source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    J.F. INGRAM STATE TECHNICAL COLLEGE v. Stanley CARTER
    2150839
    Court of Civil Appeals of Alabama.
    January 6, 2017

      Tracy R. Davis of Hand Arendall LLC, Birmingham; and Windy C. Bitzer and Edward T. Rowe of Hand Arendall LLC, Mobile, for appellant.
    Clint Daughtrey of Alabama Education Association, Montgomery; and Sam Held-man of The Gardner Firm, Washington, D.C., for appellee.
   DONALDSON, Judge.

J.F. Ingram State Technical College (“the college”) appeals from the decision of a hearing officer overturning the decision of the acting president of the college to reassign Stanley Carter’s employment with the college. This proceeding is governed by the Students First Act of 2011 (“the SFA”), § 16-24C-16, Ala. Code 1975. The decision of the hearing officer was appealed directly to this court pursuant to § 16-24C-7(f), Ala. Code 1975. For the reasons discussed herein, we reverse the decision of the hearing officer and render a judgment in favor of the college.

The college is a part of the Alabama Department of Postsecondary Education, but it operates within a correctional-facility environment. Carter has been employed with the college for approximately 25 years and had been employed as the dean of instruction for the college for 1 year, earning $112,000 annually. Pursuant to largely undisputed events discussed below, the college reassigned Carter to the position of center director. As a result of the reassignment, his annual salary was reduced to $96,803. Pursuant to subsections (e) and (f) of § 16-24C-6, Ala. Code 1975, which governs the demotion and/or termination of nonprobationary classified employees of two-year educational institutions, Carter appealed that decision.

On January 19, 2016, a hearing was held on Carter’s appeal before Dr. James S. Klauber, who, for the limited purpose of conducting a hearing in this matter, was acting as president of the college (“the acting president”). The acting president was appointed after Dr. Hank Dasinger, the actual college president, recused himself from the proceedings due to his involvement in the underlying investigation that led to Carter’s reassignment. Dr, Da-singer, Carter, and LaTonya Porterfield, an employee of the college, testified at the hearing.

On February 1, 2016, the acting president entered a written order, finding as follows:

“1. At the end of October and prior to October 27, 2015, President Dasinger received a report from employee Malinda Baynard that a male employee had taken pictures of a female employee. President Dasinger inquired further as to who the specific parties were and was informed it was Stanley Carter and LaKerri Gill. He was advised that LaK-erri Gill was very upset about the incident.
“2. On October 27, 2015, President Dasinger met with LaKerri Gill to discuss the reported allegations. Jon Klarren, Dean of Administration, also attended these meetings with the President and transcribed notes from this meeting.
“3. LaKerri Gill reported to President Dasinger that, about a month prior, she was with Stanley Carter, Lucian Ward, Alexis Owens, LaTonya Porter-field in a conference room. Stanley Carter made a comment about her wearing a full dress and he had made comments like that in the past. Stanley Carter took three photos of her with his cell phone, one of her legs, one of her middle, and one of her top. She felt ‘like a whore’ and ‘nasty.’ The incident was reported to Malinda Baynard.
“4. LaKerri Gill reported to President Dasinger that she was engaged in avoidance behaviors around Stanley Carter. Stanley Carter denied that LaK-erri Gill tried to avoid him.
“5. LaKerri Gill reported another picture-taking event by Stanley Carter that occurred around October 23, 2015, and she reported immediately walking out. There was no testimony contradicting a second picture-taking event.
“6. LaKerri Gill reported to President Dasinger that she had been cursed by Stanley Carter, T don’t want to hear that sh[i]t.’ There was no contrary testimony to this behavior.
“7. On October 27, 2015, President Dasinger met with LaTonya Porterfield to discuss the reported allegations. Jon Klarren, Dean of Administration, also attended with the President and transcribed notes of this meeting.
“8. LaTonya Porterfield reported to President Dasinger that she believed Stanley Carter had taken pictures of LaKerri Gill and wondered why Stanley Carter would take a picture of LaKerri ; Gill and didn’t know what kind of relationship Stanley Carter and LaKerri Gill had.
“9. On October 27, 2015,-President Dasinger met with Lucian Ward to discuss the reported allegations. Jon Klarren,. Dean of Administration, also attended, with the President and transcribed notes of this meeting.
“10. Lucian Ward reported to President Dasinger that ‘several weeks ago’ Stanley Carter joked, about LaKerri Gill’s attire and took out his cell phone and took three pictures of LaKerri Gill starting with her legs, Lucian Ward reported the conduct to be strange but thought Stanley Carter, as an administrator, would -know, better than ho do something inappropriate. LaKerri Gill approached, him and was upset after-wards and.he cautioned her not to file a complaint.
“11. Based on the- report and .the three interviews conducted, on October 30, 2015, President Dasinger drafted a proposed suspension without pay and reassignment memorandum to Stanley Carter and also drafted a notice of voluntary resignation from. Dean of Instruction to Center Director position to discuss with Stanley Carter.
“12. The October 30, 2015, proposed memorandum noted that
“a. Stanley Carter was proposed for suspension for .15, work .days and the suspension was not subject to appeal; and
“b. Stanley Carter was proposed to be removed from his position as Dean of Instruction and reassigned and transferred to . a Center Director position (without supervisory responsibilities) and proposed to have his pay decreased to the Center Director salary because Stanley Carter ‘on at least two occasions, used a cell phone to take pictures of a female employee, to include photos of her from head to toe. Further, you made comments to this employee about her attire/appearance. Not only did your actions offend and cause extreme discomfort to this employee, but it also raised questions among employees who witnessed your behavior about the nature of your relationship with the offended employee. Regardless of your intention, -these actions subject the College to claims of hostile work environment and/or sexual harassment. Additionally, these actions are inconsistent with the values of the College and are completely unacceptable for a person in a leadership position of the College.’
“13.' President Dasinger stated that he presented Stanley Carter with this draft October 30,. 2015, memorandum and allowed Stanley Carter to take it home, but Stanley Carter testified that he did not -receive this memorandum until November 2, 2015, at a later meeting with the President.
“14. There is no dispute that President Dasinger met with Stanley Carter face-to-face on October 30, 2015.
“15. There is no dispute that, on October 30, 2015, President Dasinger orally notified Stanley Carter of the employee report that Stanley Carter had engaged in inappropriate picture-taking of a female employee, that the female employee was upset, and that others had witnessed the conduct.
“16. President Dasinger testified that Stanley Carter was offered an opportunity to provide argument or defense to his actions, Stanley Carter originally denied taking pictures but eventually admitted to ‘simulating’ picture-taking. Stanley Carter further discussed his friendship with LaKerri Gill and that, because she was often sad, he told her she needed a man in her life and. showed her a male picture on his phone.
“17. President Dasinger testified-that he believed Stanley Carter had originally misspoken and/or was dishonest about his role in the alleged picture-taking incident during this meeting.
“18. Stanley Carter testified that he did not know who the alleged victim of the alleged picture-taking was, while the President stated that he expressly told Stanley Carter that the incident involved pictures of LaKerri Gill on- October' 30, 2015, Stanley Carter’s, testimony did not seem credible in light of the conversation he admitted haying with the President about the incident and admitting he ‘simulated’ picture-taking.
“19. Stanley Carter was allowed to think .about the matter over the weekend and return on November 2, 2015, around 1:00 pm or 2:00 pm to discuss the matter again with the President.
“20. On November 2, 2015, Stanley Carter arrived and announced that he intended to fight the President’s proposal. This was another face-to-face and scheduled, meeting with the President.
“21. There was undisputed evidence that Stanley ‘ Carter never asked for a lawyer or asked for more time (other than over the weekend, which he was given) to present evidence or argument related .to the 15-day suspension.
“22. The Students First Act (Alabama Code [1975,] § 16-24G-6{i)) provides: ‘An employee may be suspended for cause with or without pay on the written recommendation of the president of a two-year educational institution alone .... The suspension of a ... non-probationary employee for no more than 20 work days without pay is not a termination of employment that is subject to review under this chapter. Adequate notice of -the reason or reasons for the proposed suspension and an opportunity to present evidence and argument, either in person, or in writing, to the president of a two-year educational institution .with respect to the proposed action shall be afforded the employee before the imposition of the suspension.’
“23. On November , 2, 2015,- [President] Dafeinger recommended that Stanley Carter be suspended and transferred with a loss of pay. Stanley Carter signed the recommendation on that day. ..
“24. Stanley Carter was suspended for l5 work,days beginning November 2, 2015. .
“25. On November 5, 2015⅛ the College’s Senior Personnel Officer submitted a certified letter to Stanley Carter, [informing him] that he was being transferred to- a Center Director- position (without supervisory responsibilities) and proposed to have his pay decreased to -the Center Director salary because Stanley Carter ‘on at least two occasions, used a cellphone to take pictures of a female employee without her permission and further made comments to this employee about her attire/appearance, Not only did your actions offend and cause extreme discomfort to this employee, but it also raised questions among employees who witnessed your ..behavior about the nature of your relationship with the offended employee. These actions subject the College to claims of hostile work- environment and/or' sexual harassment. Additionally, these actions , are inconsistent with the values of the College and are completely unacceptable for a person in a leadership position of the College.’
. “26. Stanley Carter signed for certified. receipt of this November, 5 letter.
“27. President Dasinger asked Jon Klarren, Dean of Administration, to interview two other employees, Hubert Griffin and Alexis Owens.
“28. President Dasinger received a report of those meetings on or about November 13, 2015. The report stated that Alexis Owens stated that at the end of September or early October, Stanley Carter commented that LaKerri Gill was dressed up and he was going to take a picture. LaKerri Gill indicated that she did not want her picture taken and then she left the room, after Stanley Carter held his camera up to take pictures.
“29. On November 17, 2015, Stanley Carter asked for a hearing, through legal counsel, and asked for ‘an additional short plain statement of the facts substantiating the charges brought against him ... ’
“30. On November 18, 2015, President Dasinger asked to be recused as the hearing officer in the Stanley Carter matter.
“31. On November 30, 2015, the Chancellor of the Alabama Community College System approved President Da-singer’s request to recuse and appointed Dr. James S. Klauber as the acting President of the College for the limited purpose of presiding over the Stanely [sic] Carter matter.
“32. On December 1, 2015, Acting President James S. Klauber submitted a notice of hearing setting the hearing for January 11, 2016, at 10:00 a.m. at the College.
“33. On December 11, 2015, due to Stanley Carter’s legal counsel’s request and new information, the Senior Personnel Officer supplemented the November 5, 2015, notice of proposed transfer and loss of pay.
“34. The December 11, 2015, letter stated the grounds for the transfer and loss of pay were based on misconduct, failure to perform your duties in a satisfactory manner, failure to properly respect female employees, and failure to act in a professional manner appropriate for a Dean, and other good and just cause.
“35. The December 11, 2015, letter further informed Stanley Carter that the proposed action was based on the fact that he did not speak truthfully to the College President when initially questioned about the event. He denied the picture-taking event occurred and [asserted that] employees lied about it, but later changed the story and admitted pretending to take pictures of LaKerri Gill. Stanley Carter denied lying.
“36. The December 11, 2015, letter further advised that the proposed action followed a previous warning where the College President discussed with Stanley Carter his lack of judgment involving female employees when he was behind closed doors with a female employee. Stanley Carter admitted that the College President discussed with him a problem with being behind closed doors with female employees.
“37. The December 11, 2015, letter further advised that the proposed action was based on Stanley Carter’s complete lack of understanding of the inappropriateness of his admitted actions.
“38. The December 11, 2015, letter further advised that the proposed action was based on Alexis Owens[’s] report that LaKerri Gill advised that she did not want her picture taken but that Stanley Carter pretended to do so anyway.
“39. The December 11, 2015, letter further advised that the proposed action was based on Stanley Carter’s cursing to LaKerri Gill and her reported attempts to avoid interactions with Stanley Carter. President Dasinger testified that LaKerri Gill reported this cursing incident. The report was not contradicted.
“40. The College has a code of conduct for employees which states that dishonesty, misrepresentation, and/or unduly offensive behavior which would be offensive to a reasonably sensitive person is deemed ‘misconduct.’ This policy also provides that the College has a commitment to ensure a non-harassment and respectful environment for all employees. Harassment is defined as ‘activity which has the ... effect of unduly demeaning, embarrassing, or discomforting any person ... of reasonable sensitivity.’ The policy also provides that ‘conduct may constitute sexual harassment when the allegedly harassed employee ... has indicated by his or her conduct that it is unwelcome and offensive.’
“45. Stanley Carter argues that there are no College policies which state that picture-taking is improper conduct. The College is not required to create policies for every conceivable actionable offense. An administrator of a College knows, or should know, that it would be considered unprofessional to simulate taking photographs of female employees, cursing employees, or telling female employees that ‘she needed a man in her life’ to be happy.
“46. Stanley Carter’s own admissions of his conduct appear to show harassing behavior against LaKerri Gill, which is a violation of College policy. His conduct appears to have had the effect of ‘unduly demeaning, embarrassing, or discomforting’ LaKerri Gill.
“47. Stanley Carter engaged in poor judgment in taking three photographs of a female employee and stating to that female employee that she needed a man in her life to be happy.
“48. Stanley Carter’s actions show risky behavior that could be a liability for the College.
“49. Stanley Carter exhibited a complete lack of understanding of the implications of his conduct at the hearing when testifying that he did nothing wrong.
“50. Stanley Carter argues that the proposed disciplinary action was too severe. Based on all of these reasons, it is my finding that the- proposed disciplinary action is appropriate and warranted.
“Based on the evidence presented at the hearing, as well as the demeanor and credibility of the witnesses, President James Klauber finds that the Senior Personnel Officer of the College met her burden of proof and established that Employee Carter failed to properly respect female employees, failed to act in a professional manner appropriate for a Dean, and other good and just cause (harassing a college employee). In my capacity as the acting President of J.F. Ingram State Technical College for the limited purpose of presiding over the Stanley Carter proceeding, I hereby approve and adopt the recommendation of the Senior Personnel Officer that Stanley Carter be transferred to a Center Director-like position at his previous C-1 salary effective as of the date of this Decision.”

