author: PER CURIAM. THOMAS, Judge,

text:
    Andrea E. ADAMS v. Donnie M. ADAMS.
    2070895.
    Court of Civil Appeals of Aabama.
    April 24, 2009.

      Jacqueline E. Austin and J. Pratt Austin-Trucks of Law Offices of Jacqueline E. Austin, Wetumpka, for appellant.
    G. Houston Howard II of Law Office of Keith A. Howard, LLC, Wetumpka, for appellee.
   PER CURIAM.

Andrea E. Adams (“the mother”) and Donnie M. Adams (“the father”) were divorced pursuant to an April 12, 2007, judgment that incorporated an agreement reached by the parties. Among other things, the divorce judgment specified that the parties had agreed to continue residing together and to share household expenses until the marital residence could be sold. The divorce judgment awarded the mother sole physical custody of the parties’ two minor sons, awarded the father visitation, and ordered the father to pay child support.

In November 2007, the mother filed a petition to modify the divorce judgment, seeking an increase of child support, asking the trial court to grant her the exclusive use of the marital residence, and requesting that the trial court require the father to share equally in paying the mortgage indebtedness on the marital residence. The mother also filed a motion seeking to have the father held in contempt for allegedly violating other provisions of the divorce judgment.

The father answered and denied liability; he later counterclaimed seeking custody of the children and reimbursement for alleged overpayments of child support and household expenses. The father also moved the trial court to hold the mother in contempt for misrepresenting material facts on the CS-41 child-support form she submitted at the time the divorce judgment was entered.

Following an ore tenus proceeding, the trial court, on May 22, 2008, entered a judgment awarding sole physical custody of the children to the father, ordering the mother to pay the father $722 per month in child support, granting the parties other relief not relevant to the issues presented on appeal, and denying all other requests for relief. On June 5, 2008, the trial court entered an amended modification judgment altering various provisions of its May 22, 2008, judgment that are not relevant to the issues in this appeal. The mother timely appealed.

The record indicates that the parties married in October 1998 and that they separated several times before the final separation that ultimately resulted in their divorce. The mother testified to several instances in which the father shoved or kicked her during their marriage. The father denied that testimony, and he stated that the mother had committed acts of domestic violence against him. The father stated that, on one occasion when the mother slapped him, one of the parties’ children had attempted to intervene and the mother had hit the child in the back with her fist.

The parties presented evidence pertaining to a March 14, 2007, incident in which the mother alleged that the father had kicked her and one of the children in an effort to make them move over in bed. The mother called the police after that incident. The father denied injuring the mother in that incident, although the mother insisted she had been bruised on her leg as a result of that incident. The police report indicated that there were no visible signs of injury to the mother after that incident. The mother had the father arrested in October 2007 in connection with the March 2007 incident; he was later found not guilty of the domestic-abuse charges.

Robyn Dees, a friend of the mother’s, testified that she had witnessed the father verbally abuse and physically threaten the mother and that she had observed a bruise on the mother resulting from the March 14, 2007, incident. Dees also testified that she had observed the father push the mother out of his way in order to enter the parties’ house after they had separated. The father testified that before he pushed the mother on that occasion, the mother had pinched him.

The mother and Dees each testified that the mother had been the children’s primary caretaker during the marriage and after the parties’ divorce. The mother stated that the father spent little time with the children because of his work schedule. The mother testified that either she or her parents had picked up the children after school, both before and after the parties’ divorce.

The father disagreed that the mother had been the children’s primary caretaker. He stated that he usually picked up the children from school and that he had often taken the children to medical and dental appointments. Several of the father’s friends stated that they believed the father had been the children’s primary caretaker. In addition, two of the children’s teachers testified that, until the time the father filed his claim seeking a modification of custody, the father had picked up the children from school almost every day. One of the children’s teachers testified that the father had accompanied her class on all the class field trips.

The father testified that he believed that the mother was attempting to interfere with his relationship with the children. The father testified that, after he filed his claim seeking a modification of custody, the mother refused to allow him extra visitation with the children in excess of the alternating-weekend and Wednesday-night visitation provided for in the divorce judgment. The mother testified that the father was never satisfied with the extra visitation she allowed and that he constantly asked for additional visitation.

The father also testified that the mother sometimes brought the children to their sporting events but refused to let them play or removed them before the end of the game, apparently because she became angry with the father. The father testified that, before the parties’ divorce, he had served as the coach for both children’s sports teams. After the divorce, the mother enrolled the children in sports in another city, and the father could no longer coach their teams. The mother testified that she had enrolled the children in sporting events in another city because she was under a restraining order to avoid the father and his friends as a result of an incident discussed later in this opinion.

Much of the evidence presented by the father in support of his custody-modification claim pertained to the mother’s allegedly violent or confrontational conduct toward others. The father testified that the mother had had a problem with anger during the parties’ marriage but that it had intensified since their divorce. The father and the witnesses he called on his behalf, including some of the children’s teachers, each testified that the mother had a reputation for being confrontational and untruthful.

