author: PER CURIAM. PARKER, Justice (dissenting). SHAW, Justice (dissenting).

text:
    Jason S. CORLEY v. Valerie A. RICHARDSON, in her capacity as president of Bishop State Community College
    1160132
    Supreme Court of Alabama.
    July 21, 2017
    Thomas M. Loper of The Gardner Firm, P.C., Mobile; and Sam Heldman of The Gardner Firm, P.C., Washington, D.C., for appellant.
    Windy C. Bitzer and Christine Harding Hart of Hand Arendall LLC, Mobile, for appellee.
   PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.

Stuart, C.J., and Bolin, Wise, Bryan, and Sellers, JJ., concur.

Murdock, J., concurs specially.

Parker, Shaw, and Main, JJ., dissent.

MURDOCK, Justice (concurring specially).

Jason S. Corley appeals from a Mobile Circuit Court's order dismissing his action against Valerie A. Richardson, in her capacity as president of Bishop State Community College ("BSCC"), on the basis of sovereign immunity. This Court affirms that order of dismissal, and I concur in that affirmance.

The complaint in this case states:

"7. [Corley] has been employed by [BSCC] since 1996. [Corley] was initially hired in 1996 as a part time employee to teach night courses. In 1999, [Corley] applied for and was hired to a full time day teaching position.
"8. [Corley] agreed to an offer of employment approved by Dr. Yvonne Kennedy when it was presented to him by Marcella Simms on or about November 3, 1999. Dr. Yvonne Kennedy was [BSCC's] President and Marcella Simms was [BSCC's] Director of Human Resources at the time.
"9. [Corley's] employment agreement provided that he would be placed at Level I/B on [BSCC's] Salary Schedule upon his hiring. The employment agreement also required that as a condition of employment, [Corley] was required to complete his associate degree within one year of his employment date. As soon as he completed the associate degree, he would be moved to Level I/A.
"10. [Corley] completed his associate degree within the one year period and notified [BSCC] on August 9, 2000, that he should be moved to Level I/A on the Salary Schedule. [BSCC's] Technical Dean also requested that [Corley] be moved to Level I/A on August 11, 2000. [BSCC] did nothing.
11. [Corley] worked at [BSCC] and requested to be moved to Level I/A for the next fifteen (15) years. [Corley] continuously made requests to [BSCC's] presidents, to Simms, and to others in central administration either on his own or through [BSCC's] Technical Dean, Dr. Harry Holloway. During these 15 years, there was no movement in [Corley's] placement on [BSCC's] Salary Schedule. [BSCC's] presidency transitioned from Dr. Yvonne Kennedy to Dr. James Lowe to a period of interim and acting presidents to Defendant Richardson.
"12. Finally, on October 1, 2015, Defendant Richardson moved [Corley] from Level I/B to Level 1/A.
"13. [Corley's] placement at Level I/A should have been made in 2000 following the completion of his associate degree.
"14. [Richardson's] failure to move [Corley] was in breach of his employment agreement with [BSCC] and has resulted in [Corley] not being appropriately compensated."

Corley sought "declaratory, mandamus, and injunctive relief ordering and requiring that [Richardson] pay [Corley] the compensation and employment benefits due him as if he had been placed at Level I/A since 2000."

Richardson filed a motion to dismiss Corley's action on the ground of sovereign immunity. As noted, the circuit court granted Richardson's motion.

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court views the allegations of the complaint in the plaintiff's favor and seeks to determine whether, in light of those allegations, the plaintiff could prove any set of circumstances that would entitle the plaintiff to relief. See, e.g., Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). That said, nothing in Corley's complaint fairly can be read as alleging that BSCC entered into a 16-year employment agreement with Corley, i.e., an agreement for a term lasting from 1999 to at least 2015. Certainly, there is no express allegation to this effect in the complaint. Nor do I think such an arrangement-as opposed to a series of annual or shorter term contracts-can fairly be inferred from what is alleged, given Alabama law and common knowledge of practices in higher education. Yet, in order for Corley to have made a viable allegation as a matter of contract law for the backpay he now claims (or at least the last six years of it, see note 1, supra), we would in fact have to assume that Corley and his counsel have filed a complaint in the courts of this State alleging that in 1999 BSCC entered a contract pursuant to which BSCC bound itself to employ Corley for a term of 16 years and that it further obligated itself to pay Corley at a certain rate of pay for a period of 15 continuous years. Even if we assumed this, the circuit court's judgment dismissing the complaint would still be proper (again, leaving aside any statute-of-limitations issue) because the 15 years of service at issue would not have been rendered under circumstances that fall within the exception to sovereign immunity discussed in cases such as State of Alabama Highway Department v. Milton Construction Co., 586 So.2d 872 (Ala. 1991), and State Board of Administration v. Roquemore, 218 Ala. 120, 123-24, 117 So. 757, 760 (1928). Those cases involve the timely delivery to and acceptance by the State of goods or services as to which there is no dispute of conformity under the contract and as to which a sum certain is owed the vendor as a result, only to have the State then-i.e., after timely delivery of the conforming goods or services-refuse payment to the vendor. The facts and circumstances of this case are the polar opposite of the circumstances in such cases.

Specifically, even if we were to assume that in November 1999 BSCC promised that in 2000 it would change the terms under which Corley would be employed if by then he had obtained his associate degree, the fact is that BSCC did not change those terms. Corley obviously was fully aware of that fact; he alleges he continued throughout the ensuing 15 years to ask that his pay be changed. Nonetheless, even as BSCC continued to refuse to change his rate of pay, Corley continued to work for BSCC at the originally agreed-upon rate of pay. He continued to work for BSCC year after year, fully aware that BSCC was rejecting his calls to be paid at a higher rate. Importantly, then, according to the allegations of the complaint, BSCC's alleged breach occurred before Corley delivered all or most of the 15 years' worth of services in question, not after he delivered goods or services under an undisputed contract, as was the case in Milton and Roquemore.

This, in other words, is not a case where the contracting party timely delivered, and the State accepted, conforming goods or services under contractual terms that are acknowledged or undisputed, only to thereafter breach the contract by simply "stiffing" the "vendor" after the fact. To the contrary, the "vendor" here, Corley, continued to deliver services year after year, fully aware that BSCC did not intend to pay him under the contractual terms he now alleges existed. This is not the narrow ministerial-duty exception carved out by Milton and Roquemore. Unlike the circumstances in Milton and Roquemore, BSCC made clear to Corley that it did not intend to pay him under the terms he alleges it agreed to, and BSCC made its intention known before he delivered the services for which he now seeks compensation under his employment agreement, not after as in Milton and Roquemore. Corley just chose to return to his work with the college year after year anyway-for 15 years.

PARKER, Justice (dissenting).

I respectfully dissent. The sole issue on appeal is whether Jason S. Corley's action against Valerie A. Richardson, in her capacity as president of Bishop State Community College ("BSCC"), is barred by the doctrine of State immunity. See § 14, Ala. Const. 1901. I dissent because I believe that Corley pleaded facts that, if true, would allow him to pursue his action against Richardson. Corley should be given the opportunity to engage in discovery and to prove the facts pleaded in his complaint.

A brief recitation of the facts is necessary to make clear my position concerning this rather complicated area of the law. Corley set forth the following relevant facts in his complaint:

"7. [Corley] has been employed by [BSCC] since 1996. [Corley] was initially hired in 1996 as a part time employee to teach night courses. In 1999, [Corley] applied for and was hired to a full time day teaching position.
"8. [Corley] agreed to an offer of employment approved by Dr. Yvonne Kennedy when it was presented to him by Marcella Simms on or about November 3, 1999. Dr. Yvonne Kennedy was [BSCC's] President and Marcella Simms was [BSCC's] Director of Human Resources at the time.
"9. [Corley's] employment agreement provided that he would be placed at Level I/B on [BSCC's] Salary Schedule upon his hiring. The employment agreement also required that as a condition of employment, [Corley] was required to complete his associate degree within one year of his employment date. As soon as he completed the associate degree, he would be moved to Level I/A.
"10. [Corley] completed his associate degree within the one year period and notified [BSCC] on August 9, 2000, that he should be moved to Level I/A on the Salary Schedule. [BSCC's] Technical Dean also requested that [Corley] be moved to Level I/A on August 11, 2000. [BSCC] did nothing.
"11. [Corley] worked at [BSCC] and requested to be moved to Level I/A for the next fifteen (15) years. [Corley] continuously made requests to [BSCC's] presidents, to Simms, and to others in central administration either on his own or through [BSCC's] Technical Dean, Dr. Harry Holloway. During these 15 years, there was no movement in [Corley's] placement on [BSCC's] Salary Schedule. [BSCC's] presidency transitioned from Dr. Yvonne Kennedy to Dr. James Lowe to a period of interim and acting presidents to Defendant Richardson.
"12. Finally, on October 1, 2015, Defendant Richardson moved [Corley] from Level I/B to Level I/A."