On February 16, 2016, Carter submitted his written notice to the Alabama Department of Postsecondary Education, pursuant to § 16-24C-6(e), Ala. Code 1975, seeking review of the college’s decision. A hearing officer was appointed to hear the appeal. On June 8, 2016, after considering briefs and exhibits of the parties, the hearing officer entered an order finding, in part:

“a. Even giving deference to the acting president’s findings,. Carter’s conduct did notarise to the level of ‘other good and just cause,’
“Because this personnel action is governed by the same standards as a termination, the College must establish and the president must find that the factual allegations against the employee rise to the level of one of the statutory causes for termination provided in Section 16-24C-6(a), Ala. Code ¡1975. The only statutorily-enumerated. cause' for termination or demotion found by the. acting president was ‘other good and just cause.’ The undersigned finds that the College did not meet its burden. The photography incident did not violate any criminal statute, did not violate an employer policy, did not constitute a tort, was not reported by Gill, was not .reported by an eyewitness to the incident, and Gill declined to file a formal complaint when later given the opportunity. .
“While this hearing officer, gives deference to. the acting president’s finding that the conduct was ‘unprofessional,’ it does not rise to the point of making Carter unfit to continue in his role, as Dean, or that his doing so would- interfere with the operation of the College, the standard that precedent has set for conduct to be ‘other good and just cause’ to terminate a tenured, .employee who is otherwise. performing his duties well. Therefore, the undersigned finds, as a matter of law, that his conduct did not .constitute ‘other good and just cause,’ and his demotion is therefore voided, “b. The College failed to meet its burden of proof.
“Because the College suggested no alternative, the undersigned adopts the burden of proof for the College suggested by Carter: ‘reasonable and substantial,’ as first stated in Tipton v. Bd. of Ed. of Blount Cty., 276 Ala. 571, 575, 165 So.2d 120 (1962). Using that as a guide, this-hearing officer has no choice but to find that the College, as a matter of law, did not meet its burden of proof.
“Section 16-24C-6(c), Ala. Code 1975, provides that, ‘[a]t the hearing, ... the senior personnel officer [of the college], based solely on the information provided by the recommending senior supervisor, shall bear the burden of proof with regard to disputed issues of material fact.’ Thus, this- hearing officer will consider only the testimony put forth by the College in evaluating whether or not it met its burden of proof.
“Dr. Hank Dasinger, the College’s President, was the College’s only witness. He was not present at either incident in question and his only information came as a result of conversations with third parties. There was no physical evidence of a photograph or video of the incident, There'were no affidavits or statements by the individuals present and no evidence on the state of mind of LaKerri Gill other than Dasinger’s testi-riiony of what she told him. The only evidence that Carter made the statement to Gill about her ^needing a man in her life’ was the hearsay testimony of Dasinger. The best evidence for all of the findings against Carter, testimony from Gill, was not solicited by the College. In fact, Gill was not the complaining witness at any stage of the investigation or proceedings. The only exhibits on the. relevant points were written compilations of hearsay, as discussed below. The hearing officer also finds persuasive the body of cases cited by Carter in his briefs that, while hearsay evidence is admissible in an administrative hearing such as this, it cannot form the entirety of the evidence against him.
“In Tipton, ‘[t]he evidence was vague, general, inconclusive, flimsy, and much of it conclusions and hearsay,’ which led to the teacher’s termination being overturned. [276 Ala. at 576, 165 So.2d] at 124. The same was true in this case. By relying solely on the hearsay testimony of the lead investigator in the matter, the College introduced no legal, , reasonable, or substantial evidence to support the [acting president’s] findings of fact. Therefore, the acting president’s decision is reversed and Carter’s demotion is vacated. The same would be true under an arbitrary and capricious analysis, as the total absence of legal, non-hearsay evidence provides that the [acting president’s] findings were arbitrary by definition.
“c. The College’s Exhibits 2 and 5 were wrongly admitted.
“Carter’s challenge to the admission of the College’s Exhibits 2 and 5 is likewise sustained. Those exhibits are collections of notes taken during interviews held by Dasinger and John Klar-ren (whom Dasinger had assigned to conduct further investigation of the matter), The undersigned rejects the College’s argument that these exhibits were ‘business records’ for purposes of Rule 803(6), Ala. R. Evid. The documents were not prepared in the normal course of Dasinger’s and Klarren’s duties with the college, were prepared specifically for litigation, and were not created contemporaneously with the events described therein. Thus, even under an arbitrary and capricious analysis, the documents should not have been admitted to the;record.
“d. Carter’s proffered evidence regarding Gill’s employment record was arbitrarily excluded.
“Carter is also correct that the evidence he sought to introduce regarding the employment record of LaKerri Gill was wrongly excluded. As her hearsay statements were admitted into evidence through the testimony of Dasinger, her credibility became relevant. See Rule 806, Ala. R. Evid. It was also relevant in comparing and contrasting the punishment meted out to Gill and the punishment proposed for Carter, as the'acting president had full authority under the Students First Act to impose a lesser sanction than that proposed by the Senior Personnel Officer. Finally, Carter was charged with conduct ‘contrary to the values of the'college.’ Dasinger’s conduct in Gill’s case was relevant to establish those otherwise undefined values. Thus, the document -and testimony that Carter attempted to introduce were admissible for multiple'purposes, and it was arbitrary and capricious for the acting president to exclude them.
“e. The demotion- constitutes an arbitrary and capricious sanction.
“‘Under the arbitrary-and-capricious standard of review, if-a hearing officer determines that the sanction imposed by an employer is arbitrary and capricious, the hearing officer may remand the matter with instructions to the employer to impose a lesser penalty.’ Ex parte Lambert, [199 So.3d 761, 769] (Ala. 2015). “Even if the legal errors found above had not occurred, the undersigned would still find Carter’s demotion to be arbitrary and capricious based upon the facts of the case. In Lambert, the Alabama Supreme Court held that' a hearing officer could find that .the, employee’s punishment was arbitrary and capricious, and that is what the hearing officer did on remand.
“That precedent is persuasive and informs my decision in this case. Whereas the employee in Lambert violated a specific workplace -rule that dealt with student safety, Carter’s conduct here implicated neither a workplace rule, nor student/employee safety. While the acting president found that there was a risk of liability to the College, none has occurred, as was the case in Lambert. Giving deference to the finding that Carter ‘engaged in poor judgment,’ the employee in Lambert did, as well. However, like Lambert, Carter had a long and distinguished career and a perfect personnel record before the incident in question, including a near perfect evaluation shortly before this incident. Thus, the undersigned finds that the punishment of a demotion, with a $15,200 per year loss of salary that will serve as a lifetime financial penalty due to Carter’s proximity to retirement, on top of the 15-day unpaid suspension that had already been imposed for the same conduct, to be arbitrary and capricious.” On July 15, 2016, the college timely filed