Several of the father’s witnesses testified that they had been present when the mother cursed at the father or others during the children’s sporting events. The witnesses also testified to other instances in which the mother had been confrontational with other people and had used foul language. It appears from the record that the parties’ children were present or nearby during those incidents. One woman stated that she did not want her children to be around the mother because of the mother’s conduct and language during those instances. Another woman testified that she had asked the mother to refrain from using foul language in front of the woman’s children; the woman stated that, following that request, the mother had telephoned her several times to make “vulgar” or “aggressive” threats against the woman. A third woman also testified that the mother had made threats against her. The father testified that the mother had threatened to kill him and a woman with whom the mother believed the father was having a relationship. The mother denied making some of those threats, and she explained or attempted to justify others.

In addition, the mother testified about an incident in which she was involved in a physical confrontation with another woman at a local bar. In that confrontation, the mother jumped over chairs and onto the other woman because the woman had taken the mother’s cigarettes.

The parties also presented evidence concerning an incident at a ballpark in which the mother allegedly swerved her vehicle toward a woman whom the mother apparently believed was romantically involved with the father. According to the witnesses, the mother was driving through a ballpark parking lot at a high rate of speed, drove toward the woman, and then swerved away from the woman and left the parking lot. The mother testified that, during that incident, she had been angry at the father and distracted because one of the children, who was with her in the car, was sick. The mother stated that she had not seen the woman and that she did not remember swerving toward the woman. As a result of that incident, the mother was charged with reckless endangerment and the previously mentioned restraining order was entered against her. The mother later pleaded guilty to a lesser charge of reckless driving in connection with that incident.

The mother remarried in January 2008, at approximately the same time the father sought to modify custody of the children. At the time of the hearing in this matter, the mother was pregnant. A teacher for one of the children testified that the child’s grades had declined since January 2008, but it is not clear whether the mother’s remarriage, the custody action, or both, caused that decline.

The father is a captain with the Montgomery Fire Department. During the parties’ marriage and until shortly before the modification hearing, the father’s work schedule required him to work 24 hours on duty, followed by 48 hours off duty. During the parties’ marriage, the father also owned and operated a lawn-care business. The father testified that he had recently begun working for the fire department on the day shift (7:30 a.m. to 4:30 p.m.) so that he would be available to care for the children if he were awarded custody of them.

The father testified that his annual salary at the Fire Department is $50,400 and that his gross monthly income is $4,200.32. He stated that, during the parties’ marriage, his lawn-care business had produced income, but, he said, he was discontinuing that business because, with his change to the day shift at the Fire Department, he did not have time to cut grass, he was steadily losing customers, and the lawn-care business was “not being productive.”

The mother did not work during the parties’ marriage until the parties’ youngest child began kindergarten. Thereafter, she worked as a legal secretary. At the time of the modification hearing, the mother was not working, apparently because of her pregnancy. The mother conceded that she was capable of earning a salary of $33,000, which was the amount she had earned at her most recent employment.

The mother first argues that the trial court erred in modifying custody because, she contends, the father failed to present sufficient evidence to satisfy the standard for modifying custody announced in Ex parte McLendon, 455 So.2d 863 (Ala. 1984). A parent seeking to modify a custody judgment awarding primary physical custody to the other parent must meet the standard for modification of custody set forth in Ex parte McLendon. Under that standard, the parent seeking to modify custody of a child must demonstrate that there has been a material change in circumstances, that the proposed change in custody will materially promote the child’s best interests, and that the benefits of the change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra. A parent seeking to modify a previous custody order bears a heavy burden of proof. Vick v. Vick, 688 So.2d 852 (Ala.Civ.App.1997). The mother contends that the father did not meet the required burden of proof set forth in McLendon.

As an initial matter, we must address the father’s contention in his brief on appeal that the mother’s argument pertaining to custody was not preserved for appellate review; in making his argument, the father relies on New Properties, L.L.C. v. Stewart, 905 So.2d 797 (Ala.2004). In that case, our supreme court held that “in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.” New Properties, 905 So.2d at 801-02. The father contends that because the mother did not file a postjudgment motion challenging the sufficiency of the evidence supporting that part of the trial court’s judgment pertaining to the modification of custody, the mother is prevented by the holding in New Properties from raising that issue on appeal. We disagree.

In New Properties, in entering its judgment, the trial court made no findings of fact; rather, “it simply found in favor of [the plaintiff] and awarded $250,000 in damages.” 905 So.2d at 802. In the case presently before this court, the trial court made the following factual findings in its judgment:

“The Court heard numerous witnesses and observed their demeanor and also received documentary evidence. The Court finds that the [mother’s] testimony was not credible. The Court further finds that domestic violence was committed by both parties during the marriage.[] Thus, any presumptions against either party created by the domestic violence statutes (§[§] 30-3-130 through -136, Ala.Code 1975) cancel each other out so that no presumption either against the [mother] or against the [father] is in place or if in place offset each other.
“The Court finds that there has been a material and substantial change of circumstances since the final [divorce judgment], and that the positive good brought about by a change of custody will more than offset any disruptive effect caused by the change in custody. The Court thus finds that the [father] has met his burden of proof under the McLendon standard.”