On February 5, 2016, Corley sued Richardson. Corley's complaint sought "declaratory, mandamus, and injunctive relief ordering and requiring that [Richardson] pay [Corley] the compensation and employment benefits due him as if he had been placed at Level I/A since 2000."

On March 21, 2016, Richardson filed a motion to dismiss under Rule 12(b)(1), Ala. R. Civ. P., requesting that Corley's complaint be dismissed for lack of subject-matter jurisdiction. Specifically, Richardson argued that Corley's action is barred by the doctrine of State immunity because Corley requests as damages the payment of money, in the form of backpay, from a State entity. On August 25, 2016, Corley filed a response to Richardson's motion to dismiss.

On September 30, 2016, the circuit court granted Richardson's motion and dismissed Corley's complaint for lack of subject-matter jurisdiction. Corley appealed. This Court today affirms that dismissal.

It is significant to note the applicable standard of review in this case, which this Court set forth in Liberty National Life Insurance Co. v. University of Alabama Health Services Foundation, P.C., 881 So.2d 1013, 1017 (Ala. 2003) :

" 'The appropriate standard of review of a trial court's [ruling on] a motion to dismiss 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 [the pleader] to relief." Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993) ; Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala. 1985). This Court does not consider whether the plaintiff will ultimately prevail, but only whether the plaintiff may possibly prevail. Nance, 622 So.2d at 299. A "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." Nance, 622 So.2d at 299 ;
Garrett v. Hadden, 495 So.2d 616, 617 (Ala. 1986) ; Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala. 1986).'
" Lyons v. River Road Constr., Inc., 858 So.2d 257, 260 (Ala. 2003)."

The issue before us is whether, when the facts are read in a light most favorable to him, Corley "may possibly prevail."

This Court recently set forth the relevant applicable law in Alabama State University v. Danley, 212 So.3d 112, 122-24 (Ala. 2016) :

" 'Under Article 1, § 14, Alabama Constitution of 1901, "the State and its agencies have absolute immunity from suit in any court." Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989) ; see also Taylor v. Troy State University, 437 So.2d 472, 474 (Ala. 1983). "This immunity extends to the state's institutions of higher learning." Taylor, 437 So.2d at 474 ; see Breazeale v. Board of Trustees of the University of South Alabama, 575 So.2d 1126, 1128 (Ala. Civ. App. 1991). "State officers and employees, in their official capacities and individually, are also absolutely immune from suit when the action is, in effect, one against the state." Phillips v. Thomas, 555 So.2d at 83 ; see Taylor v. Troy State University, 437 So.2d at 474.'
" Williams v. John C. Calhoun Cmty. Coll., 646 So.2d 1, 2 (Ala. 1994).
" ' "The wall of immunity erected by § 14 is nearly impregnable. Sanders Lead Co. v. Levine, 370 F.Supp. 1115, 1117 (M.D. Ala. 1973) ; Taylor v. Troy State Univ., 437 So.2d 472, 474 (Ala. 1983) ; Hutchinson v. Board of Trustees of Univ. of Alabama, 288 Ala. 20, 24, 256 So.2d 281, 284 (1971). This immunity may not be waived. Larkins v. Department of Mental Health & Mental Retardation, 806 So.2d 358, 363 (Ala. 2001) ('The State is immune from suit, and its immunity cannot be waived by the Legislature or by any other State authority.'); Druid City Hosp. Bd. v. Epperson, 378 So.2d 696 (Ala. 1979) (same); Opinion of the Justices No. 69, 247 Ala. 195, 23 So.2d 505 (1945) (same); see also Dunn Constr. Co. v. State Bd. of Adjustment, 234 Ala. 372, 175 So. 383 (1937). 'This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury.' State Docks Comm'n v. Barnes, 225 Ala. 403, 405, 143 So. 581, 582 (1932) (emphasis added); see also Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963)."
" ' Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002).'
" Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872-73 (Ala. 2004).
" ' Section 14 immunity is not absolute; there are actions that are not barred by the general rule of immunity.
" ' "[C]ertain actions are not barred by § 14. There are six general categories of actions that do not come within the prohibition of § 14 : (1) actions brought to compel State officials to perform their legal duties; (2) actions brought to enjoin State officials from enforcing an unconstitutional law; (3) actions to compel State officials to perform ministerial acts; (4) actions brought against State officials under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking construction of a statute and its application in a given situation; (5) valid inverse condemnation actions brought against State officials in their representative capacity; and (6) actions for injunction or damages brought against State officials in their representative capacity and individually where it was alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law. See Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 58 (Ala. 2006) (quoting Ex parte Carter, 395 So.2d 65, 68 (Ala. 1980) ); Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831 (Ala. 2008) (holding that the exception for declaratory-judgment actions applies only to actions against State officials). As we confirmed in Harbert, these 'exceptions' to sovereign immunity apply only to actions brought against State officials; they do not apply to actions against the State or against State agencies. See Alabama Dep't of Transp., 990 So.2d at 840-41."
" ' Ex parte Alabama Dep't of Fin., 991 So.2d 1254, 1256-57 (Ala. 2008). The sixth "exception" to § 14 immunity was restated in Ex parte Moulton, 116 So.3d 1119, 1141 (Ala. 2013), as follows:
" ' "(6)(a) actions for injunction brought against State officials in their representative capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, Wallace v. Board of Education of Montgomery County, 280 Ala. 635, 197 So.2d 428 (1967), and (b) actions for damages brought against State officials in their individual capacity where it is alleged that they had acted fraudulently, in bad faith, beyond their authority, or in a mistaken interpretation of law, subject to the limitation that the action not be, in effect, one against the State. Phillips v. Thomas, 555 So.2d 81, 83 (Ala. 1989)." '
" Ex parte Hampton, 189 So.3d 14, 17-18 (Ala. 2015).
" ' "These actions are sometimes referred to as 'exceptions' to § 14 ; however, in actuality these actions are simply not considered to be actions ' "against the State" for § 14 purposes.' Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala. 2002). This Court has qualified those 'exceptions,' noting that ' "[a]n action is one against the [S]tate when a favorable result for the plaintiff would directly affect a contract or property right of the State, or would result in the plaintiff's recovery of money from the [S]tate." ' Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 873 (Ala. 2004) (quoting Shoals Cmty. Coll. v. Colagross, 674 So.2d 1311, 1314 (Ala. Civ. App. 1995) ) (emphasis added in Jones )."
" ' Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 840 (Ala. 2008).'
" Vandenberg v. Aramark Educ. Servs., Inc., 81 So.3d 326, 332 (Ala. 2011).
" ' "To determine whether an action against a State officer is, in fact, one against the State, this Court considers
" ' " 'whether "a result favorable to the plaintiff would directly affect a contract or property right of the State,"
Mitchell [v. Davis, 598 So.2d 801, 806 (Ala. 1992) ], whether the defendant is simply a "conduit" through which the plaintiff seeks recovery of damages from the State, Barnes v. Dale, 530 So.2d 770, 784 (Ala. 1988), and whether "a judgment against the officer would directly affect the financial status of the State treasury," Lyons [v. River Road Constr., Inc.], 858 So.2d [257] at 261 [ (Ala. 2003) ].'
" ' " Haley [v. Barbour County], 885 So.2d [783] at 788 [ (Ala. 2004) ]. Additionally, '[i]n determining whether an action against a state officer is barred by § 14, the Court considers the nature of the suit or the relief demanded, not the character of the office of the person against whom the suit is brought.' Ex parte Carter, 395 So.2d 65, 67-68 (Ala. 1980)." '
" Ex parte Moulton, 116 So.3d 1119, 1130-31 (Ala. 2013) (quoting Alabama Dep't of Transp. v. Harbert Int'l, Inc., 990 So.2d 831, 839-40 (Ala. 2008) ).
"As our caselaw demonstrates, § 14 provides absolute immunity from suit-and thus liability-for monetary damages based on state-law claims, not only for the State but also for State officials acting in their official capacities. Ex parte Trawick, 959 So.2d 51, 55 (Ala. 2006) (holding that ' "[a] complaint seeking money damages against a State employee in his or her official capacity is considered a complaint against the State, and such a complaint is barred by ... § 14" ' (quoting Ex parte Butts, 775 So.2d 173, 177 (Ala. 2000) ))...."