a notice of appeal directly to this court, pursuant to § 16-24C-6(f), Ala. Code 1975.

On appeal, the college argues that the hearing officer applied the wrong standard of review to the acting president’s decision. The college points to the following paragraph in the hearing officer’s order in support of its assertion that the hearing officer applied an incorrect standard of review:

“The SFA requires that the undersigned give deference to the acting president’s factual findings and to his decision on the punishment imposed. § 16-24C-6(e), Ala. Code 1975. However, as to conclusions of law, as an appellate tribunal, this hearing officer will review them on a de novo basis. See Calhoun Cmty. Coll. v. Hudson, [200 So.3d 1175] (Ala. Civ. App. 2015). Cf. Espinoza v. Rudolph, 46 So.3d 403, 412 (Ala. 2010).”

The college asserts that the SFA makes no distinction between the standard of review for findings of fact and the standard of review for conclusions of law and that the hearing officer incorrectly relied upon Calhoun Community College v. Hudson, 200 So.3d 1175, 1179 (Ala. Civ. App. 2015), in employing a “bifurcated standard of review.” In Calhoun, we addressed the failure of a college president to issue subpoenas requested by an employee involved in proceedings governed under the SFA. We noted that § 16-24C-6(c), Ala. Code 1975, required the college president to issue the subpoenas upon a timely request. We held that “the arbitrary-and-capricious standard applies to the ultimate personnel decisions of the employer, that is, to the decisions regarding the proper action to take regarding a certain employee.” Id. at 1178. We also noted, however, that the SFA did not “requir[e] a hearing officer— or this court—to afford deference to an employer’s decisions regarding procedural matters such as the issuance of subpoenas.” Id. at 1179.

We are unable to discern from the hearing officer’s order in this case what “conclusion of law” was made by the acting president or how a de novo review was required.- The question whether Carter should have been reassigned is not a procedural question; rather, it is a substantive question to which the arbitrary-and-capricious standard of review applies. Our supreme court has explained that “the arbitrary-and-capricious standard of review ... applies to hearing officers’ review of employers’ decisions under the SFA.” Ex parte Lambert, 199 So.3d 761, 768 (Ala. 2015). “ ‘[I]t is well established[, however,] that where the issues involve only the application of law to undisputed facts appellate review is de novo.’ ” Ex parte Lambert, 199 So.3d at 765 (quoting Ex parte Soleyn, 33 So.3d 584, 587 (Ala. 2009)).

The college also argues that, to the extent the hearing officer applied the arbitrary-and-caprieious standard of review, the hearing officer -failed to give due deference to the acting president’s decision, as required by the SFA. The college also asserts that the hearing officer failed to demonstrate that the acting president’s decision was arbitrary and asserts that substantial evidence supports the acting president’s decision.

“The arbitraiy-and-capricious standard is ‘ “ ‘extremely deferential,’ ” ’ prohibiting the reviewing hearing officer from substituting his judgment for that of the Board. [Ex parte Lambert, 199 So.3d 761, 767 (Ala. 2015)] (quoting Ex parte Dunn, 962 So.2d [814,] 816 [ (Ala. 2007) ] (emphasis omitted)). Put another way, ‘ “[w]here ‘reasonable people could differ as to the wisdom of [the Board’s] decision[,] ... the decision is not arbitrary.”” Id. (quoting Ex parte Dunn, 962 So.2d at 816). Traditional definitions of the terms ‘arbitrary’ and ‘capricious’ indicate that few decisions will be found to violate the standard.
“ ‘ “A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards.” Sexton v. Tuscaloosa County Civil Serv. Bd., 426 So.2d 432, 435 (Ala. Civ. App. 1983). “ ‘ “ ‘[A] decision is capricious if it is so unreasonable as to “shock the sense of justice and indicate lack of fair and careful consideration.” ”” ” Alabama Dep’t of Human Res. v. Dye, 921 So.2d 421, 427 (Ala. Civ. App. 2005) (quoting Westring v. James, 71 Wis.2d 462, 476-77, 238 N.W.2d 695, 702-03 (1976), quoting in turn Scharping v. Johnson, 32 Wis.2d 383, 390, 145 N.W.2d 691, 695 (1966)).
“Alabama Dep’t of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 386 (Ala. Civ. App. 2008).”

Escambia Cty. Bd. of Educ. v. Lambert, [Ms. 2150548, Sept. 23, 2016] — So.3d —, — (Ala. Civ. App. 2016).

. The acting president found that the evir dence presented to him established that Carter had “failed to properly respect female employees, failed to act in a professional manner appropriate for a Dean, and other good and just cause (harassing a college employee).” v The hearing officer found that “[t]he only statutorily-enumerated cause for termination or demotion [contained in § 16-24C-6(a), Ala. Code 1975, which is a part of the SFA], found by the acting president was ‘other good and just cause.’ ” The college asserts that the hearing officer,- rather than reviewing the acting president’s decision, “engaged in a patently improper re-evaluation of the weight and sufficiency of the evidence to find that the College did not meet its burden of proof in establishing ‘other good and just cause.’ ” The college asserts that the acting president, in finding that the college proved proper grounds for the demotion, provided a detailed articulation of the basis for his findings and of the evidence to support that decision. We agree.

“The term ‘other good and just cause’ refers to ‘ “any cause which bears a reasonable relation to the teacher’s fitness or capacity to discharge the duties of his position.”’” Bishop State Cmty. Coll. v. Thomas, 13 So.3d 978, 987 (Ala. Civ. App. 2008) (quoting Alford v. Ingram, 931 F.Supp. 768, 772 (M.D. Ala. 1996)). “Accordingly, ... an employee who is. performing his or her job duties effectively may, nevertheless, properly be terminated from his or [her] employment if that employee has become unfit for continued employment or his or her retention would interfere with the building up or maintaining of an efficient school system.” Id. Dr. Dasinger testified that Carter’s actions had created an uncomfortable environment for the college employees and that Carter did not appear to appréciaté the inappropriateness of his actions. The acting president specifically noted that, during his tes-' timony, Carter “exhibited a complete lack of understanding of the implications of his conduct at the hearing when testifying that he did nothing wrong.” The acting president specifically found that Carter had been dishonest with the college president, had failed to respect female employees, had failed to act in a professional manner appropriate for a dean, and had harassed a college employee.' The acting president could have found that those circumstances constituted “other good and just cause” sufficient to support Carter’s transfér.