We conclude that the above-quoted portion of the trial court’s judgment contains sufficient factual findings to render unnecessary the filing of a postjudgment motion challenging the sufficiency of the evidence pertaining to the custody modification. In Pacific Enterprises Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d 409, 415 (Ala.1993), the trial court found that a party had conducted litigation ‘“without substantial justification,’ ” and it awarded the opposing party an attorney fee pursuant to the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975. In addressing the attorney-fee award on appeal, our supreme court stated that it was required to determine the appropriate standard of review. In determining that the issue presented to it involved both legal determinations and factual findings, the supreme court explained:

“The clear terms of § 12-19-271(1) require that for an action, claim, or defense to be ‘without substantial justification’ it must be either ‘frivolous,’ ‘groundless in fact,’ ‘groundless in law,’ ‘vexatious,’ or ‘interposed for any improper purpose.’ We conclude that the terms or phrases ‘frivolous,’ ‘groundless in fact,’ ‘vexatious,’ and ‘interposed for any improper purpose’ require factual determinations that will be entitled to deference on appeal. See, Smith v. Smith, 551 So.2d 1024 (Ala.1989). Thus, if a trial court determines that a party’s action, claim, or defense is ‘without substantial justification,’ based on the applicability of any one of these terms or phrases, that determination will not be disturbed on appeal ‘unless it is clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence.’ Cove Creek Development Corp. v. APAC-Alabama, Inc., 588 So.2d 458, 461 (Ala.1991).
“However, we conclude that the phrase ‘groundless in law’ clearly calls for a legal determination. Therefore, if the trial court determines that a party’s action, claim, or defense is ‘without substantial justification’ because it is ‘groundless in law,’ that determination will not be entitled to a presumption of correctness. Rather, the appellate courts of this State will test the validity of the trial court’s legal conclusion.”

Pacific Enters. Oil Co. (USA) v. Howell Petroleum Corp., 614 So.2d at 418.

In this case, the phrases “material and substantial change of circumstances,” “positive good,” “more than offset,” and “disruptive effect,” see Ex parte McLendon, 455 So.2d at 865-66, encompasses matters that require factual determinations rather than legal conclusions. Those factual determinations are relevant to the legal determination whether the McLendon standard has been met. The trial court made those factual determinations, and, as is noted in New Properties, 905 So.2d at 800:

“ ‘When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial.’ ”

(Quoting Rule 52(b), Ala. R. Civ. P.) Thus, we conclude that the factual findings in the trial court’s judgment are sufficient to support this court’s review of the mother’s argument pertaining to the sufficiency of the evidence.

In her brief on appeal, the mother contends that the father’s evidence did not demonstrate a material change in circumstances justifying a change in custody. The mother alleges that the father presented evidence indicating only that she has “a temper” and has used foul language; she contends that that evidence was not a sufficient basis upon which to modify custody. The mother also attempts to minimize the testimony of the father’s witnesses who stated that the mother had a reputation for being confrontational and untruthful by pointing out that those witnesses were largely friends of the father’s and did not know her well. Accordingly, she characterizes those witnesses’ testimony as “suspect.”

However, after receiving ore tenus evidence, the trial court concluded that the father had met his burden under Ex parte McLendon, supra.

“On appellate review of custody matters, this court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court’s determination will not be disturbed ‘absent an abuse of discretion or where it is shown to be plainly and palpably wrong.’ Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, [520 So.2d 534 (Ala.Civ.App. 1988) ]). As the Alabama Supreme Court highlighted in [Ex parte] Patronas, [693 So.2d 473 (Ala.1997) ], ‘ “[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody.” ’ Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996)). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court’s judgment. See Patronas, 693 So.2d at 475.”

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala. Civ.App.2007).

Much of the evidence the parties presented was in dispute. Each parent presented evidence concerning his or her parenting abilities and activities. In addition, the father’s witnesses testified to incidents in which the mother was confrontational, used foul language in front of children, and made threats of violence against others. The mother disputed the testimony of those witnesses concerning some of the details of certain incidents or confrontations. However, the mother’s own testimony indicates that she has had or has initiated a number of confrontations with others and that several of those confrontations have occurred at events in which the parties’ children were present. In addition, the mother pleaded guilty to reckless driving as a result of the incident in which she is alleged to have swerved her vehicle toward another woman; one of the parties’ children was in the vehicle with the mother at the time of that incident.

The father also presented evidence indicating that the mother had upset the children by removing them from their sporting events when she was angry with the father. Thus, the evidence supports a conclusion that, in addition to exposing the children to foul language and inappropriate conduct, the mother had involved the children in her efforts to fight with or to punish the father.

Further, the trial court specifically found that the mother’s testimony was not credible. Accordingly, it placed more weight on the testimony of the other witnesses than on the mother’s explanations of her conduct. “[T]he trial court ... was in the best position to observe the demean- or, determine the credibility, and assign weight to the testimony of each witness.” Carquest Auto Parts & Tools of Montgomery, Alabama, Inc. v. Waite, 892 So.2d 422, 426 (Ala.Civ.App.2004). Our supreme court has held that the trial court’s unique ability to observe witnesses and assess their demeanor and credibility “is especially important in child-custody cases.” Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

A custody determination made after the trial court receives ore tenus evidence is presumed to be correct, and this court -will not reverse the trial court’s judgment on that issue absent a determination that the “ ‘ “evidence so fails to support the determination that it is plainly and palpably wrong.” ’ ” Ex parte Fann, 810 So.2d at 633 (quoting Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting in turn Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). In this case, the trial court received a great deal of evidence indicating that the mother has engaged in confrontational and threatening behavior, sometimes in the presence of the parties’ children. The trial court also specifically determined that the mother’s explanations and other testimony were not credible. After reviewing the evidence in the record on appeal, we are unable to say that the mother has demonstrated that the trial court’s custody-modification judgment was so unsupported by the evidence as to be plainly and palpably wrong. We conclude that the evidence in the record supports the trial court’s finding that the father met his burden of proof under Ex parte McLendon, supra. Accordingly, we affirm as to the custody issue.