In summary, an action seeking money damages from the State is necessarily barred by § 14 immunity. However, an action seeking to compel a State official to perform a ministerial act, which may result in money being paid to the plaintiff, is not barred by § 14 immunity. This Court explained the rationale for this distinction in Alabama Department of Transportation v. Harbert International, Inc., 990 So.2d 831, 845-46 (Ala. 2008) (abrogated on another ground):

"[T]he trial court can generally, by writ of mandamus, order State officers in certain situations to pay liquidated damages or contractually specified debts. The payment of these certain, liquidated amounts would be only a ministerial act that State officers do not have the discretion to avoid. [Alabama Agric. & Mech. Univ. v.] Jones, 895 So.2d [867,] 878-79 [ (Ala. 2004) ] ; [ State Bd. of Admin. v.] Roquemore, 218 Ala. [120,] 124, 117 So. [757,] 760 [ (1928) ]. Furthermore, although the payment of the funds 'may ultimately touch the State treasury,' Horn v. Dunn Bros., 262 Ala. 404, 410, 79 So.2d 11, 17 (1955), the payment does not 'affect the financial status of the State treasury,' Lyons [v. River Road Constr., Inc.], 858 So.2d [257,] 261 [ (Ala. 2003) ], because the funds 'do not belong to the State,' Alabama Dep't of Envtl. Mgmt. v. Lowndesboro, 950 So.2d 1180, 1190 n. 6 (Ala. Civ. App. 2005) (two-judge opinion), and the State treasury 'suffers no more than it would' had the State officers originally performed their duties and paid the debts. Horn, 262 Ala. at 410, 79 So.2d at 17. The trial court may not, however, award retroactive relief in the nature of unliquidated damages or compensatory damages, because such relief affects a property or contract right of the State. Stark [v. Troy State Univ., 514 So.2d 46 (Ala. 1987) ]; Williams [v. Hank's Ambulance Serv., Inc., 699 So.2d 1230 (Ala. 1997) ]; Roquemore; J.B. McCrary Co. v. Brunson, 204 Ala. 85, 86, 85 So. 396, 396 (1920) ('mandamus will not lie to compel the payment of unliquidated claims'); and Vaughan [v. Sibley, 709 So.2d 482 (Ala. Civ. App. 1997) ]."

Corley argues that his complaint is not barred by § 14 because, he says, his complaint does not seek compensatory damages, but seeks a writ of mandamus ordering Richardson to perform a ministerial act. The ministerial act Corley seeks to compel Richardson to perform is the payment of a certain sum of money Corley says BSCC owes him. Corley argues that his complaint fits within the first and third "exceptions" to § 14 immunity, set forth above. In so arguing, Corley relies on State of Alabama Highway Department v. Milton Construction Co., 586 So.2d 872 (Ala. 1991). This Court recently discussed Milton Construction in Danley:

"In Milton Construction, the plaintiff contracted with the State Highway Department to perform work on two interstate highways. 586 So.2d at 875. It was undisputed that the plaintiff had provided the services it contracted to provide. Nevertheless, the State Highway Department withheld $534,000 it owed the plaintiff under the terms of the contract. The trial court entered a judgment against the State Highway Department for $534,000. On appeal, the State Highway Department argued that, on the basis of sovereign immunity, it could not be made to pay the judgment. 586 So.2d at 875. In affirming the judgment, this Court stated:
" 'Once the Highway Department has legally contracted under state law for goods or services and accepts such goods or services, the Highway Department also becomes legally obligated to pay for the goods or services accepted in accordance with the terms of the contract. It follows that this obligation is not subject to the doctrine of sovereign immunity and is enforceable in the courts.'
" 586 So.2d at 875 (emphasis added). Thus, because the State Highway Department had already received the benefits of its contract with the plaintiff, an action seeking to compel payment for the services was an action seeking to compel State officers to perform their legal duty, i.e., an action under the first 'exception' to § 14 immunity."

Danley, 212 So.3d at 126-27.

I believe that Milton Construction is dispositive of this case. In the present case, when the facts are read in a light most favorable to Corley, as they must be under the applicable standard of review, they reveal the following: Corley entered into an employment contract with BSCC on November 3, 1999. The contract provides that, until Corley obtained his associate degree, he be placed at Level I/B on BSCC's salary schedule. For the period from November 3, 1999, to August 8, 2000, Corley provided a service to BSCC, which BSCC accepted, and BSCC paid Corley for that service pursuant to the terms of the contract. The contract further requires Corley to obtain an associate degree. The employment contract provides that, once Corley obtained an associate degree, he would be moved from Level I/B to Level I/A on BSCC's salary schedule. On August 9, 2000, Corley obtained an associate degree. From that time forward, Corley continued to provide a service to BSCC pursuant to the terms of the contract; BSCC accepted the service provided by Corley. However, in contradiction to the terms of the contract as asserted by Corley in his complaint, BSCC refused to place Corley at Level I/A on BSCC's salary schedule. BSCC accepted Corley's service, but allegedly refused to compensate Corley according to the terms of the contract. On October 1, 2015, Richardson placed Corley at Level I/A on BSCC's salary schedule as required by the contract.

Like the plaintiff in Milton Construction, Corley filed an action to compel Richardson, a State official, to perform her legal duty. Reading the facts in a light most favorable to Corley, I believe that Corley's action may be one under the first "exception" to § 14 immunity. Based on the facts asserted by Corley in his complaint, the employment contract provided the legal duty Richardson was required to perform. According to Corley, the contract required BSCC to pay Corley in accordance with Level I/A of BSCC's salary schedule from August 9, 2000, to October 1, 2015. Corley provided a service to BSCC, which BSCC accepted. Under the terms of the contract, as asserted by Corley, Corley earned a salary commensurate with Level I/A of BSCC's salary schedule from August 9, 2000, to October 1, 2015. However, during that time, BSCC paid Corley a salary commensurate with Level I/B of BSCC's salary schedule. By accepting Corley's service, BSCC became legally obligated to pay a certain amount of money for that service in accordance with the terms of the contract as stated in Corley's complaint. Corley's action is one requesting that Richardson be required to perform her legal duty of paying Corley the specified amount of money BSCC is legally obligated to pay Corley under the terms of the contract.

In summary,

"although the payment of the funds 'may ultimately touch the State treasury,' Horn v. Dunn Bros., 262 Ala. 404, 410, 79 So.2d 11, 17 (1955), the payment does not 'affect the financial status of the State treasury,' Lyons [v. River Road Constr., Inc.], 858 So.2d [257,] 261 [ (Ala. 2003) ], because the funds 'do not belong to the State,' Alabama Dep't of Envtl. Mgmt. v. Lowndesboro, 950 So.2d 1180, 1190 n. 6 (Ala. Civ. App. 2005) (two-judge opinion), and the State treasury 'suffers no more than it would' had the State officers originally performed their duties and paid the debts. Horn, 262 Ala. at 410, 79 So.2d at 17."

Harbert International, 990 So.2d at 845-46. Based on the facts asserted in Corley's complaint, the backpay Corley requests Richardson pay him are funds that do not belong to the State. Corley earned those funds by providing a service to BSCC, which BSCC accepted. According to the facts alleged in Corley's complaint, the terms of the contract specify exactly how much backpay Corley is entitled to and BSCC is obligated to pay. Accordingly, Corley has demonstrated that he may prevail in this case based on the facts asserted in his complaint.

SHAW, Justice (dissenting).

I respectfully dissent. The material facts in this case are related above in Justice Parker's dissenting opinion; there is no need for me to repeat them all here. My reasons for dissenting are as follows.

It appears to me that the motion to dismiss filed by Valerie A. Richardson, in her capacity as president of Bishop State Community College ("BSCC"), for lack of subject-matter jurisdiction advanced, under Rule 12(b)(1), Ala. R. Civ. P., a "facial" challenge to Jason S. Corley's complaint.

" 'Facial challenges, such as motions to dismiss for lack of standing at the pleading stage, "attack[ ] the factual allegations of the complaint that are contained on the face of the complaint." Al-Owhali [v. Ashcroft], 279 F.Supp.2d [13,] 20 [ (D.D.C. 2003) ] (internal quotation marks and citation omitted). "If a defendant mounts a 'facial' challenge to the legal sufficiency of the plaintiff's jurisdictional allegations, the court must accept as true the allegations in the complaint and consider the factual allegations of the complaint in the light most favorable to the non-moving party." Erby [v. United States,] 424 F.Supp.2d [180,] 181 [ (D.D.C. 2006) ] ; see also I.T. Consultants [v. Pakistan], 351 F.3d [1184,] 1188 [ (D.C. Cir. 2003) ]. The court may look beyond the allegations contained in the complaint to decide a facial challenge, "as long as it still accepts the factual allegations in the complaint as true." Abu Ali [v. Gonzales,] 387 F.Supp.2d [16,] 18 [ (D.D.C. 2005) ] ; see also Jerome Stevens Pharm., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253-54 (D.C. Cir. 2005) ("At the pleading stage .... [w]hile the district court may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction, the court must still accept all of the factual allegations in the complaint as true." (internal citations and quotation marks omitted)).' "

Ex parte Safeway Ins. Co. of Alabama, 990 So.2d 344, 349 (Ala. 2008) (quoting Lindsey v. United States, 448 F.Supp.2d 37, 43 (D.D.C. 2006) ). We review the trial court's application of this standard and the resulting judgment "de novo," that is, with no presumption of correctness. See Hill v. Hill, 89 So.3d 116, 117-18 (Ala. Civ. App. 2010).