“The.Board, not the hearing officer, is the entity charged with making factual determinations and with determining the appropriate penalty for violations of its own policies. The hearing officer may reverse the decision of the Board and remand the matter for the entry of a lesser punishment only if the Board’s decision is arbitrary or capricious.” Escambia Cty. Bd. of Educ. v. Lambert, — So.3d at —. Because the acting president articulated reasonable justification for the decision to transfer Carter, and because those reasons are supported by the facts, the hearing officer exceeded his discretion by reversing the acting president’s decision. See id.; see also Sexton v. Tuscaloosa Cty. Civil Serv. Bd., 426 So.2d 432, 435 (Ala. Civ. App. 1983)(“A decision is not arbitrary where there is a reasonable justification for the decision or where the determination is founded upon adequate principles or fixed standards.”).

The college also challenges the hearing officer’s conclusion that the acting president incorrectly relied upon hearsay evidence and the decision that Exhibits 2 and 5 were not properly admitted and considered. The hearing officer found that,

“[b]y relying solely on the hearsay testimony of the lead investigator in the matter, the College introduced no legal, reasonable, or substantial evidence to support the [acting president’s] findings of fact. Therefore, the acting president’s decision is reversed and Carter’s demotion is vacated. The same would be true under an arbitrary and capricious analysis, as the total absence of legal, non-hearsay evidence provides that the [acting president’s] findings were arbitrary by definition.”

We note that the Alabama Rules of Evidence - apply to proceedings in Alabama courts. Rules 101 and 1101(a), Ala. R. Evid. The SFA does not include a provision requiring the application of the Alabama Rules of Evidence to administrative proceedings conducted outside court. Our supreme court has explained that

“administrative boards are not restricted to a consideration of evidence which would be legal in a court of law and may consider evidence of probative force even though it may be hearsay or otherwise illegal. Nonetheless, there must be sufficient legal evidence to support the order of an administrative board. If founded only on hearsay or other improper evidence, the decision of a board cannot be sustained. North Alabama Motor Express v. Rookis, 244 Ala. 137, 12 So.2d 183 (1943).”

Estes v. Board of Funeral Serv., 409 So.2d 803, 804 (Ala. 1982). Therefore, the hearing officer’s application of the Alabama Rules of Evidence to the proceedings before the acting president is not supported by legal authority.

Nevertheless, even though the Alabama Rules of Evidence were not applicable, we observe that- the findings made .by the acting president in the written decision appear to be based on both hearsay and nonhearsay evidence. Dr. Dasinger, Carter, and Porterfield testified at the hearing. Porterfield testified that she had witnessed one of the events and indicated that she thought the situation was unusual. Carter testified that he had simulated taking Gill’s picture, which served as a basis for a finding that he acted improperly. Because Carter was a party to the proceedings, any statements attributed to Carter by others were not, by definition, hearsay. See Rule 801(d)(2), ’Ala. R. Evid. (an admission by a party opponent is not hearsay). See also II Charles W. Gamble and Robert J. Goodwin, MeElroy’s Alabama Evidence § 242.01(l)(e) (6th ed. 2009) (“[A]ll statements of a party opponent are admissible if offered against that party and if they are relevant.”). Therefore, even if the Alabama Rules of Evidence applied, Dr. Dasinger’s testimony regarding Carter’s statements was not hearsay.

Similarly, the hearing officer found that the acting president had wrongfully excluded Gill’s employment record, which Carter had sought to introduce, because, as the hearing officer determined, “[a]s [Gill’s] hearsay statements were admitted into evidence through the testimony of Da-singer, her credibility became relevant. See Rule 806, Ala. R. Evid. It was also relevant in comparing and contrasting the punishment meted out to Gill and the punishment proposed for Carter. ...” Specifically, Carter claims that the acting president should have considered whether the disciplinary action taken against Gill in an unrelated ■ proceeding was . disproportionately less than the disciplinary action taken against Carter.. We note that Carter served as the dean of- instruction, while Gill was a nonsupervisory employee. In his brief, Carter argues that “[t]he disparity between the punishments given to Ms. Gill and Dean Carter demonstrates the worldview that underlies the demotion of Dean Carter.”

■ Carter describes the decision of the college to prohibit his conduct, that was directed to a female employee as being too deferential to females and as “sexism wrapped in political correctness.” The legislature determined that a purpose of the SFA is to “[r]estor[e] primary authority and responsibility for maintaining a competent educational workforce to employers. ...”,§ 16-24C-2(2), Ala. Code 1976. It was for the college to determine whether Carter’s conduct was inconsistent with the workplace environment desired by the college in order to provide a competent educational workforce and, similarly, to determine whether Gill’s unrelated conduct warranted a lesser punishment. We must give deference to those decisions because, ultimately, in an SFA proceeding,

“[t]he Board’s decision [i]s due deference by the hearing officer. Although [the hearing officer] might ... disagree[] with the Board’s decision, the hearing officer [i]s not permitted to reweigh the testimony and to supplant the Board’s determinations regarding the facts .... Because the facts were such that they could be viewed differently by different persons, the hearing officer could not have determined that. the Board’s decision was arbitrary.”

Huntsville City Bd. of Educ. v. Jacobs, 194 So.3d 929, 942 (Ala. Civ. App. 2014). The proceedings before the acting president were not required to be conducted pursuant to the rules and procedures applicable in court proceedings, and much is left to the discretion of the employer in such proceedings (in this case, the acting president) regarding the evidence to be considered. We have not been directed to any authority supporting the conclusion that we could overturn the acting president’s decision not to permit the introduction of unrelated personnel decisions in this context.

Based on the extreme deference due the decision of the acting president, the decision to reassign Carter was not arbitrary and must therefore stand. Accordingly, we reverse the hearing officer’s decision and render a judgment reinstating the acting president’s decision.

REVERSED AND JUDGMENT RENDERED.

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

      . We observe that, with respect to the references in the quoted authority to "the Board,” the Board acted in the same capacity as the college president (or, in this case, the acting president) acts in the context of the administrative proceedings afforded for two-year educational institutions. See § 16-24C-3(5), Ala. Code 1975.


author: MOORE, Judge. THOMAS, Judge,

text:
    K.M.D. v. T.N.B.
    2150829
    Court of Civil Appeals of Alabama.
    January 13, 2017

      K.M.D., Montgomery, for appellant.
    Submitted on appellant’s brief only.
   MOORE, Judge.

K.M.D. (“the adoptive mother”) appeals from an order entered by the Montgomery Juvenile Court (“the juvenile court”) setting aside an award of attorney’s fees in an adoption case. We reverse the juvenile court’s order.

Procedural History

On January 22, 2015, the adoptive mother filed in the Montgomery Probate Court a petition to adopt T.B. (“the child”). On February 10, 2015, the probate court transferred the adoption proceeding to the juvenile court. See Ala. Code 1975, § 26-10A-21. T.N.B. (“the father”) filed a contest to the adoption on April 30, 2015.

On April 8, 2016, the adoptive mother filed a “Motion for Award of Fees and Expenses,” requesting that the juvenile court require the father to pay her “legal costs,” pursuant to Ala. Code 1975, § 26-10A-24(i). On April 29, 2016, the adoptive mother personally served the father with the motion and notice that the juvenile court would hear the motion on May 13, 2016.- On May 12, 2016, the adoptive mother filed a “Final Disclosure of Disbursements,” designating the fees and expenses for which she sought reimbursement, including her attorney’s fees.

On May 13, 2016, following a hearing at which the father did not appear, the juvenile court entered a judgment denying the father’s adoption contest and approving the- adoptive mother’s “Final Disclosure of Disbursements.” The juvenile court entered an order granting the adoptive mother’s petition to adopt the child on May 16, 2016. (C. 339). That same day, the attorney for the adoptive mother sent a letter to the juvenile court arguing that the term “legal costs” in § 26-10A-24(i) included attorney’s fees and requesting that the juvenile court order the father to pay the. adoptive mother’s attorney’s fees. On May 17, 2016, the juvenile court entered an order granting the adoptive mother’s “Motion for [Award of] Fees and Expenses.” The next day, the juvenile court ordered the father to pay $23,450.00 in attorney’s fees to the adoptive mother.

