author: DONALDSON, Judge.

text:
    Stuart VEST v. Alicia VEST.
    2150113.
    Court of Civil Appeals of Alabama.
    July 1, 2016.

      Stephen F. Brown, Decatur, for appellant.
    Thomas H. Guthrie, Athens, for appel-lee.
   DONALDSON, Judge.

Stuart Vest (“the husband”) appeals from the divorce judgment of the Limestone Circuit Court (“the trial court”) granting the husband and Alicia Vest (“the wife”) joint legal custody of K.V. (“the child”), granting the wife sole physical custody of the child, ordering the husband to pay child support, and granting the husband visitation with the child. The cost of child care was included in the child-support calculation, but there is no evidence in the record indicating that child-care costs will be incurred. We therefore reverse the portion of the judgment ordering the husband to pay child support and remand the cause to the trial court for it to make a new child-support determination. We affirm the other aspects of the judgment.

Facts and Procedural History

The husband and the wife were married in February 2007, and the child was born on August 28, 2010. On September 9, 2014, the husband filed a complaint for a divorce in the trial court, requesting sole physical custody of the child and child support. The wife filed a counterclaim for a divorce in which she requested sole physical custody of the child and child support.

On November 25, 2014, the husband filed a motion for an order requiring each party to take a drug-screening test. After a hearing, the trial court entered an order on December 9, 2014, granting the husband’s motion and ordering each party to submit to a drug-screening test. The results of each party’s test were negative for drugs that had not been prescribed to that party.

On February 3, 2015, the trial court conducted a pendente lite hearing in which only the husband and the wife testified. Their testimony reflected the following facts. The husband worked as an electrician and foreman. The wife worked in an automobile-manufacturing plant. She alternated between two weeks of day shifts and two weeks of night shifts. The parties separated in September 2014. Afterward, the husband continued living in the marital residence in Athens, and the wife lived with her parents in the City of Madison. The parties had informally agreed that the wife would care for the child during the two-week period when she worked day shifts and that the husband would care for the child when the wife worked night shifts. On February 20, 2015, the trial court entered a pendente lite order that continued the parties’ informal custodial arrangement.

On August 5, 2015, the wife filed a motion to enroll the child in a Madison County school to attend kindergarten. The husband filed an objection, asserting that he had enrolled the child in a school in Athens.

On August 19, 2015, the trial court conducted a trial. At the trial, the husband reiterated his request for sole physical custody of the child and for child support. In the event that he was granted sole physical custody, the husband requested permission to relocate to Eva, Alabama, where his parents lived and where he intended to move. The husband presented testimony from the child’s former day-care teacher, his boss, the pastor from his church, several friends, his stepfather, and his mother. Their testimony showed that the husband had a loving relationship with the child, that the husband and the child participated in activities together such as fishing, that the child was respectful of the husband, and that the husband took care of the child. The husband’s mother testified that, in the past year, the husband had “stepped up” as a father.

The wife and the husband lived with the wife’s parents before they purchased their marital residence. The wife’s mother tesr tified that she and her husband helped the wife care for the child. The neighbor of the wife’s parents (“the neighbor”) testified that she often participated in the family gatherings at the wife’s parents’ house. The wife’s mother and the neighbor testified that the wife had a loving relationship with the child, that the wife and the child participated in activities together, and that the wife took care of the child. They and the wife testified that, before the wife and the husband separated, the wife was the primary caretaker of the child. The wife’s mother testified that, on one or two occasions, she had had to wake up the wife to take care of the child. The wife, the wife’s mother, and the neighbor all testified that, during the marriage, the husband often had pursued hobbies such as hunting, fishing, or softball so that he was not around his family during many weekends and some holidays. The wife testified that she had agreed not to keep the husband from his hobbies, but, in her opinion, he pursued them excessively.

The husband testified regarding a few occasions when, he alleged, the wife had been drunk and regarding another occasion during which, he said, she had smoked synthetic marijuana. The husband testified that he drank alcohol on occasion and that he had smoked marijuana in high school. The husband testified that he had been taking pain medication for arthritis in his back. The wife testified to having back problems also and to having taken the husband’s pain medication on occasion. The wife testified that the husband was addicted to his pain medication, that he often ran out of the medication before the next prescription was set to be filled, and that he purchased pain medication to use in addition to the pain medication he was prescribed. The neighbor testified that the husband had asked to purchase some of her pain medication but that she had refused each time. The husband denied any addiction to his pain medication. He submitted copies of prescriptions dated March, June, and July 2015, each for 90 pain-medication pills, that, he testified, he did not fill. He testified that, on average, he took pain medication four days a week.

The husband testified that, before the marriage, he had served in the Army and Army Reserves for 13 years and that his service included tours in Iraq. The husband’s boss testified that he had not seen signs of depression or violence from the husband. Although the husband confirmed in his testimony at the pendente lite hearing that he had killed women and children in the line of duty, at trial he testified only to having killed women, not children, while in combat in Iraq. He denied that his military experience had had an effect on his emotional well-being, and he testified that he had never been diagnosed with post-traumatic sti’ess disorder. The husband testified that he would be willing to seek counseling as a condition to receiving sole physical custody of the child.

The wife testified that the husband was often depressed and quiet. She testified that he would have flashbacks at night and that she had to be very careful when waking him up while he was having a flashback. She testified that, on one occasion, the husband had kicked her and broken her ribs while she was trying to wake him up. She testified to blocking certain television channels because some shows would cause the husband to have flashbacks. She testified to asking the husband several times to seek counseling, but, she stated, he refused to do so. The husband testified that, when the child was in his custody, he and the child sometimes shared the same bed.

The wife testified to an occasion when the husband became upset and punched a hole in a wall in their house because she had had a drink with a coworker after work. The wife’s mother and the neighbor both testified that, when the wife and the husband were living with the wife’s parents, the husband had beaten the wife’s dog with his fists for 10-15 minutes because the dog had left the yard through an open gate. The wife and the husband testified to a time when the child had bruises on his backside that included bruises above the belt line. The wife testified that, while the child was in the husband’s custody, the husband had informed her that a teacher at the child’s day-care center had paddled the child. The wife called the Department of Human Resources (“DHR”), but DHR did not find an indication of abuse in its investigation of the day-care center.

The child began attending kindergarten full time a week before the trial. The parties had disagreed on the school that the child would attend. The wife initially enrolled the child in the Madison County school system. The husband canceled the child’s registration as a student in the Madison County school system and instead enrolled the child in a school in Limestone County. The parties took turns canceling the child’s registration and enrolling the child in the school system of their choice. The husband testified that, if granted sole custody of the child, he would have to transfer the child to another school system when he moved to Eva. He testified that the transfer would be a negative experience for the child, acknowledging that there would be no transfer if the mother had sole physical custody and the child attended a Madison County school.

The husband testified that, since the child began school, his work schedule enabled him to pick up the child after school and that the child had not attended day care since starting school full time. The wife’s mother testified that she took care of the child when the wife was unavailable during her custodial periods. On the day of the trial, the mother submitted a CS-41 Child-Support-Obligation Income Statement/Affidavit form (“CS-41 form”) that stated “none” for child-care costs related to employment. The husband testified that at the pendente lite hearing he had submitted a CS^l form stating $100 as the amount of child-care costs related to employment but that the CS-41 form he submitted on the day of the trial contained a zero amount for child-care costs. The husband’s CS-41 forms are not available in the record.

On August 27, 2015, the trial court entered a judgment divorcing the parties. In the judgment, the parties were granted joint legal custody, the wife was granted sole physical custody, the husband was granted standard visitation, and the husband was ordered to pay child support. On September 14, 2015, the husband filed a motion to alter, amend, or vacate the judgment, arguing that the evidence established that he should have been granted sole physical custody, that the trial court had failed to consider a joint-physical-custody arrangement, that the child-support calculation was not supported by the evidence, and that the trial court had failed to provide for the manner and place of exchanging the child in connection with the husband’s visitation. After conducting a hearing, the trial court denied the husband’s postjudgment motion on October 8, 2015. The husband filed a notice of appeal to this court on October 29, 2015.