The complaint alleges that Corley's "employment agreement" with BSCC provided that he would be placed at "Level I/B" on the salary schedule, that he was "to complete his associate degree within one year of his employment date," and that, as "soon as he completed the associate degree, he would be moved to Level I/A." Corley alleged that he completed his associate degree and that, on August 9, 2000, he notified his employer of that fact and that "he should be moved to Level I/A on the Salary Schedule." However, his salary, he claims, was not adjusted until October 1, 2015. Corley alleged that his "placement at Level I/A should have been made in 2000 following the completion of his associate degree" and that the failure to adjust his salary "was in breach of his employment agreement with [BSCC] and has resulted in [Corley] not being appropriately compensated."

In the Rule 12(b)(1) motion to dismiss, Richardson assumed that Corley's employment agreement included the automatic salary adjustment alleged in the complaint. In his reply to the motion to dismiss, Corley noted that the allegations in his complaint must be accepted as true and argued that immunity under Ala. Const. 1901, Art. I, § 14, does not apply in this case under a very narrow "exception" to that immunity. That narrow "exception" was recently discussed in Woodfin v. Bender, 238 So.3d 24(Ala. 2017) : mandamus relief is available to order a State official to perform a ministerial act. In my special writing in Woodfin, I noted:

" 'In limited circumstances the writ of mandamus will lie to require action of state officials. This is true where discretion is exhausted and that which remains to be done is a ministerial act.' McDowell-Purcell, Inc. v. Bass, 370 So.2d 942, 944 (Ala. 1979). Under Alabama Department ofTransportation v. Harbert International, Inc., 990 So.2d 831 (Ala. 2008), and the numerous cases cited in it, ... when a plaintiff seeks payment of money from the State, the 'limited circumstances' in which a writ will lie to compel payment depends on whether the amount sought is 'certain' and the State's obligation to pay is 'undisputed.' If there is doubt as to those, the analysis ends and § 14 bars the action."

238 So.3d at 34 (Shaw, J., concurring in the result).

Under the test provided in Safeway, supra, a court must accept as true the allegations in the complaint and consider the factual allegations in the complaint in the light most favorable to Corley. The complaint sought by writ of mandamus a payment of money Corley says he was owed. It must be accepted as true that there was an employment agreement providing for the automatic pay raise (Richardson does not dispute this), that the agreement was not honored, and that Corley was owed the money. Thus, the State's obligation to pay, for purposes of the complaint and motion to dismiss, appears "undisputed." A court cannot infer from the fact that Corley was not paid that a dispute existed; that would be an inference in favor of the nonmovant forbidden by the standard set forth in Safeway.

Further, considering the allegations in the light most favorable to Corley, the amount sought was "certain": it was the difference between what he should have started to receive when he completed his associate degree and what he actually received up until the point his salary was corrected.

At this point in the proceedings, there is nothing to suggest, like in Woodfin, that the amount sought is "uncertain" or that the State's obligation to pay is "disputed":

"In the instant case, the parties dispute the proper interpretation of the new salary schedule at issue. In McDowell-Purcell, we held that a writ of mandamus will not lie to compel a State official 'to exercise his discretion and apply the ascertained facts or existing conditions under [a] contract so as to approve payment to [a plaintiff] according to [the plaintiff's] interpretation of the contract rather than his.' 370 So.2d at 944. Here, the Board members have not exhausted their discretion, and they cannot be compelled to accept the plaintiffs' interpretation of the salary schedule. A suit against the State, i.e., the Board members in their official capacities, is untenable in this case."

Woodfin, 238 So.3d at 34 (Shaw, J., concurring in the result).

It might very well be that Richardson can produce evidence showing that State officials, in failing to initially adjust Corley's salary, had not exhausted their discretion, that the amount owed was uncertain, or that the obligation to pay was disputed, all of which would trigger § 14 immunity and bar a petition for a writ of mandamus. However, such issues are premature at this stage of the proceedings: this Court is called upon here to determine only if the complaint, when the allegations asserted therein are taken as true, established that the trial court had jurisdiction. The complaint appears to meet the minimal requirements to do so. I thus believe that the trial court's dismissal is due to be reversed, not affirmed; I therefore respectfully dissent.

      If that is Corley's allegation, and BSCC breached his employment agreement in August 2000, and thereafter continued breaching his employment agreement until October 1, 2015, the statute of limitations would appear to preclude his recovering much of his alleged backpay. See Ala. Code 1975, § 6-2-34(9) (providing six-year statute of limitations for actions on simple contract); AC, Inc. v. Baker, 622 So.2d 331, 334 (Ala. 1993) ; and Honea v. Raymond James Fin. Servs., Inc., 240 So.3d 550, 590 (Ala. 2017) (Murdock, J., concurring in the result in case no. 1130655 and dissenting as to case no. 1130590).

      Even if Corley were alleging that BSCC failed to enter into a new contract (or a series of new annual contracts) on the terms Corley claims he was entitled to, this case would be quite different from Roquemore and Milton just on that ground.

      This Court recognized BSCC as a State agency in State Board of Education v. Mullins, 31 So.3d 91, 96 (Ala. 2009).

      Corley did not cite Woodfin, which was decided after the briefs in this case were filed, but the caselaw and legal theories applicable in this case are discussed in Woodfin.

      This is only a brief explanation of the principles involved; a more thorough discussion is found in Woodfin.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    L.M. v. G.S. and S.S.
    2150920
    Court of Civil Appeals of Alabama.
    July 14, 2017
    J. Keith Rodgers and M. Andrew Gable of Keith Rodgers & Associates, L.L.C., Montgomery, for appellant.
    Submitted on appellant's brief only.
   PITTMAN, Judge.

L.M. ("the mother") appeals from a judgment of the Lowndes Juvenile Court ("the juvenile court") insofar as that judgment purported to award G.S. and S.S. ("the paternal grandparents") visitation with the mother's minor child ("the child"). We dismiss the appeal with instructions to the juvenile court to vacate the portion of its judgment purporting to award the paternal grandparents visitation.

The sole issue raised on appeal is whether, given the procedural posture of this particular case, the juvenile court had subject-matter jurisdiction to award the paternal grandparents visitation. After the child's father died, the paternal grandparents, in April 2016, filed a complaint alleging that the child was dependent and seeking custody of the child. Their complaint did not seek an award of visitation as an alternative remedy in the event the juvenile court determined that the child was not dependent. Along with their complaint, the paternal grandparents filed a motion seeking an ex parte custody and pickup order, which the juvenile court granted. Thereafter, the juvenile court held a hearing, which the mother and the paternal grandparents attended. Following the hearing, the juvenile court entered an order finding that the child was dependent, awarding the paternal grandparents pendente lite custody, and awarding the mother pendente lite visitation. The juvenile court subsequently held a final hearing and, thereafter, entered a judgment finding that the child was not dependent, restoring the child to the mother's custody, and dismissing the paternal grandparents' dependency action. However, despite dismissing the dependency action, the judgment purported to award the paternal grandparents visitation. Regarding the juvenile court's jurisdiction to make that purported award, the judgment stated:

"There can be no dispute that the testimony and evidence suggest that both the Paternal Grandparents ... and the ... Mother ... love and care deeply for the minor child .... It also clear to the Court that [the child] needs both his Paternal Grandparents and his Mother to play an active role in his life. This was supported by the testimony of Dr. Karen Hollinger, who stated as much. The Court can only hope that the parties can put aside the acrimony and discord of the past to focus on a future in which [the child's] best interests are placed above their mutual feelings regarding each other. To that end, the Court finds it necessary to award visitation to the paternal grandparents pursuant to the provisions of § 30-3-4.2 of the Code of Alabama 1975. Despite a finding that the minor child is not dependent, the Court asserts jurisdiction to award visitation pursuant to the holding of the Alabama Court of Civil Appeals in M.G.D. v. C.B. and J.L.B.[, 203 So.3d 855 (Ala. Civ. App. 2016) ]. While the Paternal Grandparents did not expressly request visitation in their petition, the Court is satisfied that the issue was sufficiently raised through the visitation discussions and agreements to confer jurisdiction upon this court to enter a visitation award."

(Emphasis added.)