The mother also contends that the trial court erred in calculating her child-support obligation. At trial, the mother offered and the trial court admitted a Montgomery Fire Department pay stub for the father. The mother argued that the father’s pay stub indicated that his monthly income was not $4,200.32, as he claimed, but was, instead, $4,860. In response to questions from the mother’s counsel about his pay stub, the father explained that the figures on the pay stub that, according to the mother, indicated additional income were actually “annual leave and sick leave, ... [representing] time ... not money.” The trial court was authorized to reject the mother’s characterization of the numbers on the father’s pay stub and to accept the father’s characterization. “In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.” Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App. 1993). The trial court’s modification judgment states:

“The Court heard numerous witnesses and observed their demeanor and also received documentary evidence. The Court finds that the [mother’s] wife’s testimony was not credible.”

In Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004), our supreme court stated:

“ ‘ “Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court....” ’ Ex parte Roberts, 796 So.2d 349, 351 (Ala.2001) (quoting Ex parte Bryowslcy, 676 So.2d 1322, 1324 (Ala. 1996)). ‘When the evidence in a ease is in conflict, the trier of fact has to resolve the conflicts in the testimony, and it is not within the province of the appellate court to reweigh the testimony and substitute its own judgment for that of the trier of fact.’ Delbridge v. Civil Serv. Bd. of Tuscaloosa, 481 So.2d 911, 913 (Ala.Civ.App.1985). ‘[A]n appellate court may not substitute its judgment for that of the trial court. To do so would be to reweigh the evidence, which Alabama law does not allow.’ Ex parte Foley, 864 So.2d 1094, 1099 (Ala.2003) (citations omitted).”

The mother also offered and the trial court admitted the father’s 2007 federal income-tax return. Citing Rule 32(B)(3)(b), Ala. R. Jud. Admin., the mother argued at trial and now maintains on appeal that a depreciation deduction in the amount of $7,443 that the father took with reference to the equipment used in his lawn-care business should be added to his Fire Department income for purposes of calculating her child-support obligation. Rule 32(B)(3) provides:

“(3) Self-Employment Income.
“(a) For income from self-employment, ... ‘gross income’ means gross receipts minus ordinary and necessary expenses required to produce such income, as allowed by the Internal Revenue Service, with the exceptions noted in section (B)(3)(b).
“(b) ‘Ordinary and necessary expenses’ does not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses, investment tax credits, or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.”

(Emphasis added.)

“Accelerated depreciation” is in contradistinction to “straight-line depreciation.” Compare 26 U.S.C. § 167 (2007) with 26 U.S.C. § 168 (2008). Under the straight-line method, depreciation is computed by dividing the adjusted basis of an asset by the depreciable life of the asset as determined by the Internal Revenue Code, 26 U.S.C. § 167, with the result that “the depreciation allowance for an asset remains equal over its useful life,” Federal Power Comm’n v. Memphis Light, Gas & Water Div., 411 U.S. 458, 459 n. 1, 93 S.Ct. 1723, 36 L.Ed.2d 426 (1973). For certain assets, the Internal Revenue Code allows the assets to be depreciated more rapidly than they would be under the straight-line depreciation method, 26 U.S.C. § 168, with the result that accelerated “depreciation allowances in the early years are higher than under the straight-line method, but steadily decrease over the useful life of the asset.” Memphis Light, 411 U.S. at 459 n. 1, 93 S.Ct. 1723.

If the father had depreciated his lawn-care equipment using an accelerated depreciation method, and the trial court had been trying to calculate the father’s income from the lawn-care business, it would have been required, by Rule 32(B)(3)(b), to “add back” the accelerated component of depreciation. The father, however, used the straight-line method of depreciation, and the mother does not argue that the trial court should have included any income from the lawn-care business as part of the father’s actual gross income.

The mother has failed to demonstrate that the trial court erred in entering its May 22, 2008, judgment; accordingly, we affirm.

AFFIRMED.

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

THOMAS, J., concurs in the judgment but dissents from the rationale in part, with writing.

THOMAS, Judge,

concurring in the judgment but dissenting from the rationale in part.

I agree that the trial court correctly calculated the mother’s child-support obligation. I concur in the judgment affirming the trial court’s child-custody-modification order, but I dissent from the rationale of the main opinion in part because I believe that the mother failed to preserve for appellate review any issue regarding the sufficiency or weight of the evidence.

On appeal, the mother argues that the father failed to present sufficient evidence to satisfy the standard for modifying custody announced in Ex parte McLendon, 455 So.2d 863 (Ala.1984), or, in the alternative, that the trial court’s determination that the father “has met his burden of proof under the McLendon standard” was opposed to the great weight of the evidence. In New Properties, L.L.C. v. Stewart, 905 So.2d 797 (Ala.2004), the Alabama Supreme Court held that “in a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.” 905 So.2d at 801-02 (emphasis added).