Discussion

The husband argues that granting sole physical custody of the child to him, instead of to the wife, was in the best interests of the child. The trial court made the initial determination of custody of the child after receiving conflicting ore tenus testimony from the parties. We apply the following standard of review:

“ ‘In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. Hall v. Hall, 571 So.2d 1176 (Ala.Civ.App. 1990). The trial court’s overriding consideration is the children’s best interests and welfare. Santmier v. Santmier, 494 So.2d 95 (Ala.Civ.App.1986). The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Tims v. Tims, 519 So.2d 558 (Ala.Civ.App.1987). Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.” Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981).’”

Hennis v. Hennis, 977 So.2d 520, 527 (Ala.Civ.App.2007) (quoting Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)).

“The presumption of correctness in a trial court’s ruling where evidence is presented ore tenus is especially applicable where, as here, the evidence is conflicting. Ex parte P.G.B., [600 So.2d 259 (Ala.1992) ]. ‘The reason for the ore ten-us rule is well-established, i.e., that the trial court had the opportunity to observe witnesses as they testified, to judge their credibility and demeanor, and to observe what this court cannot perceive from a written record.’ Dobbins v. Dobbins, 602 So.2d 900, 901 (Ala. Civ.App.1992). The perception of an attentive trial judge is especially critical in a child custody case. This court is not permitted to substitute its judgment on appeal for that of the trial court if, from the evidence, there is any reasonable inference that the trial court’s decision is correct. Jones v. Wright, 555 So.2d 1127 (Ala.Civ.App.1989).”

G.T.R. v. U.D.R., 632 So.2d 495, 497 (Ala.Civ.App.1993).

Both parties provided testimonial evidence showing that they both are loving parents, participate in activities with the child, and are capable of caring for the child. The wife presented evidence indicating that the husband suffers psychological effects from his military service, which resulted in an injury to her on one occasion. There is also evidence from which the trial court could have found violent acts by the husband and a possible addiction to pain medication. Despite the husband’s characterizations of the wife in his briefs on appeal, the evidence in the record did not compel the trial court to find that the wife is incapable of caring for the child. The wife and other witnesses testified that she was the primary caretaker of the child during the marriage. See Tims v. Tims, 519 So.2d 558 (Ala.Civ.App.1987) (affirming custody determination based largely on a parent’s role as the primary caretaker); Smith v. Smith, 836 So.2d 893, 897 (Ala.Civ.App.2002). Although the husband’s work schedule perhaps allows him to spend more time with the child during a workday than does the wife’s schedule, the evidence shows that the wife’s parents are available to help her care for the child when she is working. In addition, the husband admitted in his testimony that the child would not have to transfer to a new school if the wife was granted sole physical custody and the child enrolled in a Madison County school. We conclude that “the trial court properly considered the health, safety, and well-being of the child” in granting sole physical custody to the wife. Smither v. Smither, 579 So.2d 1371, 1372 (Ala.Civ.App.1991).

The husband argues that granting the wife sole custody of the child, considering her work schedule, is tantamount to an impermissible grant of grandparent visitation to the wife’s parents. In support of this argument, the husband cites Weldon v. Ballow, 200 So.3d 654 (Ala.Civ.App.2015), a case addressing the constitutionality of a statute not at issue in this case. We note that the husband failed to raise this argument to the trial court. “This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.” Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992). As a result, no reversible error is established on this issue.

The husband next argues that the trial court was required by § 30-3-152, Ala.Code 1975, to presume that joint physical custody was in the best interests of the child and, accordingly, to make specific findings as to why joint physical custody was not granted. Section 30-3-152(c) provides: “If both parents request joint custody, the presumption is that joint custody is in the best interest of the child. Joint custody shall be granted in the final order of the court unless the court makes specific findings as to why joint custody is not granted.” Each parent in this case requested sole physical custody of the child. Without a request by both parents for joint custody, “there is no presumption that joint custody is in the best interest of the children,” DuBois v. DuBois, 714 So.2d 308, 309 (Ala.Civ.App.1998), and the trial court is not required to make findings explaining why it did not grant joint physical custody. Ex parte Byars, 794 So.2d 345, 349 (Ala.2001); Tompkins v. Tompkins, 843 So.2d 759, 764 (Ala.Civ.App.2002).

The husband asserts that the trial court was required to presume that a grant of joint physical custody was in the best interests of the child because, he asserts, the evidence favored joint physical custody, the pendente lite order provided for a shared-physical-custody arrangement, and the mutual assertions of counsel at the postjudgment hearing reflected that no evidence had been submitted to show that problems had occurred while the pendente lite order was^ in effect. None of those reasons is a basis for triggering such a presumption. Both parents sought sole physical custody of the child, and the husband requested joint physical custody only after the judgment had been entered. In the absence of a request by both parents for joint physical custody, the trial court was not required to presume that joint physical custody was in the best interests of the child or to make findings as to why joint physical custody was not granted.

The husband argues that the evidence introduced at the pendente lite hearing was almost identical to the evidence produced at the trial and that, therefore, the trial court should have granted the same shared-physical-custody arrangement as had been ordered in the pendente lite order. “We note, however, that a trial court is not bound by a penden-te lite custody arrangement, which is merely temporary in nature and which, in this case, was not based on a consideration of the evidence fully presented at trial,” Anderson v. Anderson, 199 So.3d 66, 68 (Ala.Civ.App.2015)(citing Ex parte Bland, 796 So.2d 340, 343-44 (Ala.2000)). Testimony elicited only during the trial included the neighbor’s testimony regarding the husband’s attempts to purchase pain medication from her and regarding the details of his beating of the family’s dog. The testimony from witnesses not present at the pendente lite hearing could have helped the trial court to assess credibility, weigh evidence, and formulate factual determinations. Although the trial court received testimony on many of the same issues during both the pendente lite hearing and the trial, we cannot say that the evidence was, or was nearly, identical. The reasons for affirming the grant of sole physical custody to the wife also apply to this issue. In addition, the parties exhibited conflict over enrolling the child in school. Therefore, we conclude that the portion of the judgment addressing custody is not reversible on this basis.

Regarding his visitation with the child, the husband argues that the provision in the judgment establishing the place for exchanging the child is not supported by the evidence and exceeds the trial court’s discretion. “[D]ivorce judgments should ‘be interpreted or construed like other written instruments.’ ” Cockrell v. Cockrell, 40 So.3d 712, 715 (Ala.Civ.App.2009) (quoting Sartin v. Sartin, 678 So.2d 1181, 1183 (Ala.Civ.App.1996)). “ ‘[I]f the terms of a judgment are not ambiguous, they should be given their usual and ordinary meaning.’” Ratliff v. Ratliff, 5 So.3d 570, 586 (Ala.Civ.App.2008) (quoting Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991)). The provision in the judgment concerning the exchange of the child for visitation states:

“For so long as the children [sic] reside in Limestone County, Alabama, all visitation will be accomplished by the noncustodial parent picking up and re-delivering the minor children [sic] to the residence of the custodial parent, or such other reasonable place as that parent may indicate, at the times provided for each period of visitation.”

The husband asserts that it is not in the best interests of the child to require him to travel to the wife’s residence in the City of Madison for each visitation with the child. However, the provision does not impose any requirements regarding the exchange of the child because, as the provision clearly states, the requirements are subject to the condition that the child reside in Limestone County. The judgment granted the wife sole physical custody of the child, and she resides in the City of Madison, which is in Madison County. As a result, the provision is currently inapplicable. The husband does not contend that a provision regarding visitation exchanges was needed to settle a dispute between the parties. To the contrary, the husband asserts that the parties communicated and worked together effectively regarding custodial matters. The husband therefore fails to establish a ground for reversal on this issue.

The husband also argues that the inclusion of $100 as work-related child-care costs in the child-support calculation was not supported by the evidence. The parties do not dispute that the child was no longer attending the day-care center he had attended before starting school full time. The wife’s CS-41 form, submitted at the time of trial, indicates no child-care expenses, and she offered no evidence regarding child-care expenses. The husband fails to discuss his testimony regarding the CS-41 form that listed $100 for child-care costs, which was submitted at the penden-te lite hearing. That amount is the same amount the trial court used in its child-support calculation. In Evans v. Evans, 978 So.2d 42 (Ala.Civ.App.2007), we held that child-care costs were improperly included in the child-support calculation when evidence presented by the custodial parent did not show that child-care costs would be incurred and only the noncustodial parent had listed an amount for childcare costs in his CS-41 form. We therefore conclude that insufficient evidence supports the inclusion of child-care costs in the trial court’s calculation of child support.