On appeal, the mother argues that this case is distinguishable from M.G.D. v. C.B., 203 So.3d 855 (Ala. Civ. App. 2016), and that the juvenile court erred in relying on that case to support its conclusion that it had subject-matter jurisdiction to award the paternal grandparents visitation. In holding that the Shelby Juvenile Court had subject-matter jurisdiction to award C.B. and J.L.B., the grandparents who had filed the dependency petition in M.G.D., visitation, this court stated:

"[Section] 12-15-115(a)(10), Ala. Code 1975, gives juvenile courts jurisdiction over '[p]roceedings to establish grandparent visitation when filed as part of a juvenile court case involving the same child.' In D.E.C.C. v. K.N.R., 51 So.3d 1068 (Ala. Civ. App. 2010), this court acknowledged that 'a juvenile court considering an allegation of dependency [has] jurisdiction over a claim seeking grandparent visitation when that claim [is] asserted as part of a dependency action.' 51 So.3d at 1070 (citing K.R.D. v. E.D., 622 So.2d 398 (Ala. Civ. App. 1993) ). '[T]his court has held that the juvenile court has jurisdiction to award grandparent visitation where the child was before the juvenile court on the grandparents' dependency/custody petition and the grandparents had sought visitation in the event that the juvenile court did not find the child dependent.' J.D.R. v. M.M.E., 898 So.2d 783, 785 (Ala. Civ. App. 2004) (citing K.R.D. v. E.D., supra ) (emphasis added). Thus, our statutes and caselaw allow a juvenile court to award grandparent visitation even if the juvenile court finds that a child is not dependent, and the determination that a child is not dependent and the dismissal of a dependency petition does not affect a claim requesting grandparent visitation. '[A]bsent a specific claim for grandparent visitation,' however, a juvenile court does not have jurisdiction to consider such visitation, even in an action alleging dependency. 51 So.3d at 1071.
"There is no dispute in the present case that the juvenile court considered a verified allegation of dependency and, thus, had before it a juvenile-court case involving the children. The issue is whether a claim for grandparent visitation had been sufficiently asserted as part of the case so as to confer subject-matter jurisdiction on the juvenile court under § 12-15-115(a)(10). Section 12-15-115(c), Ala. Code 1975, provides that, with one exception not applicable in this case, '[a]ll civil cases before the juvenile court shall be governed by the laws relating thereto and shall be initiated by filing a petition or complaint with the clerk of the juvenile court.' 'Petition' and 'complaint,' as those terms are used in § 12-15-115, are not defined.
"Although the petition alleging dependency did not request grandparent visitation, it appears from other filings in this case that the issue of grandparent visitation was raised. Specifically, in the July 29 order, which was signed by the grandparents and the mother, the juvenile court awarded the grandparents specific visitation rights based on an agreement of the parties. The visitation schedule filed as an exhibit to that order also was initialed by all parties. Moreover, the grandparents later filed a motion for clarification regarding the July 29 order, in which they specifically asserted that they had reached an agreement with the mother to allow the grandparents visitation with the children. Although the juvenile court set aside the July 29 order because it had been entered while the mother's first appeal was still pending, the referenced filings clearly indicate that grandparent visitation had been made a part of this juvenile case. Indeed, after arguing in her motion for a summary judgment that the children were not dependent, the mother herself acknowledged that the grandparents were seeking court-ordered visitation with the children. The juvenile court recognized as much in its final judgment, noting that 'the issue of grandparent visitation was properly raised in this matter.' Based on the various filings and admissions of record in this case, we conclude that proceedings to establish grandparent visitation were sufficiently commenced as part of a juvenile-court case involving the children and that the juvenile court had subject-matter jurisdiction to consider grandparent visitation. The mother makes no other substantive arguments regarding the award of grandparent visitation. Accordingly, we affirm the juvenile court's judgment insofar as it awarded grandparent visitation."

203 So.3d at 857-59 (footnote omitted).

Like the complaint filed by the paternal grandparents in the present case, the dependency petition filed by C.B. and J.L.B. in M.G.D. did not seek an award of visitation as alternative relief in the event the Shelby Juvenile Court determined that the children were not dependent. See M.G.D., 203 So.3d at 858. However, that is the only pertinent procedural fact in M.G.D. that is like the pertinent procedural facts in the present case. In M.G.D., the children were never removed from the custody of M.G.D., their mother, and the Shelby Juvenile Court never awarded C.B. and J.L.B. pendente lite custody, see M.G.D., 203 So.3d at 856-57, whereas, in the present case, the child was removed from the mother's custody and placed in the paternal grandparents' custody pendente lite. In M.G.D., while M.G.D.'s appeal from an injunction restraining her from removing the children from the Shelby Juvenile Court's jurisdiction was pending in this court, the Shelby Juvenile Court entered an order based on an agreement of the parties that awarded C.B. and J.L.B. pendente lite visitation, id., whereas, in the present case, no order awarding the paternal grandparents pendente lite visitation was ever entered. In M.G.D., although the Shelby Juvenile Court later vacated the order awarding C.B. and J.L.B. pendente lite visitation, M.G.D. subsequently filed a motion for a summary judgment in which she stated that " 'upon information and belief, [C.B. and J.L.B.] are seeking only to have court ordered visitation with the minor children.' " M.G.D., 203 So.3d at 857. In the present case, the mother never asserted that the paternal grandparents were seeking visitation with the child. Moreover, the only explicit discussions regarding visitation at the hearings in the present case were discussions regarding the mother's pendente lite visitation. The only statement in the record that could be interpreted as implying that the paternal grandparents might be awarded visitation if the juvenile court determined that the child was not dependent was the following statement made by the juvenile court during a hearing:

"Now, I do want there to be additional visitation with [the mother]. I think the parties need to understand that this is going to be, you know, something that we are going to be dealing with from now on. And so the quicker we can come to an understanding that everybody is going to have to work together and communicate with one another for [the child's] best interest, the better off we will be. Because regardless of what the Court does, whether I allow [the child] to stay with [the paternal grandparents] and grant [them] custody of him, or I allow [the mother] to have [the child] back, we are going to have to work with one another on visitation and accommodating one another. And I don't think, going under what we are doing right now is adequate visitation."

(Emphasis added.) Unlike the procedural facts that we held were sufficient to invoke the Shelby Juvenile Court's subject-matter jurisdiction to award C.B. and J.L.B. visitation pursuant to § 12-15-115(a)(10), Ala. Code 1975, in M.G.D., the statement of the juvenile court quoted above was not sufficient to invoke its subject-matter jurisdiction to award the paternal grandparents visitation pursuant to § 12-15-115(a)(10) in the present case. Thus, the juvenile court lacked subject-matter jurisdiction to make that award, and, consequently, its judgment is void insofar as it purported to make that award. See, e.g., Ingram v. Alabama Peace Officers' Standards & Training Comm'n, 148 So.3d 1089, 1093 (Ala. Civ. App. 2014) (holding that judgment was void because the trial court lacked subject-matter jurisdiction). Because a void judgment will not support an appeal, we dismiss the mother's appeal and direct the juvenile court to vacate the portion of its judgment that purported to award the paternal grandparents visitation with the child. See Ingram, 148 So.3d at 1093-94 (" '[A] void judgment will not support an appeal, and "an appellate court must dismiss an attempted appeal from such a void judgment." ' " (quoting Colburn v. Colburn, 14 So.3d 176, 179 (Ala. Civ. App. 2009), quoting in turn Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) )).

APPEAL DISMISSED WITH INSTRUCTIONS.

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


author: THOMPSON, Presiding Judge.

text:
    Amanda Leigh WILLIAMS v. Robbie Lynn WILLIAMS
    2160071
    Court of Civil Appeals of Alabama.
    July 14, 2017
    David G. Thomas, Alexander City, for appellant.
    William W. Lawrence, Talladega; and S. Dale Price, Sylacauga, for appellee.
   THOMPSON, Presiding Judge.

Amanda Leigh Williams ("the mother") appeals from a judgment of the Clay Circuit Court ("the circuit court") in this custody dispute involving the mother's request to relocate to Gulf Breeze, Florida, and the request of Robbie Lynn Williams ("the father") for a custody modification in which he sought sole physical custody of the parties' children.

The record indicates the following. The mother and the father divorced in December 2013, and the parties were awarded joint legal and physical custody of the parties' children ("the children"). In March 2016, the mother provided the father with a letter stating her intention to relocate to Gulf Breeze, Florida. The father then filed in the circuit court an objection to the relocation, a petition for contempt, and a request for custody modification. The mother filed an answer and counterclaim in which she set forth the reasons for her desire to relocate. In her pleadings the mother did not request a custody modification.

At the time of the hearing in this action, the children were 13 and 10. They were in the eighth grade and the fifth grade, respectively. Pursuant to the parties' divorce judgment, the mother and the father were to exchange custody every seven days; however, "primary placement" of the children was vested with the mother. The father testified that the custody arrangement was not strictly adhered to because, he said, the parties were "trying to let the-let the kids come and go as they wanted to." However, he said, he had the children on most weekends and estimated that, between the time of the divorce and the hearing, he had the children 50% to 60% of the time. The mother disputed that testimony, saying that she had been the children's primary caregiver and had had the children with her approximately 80% of the time until she notified the father of her intent to move to Gulf Breeze, a suburb of Pensacola, Florida. The parties' older child testified and corroborated the mother's assertion that the children stayed with her most of the time. When she notified the father of her intent to move, the mother said, she received a letter from the father's attorney saying that, from that point forward, the parties were going to exercise visitation as it had been set forth in the divorce judgment.