On June 28, 2016, the father filed a letter with the juvenile court requesting that the juvenile court “set aside” the order requiring him to pay the adoptive mother’s attorney’s fees due to his poverty. The juvenile court entered an order on June 29, 2016, setting aside the order requiring the father to pay the adoptive mother’s attorney’s fees. On June 30, 2016, the adoptive mother filed a motion requesting that the juvenile court vacate its June 29, 2016, order. On July 8, 2016, the juvenile court entered an order denying the adoptive mother’s motion. In its July 8, 2016, order, the juvenile court stated that the father had not had notice or an opportunity to be heard with regard to the adoptive mother’s request for attorney’s fees, and, therefore, the juvenile court concluded, the award of attorney’s fees was void. The juvenile court also found that “legal costs” under § 26-10A~24(i) did not include attorney’s fees. The adoptive mother timely filed her notice of appeal to this court on July 8,2016,

Discussion

Once an adoption case is transferred to the juvenile court, the Alabama Rules of Juvenile Procedure govern. See State Dep’t of Human Res. v. Smith, 567 So.2d 333, 334 (Ala. Civ. App. 1990). Rule 1(B), Ala. R. Juv. P., provides, in pertinent part, that “[a]ll postjudgment motions ... must be filed within Í4 days after entry of order or judgment.” However, Rule 1(B) does not apply to motions filed under Rule 60(b), Ala. R. Civ. P., which are considered collateral attacks on a final judgment of a juvenile court. See M.E.W. v. J.W., 142 So.3d 1168, 1172 (Ala. Civ. App. 2013).

In this case, the juvenile court entered its final judgment awarding the adoptive mother attorney’s fees on May 17, 2016. The father filed his letter, which the juvenile court treated as a motion to set aside the award of attorney’s fees, on June 28, 2016, more than 14 days after entry of the final judgment. Thus, the juvenile court had no jurisdiction to consider that motion unless it could be characterized as a Rule 60(b) motion.

Rule 60(b) provides, in pertinent part:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons:. (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, Ala. R. Civ. P,]; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”

In his letter, the father requested that the juvenile court vacate the May 17, 2016, judgment because he could not afford to pay the attorney’s fees. The letter did not set out any of the grounds for relief from the judgment established in Rule 60(b).

The juvenile court nevertheless purported to set aside the award of attorney’s'fees on the ground that the judgment was. void. In its July 8, 2016, order, the juvenile court explained that it had vacated the award of attorney’s fees on June 29, 2016, because it had found that the award had been entered without due process and because it had concluded that § -26-10A-24(i) did not authorize an award of attorney’s fees. In taking that unusual action, the juvenile court, in essence, raised on its own motion the question of whether the award of attorney’s fees was void and should be set aside under Rule 60(b)(4).

Generally speaking, “Rule 60(b) requires that a party move for relief from a judgment, and does not provide for sua sponte relief by the trial court.” Ex parte P & H Constr. Co., 723 So.2d 45, 49 (Ala. 1998). However, Rule 60(b) does not displace the power of a trial court, as it existed under Alabama common law, to vacate a judgment on its own motion. See Ex parte Waldrop, 395 So.2d 62, 62 (Ala. 1981) (holding that, despite the adoption of Rule 60(b), a trial court or an appellate court can, on its own motion, vacate a judgment procured by fraud as it could under common law). Our supreme court held, before the advent of the Alabama Rules of Civil Procedure, that a trial court may, on its own motion, vacate a void judgment. See Taylor v. Jones, 202 Ala. 18, 19, 79 So. 356, 357 (1918) (“It is very true that if a judgment, on its face or on the face of its own record, is absolutely void, it is a nullity, and that, as it is calculated to mislead and deceive the public, the court, ex mero motu, or on motion of a stranger or amicus curiae, may purge the records of the court of such absolutely void and impertinent matters in former judgments, but in law and in fact nothing.”). We have not located any supreme court case holding that the adoption of Rule 60(b)(4) has abrogated the holding in Taylor v. Jones. Moreover, we hote that other jurisdictions with a rule identical to our Rule 60(b)(4) have held that a court may sua sponte vacate a void judgment. See, e.g., McGee v. McGee, 168 Ohio App.3d 512, 515, 860 N.E.2d 1054, 1056 (2006); Carolina Paper Co. v. Bouchelle, 285 N.C. 56, 62, 203 S.E.2d 1, 5 (1974); and Banner v. Estate of Banner, 45 Mich.App. 148, 153, 206 N.W.2d 234, 237 (1973). Thus, we conclude that the juvenile court properly raised the issue of the voidness of the award of attorney’s fees on its own motion.

The dissent maintains that our conclusion “is in direct conflict with a long line of prior decisions of this court and our supreme court.” 227 So.3d at 518. However, neither Pierce v. American General Finance, Inc., 991 So.2d 212, 215 (Ala. 2008), nor Cornelius v. Green, 477 So.2d 1363, 1365 (Ala. 1985), the only supreme court cases cited by the dissent, 227 So.3d at 518-19, address the authority of a court, as it existed at common law, to vacate a judgment on its own motion. Likewise, most of the cases from this court cited in the dissent also do not address that particular procedural question.

The dissent does cite one case from this court in which the court at least impliedly held that a trial court could not vacate a judgment as void on its own motion. In Ex parte DiGeronimo, 195 So.3d 963, 969 (Ala. Civ. App. 2015), the trial court entered a divorce judgment on October 1, 2013. In April 2015, the trial court, on its own motion, vacated the divorce judgment on the ground that it was void because no grounds for divorce had been proven. On a petition for a writ of mandamus, this court determined, that the writ of mandamus should issue- because, we determined, a judgment is not void for the reason that had been given by the. trial court. 195 So.3d at 968 (citing Nelson v. Moore, 607 So.2d 276, 277 (Ala. Civ. App. 1992)). This court nevertheless proceeded to decide that the trial court had no authority to sua sponte vacate the divorce judgment as void. Arguably, that portion of the opinion is obiter dictum without any precedential effect. Ex parte Williams, 838 So.2d 1028, 1031 (Ala. 2002) (“[Ojbiter dictum is, by definition, not essential to the judgment of the court ... .”)• More to the point, in Ex parte DiGeronimo, 195 So.3d at 969, this court cited only Ex parte State Department of Human Resources, 47 So.3d 823, 830 (Ala. Civ. App. 2010), to support its holding, which does not address the authority of a trial court to vacate a judgment on its own motion. Even if Ex parte DiGeronimo does hold that a court cannot, on its own motion, vacate a void judgment, that decision is not controlling because it directly conflicts with the holding in Taylor v. Jones, supra, which, until overruled, remains binding precedent on this court. See Ala. Code 1975, § 12-3-16 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals .... ”)•

A party may appeal from an order granting a Rule 60(b)(4) motion that finally disposes of the case. See Ex parte Trinity Auto. Servs., Ltd., 974 So.2d 1005, 1009 (Ala. Civ. App. 2006). The June 29, 2016, judgment concluded the case by denying the adoptive mother her request for attorney’s fees; in its July 8, 2016, order, the juvenile court clarified its holding by explaining that the May 17, 2016, judgment awarding attorney’s fees was void, thereby granting on its own motion relief similar to Rule 60(b)(4) relief.

‘“[T]he standard of review on appeal from an order granting relief under Rule 60(b)(4), Ala. R. Civ. P. (“the judgment is void”), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation.’ Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 641 (Ala. 2003). ’If the judgment is valid, it must stand; if it is void, it must be set aside.’ Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991). Thus, our standard of review is de novo. Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala. 2003).”

974 So.2d at 1009-10. “A judgment is void only if the court rendering it lacked jurisdiction of the subject matter or of the parties; or if it acted in a manner inconsistent with due process.” Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991). In this case, the juvenile court determined that its award of attorney’s fees was void because it was entered in a manner inconsistent with due process.

“[Procedural due process, protected by the Constitutions of the United States and this State, requires notice and an opportunity to be heard when one’s life, liberty, or property interests are about to be affected by governmental action.” Brown’s Ferry Waste Disposal Ctr., Inc. v. Trent, 611 So.2d 226, 228 (Ala. 1992). The record shows that, on April 8, 2016, the adoptive mother filed a motion requesting that the juvenile court award her “fees and expenses” as “legal costs” under § 26-10A-24(i). On April 29, 2016, the adoptive mother had the father personally -served with the motion and a notice that the motion would be heard by the juvenile court on May 13, 2016. Thus, the father received notice that the adoptive mother was seeking a-judgment against him for legal fees and expenses and that a hearing would be held on May 13, 2016, for the purpose of adjudicating that claim.

The adoptive mother did not inform the father specifically that she was seeking attorney’s fees, nor did the adoptive mother notify the father in advance of the hearing of the amount of the attorney’s fees she was claiming. However, nothing in the law required the adoptive mother to elaborate on each and every element of her reimbursement claim. Section -26-10A-23(c), Ala. Code 1975, requires an adoptive parent to file with the court approving the adoption a sworn statement of the disbursements made in relation to the adoption, but that filing is intended to enable the court to ensure that the parties to an adoption “have not paid or received money in exchange for the minor being given up for adoption,” Comment to § 26-10A-23(c), and the statute does not require service of the accounting on other parties. The fact that the adoptive mother did not serve the father with the accounting she filed with the juvenile court on May 12, 2016, does not mean that the father was denied due process. The father received adequate notice of the general purpose of the proceedings, and he could have learned of the specifics of the adoptive mother’s claim at the scheduled hearing, which he elected not to attend. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (holding that notice is sufficient if it is “of such nature as reasonably to convey the required information” so as to allow the opposing party to “choose for himself whether to appear or default, acquiesce or contest”).