For the foregoing reasons, we reverse the portion of the judgment determining the amount of child support granted to the wife and remand the cause to the trial court for it to recalculate child support in a manner consistent with this opinion. We affirm all other aspects of the judgment.

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

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

      . During the trial, the wife testified that she could not remember if she had been in Nashville, Tennessee, on February 8, 2015, offhandedly commenting that she did not know what she did the day before. She also testified that she did not know where the City of Brentwood was. The husband testified to a few occasions when, he said, the wife used alcohol or drugs. The evidence in the record does not show that the trial court was compelled to find that the wife had a problem with alcohol or drugs or that she had a severe memory problem as a result of her use of alcohol or drugs.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    A.H. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES. J.P., Sr. v. Madison County Department of Human Resources.
    2150160 and 2150201.
    Court of Civil Appeals of Alabama.
    July 1, 2016.

      Brian D. Clark, Huntsville, for appellant A.H.
    Melissa Skipper Liebrecht, Huntsville, for appellant J.P., Sr.

      Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   THOMPSON, Presiding Judge.

On June 11, 2015, the Madison County Department of Human Resources (“DHR”) filed in the Madison Juvenile Court (“the juvenile court”) four separate petitions seeking to terminate the parental rights of A.H. (“the mother”) and J.P. (“the father”) to their four minor children, all of whom were born between 2011 and January 2015. The juvenile court consolidated the four actions and conducted an ore tenus hearing on DHR’s petitions on October 28, 2015.

On November 2, 2015, the juvenile court entered four virtually identical judgments in which it ordered that the mother’s and the father’s parental rights be terminated to each of their four children. On November 9, 2015, the mother filed a “motion to reconsider,” and on November 10, 2015, she filed a motion requesting a new trial in each of the four actions. The father filed a postjudgment motion in each action on November 10, 2015. The juvenile court entered orders on November 10, 2015, denying the mother’s postjudgment motions, and it denied the father’s postjudgment motions on November 12, 2015. Both parents timely appealed to this court; this court consolidated the appeals.

The grounds warranting a termination of parental rights are set forth in § 12-15-319, Ala.Code 1975. With regard to the consideration of a petition seeking to terminate parental rights, this court has explained:

“A juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternar tives to a termination of parental rights.”

B.M. v. State, 895 So.2d 319, 331 (Ala.Civ.App.2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990)) (emphasis added). The appellate courts must apply a presumption of correctness in favor of the juvenile court’s judgment in a termination-of-parental-rights action. J.C. v. State Dep’t of Human Res., 986 So.2d 1172, 1183 (Ala.Civ.App.2007). “Additionally, we will reverse a juvenile court’s judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence.” Id.

In their briefs submitted to this court, each parent argues only that the juvenile court erred in determining that there were no viable alternatives to the termination of his or her parental rights. See Ex parte Beasley, supra. Neither the mother nor the father argues that the juvenile court erred in its dependency determinations or in determining that grounds existed under § 12-15-319 warranting the termination of their parental rights. Arguments not asserted on appeal are deemed to have been waived. Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) (“When an appellant fails to argue an issue in its brief, that issue is waived.”).

The juvenile court made the following relevant factual findings in its judgments:

“Matters pertaining to the custody and welfare of the children of [the mother] came to the attention of [DHR] when a report was received on or about December 6, 2013, indicating that on December 5, 2013, she had given birth to [M.K.P.] in a toilet at her residence. The maternal grandmother was present in the home when that child was born.
“The reporter expressed concern that the mother and/or the maternal grandmother delayed seeking medical attention for the newborn. Apparently the child was still in the toilet, with the umbilical cord still attached to the mother, when emergency medical personnel were summoned.
“[M.K.P.], who was bom prematurely, was hospitalized for several weeks. During that time [DHR] investigated the initial report and began monitoring the welfare of his siblings. [DHR] and the mother entered into a safety-plan agreement, under the terms of which [M.K.P.] and his siblings, [A.H.] and [J.P., Jr.,] were permitted to remain in the home with the mother, under the supervision of maternal relatives. (The fourth child, [J.K.H.] had not yet been born.) Thereafter the maternal grandmother was incarcerated for reasons not apparent from the testimony, and [DHR] began to have concerns about the willingness and capability of other relatives to monitor and protect the children.
“During this period of time, the local Health Department was also involved with the family with regard to tuberculosis. (The testimony did not indicate who in the household suffered from that illness, but such diagnosis apparently led to a Health Department employee monitoring the family and reporting to [DHR] concerns about the welfare of the children.) The Health Department employee reported that the mother yelled at the children, that she was not holding the infant properly, and that her interactions with the children were ‘negative.’
“In or about February 2014, [M.K.P.] was again hospitalized, with a diagnosis of failure to thrive, and [J.P., Jr.,] was hospitalized for respiratory difficulties.
“As a result of concerns over the safety and welfare of the three children, [DHR] eventually effected a summary removal of them from the home and filed petitions in this Court alleging that they were dependent. Following a shelter care hearing conducted on March 10, 2014, those children were placed in the pendente lite custody of [DHR]. Following an adjudicatory hearing on the dependency petitions conducted on June 19, 2014, those children were placed in the temporary legal custody of [DHR], Immediately upon the birth of [J.K.H.] in January 2015, he, too, was removed from the care of the mother and placed in the pendente lite custody of [DHR]. He was placed in [DHR’s] temporary legal custody following an adjudicatory hearing on April 23, 2015. Since the summary removals and shelter care hearings, the children have remained in foster care, and none has been returned to the custody of a parent. [J.K.H.] has never been in the custody of a parent since his birth.
“In order to assess the parenting capabilities of the mother, [DHR] arranged and paid for a psychological evaluation which was completed by Dr. Lois Petrella. Dr. Petrella’s testing revealed the mother has a full-scale Intelligence Quotient of 62. Dr. Petrella found the mother’s prognosis to be ‘poor due to low intelligence.’ She opined that ‘results of this assessment suggest that [the mother] does not possess adequate levels of intelligence, insight and judgment required for raising children.’ She recommended that the children remain in [DHR’s] care.
“In an effort to facilitate possible reunification with the mother, [DHR] offered reunification services which included parenting training. [DHR’s] worker testified that the mother attended some training sessions but missed others. In her testimony, the mother candidly acknowledged that she had not completed parenting training because she ‘did not want to’ do so.
“During the time the child and the child’s siblings have been in the care of [DHR], the mother has paid no child support, although she is employed. She and the maternal grandmother have, however, provided gifts, including clothing, for the children. The mother has also exercised visitation with the children.
“The Court finds, from clear and convincing evidence, that the mother is unable or unwilling to discharge her responsibilities to the children. The Court further finds that the conduct and condition of the mother is such as to render her unable or unlikely to change in the foreseeable future.
“The mother of the children is not now, and has never been, married. DNA paternity testing completed in July 2015, establishes a 99.99% probability that [the father] is the biological father of all four children, and the parties have stipulated that he is the father. The Court now adjudicates [the father] to be the father of all four of the above-named children.
“Despite undisputed evidence that the father was aware of the mother’s pregnancies and the birth of the children; despite his own belief that he was the father of one or more of the children; and despite placement of the children in foster care in March 2014, the father made no apparent effort for more than one year to contact [DHR], to visit the children, to inquire into their well-being, or to otherwise fulfill his duties as a parent.
“[DHR's] social worker testified that she first met the father in September 2014. After that date, the social worker made numerous and diligent efforts to arrange DNA paternity testing. She spoke with the father by telephone on several occasions and had him provide her several convenient dates for testing. She set up the testing, but the father repeatedly failed to appear to give a DNA sample and failed to communicate with the social worker. DNA samples were taken from the mother and each of the children, but the father did not submit to paternity testing until July 14, 2015, some sixteen months after the three older children were brought into [DHR’s] care.
“The father acknowledges in his testimony that he has been convicted of possession of cocaine, a felony, on two occasions, and that a third felony charge of possession of cocaine is now pending in the Circuit Court of Madison County, Alabama.
“The father lacks stable housing and employment. He testified that he had spent recent nights at the home of a relative in the Mason Court public housing development. He acknowledged that he is not on the lease for that apartment, and he is likely ineligible to lawfully reside in public housing due to his felony drug convictions.
“During the time the children have been in the care of [DHR], the father has paid no child support. There is no evidence before the Court that he has provided any gifts or otherwise provided for the material needs of any of the children.
“The Court finds, from clear and convincing evidence, that the father is unable or unwilling to discharge his responsibilities to the children. The Court further finds that the conduct and condition of the father is such as to render him unable or unlikely to change in the foreseeable future.
“In determining whether to terminate parental rights, the Court is obligated to consider factors which include, but are not limited to, the presumptive right of the parents to raise their child; the presumptive right of the child to be raised by his parents; the efforts made by the parents to rehabilitate themselves to a point at which they may safely parent the child; the efforts made by [DHR] to offer reunification services to the parents; the personal history and conduct of the parents; the length of time the child has been out of the custody of the parents; the efforts, or lack of efforts, by the parents to provide at least minimal material support for the child while the child has been out of their care; the efforts, or lack of efforts, by the parents to maintain contact and visitation with the child; and, in ore terms proceedings, the demeanor and credibility of the witnesses. The Court has considered each of those factors in this matter and has concluded that no viable alternative to termination of parental rights exists which would meet the permanency needs of the child. The best interests of the child require that the parental rights of the child’s parents be terminated.”