The father has remarried since the divorce. The mother testified that she intended to remarry in November 2016. She said that the same month the parties were divorced-December 2013-she moved to Trussville to live with her fiancé ("the fiancé"). The next month-January 2014-the mother and the fiancé moved to Wedowee. Later, the father failed to make a number of payments on the marital residence in Talladega, so, to assist the father, the mother agreed with him that she would pay the father $10,000 to pay off the mortgage arrearage. The mother and the fiancé then moved into what had been the parties' marital residence, and the father moved to a house approximately one mile from that residence. The house that had been the marital residence was apparently still in the mother's possession at the time of the hearing.

The mother testified that the reason she was asking to relocate to Florida was because, she said, the move would be beneficial to the fiancé's business. The mother testified that the fiancé sold advertising for automobile dealerships. The business required frequent travel, and the mother said that Gulf Breeze, Florida, was more conveniently located to airports than was their Alabama residence. The mother also testified that cellular-telephone service and Internet service were sporadic at the Talladega residence, making it difficult for the fiancé to operate his business from there.

The mother testified that she had essentially been the children's primary caregiver since the divorce. The father testified that, since the divorce, he had taken the children to see the doctor on four occasions. The mother agreed with the father's testimony, but she added that she had also been present on three of those occasions. The father said that he had never taken the children to the dentist and that he did not know who their dentist was.

The father testified that, during the marriage, the parties had for a time homeschooled the children because they were not happy with the public-school system the children would have attended. In the three years before the hearing, the children had attended a private school in Clay County. The mother said that the older child's grades had dropped after the divorce and that she had become concerned. She said that she met with the older child's teachers to learn what was affecting the child's grades and what she could do to help the child. The mother said that she learned that the child was not turning in his homework when he was staying with the father. The mother worked with the teachers to allow the child to make up some of his work, and the child passed the school year. The father did not dispute the mother's testimony. When asked about the children's grades, the father said: "The children do pretty well in school. [The younger child], she's an A and B student. [The older child], he does pretty well most of the time. But being a boy, sometimes he, you know, struggles some."

The older child testified that, often when he was at the father's house and asked for help with his homework, he was told that the father and his wife ("the stepmother") were watching a movie or cooking. He said that, when he was in the mother's custody, the mother and the children's maternal grandmother ("the maternal grandmother") often helped him with his homework.

The mother and the older child also testified that the father was not involved with the children's extracurricular activities. The mother testified that the maternal grandmother or she ensured that the children arrived at their various practices and ball games. The mother and the older child both said that the father rarely attended the children's games. The older child testified that the father had attended three of his football games over two years. The father said that the mother's testimony regarding his involvement with the children was "incorrect," and he also said that he took the older child hunting and fishing.

The older child testified that he wanted to live with the mother. He told the circuit court that he did not like his stepmother and said that she was mean to the children. He also said that, since the father remarried, the father did not pay as much attention to the children. The older child said that he tried to talk to the father about the lack of attention and that the father told him that the stepmother was a "grown up." The older child said that the children liked the fiancé. The older child told the circuit court that no one had told him what to say in court.

The fiancé had been convicted in Texas of a nonviolent offense and had served a ten-year prison sentence. At the time of the hearing, he had also completed his probation. The mother's father ("the paternal grandfather") testified that, at first, he had been wary of the fiancé because of his history, but, the maternal grandfather said, he had grown to like the fiancé. The evidence is undisputed that the father never objected to the fiancé's presence around the children, and, in fact, the father and the fiancé were friendly with each other.

The mother testified that Gulf Breeze was four hours from the father's residence. She said that Greenville was halfway between the two and that she was willing to meet the father there. The mother also testified that she had performed research into the public schools the children would attend if they were permitted to move to Florida. The elementary school the younger child would attend is five miles from the house where they would live; the middle school the older child would attend is a half mile from the house. The mother testified that both schools were in the top 25% of Florida schools. She said that both schools offered the children better academics and more opportunity than the school they currently attended. The older child testified that he had seen the school he would attend in Florida and that he liked it. Additionally, as the mother noted in her letter to the father regarding the proposed relocation, there are also nearby charter schools and private schools. The mother stated in the letter: "Of course you and I will have to establish which option we think is best."

In her letter to the father, the mother told the father that the move would benefit the children, explaining:

"Academically and socially this will be a step into a new chance to meet new friends, see new things and see potential to do and be anything they want to be with hard work and effort. I don't want our kids to struggle to make ends meet like we did and I don't want them to feel like they are stuck in a small town with no opportunity at all and only min[imum] wage and 40-60 hr work week with no advancement. We can offer them opportunity and teach them to embrace it or we can teach them to be scared of change and complain about things we didn't change later in life."

The mother also testified that her parents, who she described as the "go to" grandparents when the parties needed assistance with the children, were planning on moving to Gulf Breeze if the mother was permitted to relocate with the children. In addition, the mother said, she had cousins in several towns in the Florida panhandle. The mother also said that she had several relatives in Clay County with whom she and the children would visit. The mother said that she did not want to deny the father time with the children and that she intended to foster their relationships.

The father testified that he was against the relocation because, he said, Florida was a new environment for a 10-year-old and a 13-year-old, Florida is "very overpopulated," and that "meeting new friends, meeting new people like that, it's scary to a 10-year-old and a 13-year-old." He said that the children had always lived in Clay County and that all of their family lived in the area. The father testified that he wanted to be able to take the older child hunting and fishing. However, he acknowledged that, because he worked during the week, he would generally be able to do so only on weekends. The father also testified that he did not know anything about Gulf Breeze. He said that he had looked for the school system on a map, but he had not done any research or made a comparison of the schools in Florida with the children's school in Clay County.

On August 11, 2016, two days after the hearing, the circuit court entered a judgment denying the mother's request to relocate. The circuit court also ordered the parties to continue to share joint legal custody, but it awarded "primary physical custody" of the children to the father. The mother filed two postjudgment motions, one to alter, amend, or vacate the judgment and the other to set aside the judgment. The trial court denied both motions on September 14, 2016. The mother filed a timely notice of appeal.

Our standard of review in matters involving child custody is well settled. "When evidence in a child custody case has been presented ore tenus to the trial court, that court's findings of fact based on that evidence are presumed to be correct." Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996). "[W]e will not reverse [a child-custody determination based upon ore tenus evidence] unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court's discretion is shown." Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993).

The mother contends that the circuit court erred in denying her request to move to Florida with the children, arguing that she had rebutted the presumption that the move was not in the children's best interest. The Alabama Parent-Child Relationship Protection Act ("the Act"), § 30-3-160 et seq., Ala. Code 1975, "promotes the general philosophy in this state that children need both parents, even after a divorce, [as] established in Section 30-3-150[, Ala. Code 1975]." § 30-3-160, Ala. Code 1975.

"Section 30-3-169.4 [of the Act] places the initial burden of proof on the party seeking the change in principal residence. If the party seeking the change in principal residence meets his or her burden of proving that the change in residence is in the child's best interest, the burden then shifts to the nonrelocating party to demonstrate how the change in residence is not in the child's best interest. See § 30-3-169.4, Ala. Code 1975."

Clements v. Clements, 906 So.2d 952, 957 (Ala. Civ. App. 2005).

We first note that, as previously mentioned, the mother never requested a modification of custody in this matter. From our review of the pleadings and the transcript contained in the record on appeal, it looks as though the mother assumed she had sole physical custody of the children and, thus, did not make an effort to obtain sole physical custody. She appears to have disregarded the language in the divorce judgment awarding the parties' "joint physical custody" and instead relied solely on the language in that judgment that vested "primary placement" of the children with her, thereby assuming that she had sole physical custody of the children. She did so at her peril.

A copy of the parties' divorce judgment does not appear in the record on appeal. However, it is undisputed that, in that judgment, the parties were awarded joint legal and physical custody. The father testified that, under the terms of the divorce judgment, which incorporated a settlement reached by the parties on the issue of custody, the parties were to rotate the custody of the children on a weekly basis. The agreement also is not included in the record on appeal. However, the father testified that the agreement called for "primary placement [to be] vested with the mother."

In New v. McCullar, 955 So.2d 431 (Ala. Civ. App. 2006), this court was asked to determine which custody-modification standard to apply when a divorce judgment awarded the parents in that case joint physical custody but added that " 'the child's primary residence shall be with the [mother], subject to all rights of visitation on the part of the [father].' " Id. at 432. This court first set forth the meaning of "joint physical custody" as that term is defined in § 30-3-151(3):

" '[P]hysical custody ... shared by the parents 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.' "

Id. at 435. The court went on to explain:

"The custody arrangement set forth in the parties' agreement and incorporated into the divorce judgment fits within this statutory definition of 'joint physical custody.' The agreement provided that the parties would share 'joint legal and joint physical custody' of the child. The judgment provided for the child to reside with the father almost one half of every month during the school year and approximately one half of each summer. It also provided that the child would spend approximately one half of certain designated holiday periods with the father. That arrangement clearly 'assures the child frequent and substantial contact with each parent.' § 30-3-151(3)."