The main opinion holds that New Properties is inapplicable and, therefore, that no postjudgment motion challenging the sufficiency or weight of the evidence was necessary in this case because, it concludes, the trial court did make specific findings of fact with respect to whether the father met his burden of proof under the McLendon standard. According to the main opinion, those findings of fact were (1) that the mother’s testimony was not credible; (2) that both parties committed domestic violence during the marriage but that any presumptions against either party arising from the domestic-violence statutes cancel each other out; and

(3) “that there has been a material and substantial change of circumstances since the final [divorce judgment], and that the positive good brought about by a change of custody will more than offset any disruptive effect caused by the change in custody. The Court thus finds that the [father] has met his burden of proof under the McLendon standard.”

Items (1) and (2) do constitute “findings of fact,” but neither is responsive to the sufficiency issue that the mother raises on appeal. Accordingly, items (1) and (2) are not “specific findings of fact” within the meaning of New Properties. See Weeks v. Herlong, 951 So.2d 670 (Ala.2006). In Weeks, the supreme court held that, although the trial court had issued no written findings of fact, its statements from the bench at the conclusion of the trial adequately set out the factual basis for its judgment and thus satisfied the purpose of the New Properties rule: “to allow the parties and the appellate court to understand the [factual] basis of the trial court’s order.” 951 So.2d at 678. Compare Peterson v. State, 842 So.2d 734, 736 (Ala. Crim.App.2001) (when, in response to appellate court’s remand order instructing trial court to “make specific findings of fact regarding the appellant’s double jeopardy claim,” the trial court issued a conclu-sory statement indicating that the double-jeopardy claim was without merit, the appellate court could neither determine the factual basis for the trial court’s ruling nor decide the issue presented on appeal, and, accordingly, the appellate court issued a second remand order to the trial court).

In the present case, the trial court’s finding that the mother’s testimony was not credible simply does not allow the parties or this court to understand the basis of the trial court’s order concluding that the father had satisfied his burden of proof under McLendon. No matter how unbelievable the trial court may have found the mother’s testimony, the father’s evidentiary burden remained the same. The father was required to establish that “ ‘[t]he positive good brought about by the modification [would] more than offset the inherently disruptive effect caused by uprooting the child.’ ” Ex parte McLendon, 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App. 1976)). The mother’s lack of credibility could not satisfy the father’s evidentiary burden. Compare Ex parte Williams, 780 So.2d 673, 675 (Ala.2000) (stating that “doubts about the [criminal] defendant’s credibility cannot satisfy the burden that is, by law, on the State to prove that the [defendant’s] confession was voluntary”).

Nor does the trial court’s finding that both parties had committed domestic violence during the marriage but that any presumptions against either party arising from the domestic-violence statutes cancel each other out allow us to understand the basis for the trial court’s determination that the father had satisfied the McLen-don standard. The trial court found that both parties had committed domestic violence “during the marriage.” The court did not determine whether either party had committed domestic violence “since the last custody determination.” Section 30-3-134, Ala.Code 1975, provides:

“In every proceeding in which there is at issue the modification of an order for custody or visitation of a child, a finding that domestic or family violence has occurred since the last custody determination constitutes a finding of change in circumstances.”

(Emphasis added.) Because the trial court’s domestic-violence finding addresses only what occurred “during the marriage,” it cannot be construed to be a factual underpinning for the legal conclusion that the father met his burden of proof with respect to a change of circumstances “since the last custody determination.” Moreover, because the trial court determined that the domestic-violence issue was a “wash,” the domestic-violence finding could not have figured into its McLendon calculus. A neutral factor does not, by definition, contribute causally to a legal conclusion. See, e.g., Small v. United States, 544 U.S. 385, 393, 125 S.Ct. 1752, 161 L.Ed.2d 651 (stating that “those who use legislative history to help discern congressional intent [with respect to the meaning of the phrase ‘convicted in any court’ in a federal felon-in-possession-of-firearm statute] will see the history here as silent, hence a neutral factor, that simply confirms the obvious, namely, that Congress did not consider the issue [whether a foreign conviction could serve as the predicate offense]”).

Item (3) — which is a mere recitation of the McLendon standard and a statement that the father had met his burden of proof under McLendon — is not a finding of fact, but a legal conclusion representing an application of the law to the facts, or a holding — that the party with the burden of proof had satisfied the appropriate eviden-tiary standard and had thus met his burden. The trial court’s legal conclusion that the father met his burden did not set out any of the factual underpinnings for that conclusion.

Reciting the burden of proof that the father was required to meet per McLen-don and “[s]aying that the [father] ha[d] sustained the burden of proof ... is not an adequate finding of the matters of fact involved in that issue .... It is in the nature of a legal conclusion rather than a finding of the underlying facts .... ” United States v. Jefferson Elec. Mfg. Co., 291 U.S. 386, 408-09, 54 S.Ct. 443, 78 L.Ed. 859 (1934). When a trial court’s decision is conclusory and does not detail or analyze the predicate facts upon which it is based, it is not a specific finding of fact. Cf Jones v. Tyson Foods, Inc., 26 Ark.App. 51, 759 S.W.2d 578 (1988) (holding that Workers’ Compensation Commission did not satisfy its statutory obligation to make “specific findings of fact” by simply declaring in conclusory fashion that claimant failed to meet the burden of proof); Ellis v. Dravo Corp., 97 Idaho 109, 111, 540 P.2d 294, 296 (1975)(statement that claimant did not sustain his burden of proof “is not a finding of fact at all but a conclusion of law”).