In addition to the foregoing, the juvenile court determined that there were no viable alternatives to the termination of the parents’ parental rights. The evidence presented on that issue indicates that the children were placed in foster care in March 2014. Carmen Rice, the DHR social worker assigned to the children between March 2014 and June 2015, testified that, in April 2014, she contacted J.P.W., the children’s paternal grandmother, to inquire whether she would serve as a relative placement for the children. It is undisputed that the paternal grandmother refused to become involved until she was provided DNA test results establishing the father’s paternity of the four children. Rice testified regarding her repeated efforts to have the father submit to DNA paternity testing. Rice stated that the father had failed to appear for scheduled testing numerous times. In addition, Rice testified that the mother had contacted the father on a monthly basis between September 2014 and June 2015 to discuss the DNA testing; according to Rice, the mother always told her that the father had said he would contact Rice.

In late June 2015, Tiffany Wiley, another DHR social worker, was assigned to the children’s cases. Wiley testified that the father submitted to DNA testing in mid-July 2015 and that that testing established his paternity of all four children. We note that the youngest child was born in January 2015, after the three older children had been in foster care for almost one year.

Wiley testified that she contacted the paternal grandmother in early August 2015 and informed her of the paternity-test results. At that point, the paternal grandmother stated that she would serve as a placement for the children. The paternal grandmother lives in another county, so the process for obtaining a home evaluation resulted in the paternal grandmother’s home being approved only shortly before the termination-of-parental-rights hearing. That home study was favorable to the paternal grandmother, but it noted that the paternal grandmother’s boyfriend, who lived in the home, was convicted of felony assault in connection with his shooting of another man in 2002. According to the DHR home study and the testimony of Wiley in response to questioning by the juvenile court, the boyfriend claimed that he shot the other man in self-defense.

At the termination hearing, the paternal grandmother testified that the father had informed her that he “had a child” at the time of the oldest child’s birth in 2011. She also admitted that he had informed her of the births of the other three children, and she stated that her niece had also told her that her son had fathered the four children. However, although she lived approximately one hour away from the family, the paternal grandmother had never seen or met any of the four children.

The paternal grandmother stated that, during the period that these young children were in foster care, she had been busy taking care of her adult child, who had had two strokes and was disabled. The paternal grandmother also testified that the father had never brought the children to visit her and that she had not attempted to visit them.

In their briefs submitted to this court, the parents rely on similar theories and authority in support of their argument that placing the children with the paternal grandmother was a viable alternative to the termination of their parental rights. The mother cites A.M. v. St. Clair County Department of Human Resources, 146 So.3d 425 (Ala.Civ.App.2013), in support of her argument that DHR did not demonstrate that it had investigated all relative resources. In AM., supra, the paternal grandmother in that case, who lived in Michigan and did not know the children well, had initially not been willing to serve as a resource for the children. One month before the St. Clair County DHR filed its termination petition, the paternal grandmother notified the DHR social workers that she was willing to serve as a relative resource for two of the four children, but DHR delayed initiating paperwork for a home study for four months. The home study had not been completed at the time of the termination hearing. This court reversed the termination judgment as it pertained to the father in that ease, concluding that the juvenile court had erred “in failing to consider” the paternal grandmother as a viable relative resource for the children. A.M. v. St. Clair Cty. Dep’t of Human Res., 146 So.3d at 437.

Both parents cite V.M. v. State Department of Human Resources, 710 So.2d 915 (Ala.Civ.App.1998), in which this court reversed a termination-of-parental-rights judgment when the maternal grandmother, who initially refused to be a resource for the children, later notified the State DHR of her interest in taking the children but did not follow through with contacting DHR to arrange the home study. DHR did not perform a home study, and, after two more years, the juvenile court directed DHR to file the termination petition. This court concluded, among other things, that DHR had failed to investigate the maternal grandmother’s current circumstances and that, therefore, because of a failure of proof on the issue of the maternal grandmother’s current circumstances, the juvenile court had erred in determining that there were no viable alternatives to termination. V.M., 710 So.2d at 921.

The father also cites M.H. v. Cleburne County Department of Human Resources, 158 So.3d 471 (Ala.Civ.App.2014), in which relatives had initially been unwilling to provide a home for the children but changed their minds a few weeks before the Cleburne County DHR filed its termination petitions. The evidence indicated that DHR had not timely or adequately investigated those relatives before the termination hearing, and this court, among other things, concluded that the juvenile court had erred in determining that DHR had met its burden of demonstrating that there were no appropriate relative resources in that case. M.H. v. Cleburne Cty. Dep’t of Human Res., 158 So.3d at 483.

The parents rely on those cases to support their contention that DHR did not meet its burden of demonstrating that the paternal grandmother was not a suitable placement for the children. We note, however, that the authorities on which the parents rely are distinguishable, first, because in A.M., supra, V.M., supra, and M.H., supra, the prospective relative resources sought to be considered as placements for the children before the termination-of-parental-rights petitions were filed and, second, because DHR’s efforts to investigate the prospective relative placements were either not prompt or not completed before the termination hearings in those cases.

Moreover, the most significant distinction between the facts of this case and those of the authorities relied upon by the parents in their appellate briefs is that, in this case, DHR presented evidence regarding the paternal grandmother’s current circumstances and the juvenile court carefully considered that evidence. With regard to the parents’ contention that placing the four children with the paternal grandmother was a viable alternative to the termination of their parental rights, the juvenile court found in each of its termination judgments:

“Having determined that neither the mother nor the father of the child is presently able, or likely to become able in the reasonably foreseeable future, to effectively and safely parent the child, the Court has considered alternatives to termination of parental rights, including permanent placement with a relative. With the exception of the child’s paternal grandmother, as discussed below, neither [DHR], the Court, the guardian ad litem, nor the parents have been able to identify any relative who might assume custody of the child. Relatives who were considered were either unwilling or unable to assume custody and provide permanency for the child.
“[DHR] previously requested a home study to be conducted by the Dallas County, Alabama, Department of Human Resources with respect to the paternal grandmother, who is a resident of Selma, Alabama. Immediately before the hearing, [DHR] received a generally favorable report of that home study, which was offered in evidence for the Court’s consideration. Additionally, the paternal grandmother appeared and testified at the hearing on termination of parental rights.
“For approximately thirteen years, the paternal grandmother has resided with a man she describes as her flaneé, and with her adult daughter, who is handicapped as a result of having suffered strokes. The [paternal] grandmother testified that she was aware of the existence of the children who are at issue in this case when each was born (although she was unable to state when any of them were born). She was likewise aware, when each was born, that her son was likely the biological father. Her son and a niece both informed her of those facts, and she also occasionally spoke by telephone with the mother. From the time each of the three older children was born, and continuing until [DHR] became involved with the children, the paternal grandmother made absolutely no effort to meet any of the children, and she did nothing to establish any relationship with any of them. (As noted above, the fourth child was born after [DHR] became involved with the family.)
“Shortly after [DHR] became involved with the three older children, a social worker contacted the paternal grandmother to inquire about her availability as a relative resource for them. The grandmother responded that until such time as DNA testing proved a biological connection to her son, she would not become involved with the children. She stated that if DNA testing proved her son to be the father, she would be interested in ‘being involved/ in some unspecified manner, with the children.
“Even after she became aware of [DHR’s] involvement with the children, the paternal grandmother still made no effort to see the children or to establish any relationship with them. In fact, she acknowledged in her testimony that as of the date of the hearing, she had yet to even see, in person, any of the four children.
“After careful review of the Dallas County home study report; after consideration of the paternal grandmother’s demeanor and her ore tenus testimony; after consideration of her failure to have or seek to have even the slightest relationship with the children before the hearing on termination of parental rights; and after consideration of all the evidence adduced herein, the Court finds that placement with the paternal grandmother would be contrary to, and not in the best interests of, the children, and that such placement is not a viable alternative to termination of parental rights. Furthermore, the Court cannot conclude, from the evidence, that the paternal grandmother will meet the permanency needs of the children.
“[DHR] has considered less drastic alternatives to filing a petition to terminate parental rights. Neither [DHR] nor this Court believes that there is any alternative less drastic than termination of parental rights available to serve the best interests of the child. Placement alternatives which were considered were determined not to be in the child’s best interests. Despite a diligent search, [DHR] has been unable to locate a suitable relative to assume custody of the child.
“The Court finds that [DHR] has made reasonable efforts to identify and locate suitable relatives of the child in order to determine whether such relatives might provide care for the child, thus avoiding the necessity of terminating parental rights. Those efforts have been to no avail. No suitable relative has been located, and no suitable relative is known to the Court.
“The best interests of the child require that the parental rights of the child’s parents be terminated and that the child be placed in the permanent legal custody of the Alabama Department of Human Resources for the purpose of adoptive planning.”

