trial court’s judgment allowing the amendment.

In the present case, the wife asserts that, unlike the plaintiffs in Tounzen, the husband did not demonstrate that he would be prejudiced if the wife were allowed to assert a counterclaim for alimony because “no further discovery will be required, no further evidence needs to be acquired, and no further delay will einsue.” In response to the wife’s motion for leave to amend, the husband asserted that he had “prepared ... based on the claims for relief ple[aded] ... which set the parameters of the litigation at trial” and that the wife’s counterclaim “would drastically change the tenor of the litigation, would interject theories and claims not otherwise ple[aded], would likely cause additional discovery to be conducted, increase the expenditure of attorney fees, and cause undue delay.”

The wife, on the other hand,- suggests that the husband had knowledge throughout this litigation that the wife would make a claim for alimony. She points to motions she filed with the trial court, in which she asserted that she was without sufficient means to support' herself and that the husband earned a substantial monthly income and requested the trial court to award her temporary spousal support pending resolution of the divorce proceedings. She notes that her request for temporary support was, at one point, continued and set to be resolved at the trial, suggesting that the parties and the trial court understood her request to be for both temporary and permanent spousal support. We acknowledge, however, that the trial court entered a subsequent order continuing the wife’s request “generally, to be reset by either party by proper motion.”

The wife asserts that the parties participated in mediation, where, she says, “the expectations of both parties regarding the equitable distribution of the [marital] estate was disclosed and discussed at length including alimony ...,” although she does not point to any documentation or other evidence supporting her claim regarding what, was discussed during the mediation. For his part, the husband states in his answer to the wife’s mandamus petition that, “[a]s negotiations in > mediation are meant to be confidential ..., the husband will not favor this Court with the particulars discussed in mediation.” The husband also points out that discussions during mediation are not limited to matters that have been formally pleaded. .

Regardless of whether the husband anticipated a claim for alimony, it is clear to this court that he has proceeded throughout this litigation at least with the understanding that the equitable division of the marital property was an issue that would be resolved at trial. As noted, he requested the trial court in his complaint to divide the marital property. Early in the litigation, the wife served the husband with written discovery requests calling for the production of information and documents relating to the parties’ assets. The husband responded to those requests and designated an expert to give an opinion as to the value of the parties’ retirement accounts. Eventually, the trial date was continued in order to allow the wife to depose the husband’s expert and to retain her own. The wife filed motions with the trial court in which she averred that more than $1,000,000 in marital assets were at issue in the divorce proceedings. The husband himself filed a motion requesting the trial court to enter an order ruling that certain inherited properties were not marital assets that could be divided.

Thus, the husband essentially concedes that he was prepared to present evidence relating to the issue of .property division, notwithstanding the wife’s failure to file a counterclaim. That same evidence is also relevant to alimony. See Pate v. Pate, 849 So.2d 972, 976 (Ala. Civ. App. 2002) (“The issues of property division and alimony are interrelated, and they must be considered together.”); Turnbo v. Turnbo, 938 So.2d 425, 430 (Ala. Civ. App. 2006) (“In dividing property and awarding alimony, a trial court should consider ‘the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties’] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce.’ ” (quoting Russell v. Russell, 777 So.2d 731, 733 (Ala. Civ. App. 2000))); and Golson v. Golson, 471 So.2d 426, 429 (Ala. Civ. App. 1985) (“In determining whether and how much alimony to award, the trial court should consider the same factors ... which it considers in making a division of the parties’ property.”).

Accordingly, this court fails to see how the husband will need to conduct further discovery regarding the issue of alimony. It is noteworthy that the husband has not identified any specific subjects upon which he would need further discovery. He also does not offer specific examples in support of his assertion that “his presentation of the evidence during his case-in-chief would have differed drastically if the wife would have filed a counterclaim prior to the beginning of the trial.” In any event, we note that the husband was the first and only witness called during the trial, and he had not completed his case-in-chief when the trial was continued to allow the parties to file legal memorandums regarding the wife’s request to amend her answer. If the wife is allowed to assert a counterclaim for alimony, equity requires that the husband be allowed to offer additional testimony on that issue.

Notwithstanding the issue of prejudice, the husband points to Blackmon v. Nexity Financial Corp., 953 So.2d 1180 (Ala. 2006), in which our supreme court noted that a trial court may “refuse to allow an amendment ... for reasons of ‘undue delay.’ ” 953 So.2d at 1189 (quoting Ex parte GRE Ins. Grp., 822 So.2d 388, 390 (Ala. 2001)). As the husband points out, in Blackmon, the supreme court indicated that there are two types of “undue delay,” one of which includes “an unexplained undue delay in filing an amendment when the party has had sufficient opportunity to discover the facts necessary to file the amendment earlier. ...” 953 So.2d at 1189.