      . Under the facts of this case, the trial court could properly consider the parties’ conduct before they divorced. When "the divorce judgment incorporated an agreement of the parties, and there was no testimony at the time of the divorce concerning child custody issues[,] ‘... facts relating to the parties' pre-divorce conduct should be considered by the trial court in a modification hearing.' ” Blume v. Durrett, 703 So.2d 986, 988 (Ala.Civ. App.1997) (quoting Wilson v. Wilson, 408 So.2dll4, 116 (Ala.Civ.App.1981)). The parties' pleadings state that the divorce judgment incorporated a settlement agreement. The mother’s testimony indicates that the parties did not present evidence or testimony on the issue of custody of the children in the divorce proceeding:
      "Q. Okay. And ya’U actually settled all of the issues in this case by agreement; is that correct?
      "A. Yes, ma’am.
      "Q. At that time did [the father] raise any issues about you taking care of the boys?
      “A. No, ma’am.”
      Accordingly, the trial court properly considered the parties’ predivorce conduct. Blume v. Durrett, supra; see also Godwin v. Baldera-mos, 876 So.2d 1169, 1174 (Ala.Civ.App.2003) (the trial court was not precluded from considering predivorce conduct in a case in which the divorce action was never tried); C.P. v. W.M., 806 So.2d 395, 396 (Ala.Civ.App. 2001) (”[W]e have recognized [that evidence relating to predivorce conduct may be presented when] the earlier judgment awarding custody was based upon an agreement of the parties and the facts sought to be adduced were not disclosed in the proceeding giving rise to the earlier consent judgment.”).

      . See note 1, supra.

      . By order dated November 19, 2008, the Alabama Supreme Court amended rule 32, Ala. R. Jud. Admin., including the child-support guidelines, effective January 1, 2009. By order dated February 25, 2009, the Alabama Supreme Court amended Rule 32(A)(4) and Rule 32(B)(7), Ala. R. Jud. Admin., effective March 1, 2009. Those amendments are not applicable in this case.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Daniel COOPER v. Malvester COOPER.
    2080210.
    Court of Civil Appeals of Alabama.
    April 24, 2009.
    Roderick Graham, Birmingham, for appellant.
    Amy I. Rogers of Rogers & Rogers, Clanton, for appellee.
   MOORE, Judge.

On May 5, 2008, Malvester Cooper (“the former wife”) filed in the Chilton Circuit Court a “petition for contempt rule nisi and for modification” against Daniel Cooper (“the former husband”). In her petition, the former wife requested that the trial court (1) order the former husband to appear and show cause why he should not be found in contempt of court for failing to comply with certain provisions of the parties’ divorce judgment, (2) modify the child-support provision of the parties’ divorce judgment, and (3) award her attorney fees and costs. The former husband filed a response to the former wife’s petition on May 29, 2008.

On August 1, 2008, the trial court entered a handwritten order on the case-action-summary sheet that states:

“Show Cause called. Parties present. [The former husband] having filed Chapter 7 [bankruptcy] and was discharged. Court finds that [the former husband] has taken inconsistent positions and is judicially estopped to have had the protection of Chapter 7 and to have collected benefit under the Final Decree. Court further finds that [the former wife] lost $1100.00 due to tax capture to the benefit of the position of [the former husband]. Therefore, [the former husband] shall pay $1100.00 to [the former wife] in 60 days.”

The handwritten order was initialed by the trial judge and was entered into the State Judicial Information System on August 1, 2008. See Rule 58(c), Ala. R. Civ. P. On September 3, 2008, the former husband filed a “motion for reconsideration” of the August 1, 2008, order. On September 5, 2008, the former wife filed a “motion for formal order” requesting that the trial court enter a “formal order” because she needed it for tax purposes. On October 3, 2008, the former wife filed a “motion for contempt” alleging that the former husband had not paid the moneys the trial court had ordered him to pay in the August 1, 2008, order. The trial court subsequently entered a typewritten order on October 6, 2008, that is identical to the August 1, 2008, order. The former husband filed his notice of appeal to the Alabama Supreme Court on October 3, 2008; that court transferred the appeal to this court on December 1, 2008, based on a lack of appellate jurisdiction.

The former wife, in her appellate brief to this court, asks this court to dismiss the former husband’s appeal because, she asserts, it was untimely filed. We dismiss the appeal, albeit based on a reason different than that asserted by the former wife.

“[A] final judgment is a ‘terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants.’ ” Dees v. State, 563 So.2d 1059, 1061 (Ala. Civ.App.1990) (quoting Tidwell v. Tidwell, 496 So.2d 91, 92 (Ala.Civ.App.1986)). “The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). Neither the August 1, 2008, order on the case-action-summary sheet nor the October 6, 2008, typewritten order adjudicated the former wife’s claim for a modification of child support. The trial court’s failure to dispose of the former wife’s claim for a modification of child support renders the trial court’s August 1, 2008, and October 6, 2008, orders nonfinal. Accordingly, we must dismiss the former husband’s appeal.