Id. The court concluded that, to the extent that the judgment was internally inconsistent, it in fact "created a joint-physical-custody arrangement, as defined by § 30-3-151(3)." Id. at 436.

The New court also pointed out that the evidence showed that both parties in that case "had frequent and substantial contact with the child" and that each party took an active part in the child's activities. Id. at 435. The court stated that it did "not consider it material that the mother had custody for a majority of the time each month," noting that the statute does not require equal durations of custodial time. Id.

The evidence in the present case was disputed as to the amount of time each party spent with the children. The father presented evidence indicating that he had custody at least half of the time; the mother claimed she had custody as much as 80% of the time. The older child's testimony supported the mother's claim. The evidence was also disputed as to the amount of time the father spent with the children during their extracurricular activities. When evidence is in conflict, "it is the trial court's duty to resolve those conflicts in the evidence, and it is this court's duty to determine solely whether the trial court's findings are supported by substantial evidence. Pearson v. Reflector Hardware Corp., 710 So.2d 443, 445 (Ala. Civ. App. 1997)." V.I. Prewett & Son, Inc. v. Brown, 896 So.2d 564, 569 (Ala. Civ. App. 2004).

Additionally, we can find no meaningful difference between the language used in the divorce judgment in this case and that used in the divorce judgment at issue in New. The divorce judgment in this case awarded the parties joint physical custody and established a custody schedule pursuant to which the parents would exchange custody weekly. As in New, the divorce judgment established an "arrangement [that] clearly 'assures the child[ren] frequent and substantial contact with each parent.' § 30-3-151(3)." Id. at 435.

Accordingly, we conclude that the divorce judgment awarded neither party sole physical custody and directed that the parties were to rotate custody each week. As mentioned, the mother did not seek to modify custody. In seeking to move to Gulf Breeze with the children, the mother failed to make any reference to the custody schedule or how the proposed move would affect the children's school schedules, extracurricular schedules, and the like. Although the circuit court did not make specific findings of fact in denying the mother's relocation request, we do not see how it could be in the children's best interest to spend every other week in Florida and every other week in Clay County. That schedule is clearly untenable for school-aged children. When a judgment fails to include specific findings of fact, "appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous." Ex parte Bryowsky, 676 So.2d at 1324.

Based on our standard of review, the evidence presented, and the mother's failure to request a custody modification either in her pleadings or during the trial of this matter, we cannot say that the circuit court erred in denying the mother's request to relocate to Florida with the children.

The mother also contends that the father failed to meet his burden under Ex parte McLendon, 455 So.2d 863 (Ala. 1984), which requires a parent seeking to modify a previous custody award to demonstrate that a material change in circumstances has occurred such that a change of custody would materially promote the children's best interests and that the benefits of the change would offset the disruptive effect of the change in custody. McLendon, 455 So.2d at 866 ; Ex parte Cleghorn, 993 So.2d 462, 468-69 (Ala. 2008). The father counters that the McLendon standard is not applicable in this case because, he says, the previous custody judgment awarded the parties joint physical custody of the children. Therefore, the father says, the "best interests of the child" standard set forth in Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988), is applicable in this case.

Alabama appellate courts have explained the circumstances under which each standard involved in a custody-modification case is applied.

"The determination whether the McLendon standard or the 'best interests of the child' standard set forth in [ Ex parte] Couch [, 521 So.2d 987, 989 (Ala. 1988),] applies turns on whether there has been a previous custody determination as between the two parents. If no previous custody determination has been made, or if a custody determination has been made that does not favor one parent over the other, such as an award of joint custody pursuant to which the parties share both joint legal custody and joint physical custody, see § 30-3-151(1), Ala. Code 1975, the 'best interests of the child' standard applies. New v. McCullar, 955 So.2d 431, 434 (Ala. Civ. App. 2006). However, if a previous custody award favors one parent, i.e., by awarding one parent primary, or sole, physical custody, the McLendon standard applies to any modification action.
Rehfeld v. Roth, 885 So.2d 791, 794 (Ala. Civ. App. 2004) (citing Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala. Civ. App. 1995) ). Our supreme court has explained:
" 'There are different standards for a trial court to use in ruling on questions of child custody. If one parent has previously been granted primary physical custody or if one parent has "given up" legal custody, then an existing custody arrangement will be modified only if the modification materially promotes the best interests and welfare of the child. Ex parte McLendon, 455 So.2d 863, 865-66 (Ala. 1984). If neither parent has previously been given primary physical custody, then the "best interests of the child" standard applies. Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988).'
" Ex parte Johnson, 673 So.2d 410, 413 (Ala. 1994)."

Whitehead v. Whitehead, 214 So.3d 367, 370 (Ala. Civ. App. 2016).

As we previously discussed, the divorce judgment awarded neither party primary or sole physical custody. Therefore, the best-interests standard of Couch applied to the father's request to modify custody. " '[W]hen a trial court hears ore tenus 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.' " Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005) (quoting Philpot v. State, 843 So.2d 122, 125 (Ala. 2002) ).

The record indicates that, at the time of the hearing, the mother and the fiancé had already obtained a house in Gulf Breeze, Florida. Since the entry of the divorce judgment, the mother had moved to Trussville and Wedowee to live with the fiancé while the children were in school in Clay County. The mother's job was working with the fiancé's business, which, evidence demonstrates, is now based in Florida. Even though in her postjudgment motion to the circuit court the mother asserted that she would not move to Gulf Breeze if she were not permitted to relocate with the children, there was no evidence to that effect presented at the trial.

From the evidence presented, the circuit court could have concluded that the mother had already moved to Florida and that she intended to stay there with the fiancé. We have already determined that, with the mother living in Florida, the custody arrangement set forth in the divorce judgment would be unworkable. The mother did not seek a custody modification; the father did. Therefore, based on the circumstances present in this case, the record before us, and the arguments presented, we cannot say that the circuit court's judgment modifying custody and awarding the father sole physical custody of the children subject to the mother's visitation is unsupported by the evidence or is plainly and palpably wrong. Thus, the judgment of the circuit court is affirmed.

AFFIRMED.

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

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

      Section 30-3-150, Ala. Code 1975, states:
      "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."


author: DONALDSON, Judge.

text:
    K.P. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160414, 2160415, 2160416
    Court of Civil Appeals of Alabama.
    July 21, 2017
    Melissa Skipper Liebrecht, Huntsville, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

K.P. ("the mother") appeals from judgments of the Madison Juvenile Court ("the juvenile court") terminating her parental rights to A.C., H.C., and B.C. The Madison County Department of Human Resources ("DHR") filed a motion to dismiss the mother's appeals as untimely. After initially entering orders terminating the mother's parental rights to the children, the juvenile court entered orders purportedly granting postjudgment motions filed by the mother after those motions had already been denied by operation of law. The juvenile court subsequently entered orders, again purporting to terminate the mother's parental rights to each child, and the mother filed her notices of appeal within 14 days of the entry of those termination orders. However, because the notices of appeal were filed more than 14 days after the postjudgment motions had been denied by operation of law, the mother's notices of appeal were not timely filed, and, therefore, and we dismiss the appeals. See Rule 2(a)(1), Ala. R. App. P.

On December 27, 2016, the juvenile court entered judgments terminating the mother's parental rights to all three children. On January 9, 2017, the mother timely filed motions to alter, amend, or vacate the judgments, and she requested a new hearing ("the postjudgment motions"). See Rule 1(B), Ala. R. Juv. P. (providing that postjudgment motions must be filed within 14 days of the entry of the judgment). The mother also filed in each case an objection and a motion to strike two exhibits (namely, reports containing drug-test results) that were attached to the juvenile court's final judgments. The juvenile court scheduled the mother's postjudgment motions for a hearing to be held on January 23, 2017. On January 26, 2017, more than 14 days after the January 9, 2017, postjudgment motions were filed, the juvenile court rendered and electronically entered an order in each child's case in which it purported to grant the mother's postjudgment motions to the extent that it agreed to allow the parties an additional opportunity to present evidence related to the mother's drug-test results. On February 24, 2017, after an additional hearing, the juvenile court entered judgments purporting to terminate the mother's parental rights in each case. On March 8, 2017, the mother filed a notice of appeal to this court in each case. This court consolidated the appeals.