Thus, the record in this case demonstrates that, unlike in the cases cited by the mother and the father in their appellate briefs, the juvenile court did consider the paternal grandmother as a potential resource for the children. However, the juvenile court rejected the paternal grandmother as a viable alternative to termination. The parents argue that the evidence does not support that decision. This court has explained:

“Before terminating parental rights, a juvenile court must determine that there are no viable alternatives. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). One viable alternative is placement of the child at issue with a suitable relative qualified to receive and care for the child while the parent completes the rehabilitative process, when such placement serves the best interests of the child. See Ex parte J.R., 896 So.2d 416 (Ala.2004). A relative is suitable and qualified to receive and care for a child when the relative ‘can safely and properly discharge the parental responsibilities of meeting the child’s needs during the child’s minority.’ J.B. v. Cleburne County Dep’t of Human Res., 991 So.2d 273, 283 (Ala.Civ.App.2008). Whether a relative is suitable to assume custody of a child and whether such placement serves the best interests of the child are both questions of fact to be determined by the juvenile court. See T.B. v. Cullman County Dep’t of Human Res., 6 So.3d 1195, 1204-05 (Ala.Civ.App.2008).”

R.L.M.S. v. Etowah Cty. Dep’t of Human Res., 37 So.3d 805, 812 (Ala.Civ.App.2009). “ ‘On appeal from ore tenus proceedings in a termination-of-parental-rights case, this court presumes that the juvenile court’s factual findings regarding viable alternatives are correct.’” T.V. v. B.S., 7 So.3d 346, 352 (Ala.Civ.App.2008) (quoting J.B. v. Cleburne Cty. Dep’t of Human Res., 991 So.2d 273, 282 (Ala.Civ.App.2008)).

In this case, the evidence indicated that the father informed the paternal grandmother that he had four children and that the paternal grandmother had never met the children. The paternal grandmother refused to serve as a placement for the children when the children were first placed in foster care, and she refused to consider serving as a placement until she received scientific proof of the father’s paternity of the four children. The paternal grandmother stated that she had heard “rumors” that the children were not the father’s, which caused her not to become involved with the children. However, as the juvenile court noted in its judgments, it is the province of the juvenile court, as the trier of fact, to observe the witnesses as they testify and to assess their demean- or and credibility. See Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). Based on the juvenile court’s ability to observe the witnesses during an ore tenus hearing, this court must afford a presumption of correctness to its factual findings. Id. It appears from the juvenile court’s findings in its termination judgments that the juvenile court did not consider the lack of definitive scientific proof of the father’s paternity to excuse, under the facts, the paternal grandmother’s failure to attempt any type of contact with the children. We note that although the juvenile court was required to consider the paternal grandmother’s current circumstances in evaluating her as a potential relative resource, it was not required to disregard her past conduct with regard to the children.

In rejecting placing the children with the paternal grandmother as a viable alternative to termination, the juvenile court cited the foregoing evidence, as well as its concerns about the paternal grandmother’s boyfriend, who lives in the home, and her need to take care of her disabled adult daughter. Although the paternal grandmother testified that she would make the boyfriend leave her home if necessary in order to obtain custody of the children, the credibility of that claim was for the juvenile court to determine. See Ex parte Fann, supra. The juvenile court concluded that it did not believe that the paternal grandmother could meet the children’s needs for permanency.

In his brief, the father relies on T.V. v. B.S., supra, in which, on remand following a reversal, the juvenile court concluded that there were no viable alternatives to termination. In reaching that determination, the juvenile court in that case relied, in part, on the testimony of expert witnesses who had examined the child. In relying on that authority, the father in this case argues that, unlike in T.V. v. B.S., supra, the evidence does not suggest that placing the children with the paternal grandmother would be harmful or not in their best interests. In making that argument, the father ignores that the children have never met their paternal grandmother and that she declined establishing a relationship with them in spite of the father's informing her that the children were his children.

It is clear that the juvenile court carefully considered the evidence presented to it regarding the paternal grandmother as a possible relative resource for the children. The juvenile court determined, under the facts of this case, both that the paternal grandmother was not a viable alternative to termination and that placing the children with her would not be in the children’s best interests. Those determinations are within the discretion of the juvenile court, and they are entitled to a presumption of correctness on appeal. See R.L.M.S. v. Etowah Cty. Dep’t of Human Res., supra; see also M.J.C. v. G.R.W., 69 So.3d 197, 208-10 (Ala.Civ.App.2011) (explaining that a last-minute offer to serve as a relative resource to forestall termination was not a viable alternative to the termination of parental rights). Given the evidence in the record on appeal, we cannot say that the mother and the father have demonstrated that the juvenile court exceeded its discretion in determining that placing the children with the paternal grandmother was not a viable alternative to the termination of their parental rights. Accordingly, we affirm.

2150160—AFFIRMED.

2150201—AFFIRMED.

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.

      . The youngest child is referred to at places in the judgments and in the record on appeal as "J.K.P.,” but in the style of the action pertaining to that child and in the style of the judgment pertaining to that child, the child is referred to as "J.K.H."


text:
    EX PARTE MONTGOMERY COUNTY DEPARTMENT OF HUMAN RESOURCES. (In re the Matter of T.J., a minor child).
    2150685.
    Court of Civil Appeals of Alabama.
    July 1, 2016.

      Luther Strange, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for petitioner.
    Anita L. Kelly, respondent.
   THOMPSON, Presiding Judge.

The Montgomery County Department of Human Resources (“DHR”) petitions this court for a writ of mandamus directing the Montgomery Juvenile Court to enter an order adjudicating T.J. (“the child”) dependent. DHR also asks this court to direct the juvenile court to vacate its order stating that it would not sign an order declaring the child dependent until “any and all reasons supporting a finding of dependency are specifically set out in writing and supported by the evidence.”

The materials that DHR and the juvenile-court judge have submitted in support of and in opposition to DHR’s petition indicate that on February 12, 2015, DHR filed a petition alleging that the child was dependent and asking that temporary legal custody of the child be awarded to DHR. A fire had occurred at the child’s house; two of the child’s siblings were killed and the child suffered severe burns in the fire. After an expedited hearing on February 20, 2015, the juvenile court entered an order stating, among other things, that there was no finding that the child’s parents or other family members had been abusive or neglectful toward the child. However, the juvenile court found, there was no family member who could provide the “medically fragile” child with the in-home medical treatment she needed as a result of the injuries she had received in the fire; therefore, the child was placed in DHR’s custody. Specifically, the child was placed in a therapeutic foster home.