APPEAL DISMISSED.

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

      . The trial court did not find the former husband in contempt; therefore, the trial court’s orders were not immediately appealable. Gladden v. Gladden, 942 So.2d 362, 369 (Ala. Civ.App.2005) (“an order adjudging a party guilty of contempt is a final, separately ap-pealable judgment”).

      . We note that, had the August 1, 2008, order disposed of the former wife's claim for a modification of child support, that order would have been final, and, accordingly, the former husband's "motion for reconsideration,” filed on September 3, 2008, which we interpret as a Rule 59, Ala. R. Civ. P., motion, would have been filed one day late, see Rule 6(a) and Rule 59, Ala. R. Civ. P., and would have resulted in the appeal being untimely.


author: PER CURIAM. WELCH, Judge,

text:
    Laren Edward LAAKKONEN v. STATE of Alabama.
    CR-06-0981.
    Court of Criminal Appeals of Alabama.
    Oct. 31, 2008.
    Rehearing Denied Feb. 20, 2009.

      E. Jake Watson, Huntsville, for appellant.
    Troy King, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
   PER CURIAM.

This Court’s opinion of December 21, 2007, is hereby withdrawn and the following opinion is substituted therefor.

The appellant, Laren Edward Laakko-nen, was convicted of possession of a controlled substance, crack cocaine, a violation of § 13A-12-212, Ala.Code 1975, and was sentenced to four years’ imprisonment in the state penitentiary. The circuit court suspended the sentence and ordered Laak-konen to serve two years on probation.

The State’s evidence tended to show the following. On September 16, 2003, Investigator Chard Brooks, of the Madison County Sheriffs Department, was notified by an investigator in another county that a 17-year-old female was missing and might be at a house on Old Railroad Bed Road in Madison County. Brooks went to the location and recognized the house because, he said, the house was “under constant scrutiny by our narcotics division as a point of sale for crack cocaine.” (R. 75.) The owner gave Brooks permission to search the premises. Police searched the house and then proceeded to a mobile home that was parked behind the house. Brooks saw a small red pickup truck parked between the house and the mobile home. He testified: “I noticed that the passenger occupant of the vehicle had what appeared to be a glass pipe to her lips with a lit cigarette in front of that pipe.” (R. 77.) The female, later identified as Brenda Mullins, was sitting in the passenger’s side of the truck and Laakkonen was sitting in the driver’s seat. Brooks immediately recognized the pipe as the “type of apparatus used for smoking crack cocaine.” Brooks detained the two individuals.

Mike Bertus, a patrol supervisor with the Madison County Sheriffs Department, testified that he was called to the scene. He searched the truck and discovered a cigarette package in the glove compartment. A white substance, later determined to be crack cocaine, was in the package. Bertus testified that he questioned Laakkonen after reading him his Miranda rights, that Laakkonen waived his rights, and that Laakkonen told him that he had purchased $100 worth of crack cocaine earlier that day with Mullins’s money.

Laakkonen testified in his own defense. He said that earlier on the day he was arrested he went to pick up Mullins to give her a ride. She told him that if he would drive her to a certain location she could get money that someone owed her so that she could pay Laakkonen the money that she owed him. Laakkonen testified that when Mullins opened the door to get into the truck she pulled out a pack of cigarettes and put them in the glove compartment. He said that he never admitted to police that he had purchased any illegal drugs.

The jury chose to believe the State’s version of the events and convicted Laak-konen of the unlawful possession of crack cocaine.

I.

In our opinion issued on December 21, 2007, this Court reversed Laakkonen’s conviction on the basis of an improper jury instruction. This Court granted the State’s application for rehearing to address two of the State’s assertions presented in its brief in support of the application. First, it contends that the issue that formed the basis of this Court’s reversal of Laakkonen’s conviction — that the circuit court improperly instructed the jury that Laakkonen’s prior conviction had been proven when, in fact, it had not — was not presented in Laakkonen’s original brief. Thus, the State was not put on notice that it was expected to defend against this claim on appeal, and, the State contends, this Court should not have considered this claim under the scope of review set out in 45B, Ala.R.App.P. Second, it asserts that the issue that was actually raised in Laak-konen’s original brief to this Court — the challenge to the State’s attempt to impeach Laakkonen with a prior conviction without providing proof of that conviction — was not preserved for appellate review and is not properly before this Court for consideration.

In response to the State’s arguments on rehearing we have reexamined Laakko-nen’s original brief, which was filed with this Court on June 15, 2007. Laakkonen’s original brief argues only two issues: (1) Whether the evidence was sufficient to convict him of unlawful possession of cocaine; and (2) Whether the State failed to prove his prior conviction after he stated on cross-examination that he could not recall the conviction.