We conclude that the father received actual notice of the adoptive mother’s claim for legal “fees” and “expenses” and of the time and place of the hearing on that claim. The juvenile court did not violate the procedural due-process rights of the father by conducting that hearing in his absence and entering a judgment based on that hearing. See Edwards v. Edwards, 79 So.3d 629 (Ala. Civ. App. 2010). The juvenile court.erred in determining -that it had denied the father procedural due process in awarding the adoptive mother the requested attorney’s fees.

The juvenile court also determined that “attorney fees” are not recoverable as part of “legal costs” under § 26-10A-24(i). We do not address the correctness of that conclusion. We hold, only.that, if the juvenile court did .err in awarding attorney’s fees under § 26-10A-24(i), that error would, not entitle the father to relief from the judgment on the basis that the judgment is void, “Errors in the application of the law by the trial court do not render a judgméñt void.” Bowen v. Bowen, 28 So.3d 9, 15 (Ala. Civ. App. 2009). Hence, the juvenile court could not have vacated the award of attorney’s fees on that ground.

Conclusion

Based on the foregoing, we reverse the June 29, 2016, order entered by the juvenile court setting aside its award of attorney’s fees to the adoptive mother and remand the cause with instructions to the juvenile court to vacate that order.

REVERSED 'AND REMANDED WITH INSTRUCTIONS.

Pittman and Donaldson, JJ., concur.

Thompson, P. J., concurs in the result, without writing.

Thomas, J., dissents, with writing.

THOMAS, Judge,

dissenting.

I agree with the main opinion that, for the reasons stated, the letter filed in .the Montgomery Juvenile Court on June 28, 2016, by T.N.B. (“the father”) was neither a timely postjudgmént motion nor a Rule 60(b), Ala. R. Civ. P., motion regarding the juvenile court’s May 17, 2016, order 'requiring the father to pay the attorney fees of K.M.D. (“the adoptive mother”). I, like the main opinion, also recognize that “Rule 60(b) requires that a party move for relief from a'judgment, and does not provide'for sua sponte i’elief by the trial court.” Ex parte P&H Constr. Co., 723 So.2d 45, 49 (Ala. 1998).

I do not'agree that, on July 8, 2016, “the juveñile court propeiiy raised the issue of the voidness of the award of attorney’s fees on its own motion.” 227 So.3d at 515. I begin by noting that the issue whether a court may properly sua sponte grant Rule 60(b) relief (as opposed to a 'sua sponte correction of a clerical error) is not easily resolved. See United States v. Pauley, 321 F.3d 578, 581 (6th Cir. 2003)(discussing the circuit split on the issue of a sua sponte grant of Rule 60(b) relief). However, the conclusion of the main opinion is in direct conflict with a long line of prior decisions of this court and our supreme court. See Rule 39(a)(1)(D), Ala R. App. P. Furthermore, Taylor v. Jones, 202 Ala. 18, 19, 79 So. 356, 357 (1918), the opinion upon which ■the main opinion relies, predates the adoption of the Alabama Rules of. Civil Procedure.

More recently, in Ex parte DiGeronimo, 195 So.3d 963, 968-69 (Ala. Civ. App. 2015), we explained:

“A trial court has the authority to alter, amend, or vacate a judgment on its own motion within 30 days[] after the entry of that judgment. Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 215 (Ala. 2008). In addition, ’a trial court retains the power, to correct sua sponte any error in its judgment that comes to its attention during the pendency of a party’s Rule 59(e)[, Ala. R. Civ. P.,] motion to alter, amend, or vacate the judgment, regardless of whether the error was alleged or not alleged in the motion.’ Henderson v. Koveleski, 717 So.2d 803, 806 (Ala. Civ. App. 1998). However, a trial court lacks jurisdiction to modify or vacate a- judgment more than 30 days after the-entry of the judgment, after any request for postjudgment relief has been-denied, and when no motion seeking postjudgment relief under Rule 59 or Rule 60 is pending. Ex parte State Dep’t of Human Res., 47 So.3d 823, 830 (Ala. Civ. App 2010).”

(Emphasis added.) See also Ex parte State Dep’t of Human Res., 47 So.3d 823, 830 (Ala. Civ. App. 2010); Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 215 (Ala. 2008); Dickerson v. Dickerson, 885 So.2d 160, 166 (Ala. Civ. App. 2003); Ennis v. Kittle, 770 So.2d 1090, 1091 n. 1 (Ala. Civ. App. 1999); Cornelius v. Green, 477 So.2d 1363, 1365 (Ala. 1985); and Superior Sec. Serv., Inc. v. Azalea City Fed. Credit Union, 651 So.2d 28, 29 (Ala. Civ. App. 1994).

In this case, no pending motion had invoked the jurisdiction of the juvenile court when ,it entered its July 8, 2016, order determining that the May 17, 2016, order was void. Thus, the juvenile- court’s order was entered sua sponte at a point when it had no jurisdiction to act. I conclude, therefore, -that the juvenile court could not declare void, or otherwise set aside, the May 17, 2016, order in the July 8, 2016, order.

Because I believe that the juvenile court did not have subject-matter jurisdiction to enter the July 8, 2016, order, I conclude that the effective order in this case is the May 17, 2016, order and that the July 8, 2016, order is void. A void judgment will not support an appeal. A.C. v. In re E.C.N., 89 So.3d 777 (Ala. Civ. App. 2012). Accordingly, I would dismiss the appeal with instructions for the juvenile court to vacate the July 8, 2016, order. Therefore, I dissent.

      . In Pendergrass v. Watkins, 383 So.2d 851, 853 (Ala. Civ. App. 1980), this court, in dicta, cited Jones as valid authority for the proposi-lion'that a trial court can sua sponte vacate a void judgment.

      . Instead of 30 days, the juvenile court in this • case had 14 days to-act, See Rule 1(B), Ala. R, Juv. P.


author: THOMPSON, Presiding Judge. MOORE, Judge,

text:
    EX PARTE ALABAMA DEPARTMENT OF HUMAN RESOURCES (In re Z.G. and C.G. v. Alabama Department of Human Resources)
    2160016
    Court of Civil Appeals of Alabama.
    January 6, 2017
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lanes asst. atty. gen., Department of Human Resources, for petitioner.
   THOMPSON, Presiding Judge.

The Alabama Department of Human Resources (“DHR”) petitions this court for a writ of mandamus directing the Montgomery Circuit Court (“the trial court”) to enter a judgment dismissing a petition Z.G. and C.G. (“the foster parents”) filed in the trial court on the ground that the trial court lacked subject-matter jurisdiction over the matter. In their petition, the foster parents sought judicial review of DHR’s denial of their request for an administrative hearing regarding the removal of O.F. (“the child”) from their home. In seeking a writ of mandamus, DHR also asks this court to order the trial court to continue “the trial of the matter,” which, DHR says, was scheduled for October 11, 2016. On October 7, 2016, this court granted a stay of the proceedings pending a decision on DHR’s petition for the writ of mandamus.

The materials submitted in support of DHR’s petition indicate that on March 3, 2016, the Marengo Circuit Court entered a judgment terminating the parental rights of the child’s parents and placing the child in the permanent custody of DHR. The judgment further stated that DHR had the authority to place the child for adoption. On April 26, 2016, the child was placed ■with the foster parents pursuant to an adoptive home placement agreement. On May 13, 2016, the Marengo County Department of Human Resources (“the Mar-engo County DHR”) removed the child from the foster parents’ home. On June 29, 2016, the foster parents’ attorney wrote both DHR and the Marengo County DHR requesting a hearing pursuant to Rule 660-1-5-.03, Ala. Admin. Code (Dep’t of Human Res.) to review the child’s removal from their home. DHR denied the request, and, on August 8, 2016, the foster parents filed their petition for judicial review in the trial court. On July 28, 2016, the Marengo Probate Court entered a final decree of adoption, pursuant to which the child was adopted by V.H., who- is not a party to this matter.

On September 12, 2016, DHR moved to dismiss the foster parents’ petition pursuant to Rule 12(b), Ala. R. Civ. P. Specifically, DHR asserted that the trial court did not have subject-matter jurisdiction over the matter and also that the petition failed to state a claim upon which relief could be granted because, it said, as a matter of law, the foster parents were not entitled to an administrative hearing.

A hearing was held on the motion to dismiss on October 5,2016. That same day, the trial court entered an order setting another “hearing” in the matter for October 11, 2016. That order stated that “Representatives of DHR (including the case worker) who made decisions concerning the child that is the subject matter of this case shall appear at said hearing.” The day after the October 5 hearing on the motion to dismiss, DHR filed a “renewed motion to dismiss,” attaching the Marengo Probate Court’s adoption judgment and pointing out that the child was no longer in the care, custody, or control of DHR. DHR filed its petition to this court on October 7, 2016.

In response to DHR’s petition, the trial-court judge submitted a letter to this court dated October 18, 2016, in which he stated that he had not denied DHR’s motion to dismiss. In its brief in support of its petition, DHR acknowledges that, as of the date it filed its petition, there had been no ruling on the motion to dismiss. The trial-court judge also stated that, contrary to DHR’s contention, he had not set the matter for an October 11, 2016, trial. Instead, the trial-court judge wrote:

“This Court had 17 eases pending the morning it reset this case for hearing six days later on October 11, 2016, as this judge was retiring the next week. The Court further requested that the case manager attend the hearing. It WAS NOT set for trial.
“What troubled the Court was the manner in which this child was moved from home to home and the Court wanted information directly from the case manager. This matter was set specifically for that inquiry.”