On September 15, 2015, the child’s mother, J.B. (“the mother”), filed a petition seeking to regain custody of the child. On December 23, 2015, the child’s maternal grandmother, H.B. (“the maternal grandmother”), filed a dependency petition in which she sought custody of the child. Subsequently, on March 3, 2016, the child’s father, Tym.J. (“the father”), filed a petition in which he, too, sought custody of the child. The hearing on the petitions was held over several days from November 2015 until April 15, 2016.

According to affidavits filed by two attorneys for DHR,. David Smith and Samantha Naramore, in support of the petition for a writ of mandamus, on April 15, 2016, the juvenile-court judge called the attorneys into the courtroom before the hearing and asked them whether an agreement had been reached in this case. When the attorneys stated that there was no agreement, the juvenile-court judge advised the attorneys that, based on the evidence thus far presented, “she was inclined to find the child dependent.” The parties were directed to try again to reach an agreement. The attorneys’ affidavits indicate that, based on the juvenile-court judge’s statement regarding her inclination to find the child dependent, the parties reached an agreement with regard to all of the petitions involved in this matter. The parties then notified the juvenile-court judge of the agreement.

On April 15, 2016, the juvenile court rendered an order stating that the parties had announced that “each petitioner will stipulate that [the] child is dependent and asked that dispositional [hearing] be set at a later time to allow further investigation” into the mother’s ability to meet the child’s medical needs and to investigate the maternal grandmother’s home. The April 15, 2016, order directed Smith to prepare a proposed order to be circulated to all counsel.

No additional hearings were held. However, on April 20, 2016, the juvenile court rendered an order stating that the parties had announced that an agreement had been reached but noting that “the specific terms of the agreement were not presented to the court. Court will not sign order declaring child dependent until any and all reasons supporting a finding of dependency are specifically set out in writing and supported by the evidence.”

The case-action summaries for each of the petitions in the juvenile court indicate that the orders of April 15 and April 20, 2016, were not entered in the State Judicial Information System, known as “SJIS,” until May 13, 2016. We note that Rule 58(c), Ala. R. Civ. P., requires that an action of the court be entered in SJIS to be “entered” as an order or judgment. See Rule 58(c) (“Upon rendition of an order or a judgment ..., the clerk shall forthwith enter such order or judgment in the court record. An order or a judgment shall be deemed ‘entered’ ... as of the actual date of the input of the order or judgment into [SJIS].”). The case-action summaries also indicate that the two April orders were not sent electronically to the parties until May 13, 2016. By that time, DHR had submitted a proposed order regarding each petition stating that, “[b]ased on the stipulations and the agreement presented by the parties,” the child was dependent and that it was in her best interest that temporary legal custody remain with DHR. The proposed order further stated that DHR had made reasonable efforts to finalize the permanency plan for the child and directed the juvenile-court clerk to set the matter for a dispositional hearing.

On May 12, 2016, the day before the juvenile court’s orders were entered and distributed to the parties, DHR filed a motion asking the juvenile court to enter an order adjudicating the child dependent. On May 18, 2016, five days after the juvenile court’s orders rendered on April 15 and April 20, 2016, were entered, DHR filed a motion to stay enforcement of the “April 20, 2016,” order in which the juvenile-court judge stated that she would not sign a dependency order unless the court was provided with written reasons specifying why the child was dependent. That same day, DHR also filed its mandamus petition with this court. This court called for a response to the petition, and the juvenile-court judge timely complied with the request.

In its petition, DHR contends that, because all the parties involved in this action stipulated to the dependency of the child, the juvenile court has erred or abused its discretion by refusing to enter an order adjudicating the child dependent. In response to DHR’s argument, the juvenile-court judge counters that the attorneys for the parties “rendered the ultimate conclusion, which is the legal duty of the trial court to determine based either on findings of fact or a stipulation of facts by or among the parties and/or counsel.” The juvenile-court judge states that she anticipated that the proposed order submitted by DHR’s attorney

“would include facts to support a finding of dependency and so required the same in [the] order dated April 20, 2016. The [juvenile] court was then and now believes that this is mandatory, as a child cannot be declared dependent without clear and convincing evidence in support of the legal conclusion of dependency.”

This court has previously considered the argument put forth by the juvenile-court judge. In K.D. v. Jefferson County Department of Human Resources, 88 So.3d 893, 896 (Ala.Civ.App.2012), a case involving the dependency of a child, we wrote:

“Ordinarily, a juvenile court cannot find a child dependent without receiving clear and convincing evidence establishing the dependency of the child. See Ala.Code 1975, § 12-15-310(b). However, nothing in the law prevents parties from stipulating to the dependency of a child. ‘A stipulation is a judicial admission, dispensing with proof, recognized and enforced by the courts as a substitute for legal proof.’ Spradley v. State, 414 So.2d 170, 172 (Ala.Crim.App.1982). Therefore, when parties stipulate to the dependency of a child, a juvenile court may find a child dependent without clear and convincing evidence establishing the child’s dependency.”

In this case, upon the stipulation of dependency, DHR was not required to present additional evidence to the juvenile court regarding its assertion that the child was still dependent. This court’s research reveals no authority requiring parties to establish or to submit in writing the facts upon which a stipulation of dependency is based. The juvenile-court judge is mistaken that such a submission is “mandatory.” Moreover, we note that the juvenile-court judge had heard evidence in support of the parties’ respective positions over the four days the hearing was held in this matter. Therefore, the juvenile-court judge is already aware of the factual assertions she directed to be included in the proposed order. Accordingly, we conclude that the juvenile-court judge has exceeded her authority by refusing to enter an order on the issue of dependency based solely on her belief that the parties cannot enter a stipulation of dependency without also stipulating to facts demonstrating the child’s dependency. Thus, that portion of DHR’s petition seeking to have the order rendered on April 20, 2016, set aside is granted. The juvenile court is directed to vacate the order rendered on April 20, 2016, in which it refused to enter an order unless and until it is provided with written reasons specifying why the child is dependent.

In reaching this conclusion, we are not holding that the juvenile court must ignore the evidence presented during the hearing before the parties reached their settlement. If the juvenile-court judge is of the opinion that the evidence already presented indicates that the child is not dependent, she may reject the parties’ stipulation. See Montgomery v. Mardis, 416 So.2d 1042, 1043 (Ala.Civ.App.1982) (holding that a trial court is not bound by agreements of fact that are contrary to the facts as disclosed by testimony). Thus, to the extent that DHR asks this court to direct the juvenile court to enter an order finding the child dependent, the petition is denied.

That being said, however, we note that the juvenile-court judge has a duty to “dispose promptly of the business of the court.” Canon 3.A.(5), Canons of Judicial Ethics. We urge the juvenile court, in all haste, to enter an order on the issue of the child’s dependency or to set the matter for a further hearing so that this action may be resolved as soon as possible. DHR’s motion to stay enforcement of the order rendered on April 20, 2016, is denied as moot.

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

PITTMAN, THOMAS, MOORE, and DONALDSON, JJ., concur.


author: THOMPSON, Presiding Judge. DONALDSON, Judge,

text:
    Glenda HUDSON v. Emanuel HUDSON.
    2150115.
    Court of Civil Appeals of Alabama.
    July 8, 2016.
    Glenda Hudson, Jasper, for appellant.
    S. Wayne Fuller of Fuller, Willingham, Fuller & Carter, LLC, Cullman, for appel-lee.
   THOMPSON, Presiding Judge.

Glenda Hudson (“the wife”) appeals from the Walker Circuit Court’s denial by operation of law of her postjudgment motion, which amounted to the trial court’s refusal to enter two qualified domestic relations orders (“QDROs”) to effect the transfer of money from two accounts held by Emanuel Hudson (“the husband”) after the parties divorced.

The record indicates the following. The wife, who is an attorney, filed a complaint for a divorce in October 2004. On April 3, 2007, more than two years after the commencement of the action, the presiding judge of the Walker Circuit Court notified the Alabama Supreme Court that all of the circuit judges and district judges in the circuit had recused themselves from the case. On April 20, 2007, the Chief Justice of the Alabama Supreme Court assigned a retired circuit judge to preside over the action. On December 2, 2010, a hearing was held during which the parties announced that they had reached a settlement agreement. The agreement, which was read into the record at the hearing, provided in pertinent part:

“The parties agree that the [husband] has retirement funds in a thrift savings plan and also in a federal retirement system and each party shall receive one-half those funds from today’s date, December 2, 2010. Each party agrees to execute all documents necessary to effect the transfer of the funds belonging to the [wife] and the parties agree the court may order all orders necessary to effectuate such transfer.”