DHR filed a motion to dismiss the mother's appeals. DHR argues that the mother's January 9, 2017, postjudgment motions were denied by operation of law on January 23, 2017. See Rule 1(B), Ala. R. Juv. P. (providing that "[a] failure by the juvenile court to render an order disposing of any pending postjudgment motion within [14 days], or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period"). DHR argues that the juvenile court's orders of January 26, 2017, were void because, it asserts, the juvenile court lacked jurisdiction to render any orders in any of the cases after January 23, 2017. The mother responds that the juvenile court orally granted her postjudgment motions at a hearing held on January 23, 2017, and that the parties "constructively" agreed to extend the time to allow the juvenile court to rule on those motions. The mother also argues that the juvenile court had the authority to "correct" the date on the orders, pursuant to Rule 60(a), Ala. R. Civ. P., from January 26, 2017, to January 23, 2017, because, she asserts, the dates contained on the orders were clerical errors. On June 15, 2017, while these appeals were pending, the juvenile court, after holding an additional hearing, entered the following order in each child's case:

"Over the objections of [DHR], the Court hereby finds that due to a clerical error an order that was due to be entered on January 23, 2017 was erroneously entered on January 26, 2017. The appropriate date for this order to be entered was January 23, 2017. All records and transcripts from these proceeding[s] including the Clerk's record on appeal shall hereby reflect this corrected date of entry. In addition, this Court finds that the record on appeal shall be supplemented with this correct order."

Thereafter, DHR filed a renewed motion to dismiss in which it asserted that the juvenile court could not use Rule 60(a) to "back-date" orders. The mother filed an amended response to which she attached the juvenile court's orders.

Pursuant to Rule 1(B), Ala. R. Juv. P., a postjudgment motion

"shall not remain pending for more than 14 days, unless, within that time, the period during which a postjudgment motion may remain pending is extended:
"(1) By written order of the juvenile court on its own motion, or upon motion of a party for good cause shown, for not more than 14 additional days; or
"(2) Upon the express written consent of all the parties, which consent shall appear of record; or
"(3) By the appellate court to which an appeal of the judgment would lie.
"A failure by the juvenile court to render an order disposing of any pending postjudgment motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period."

The mother filed her postjudgment motions on January 9, 2017. On January 23, 2017, 14 days later, those motions were deemed denied by operation of law. Rule 1(B). The mother asserts that the juvenile court orally rendered an order ruling on her postjudgment motions at the January 23, 2017, hearing. Alabama Rule of Civil Procedure 58(a), made applicable in the juvenile court by Rule 1(A), Ala. R. Juv. P., defines how an order is rendered:

"A judge may render an order or a judgment: (1) by executing a separate written document, (2) by including the order or judgment in a judicial opinion, (3) by endorsing upon a motion the words 'granted,' 'denied,' 'moot,' or words of similar import, and dating and signing or initialing it, (4) by making or causing to be made a notation in the court records, or (5) by executing and transmitting an electronic document to the electronic-filing system."

It is clear that an oral pronouncement of a ruling does not constitute a "rendering" of an order under Rule 58(a), Ala. R. Civ. P. Ex parte Chamblee, 899 So.2d 244, 248 (Ala. 2004). The record is clear that no order on the mother's postjudgment motions was rendered, as defined by Rule 58(a), before the expiration of 14 days.

In P.D. v. S.S., 67 So.3d 128, 135 (Ala. Civ. App. 2011), this court held that, although the juvenile court had orally announced its intention to amend its judgment during a hearing, the juvenile court did not enter a written order within the deadline expressly agreed to by the parties, and, therefore, an order subsequently entered after the expiration of the agreed deadline was void.

Further, the record does not reflect that the time for ruling on the mother's postjudgment motions was effectively extended under Rule 1(B), Ala. R. Juv. P. The record does not contain a written order of the juvenile court extending the time, there is nothing indicating that the parties expressed their written consent to an extension, and this court did not issue an order extending the time. The mother asserts that the parties "constructively" agreed to an extension at the January 23, 2017, hearing. We note that there is no transcript of that hearing; further, the rule requires express, not constructive, consent.

Our supreme court has explained that, "[i]f a [postjudgment] motion is ... denied by operation of law, 'the trial judge then loses jurisdiction to rule on the motion' and is 'without jurisdiction to enter any further order in [the] case after that date.' Ex parte Davidson, 782 So.2d 237, 241 (Ala. 2000). Any order entered after the trial court loses jurisdiction is void." Ex parte Limerick, 66 So.3d 755, 757 (Ala. 2011). Accordingly, the mother's postjudgment motions were deemed denied by operation of law on January 23, 2017, any orders entered by the juvenile court thereafter are void, and the mother was required to file her notices of appeal within 14 days of January 23, 2017.

The mother also argues that the orders entered by the juvenile court on June 15, 2017, corrected the "clerical error" and retroactively made the juvenile court's orders granting the mother's postjudgment motions timely rendered. We first note that "an order entered pursuant to Rule 60(a) relates back to the date of the order or judgment it amends and does not bear on the timeliness of the appeal from the order or judgment." Hargrove v. Hargrove, 65 So.3d 950, 952 (Ala. Civ. App. 2010) (citing Barnes v. HMB, LLC, 24 So.3d 460, 462 (Ala. Civ. App. 2009) ).

Furthermore, although the juvenile court entered orders on June 15, 2017, purporting to correct a "clerical error" and ordered the record to reflect the date of January 23, 2017, rather than January 26, 2017, as the date the orders granting the postjudgment motions were rendered, such action is not authorized by Rule 60(a).

"Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal or thereafter, such mistakes may be so corrected by the trial court."

Rule 60(a).

" 'The trial court's authority to enter a Rule 60(a) [, Ala. R. Civ. P.,] order or a judgment nunc pro tunc is not unbridled. Merchant v. Merchant, 599 So.2d 1198 (Ala. Civ. App. 1992). It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. Michael [v. Michael, 454 So.2d 1035 (Ala. Civ. App. 1984) ].'
" McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala. Civ. App. 1995).
" 'It is important to note that the object of a judgment nunc pro tunc or motion under rule 60(a) [, Ala. R. Civ. P.,] is to make the judgment or record speak the truth. Ward v. Ullery, 442 So.2d 99 (Ala. Civ. App. 1983). It cannot be used to modify or enlarge a judgment nor to make the judgment say something other than what was originally pronounced.
Tombrello Coal Co. v. Fortenberry, 248 Ala. 640, 29 So.2d 125 (1947) ; 11 C. Wright & A. Miller, Federal Practice and Procedure § 2854 (1973).'
" Michael v. Michael, 454 So.2d 1035, 1037 (Ala. Civ. App. 1984)."

Smith v. Smith, 991 So.2d 752, 754 (Ala. Civ. App. 2008).

In Smith, this court held invalid an order entered by the trial court that purported to correct the record nunc pro tunc to reflect the parties' and the trial court's agreement to extend the time for the trial court to rule on the husband's postjudgment motion. That order, however, which changed the extension date on which the parties had agreed, "substantively change[d]" the order and "impermissibly modified the record to say something other than what was originally pronounced." Id.

Similarly, here, the record conclusively establishes that the juvenile court's orders purporting to grant the mother's postjudgment motions were manually dated and signed by hand, and thus rendered pursuant to Rule 58(a)(1), Ala. R. Civ. P., on January 26, 2017. That date was after the mother's motions had been denied by operation of law, and those orders, therefore, were void. See Limerick, 66 So.3d at 757. The record establishes that no order was rendered on the postjudgment motions on January 23, 2017. The juvenile court's orders entered on June 15, 2017, purported to change the date of the postjudgment orders to reflect an entirely different date of rendering. Such action is impermissible under Rule 60(a) and is insufficient to confer any legal effect on the juvenile court's void orders, because changing the date on which an order was rendered is not

"the kind of mistake 'associated with mistakes in transcription, alteration, or omission of any papers and documents' that can be corrected pursuant to Rule 60(a). For this Court to hold otherwise would allow Rule 60(a) to be used 'to supply non-action by the court' in the place of its action and to make its judgment 'say something other than what was originally announced.' This is not the function of Rule 60(a)."

Pierce v. American Gen. Fin., Inc., 991 So.2d 212, 217 (Ala. 2008).

The mother's notices of appeal were required to be filed by February 6, 2017. See H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1279 (Ala. Civ. App. 2009) ("A notice of appeal in a juvenile action must be filed within 14 days of the date of entry of the judgment or the denial of a postjudgment motion."). The Rules of Appellate Procedure do not permit this court to construe the mother's notices of appeal to be timely. Accordingly, we dismiss the mother's appeals as untimely filed. C.B. v. D.P.B., 80 So.3d 918, 920 (Ala. Civ. App. 2011) (" 'An appeal shall be dismissed if the notice of appeal was not timely filed to invoke the jurisdiction of the appellate court.' Rule 2(a)(1), Ala. R. App. P.").

2160414-APPEAL DISMISSED.

2160415-APPEAL DISMISSED.

2160416-APPEAL DISMISSED.

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

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

      Separate, but nearly identical, judgments were filed in each case-the case number in the case pertaining to A.C. is JU-15-218.02, the case number in the case pertaining to H.C. is JU-15-219.02, and the case number in the case pertaining to B.C. is JU-15-220.02.