Other precedent, however, indicates that a party objecting to a proposed amendment must show that the amendment would cause prejudice, would result in further delay, or was itself delayed in bad faith. See, e.g., Schoen v. Styron, 480 So.2d 1187, 1190 (Ala. 1985) (“Although ... plaintiff probably should have amended his complaint before he did, the evidence does not indicate that his failure to amend at an earlier date was an intentional dilatory tactic or was otherwise motivated by bad faith. And, absent bad faith, ‘delay alone, regardless of its length, is not enough to bar [amendment] if the other party is not prejudiced.’” (quoting 3 J. Moore, Moore’s Federal Practice ¶ 15.08[4] (2d ed. 1985))); Bracy v. Sippial Elec. Co., 379 So.2d 582, 584 (Ala. 1980) (“The party opposing the amendment must show that the amendment would cause actual prejudice or undue delay in order to bar an amendment.” “We cannot say that [the defendant] suffered actual prejudice or that the trial would be unduly delayed by allowing the amendment.”); Wells v. Geneva Cty. Bd. of Educ., 646 So.2d 98, 100 (Ala. Civ. App. 1994) (‘We are not persuaded that the [plaintiffs] were unduly prejudiced when the trial court allowed the [defendant] to amend its answer and counterclaim. The counterclaim was based upon the same set of facts and logically related to the original claim.”); and United Handicapped Indus. of Am. v. National Bank of Commerce, 386 So.2d 437, 441-42 (Ala. Civ. App. 1980) (“Although sufficient grounds [to deny a request for leave to amend] exist if granting the motion will unduly delay trial on the issues or unduly prejudice opposing parties, neither delay in and of itself, unless motivated by bad faith, nor the fact that the proposed amendment may well be the result of the afterthought of counsel as to the best theory on which to proceed, suffice as reasons for denying leave to amend”). But see Hughes v. Wallace, 429 So.2d 981, 983 (Ala. 1983) (affirming a trial court’s denial of a defendant’s motion to amend his answer, made during the trial, in order to raise a previously unpleaded affirmative defense, because the defendant had “advanced no justifiable reason for failing to raise the defense earlier”); and McElrath v. Consolidated Pipe & Supply Co., 351 So.2d 560, 565 (Ala. 1977) (reversing a trial court’s denial of a defendant’s request, made on the first day of trial, for leave to amend a counterclaim, noting that “there is no evidence that the amendment could have been made earlier,” but also noting that “[t]he record does not disclose a scintilla of evidence that the ... amendment was interposed in a dilatory manner”).

We note that the parties in the present case appear to agree that the wife’s request for alimony would constitute a compulsory counterclaim. Blackmon did not involve a request for leave to amend an answer in order to assert a compulsory counterclaim. See McElrath, 351 So.2d at 565 (suggesting that, if a defendant seeks to assert a compulsory counterclaim, such circumstance weighs in favor of granting leave to amend); Wells v. Geneva Cty. Bd. of Educ., supra; and 6 Charles A. Wright et ah, Federal Practice and Procedure § 1430 (3d ed. 2010) (“[T]he court normally will be more willing to grant leave to amend when a [compulsory] counterclaim is involved than when a [permissive] counterclaim is at stake.”). But see Walker v. North Am. Sav. Bank, 142 So.3d 590, 602 (Ala. Civ. App. 2013) (assuming without deciding that counterclaims were compulsory, and affirming the trial court’s disal-lowance of the counterclaims in part because the defendants “had been aware of the facts supporting all the counterclaims at the time [they] answered the [plaintiffs] complaint”).

Finally, Blackmon was not a divorce case, and this court has suggested that a trial court in a divorce proceeding may award alimony, even if not requested in a pleading, if property division is an issue to be resolved at trial. See Lacy v. Lacy, 403 So.2d 251, 253 (Ala. Civ. App. 1981) (“[W]e note that the wife, in her petition for divorce, requested an equitable division of property, as well as such other relief to which she may be entitled. Such a request indicated that the parties were aware that the finances of the parties and/or the support of the wife were issues to be determined by the trial court.”).

We agree with the wife that the husband did not demonstrate that he would be prejudiced if the wife were allowed to amend her answer to assert a counterclaim for alimony and that the wife’s delay, in and of itself, was not a sufficient ground to deny her leave. Accordingly, we issue the writ of mandamus and direct the trial court to allow the wife to so amend her answer.

As for attorney’s fees, although not entirely clear, it appears that the trial court, by continuing the wife’s pretrial motion requesting attorney’s fees to the date of trial and, later, generally “to be reset by either party by proper motion,” has not foreclosed the possibility of awarding the wife fees. The vast majority of the wife’s arguments in support of her mandamus petition relate to property division and alimony. We conclude that she has not demonstrated a clear legal right to formally amend her answer in order to assert a counterclaim for attorney’s fees, and, accordingly, we deny the wife’s petition as to that issue.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

Thompson, P.J., and Thomas and Donaldson, JJ,, concur.

Moore, J., concurs in the result, without writing. ■

      . A leading treatise on civil procedure in Alabama suggests that Rule 15 should prevail over Rule 13(f) in analyzing whether a party should be allowed to amend an answer in order to assert a counterclaim. See 1 Ally Windsor Howell, Alabama Rules of Civil Procedure Annotated, Rule 15, § 15.3, pp. 423-24 (4th ed. 2004). See also Starr v. Wilson, 11 So.3d 846, 849 n.1 (Ala. Civ. App. 2008) ("Although Rule 13(f), Ala. R. Civ. P., appears to require leave of court to assert a counterclaim omitted from a defendant’s answer, Rule 15(a), Ala. R. Civ. P., permits amendment of any pleading as of right on or before the 42d day before the first setting of a case for trial; because the case had not been set for a trial at the time [the plaintiff] filed his counterclaim, Rule 15(a) may properly be said to prevail over Rule 13(f) here so as to render the counterclaim proper without leave of court.’’). Accordingly, in addition to Rule 13(f), we consider Rule 15 in reviewing the trial court’s denial of the wife's motion for leave to amend.

      . This court expresses no opinion as to what is and is not divisible marital property in this case.

      . The wife’s motion also requested the trial court to direct the husband to pay the wife’s attorney’s fees.

      . Moreover, the court in Blackmon applied Rule 15(a), Ala. R. Civ. P., and had no occasion to consider Rule 15(b), Ala. R. Civ. P.

      . The court also notes that the wife has not articulated a persuasive argument that' a counterclaim simply is not required in order for a defendant in a divorce case to make claims for the division of marital property, alimony, or attorney’s fees, and we decline to express an opinion on that issue.