However, the trial court did not immediately enter a divorce judgment incorporating the parties’ agreement.

On August 13, 2013, two years and eight months after the hearing, the wife filed a motion in the trial court seeking to compel the husband to give her her share of the money that had been held in the husband’s thrift savings plan. In the motion, the wife asserted that, in March 2013, the husband had withdrawn more than 93% of the money in the thrift savings plan in violation of the parties’ agreement, which, we note, had not yet been incorporated into a judgment. She stated that she did not learn of the withdrawal until August 4, 2013. The record indicates that the trial court never ruled on the wife’s motion.

The trial court did not enter a judgment incorporating the agreement and divorcing the parties until May 22, 2015, four years and five months after the December 2010 hearing. The divorce judgment stated, among other things:

“The husband’s retirement funds in a thrift savings plan and also those funds in a federal retirement system shall be divided with each party receiving 1/2 of the funds from December 2, 2010. Each party shall execute all documents necessary to effect the transfer of the funds belonging to [the wife] and the parties agree the Court may enter all Orders necessary to effectuate such transfer.”

On June 18, 2015, the wife filed a timely motion to alter, amend, or vacate the judgment. In her postjudgment motion, the wife requested that the trial court issue the QDROs needed for the wife to receive her share of the money from husband’s thrift savings plan and from his federal retirement account. The wife asserted that the husband had by that time withdrawn all of the money from the thrift savings plan. She also asserted that the husband had retired in January 2014 and had begun drawing income from the federal retirement system. However, the wife said, the husband now refused to provide her with her share of the money from his federal retirement account and, therefore, QDROs were needed to ensure that she received the money as agreed in the parties’ settlement, which had been incorporated into the May 22, 2015, judgment. The wife’s postjudgment motion was deemed denied by operation of law on September 16, 2015. The wife filed a timely notice of appeal on October 26, 2015.

On appeal the wife contends that the trial court erred in refusing to enter the requested QDROs. The wife states that, for her to be able to receive the share of the two accounts at issue that she was awarded in the divorce judgment, federal law requires that a QDRO must be entered. QDROs are provided for under the federal Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq„ and “ ‘facilitate the distribution of pensions and employee benefits that are subject to [the] provisions [of the act].’ Duran v. Duran, 657 N.W.2d 692, 694 n. 1 (S.D.2003).” Romer v. Romer, 44 So.3d 514, 516 n. 1 (Ala.Civ.App.2009). Under ERISA, pension plans “shall provide that benefits provided under the plan may not be assigned or alienated” except in accordance with the requirements of any applicable QDROs. 29 U.S.C. § 1056(d)(1) and (3)(A). ERISA further provides:

“(B) For purposes of this paragraph—
“(i) the term ‘qualified domestic relations order’ means a domestic relations order—
“(I) which creates or recognizes the existence of an alternate payee’s right to, or assigns to an alternate payee the right to, receive all or a portion of the benefits payable with respect to a participant under a plan, and
“(II) with respect to which the requirements of subparagraphs (C) and (D) are met, and
“(ii) the term ‘domestic relations order’ means any judgment, decree, or order (including approval of a property settlement agreement) which—
“(I) relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a participant, and
“(II) is made pursuant to a State domestic relations law (including a community property law).
“(C) A domestic relations order meets the requirements of this subparagraph only if such order clearly specifies—
“(i) the name and the last known mailing address (if any) of the participant and the name and mailing address of each alternate payee covered by the order,
“(ii) the amount or percentage of the participant’s benefits to be paid by the plan to each such alternate payee, or the manner in which such amount or percentage is to be determined,
“(iii) the number of payments or period to which such order applies, and
“(iv) each plan to which such order applies.
“(D) A domestic relations order meets the requirements of this subparagraph only if such order—
“(i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,
“(ii) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and
“(iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.”

29 U.S.C. § 1056(d)(3).

In their respective briefs to this court, the husband and the wife appear to agree that the divorce judgment entered on May 22, 2015, does not meet the statutory definition of a QDRO. Based on the arguments of the parties, we conclude that the wife is entitled to the entry of the QDROs she requested to facilitate the transfer of money from the husband’s accounts that the parties agreed she was to have and that the trial court awarded to her in the divorce judgment. Accordingly, the trial court erred in denying the wife’s post-judgment motion requesting the entry of the QDROs.

For the reasons set forth above, the denial of the wife’s motion to alter, amend, or vacate the divorce judgment is reversed, and the cause is remanded to the trial court for it to enter the necessary QDROs. Our holding is not intended to preclude the trial court from ordering assistance from the parties in gathering the pertinent information and submitting any required documentation needed for the preparation of the QDROs.

The wife’s motion requesting the release of funds from the husband’s federal-retirement-system account is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN and MOORE, JJ., concur.

DONALDSON, J., concurs specially.

THOMAS, J., recuses herself.

DONALDSON, Judge,

concurring specially.

I concur. I write specially to note that, in opposition to the argument of Glenda Hudson (“the wife”) that a qualified domestic relations order (“QDRO”) should have been entered, Emanuel Hudson (“the husband”) argues that the trial court was not required to enter a QDRO because the wife did not supply the trial court with a proposed form of the order. On remand, the trial court may certainly require the wife to supply a proposed QDRO that meets the requirements of 29 U.S.C. § 1056(d)(3). See D.S.H. v. E.B.H., [Ms. 2140159, Nov. 20, 2015] — So.3d -, - (Ala.Civ.App.2015)(Donaldson, J., concurring specially)(discussing the process of submitting proposed orders). I also note that the record indicates that the trial court refrained from entering the judgment of divorce after the hearing in December 2010 to allow the wife to appeal from an unidentified earlier order of the trial court. The lapse of time between the hearing and the entry of the final judgment in May 2015 appears to be attributable more to the parties than to the retired trial judge who had accepted assignment of the case after the recusal of the active trial judges in the circuit.


text:
    Gordon McWHORTER v. Vicky PARSONS.
    2150555.
    Court of Civil Appeals of Alabama.
    July 8, 2016.

      Brandon C. Stone and Mallory N. Brown of Stone Law Group, LLC, Mill-brook, for appellant.
    Chris McKay of Howell, Sarto, Howell & McKay, Prattville, for appellee.
   THOMPSON, Presiding Judge.

Gordon McWhorter has sought our review by petitioning this court for a writ of mandamus directing the Elmore Circuit Court (“the circuit court”) to vacate the judgments it has entered in favor of Vicky Parsons in this matter. In the underlying proceedings, Parsons appealed to the circuit court from a judgment of the Elmore District Court (“the district court”) in an unlawful-detainer action. As a basis for seeking to have the circuit-court judgments in favor of Parsons vacated, McWhorter contends that Parsons’s appeal to the circuit court was untimely and that, therefore, the circuit court did not have subject-matter jurisdiction over the matter. McWhorter also asks this court to direct the circuit court to enter an order dismissing the action.

The following time line, gathered from the materials that McWhorter submitted in support of his petition, is helpful to a resolution of this matter.

On September 2, 2014, the district court entered an order in favor of McWhorter on his unlawful-detainer claim against Parsons and found that McWhorter was entitled to possession of the property at issue. The district court certified the order as a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. The judgment also provided:

“FOR PURPOSES OF APPEAL: Rental [of the property at issue] is ascertained to be the sum of $680 per month due on the 1st of the month. Appeal Bond is hereby set in the amount of $4,760.”

On September 8, 2014, Parsons moved for a reduction in the amount of the appeal bond because her rental payments were up to date. The district court explicitly stated that it construed Parsons’s motion as a Rule 59, Ala.R.Civ.P., motion to alter, amend, or vacate the judgment, and, in an order dated September 9, 2014, it decreased the amount of the appeal bond to $680. On Wednesday, September 10, 2014, Parsons filed her notice of appeal to the circuit court.

The circuit court held an evidentiary-hearing, and, on April 14, 2015, it entered a judgment in Parsons’s favor, denying McWhorter’s unlawful-detainer claim. On May 4, 2015, McWhorter filed a motion to alter, amend, or vacate the judgment, and the circuit court denied the postjudgment motion on May 27, 2015. On July 2, 2015, McWhorter filed his notice of appeal to this court. That appeal was assigned case number 2140982.