The trial-court judge then noted that his letter in response to the petition for a writ of mandamus was the “last act of this Court, as this particular judge retires today.”

“[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.” Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000). With regard to an appellate court’s consideration of a petition for a writ of mandamus, our supreme court has stated:

“This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court’s jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987).”

Ex parte Flint Constr. Co., 775 So.2d at 808.

In this case, both the trial court and DHR agree that the trial court has not yet ruled on DHR’s motion to dismiss the foster parents’ petition seeking judicial review in the trial court. The trial court might yet grant DHR the relief it seeks. In its .petition to this court, DHR does not allege that the trial court has failed to enter an order on its motion to dismiss, and it does not request an order compelling the trial court to rule on the motion. Instead, DHR seeks to have this court dictate to the trial court the way in which it should rule oh the pending motion. Such a request makes improper use of the petition for a writ of mandamus. To the extent that DHR’s petition asks this court to direct the trial court to enter a judgment dismissing the foster parents’ petition, the petition is denied as premature.

Additionally, as mentioned, DHR sought a stay contemporaneously with the filing of its petition for the writ of mandamus. That stay motion sought to stay the proceedings in the trial court pending resolution of DHR’s petition. At that time, the October 11, 2016, setting of the action for an evi-dentiary hearing presented this court with a basis for staying the proceedings pending a determination as to whether, as DHR argued, the trial court lacked jurisdiction to proceed. However, the date for' that hearing has passed. Any request DHR might have made in its petition, which appears' to be a request that this court order the trial court to continue the October 11, 2016, hearing, is now moot. See Ex parte T.R.S., 794 So.2d 1157, 1159 (Ala. Civ. App. 2001) (quoting Ex parte Talladega Little League, Inc., 556 So.2d 386, 387 (Ala. 1990)) (stating that “ ‘mandamus will not issue in a case where the underlying issue has become moot’ ”). .

For the reasons outlined in this opinion, DHR’s petition for the writ of mandamus is denied.

PETITION DENIED.

Pittman, Thomas, and Donaldson, JJ., concur.

Moore,. J., dissents, with writing,

MOORE, Judge,

dissenting.

Although the Montgomery Circuit Court (“the trial court”) did not expressly deny tlie motion to dismiss filed by the Alabama Department of Human Resources, (“DHR”), the trial court, after hearing oral argument on the motion on October 5, 2016, entered an order scheduling another hearing for October 11, 2016, specifying that “[representatives of DHR (including, the case worker) who made decisions concerning-the child that is the subject matter of this case shall appear at said hearing.” The respondent judge has informed this,, court that he scheduled the hearing in order to conduct an inquiry into the manner of the removal of O.F. (“the child”) from the home of Z.G. and C,G. (“the foster parents”),, which,, the respondent judge said, “troubled” him. By effectively ordering DHR to undergo a judicial hearing to determine whether DHR had wrongfully, removed the .child, .the trial court at the very least implicitly denied the motion to .dismiss in. order .to investigate the merits of the foster parents’ petition. Based on the unusual • procedural posture of the case,-, this court should determine that the respondent judge has refused to dismiss the case and should proceed to determine whether the other prerequisites - for the issuance of a writ of mandamus have been established.


author: THOMPSON, Presiding Judge.

text:
    RES-GA LAKE SHADOW, LLC v. William G. KENNEDY et al.
    2160110
    Court of Civil Appeals of Alabama.
    January 6, 2017

      Lee H. Copeland, J. David Martin, and Ashley N. Penhale of Copeland, Franco, Screws & Gill, P.A., Montgomery, for appellant.
    Kenneth J. .Mendelsohn of Jemison & Mendelsohn, P.C., Montgomery, for appel-lee William G. Kennedy.
    Travis R. Wisdom of The Wisdom Firm LLC, Auburn, for appellees Susan S. Kennedy, Scoop Kennedy Properties, LLC, and Capitol Container Properties, LLC.
   THOMPSON, Presiding Judge.

RES-GA Lake Shadow, LLC (“Lake Shadow”), appeals from a judgment of the Montgomery Circuit Court (“the trial court”) dismissing three claims of its amended complaint against William G. Kennedy (“the husband”), Susan S. Kennedy (“the wife”), Scoop Kennedy Properties, LLC, and Capitol Container Properties, LLC (hereinafter collectively referred to as “the defendants”). The claims involve allegations that property transferred from the husband to the wife pursuant to a divorce settlement agreement were fraudulent and that the transfers were made to prevent Lake Shadow from collecting a debt the husband owed to it.

The record indicates the following. On February 6, 2014, Lake Shadow obtained a judgment in the Superior Court of Gwin-nett County, Georgia, against the husband for $3,690,173.94, plus interest and attorney fees, for a total judgment of approximately $5 million (“the Georgia judgment”). The husband appealed from the Georgia judgment; however, he did not post a bond to stay execution of that judgment. According to the averments made in Lake Shadow’s amended complaint, on August 4, 2014, Lake Shadow filed a notice in the trial court seeking to domesticate the Georgia judgment. On or about August 5, 2014, the amended complaint states, the husband was served with the notice Lake Shadow had filed.

Also on August 5, 2014, the wife filed a complaint for a divorce in the trial court. On August 11, 2014, based on the wife’s unopposed motion, the trial court entered an order sealing the divorce file. The wife had requested that the file be sealed on the ground that of certain marital assets— specifically, Capitol Container, Inc., and Capitol Container Properties, LLC—at least one was a corporation that employed more than 40 people and public disclosure of confidential and fiduciary matters during the divorce proceedings might adversely affect the corporation and its employees.

On August 26, 2014—three weeks after the wife filed the divorce complaint—a settlement agreement (“the settlement agreement”) between the husband and the wife was filed in the trial court. On September 4, 2014, the trial court entered a judgment divorcing the parties and dividing the marital property pursuant to the settlement agreement, which was incorporated into the judgment. The divorce judgment also provided that it was interlocutory and was not to be treated as a final judgment until the expiration of 30 days from the date of the filing of the summons and the divorce complaint. Accordingly, the divorce judgment was effective September 5, 2014. We note that the divorce judgment does not state a ground for divorce.

Pursuant to the settlement agreement, the wife was awarded all of the stock in Capitol Container, Inc., and Capitol Container Properties, LLC. In addition, the wife was awarded certain real property in Montgomery, including the marital residence, property located on Gunter Park Drive, two parcels of property on Container Park Drive, and property located on Charlestown Square; real property in Auburn; and real property in Destín, Florida. The wife was also awarded all of the parties’ household furnishings, her personal property, including jewelry and clothing, a 1957 Chevrolet Bel Air, and a 2007 Corvette. The husband was awarded two condominiums in Florida, a vacant lot in Mira-mar, Florida, a 2014 Chevrolet Suburban sport-utility vehicle, and his personal property, none of which was enumerated in the settlement agreement. Each party was also awarded his or her individual retirement accounts.

According to Lake Shadow’s amended complaint, on September 5, 2014, the same day on which the divorce judgment became final, the husband withdrew his appeal of the Georgia judgment. On September 8, 2014, the wife filed an unopposed motion to unseal the file of the divorce proceedings.

On October 10, 2014, the husband conveyed to the wife by a quitclaim deed real property located on Wexford Trace in Montgomery (“the Wexford Trace property”). The Wexford Trace property was not among the property transferred pursuant to the settlement agreement.

On January 9, 2015, Lake Shadow filed its original complaint in the trial court. On January 80, 2015, it filed its amended complaint alleging that the division of marital assets set forth in the settlement agreement and incorporated in the divorce judgment violated the Alabama Fraudulent Transfer Act (“the AFTA”), § 8-9A-1 et seq., Ala. Code 1975, in that the division was intended to hinder, delay, or defraud Lake Shadow in its efforts to collect the damages it was awarded in the Georgia judgment. In two separate counts, Lake Shadow sought to set aside the division of property on the ground that it constituted an actual or a constructive fraudulent transfer of property that could be used to satisfy the Georgia judgment. Lake Shadow also sought a preliminary injunction enjoining the defendants from disposing of or encumbering the property that was divided in the settlement agreement. In two additional counts of the amended complaint, Lake Shadow sought to have the transfer of the Wexford Trace property set aside on the ground that the conveyance of that property also violated the AFTA.

The defendants filed a motion to dismiss the claims in the amended complaint involving the property divided in the settlement agreement. In support of their motion, the defendants cited this court’s decision in Aliant Bank v. Davis, 198 So.3d 508 (Ala. Civ. App. 2015), arguing that that case stood for the proposition that a division of marital assets pursuant to a property settlement does not constitute a “transfer” for purposes of the AFTA and that, therefore, the AFTA was not applicable in this case. The trial court agreed and dismissed the claims—counts one and two of the amended complaint—pertaining to the property divided pursuant to the settlement agreement on the basis of Ali-ant.