Although neither party addressed whether this court had jurisdiction to consider the appeal, it is well settled that this court may take notice of jurisdictional matters at any time and may even do so ex mero motu. Thomas v. Merritt, 167 So.3d 283 (Ala.2013). On January 14, 2016, this court asked the parties to submit letter briefs regarding “whether this appeal [was] timely filed.” McWhorter responded, discussing the timeliness of the appeal of the judgment of the circuit court to this court. Parsons did not favor this court with a letter brief on the issue. On February 2, 2016, this court entered an order directing “that the appeal in the above styled cause be, and the same is hereby dismissed as untimely filed.” Costs were taxed against McWhorter.

On February 5, 2016, McWhorter filed in this court a motion for clarification in which he sought to ascertain why the appeal had been dismissed. On February 16, 2016, this court issued an amended order stating that “the appeal in the above styled cause” was dismissed as untimely, citing § 35-9A-461(d), Ala.Code 1975. This court determined that, because Parsons’s notice of appeal from the district court to the circuit court was filed on September 10, 2014, it was not filed within seven days of the September 2, 2014, district-court judgment, as required by § 35-9A-461(d), and that, therefore, it was untimely. The certificate of judgment in case number 2140982 was issued on March 7, 2016.

Recognizing that the orders of February 2 and 16, 2016, might not have been sufficiently explicit regarding the basis for this court’s dismissal, this court, on May 17, 2016, recalled the certificate of judgment in ease number 2140982 and placed the case on rehearing ex mero motu. On the same day, this court asked the parties to submit letter briefs on the issue of whether the motion Parsons had filed in the district court seeking a reduction in the amount of the appeal bond the district court had set was a valid postjudgment motion for purposes of tolling the time to appeal from the district court to the circuit court, as authorized by § 35-9A-461(d).

After consideration of the arguments set forth in the parties’ respective letter briefs, this court concluded that Parsons’s motion seeking a reduction of the appeal bond had not tolled the time for filing a timely notice of appeal. See Rule 4(a)(3), Ala. R.App. P. Therefore, we determined, Parsons’s appeal to the circuit court from the judgment of the district court was untimely, and, thus, Parsons’s failure to file a timely notice of appeal to the circuit court was a jurisdictional defect that prevented the circuit court from acquiring subject-matter jurisdiction of the appeal of the district court’s judgment. Boswell v. Lowery, 107 So.3d 212, 216 (Ala.Civ.App.2012); MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala.2011). Therefore, we concluded, the judgment of the circuit court was void and this court was without jurisdiction over the void judgment. K.C.G. v. S.J.R., 46 So.3d 499, 501 (Ala.Civ.App.2010). Accordingly this court concluded that the order of February 2, 2016, dismissing the appeal in case number 2140982 was correct, and we overruled our previous decision to place the matter on rehearing ex mero motu.

Meanwhile, on February 26, 2016, McWhorter filed in the circuit court a motion pursuant to Rule 60(b)(4), Ala. R. Civ. P., in which he sought relief from the circuit court’s judgment of April 14, 2015, on the ground that it was void because the notice of appeal from the district court’s judgment was untimely. That same day, the circuit court denied McWhorter’s motion, relying on Rule 6(a), Ala. R. Civ. P., which provides: “When the period of time prescribed or allowed is less than eleven (11) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” The circuit court concluded that, based on Rule 6(a), Parsons had had until September 11, 2014, to file her notice of appeal from the district court to the circuit court. Parsons’s notice of appeal had been filed on September 10, 2014; therefore, the circuit court concluded, it had had jurisdiction to consider the appeal from the district court.

On March 7, 2016, McWhorter filed a petition for a writ of mandamus with our supreme court, which transferred the petition to this court pursuant to § 12-2-7(6), Ala.Code 1975. As mentioned, in the petition, McWhorter seeks an order directing the circuit court to vacate the judgments the circuit court has entered in this matter and to dismiss Parsons’s appeal to the circuit court because, he says, Parsons’s notice of appeal from the district court was untimely filed.

Before addressing the merits of McWhorter’s petition, we must first address whether a petition for a writ of mandamus is the proper vehicle for seeking review of the circuit court’s denial of his Rule 60(b)(4) motion for relief from the April 14, 2015, judgment of the circuit court.

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

Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). The law is well settled that the denial of a Rule 60(b) motion is reviewable on appeal. Image Auto, Inc. v. Mike Kelley Enters., Inc., 823 So.2d 655 (Ala.2001); Ex parte Keith, 771 So.2d 1018 (Ala.1998); Ex pane S.B., 164 So.3d 599, 602 (Ala.Civ. App.2014); and Ex pane R.S.C., 853 So.2d 228, 235 (Ala.Civ.App.2002). As a result, McWhorter should have appealed from the denial of his Rule 60(b) motion, and mandamus is not a proper mechanism by which McWhorter can seek review of the circuit court’s denial of that motion. Nonetheless, our supreme court has stated that there is no “bright-line test” for determining when an appellate court will treat a particular filing as a mandamus petition and when it will treat the filing as a notice of appeal. Ex parte Burch, 730 So.2d 143, 146 (Ala.1999). It has noted, however, that appellate courts must be mindful of the policy established by Rule 1, Ala. RApp. P.: “[These rules] shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits.” McWhorter’s petition for a writ of mandamus was filed within the 42-day period allowed for filing a notice of appeal from the circuit court’s judgment denying McWhorter’s Rule 60(b)(4) motion. With the principles of Rule 1 in mind, we have elected to treat McWhorter’s petition as an appeal of that judgment, we have restyled the case accordingly, and we now consider the merits of the arguments the parties have made in their briefs to this court. See Wix Corp. v. Davis, 945 So.2d 1040, 1044-45 (Ala.Civ.App.2005).

The basis for the circuit court’s determination that it had subject-matter jurisdiction over Parsons’s appeal has been addressed and rejected by the Alabama Legislature. Section 35-9A-461(d), part of the Alabama Uniform Residential Landlord and Tenant Act (“the Act”), § 35-9A-101 et seq., Ala.Code 1975, provides, in pertinent part:

“Notwithstanding subsection(a) of Section 12-12-70,[ ] any party may appeal from an eviction judgment entered by a district court to the circuit court at any time within seven days after the entry thereof. The filing of a timely post-judgment motion pursuant to the Alabama Rules of Civil Procedure shall suspend the running of the time for filing a notice of appeal. In cases where post-judgment motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion, or the date of the denial of such motion by operation of law pursuant to Rule 59.1 of the Alabama Rules of Civil Procedure.”

The legislature amended the Act, effective August 1, 2011, to define “day” as follows:

‘[D]ay’ means calendar day, notwithstanding Rule 6 of the Alabama Rules of Civil Procedure; however, in any case where the application of a time period in this chapter consisting of a specific number of days results in the last day of that time period falling on a weekend or an official holiday, then the last day of that time period shall be considered the next official business day when the court is open.”

§ 35—9A—141 (3), Ala.Code 1975 (emphasis added). See also Jones v. DeRamus, 199 So.3d 74, 76 (Ala.Civ.App.2015).

As discussed, this court has already concluded that Parsons’s appeal from the district court to the circuit court was untimely. The reason the circuit court gave in its February 26, 2016, order determining that it did, in fact, have jurisdiction over that appeal is in conflict with applicable law. Accordingly, the circuit court’s judgment denying McWhorter’s Rule 60(b)(4) motion is reversed, and the cause is remanded for the circuit court to enter an order vacating any and all judgments or orders it has entered in connection with this matter and to dismiss Parsons’s appeal to that court from the district court as untimely.

Parsons’s request for an attorney fee is denied.

REVERSED AND REMANDED.

PITTMAN, THOMAS, and MOORE, JJ., concur.

DONALDSON, J., recuses himself.

      . Subsection (a) of § 12-12-70 provides:

        "Civil cases. Any party may appeal from a final judgment of the district court in a civil case by filing notice of appeal in the district court, within 14 days from the date of the judgment or the denial of a posttrial motion, whichever is later, or, if the appeal is to an appellate court, within the time prescribed by the Alabama Rules of Appellate Procedure or the Alabama Rules of Juvenile Procedure where applicable, together with security for costs as required by law or rule.”