After those , claims were dismissed, the defendants waived their right to a jury trial on the remaining claims involving the transfer of the Wexford Trace property and the preliminary injunction. After a bench trial, the trial court entered a judgment in favor of the defendants on Lake Shadow’s claims involving the Wexford Trace property. The trial court also found in favor of Lake Shadow as to the wife’s counterclaims against it alleging the tort of outrage, invasion of privacy, and intentional interference with business relations. In the judgment, the trial court clarified that its prior order of dismissal of the claims involving the property divided in the settlement agreement also applied to that portion of the claim for a preliminary injunction as to those same claims.

Lake Shadow appealed from the trial court’s judgment to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Lake Shadow contends that the trial court erred in dismissing its claims alleging that the transfers of property made pursuant to the settlement agreement violated the AFTA. Specifically, Lake Shadow asserts that the division of marital assets as set forth in the settlement agreement constitutes a “transfer” of assets as contemplated by the AFTA. Lake Shadow asserts that Aliant Bank, supra, which the trial court relied on in: dismissing those claims, does not hold that, as a matter of law, transfers of assets made pursuant to a divorce agreement are not subject to the AFTA. We agree.

In Aliant, Aliant had filed a civil action against the wife (“Shirley”), seeking to obtain the property she had been awarded in á 2012 divorce judgment, which incorporated the agreement reached between Shirley and the husband (“Alfred”). We note that Aliant did not include Alfred as a defendant in its action. Aliant had alleged that the transfer of property resulting from the divorce judgment constituted a' fraudulent transfer. We affirmed the judgment in favor of Shirley, in which the trial court found after an ore tenus hearing that there was no evidence to suggest that Shirley and Alfred’s divorce and the resulting property settlement were fraudulent or collusive. 198 So.Bd at 511.

In 'affirming the judgment, we set forth the arguments that Aliant put forth in support of its assertion that the division of marital property in that case- violated the AFTA, writing:

“Aiant contends that the trial court misapplied the law regarding fraudulent transfers in determining that the property award to [Shirley] in’ the divorce judgment did not constitute a fraudulent transfer. Specifically, Aiant argues that the marital compound' Alfred transferred to [Shirley] as part of the settlement agreement and divorce judgment was fraudulent because, it says, Alfred did not receive ‘reasonably, equivalent value’ for the marital compound and he was not insolvent at. the time of the transfer or made insolvent because of the transfer. .
“In its appellate brief, Aiant cites five reasons it believes that the trial court erred in determining that Afred did receive ‘reasonably equivalent value’ for the marital compound. Those reasons include the methods the trial court used for determining the value of the property. Aliant also takes exception with the trial court’s , statement that the award of alimony in gross, i.e., the property award to [Shirley], ‘relieved [Alfred] of the obligation to-pay periodic alimony.’ Aiant contends that the trial court’s statement is incorrect and, thus, was an improper matter for consideration when determining ‘reasonably equivalent value,’ because, Aiant says, the divorce judgment reserved the issue of periodic alimony.
“In arguing that the trial court misapplied the law regarding fraudulent transfers, Aiant seeks to apply the Aa-bama Fraudulent Transfer Act (’the AFTA’), § 8-9A-1 et seq., Aa. Code 1975, to a property division between divorcing spouses and asks this court to disregard the tremendous body of case-law that actually governs awards of alimony and the division of marital property. Under most circumstances, the AFTA is not applicable to divisions of marital property between divorcing spouses.”

198 So.3d at 511-12 (emphasis added).

. Moreover, in Aiant, this court explained what constituted a fraudulent transfer under the AFTA and compared that definition with the purpose behind dividing marital property'in a divorce, which does not require an exchange of money between divorcing spouses for such property transfers to be valid. We also examined the evidence before the trial court in- light of the issues that Aiant had presented to this couxt, noting that, .

“[i]n this case, [Shirley]- and Alfred had been married for 53 years before Alfred moved out of the residence to begin living with his girlfriend and had been married for 55 years at the time the .divorce judgment was entered.-At the time Alfred, moved out of the marital residence, [his building company] had not defaulted on the loan at issue, and, as the trial court pointed out, [Shirley] and Alfred separated about two years before Aliant filed its action against Alfred and [his building company that ultimately resulted in a judgment against Alfred and his building company] and about three and one-half years befpre it filed this action [against Shirley], Based on the record before us, we conclude that substantial evidence supports the trial court’s finding that Alfred conveyed the marital compound to [Shirley] without an actual intent to hinder, delay, or defraud Aliant. See § 8-9A-4(a).
. “For the reasons set forth above, we conclude that the AFTA has no application as to the division of the marital property in this case.”

Id. at 513 (emphasis added). In other words, after considering the facts and the issues presented in Aliant, we rejected Ali-ant’s assertion that “ ‘the trial court erred in considering the factors used to divide marital property as a basis for determining that [Alfred] received “reasonably equivalent value” for his transfers to [Shirley],’ ” id. or otherwise divided the marital property with the intent to defraud Alfred’s creditors.

We take this opportunity to reiterate that our holding in Aliant did not declare that a division of marital property in a divorce action can never violate the AFTA. Whether the AFTA applies in a given situation should be determined on a case-by-case basis. We find instructive the opinion in Canty v. Otto, 304 Conn. 546, 41 A.3d 280 (2012). In that case, the Supreme Court of Connecticut affirmed a judgment allowing a creditor to use the Uniform Fraudulent Transfer Act, similar to the AFTA, to reach assets that had been transferred to Otto’s wife in “a hurried fashion" during a divorce that Otto and his wife did not desire, but which Otto “encouraged and facilitated” to protect his assets so that they could not be reached by the plaintiff in a wrongful-death action against him. 304 Conn. at 551-52, 41 A.3d at 285. To be clear, we explicitly hold that there is no prohibition on a creditor’s ability to seek'relief under the AFTA based on an allegation that an agreement to transfer marital assets in a divorce action was made with .the intention of hindering, delaying, or defrauding a creditor of a spouse. See § 8-9A-4(a), Ala. Code 1975. Because the evidence indicated no such intention on the part of Shirley and Alfred in Aliant, we concluded that the AFTA had np application under the facts of that case. Aliant, 198 So.3d at 513.

In this case, the trial court dismissed Lake Shadow’s AFTA claims involving the assets in the parties’ settlement agreement before any evidence was taken.

“ ‘On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala. 1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala. Civ. App. 1989). The appropriate standard of review under Rule 12(b)(6)[, Ala. R. Civ. P.,] is whether, when' the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle her [or him] to 'relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala. 1985); Hill v. Falletta, 589 So.2d 746 (Ala. Civ. App. 1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala. 1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala. 1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala. 1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala. 1986).’
“(Emphasis added.)”

Smith v. Smith, 865 So.2d 1221, 1223-24 (Ala. Civ. App. 2003)(quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993)). Because Lake Shadow has asserted allegations in its amended complaint that, if true, would entitle it to relief under the AFTA, the trial court improperly dismissed the AFTA claims asserted in counts one and two of the amended complaint. Accordingly, we reverse the February 3, 2016, order dismissing counts one and two of Lake Shadow’s amended complaint and also that portion of the March 3, 2016, judgment dismissing “that portion of count five dealing with assets transferred pursuant to the divorce settlement agreement.”

Lake Shadow also contends that the trial court erred in denying its motion to strike the husband’s and the wife’s demands for a jury trial. However, as the trial court noted in its judgment of March 3, 2016, the defendants, including the husband and the wife, waived their right to a trial by jury after the trial court dismissed the AFTA claims contained in counts one and two. The remaining claims were tried before the trial court without a jury. The defendants do not have a request for a jury trial pending in this case. '

“ ‘It is well settled that the judiciary of Alabama is not empowered “ ‘to decide moot questions, abstract propositions, or to give advisory opinions, however convenient it might be to have these questions decided for the government of future cases.’ ” ’ Ex parte Connors, 855 So.2d 486, 488 (Ala. 2003) (quoting Stamps v. Jefferson County Bd. of Educ., 642 So.2d 941, 944 (Ala. 1994), quoting in turn Town of Warrior v. Blaylock, 275 Ala. 113, 114, 152 So.2d 661, 662 (1963)).”

Auburn Med. Ctr., Inc. v. East Alabama Health Care Auth., 908 So.2d 243, 245 (Ala. Civ. App. 2003). See also Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (“The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”). Accordingly, we will not address this issue on appeal.

For the reasons set forth above, the judgment of the trial court dismissing Lake Shadow’s AFTA claims involving assets divided in the parties’ settlement agreement is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

Pittman, Thomas, and Moore, JJ., concur.

Donaldson, J., recuses himself.

      , In its amended complaint, Lake Shadow contends that some of the properties transferred to the wife were not marital assets but, it says, were owned by business entities controlled by the husband.

      . The Georgia judgment was the result of litigation between Lake Shadow and the husband, who had executed a personal guaranty for a loan made in connection with a commercial real-estate development that failed.