In the statement of the issues and summary-of-the-argument sections of his original brief, Laakkonen argued only that the State’s failure to impeach him properly by proving a prior conviction after Laakkonen denied the existence of a prior conviction was error. The heading of the argument section in Laakkonen’s brief related to this issue stated: “THIS COURT SHOULD REVERSE BECAUSE [THE] STATE FAILED TO PROPERLY PROVE THE EXISTENCE OF A PRIOR CONVICTION TO IMPEACH MR. LAAKKONEN AFTER HE DID NOT ADMIT TO THE CONVICTION.” (Laakkonen’s original brief, p. 14.) Laakkonen then argued that the State had failed to present proof of the prior conviction, cited law relating to that issue, and cited that portion of his cross-examination dealing with the prior conviction. Although near the end of Laakko-nen’s argument on this issue Laakkonen made a passing reference to the prosecutor’s closing argument and quoted the trial court’s jury instruction, and stated that he had objected to both at the trial level, nowhere in Laakkonen’s original brief to this Court did he actually argue that the prosecutor’s closing argument or the trial court’s jury instruction constituted reversible error. It appears that the references to the prosecutor’s closing argument and the court’s jury instructions were not intended to be separate issues but instead were intended to bolster Laakkonen’s argument that the State erred in attempting to impeach him without proof of his prior conviction. After reexamining Laakko-nen’s original brief we agree with the State that this claim was not presented to this Court in Laakkonen’s original brief, and this Court should not have addressed it in the December 21, 2007, opinion.

Second, as we stated above the State next argues on rehearing that Laak-konen’s challenge to the prosecutor’s attempt to impeach him without proper proof of his prior conviction was not preserved for appellate review and should not be addressed by this Court.

The following occurred during the State’s cross-examination of Laakkonen:

“[Prosecutor]: Your date of birth, please, sir.
“[Laakkonen]: 1/7/64.
“[Prosecutor]: Uh-huh. (Affirmative.) And is-“ — ~-your Social Security number?
“[Laakkonen]: Yes, sir.
“[Prosecutor]: Could you, please, tell these folks what you were doing in the building on September 27 of 2001?
“[Laakkonen]: 2001 — I can’t remember it.
“[Prosecutor]: Weren’t you in court on that date?
“[Laakkonen]: I may have, but Pm not for sure.
“[Prosecutor]: Were you not convicted of giving false information to a police officer on that date in this building?
“[Laakkonen]: Not that I recall, I mean.
“[Prosecutor]: Well, how many times have you been arrested for that, sir?
“[Laakkonen]: Not that I recall, none.
“[Prosecutor]: Do you have any children with the same name as you?
“[Prosecutor]: No, sir.
“[Prosecutor]: Back in that time or in— have you ever lived at 2401 Huntsville Street, Huntsville, Alabama, 35811?
“[Laakkonen]: Yeah, about ten years ago.
“[Prosecutor]: But you don’t remember September 27, 2001?
“[Laakkonen]: No. Not that I can say.
“[Prosecutor]: I beg your pardon?
“[Laakkonen]: Not that I can remember.”

(R. 130-31.)

In Ex parte Peagler, 516 So.2d 1369 (Ala.1987), the Alabama Supreme Court held that when a defendant states on cross-examination that he cannot remember a prior conviction it is incumbent on the State to prove that conviction. The Supreme Court stated:

“In Gregath v. Bates, 359 So.2d 404 (AJa.Civ.App.1978), Holmes, J., writing for the court, specifically addressed the same question now pending before us:
“ ‘The defendant alleges as error the trial court’s refusal to admit testimony which attempted to impeach a witness. Specifically, the defendant was attempting to impeach the testimony of one of the plaintiffs by showing a conviction for a crime involving moral turpitude, ie., conspiracy to commit gambling.
“ ‘The record reveals the plaintiff responded to the defendant’s questions and those propounded by the court by stating he didn’t know if he had been convicted of that particular offense. Defendant attempted to produce a “rap sheet” which supposedly showed the charge the plaintiff was convicted of. The trial court ruled that this was not the best evidence of such a conviction. We agree.
“ ‘When a witness denies that he has been convicted of the crime, it becomes incumbent upon the impeaching party to prove the conviction. This can be done by introducing the original court record of the conviction or a certified or sworn copy. The prior conviction cannot be proven by the offering of oral testimony by the impeaching party. See Headley v. State, 51 Ala.App. 148, 283 So.2d 458 (1973).’
“We are of the opinion that Gregath, although it was a civil case, correctly states the law of this jurisdiction .... ”

516 So.2d at 1370-71. In Peagler, the defendant objected during the defendant’s cross-examination to the State’s failure to prove the prior conviction.

Laakkonen failed to object to the State’s attempt to impeach him while he was on the witness stand. In fact, no objection was made until Laakkonen objected during the State’s closing argument and asserted that the State had failed to offer proof of his prior conviction. In our December 21, 2007, opinion we stated that Laakkonen could not have been aware that the State would not attempt to properly prove his conviction and thus at the time of the question Laakkonen’s attorney had no basis for objecting. However, after further reflection and review of the record we now believe we were wrong.

It was obvious, long before closing arguments, that the State had failed to meet its burden of proving Laakkonen’s prior conviction after he stated on cross-examination that he did not recall the prior conviction. Generally speaking, an error during the evidentiary portion of a trial should be objected to as soon as the error becomes apparent. See Watson v. State, 439 So.2d 762, 769 (Ala.Crim.App.1983). Typically a witness is impeached with proof of a prior conviction when he or she is on the witness stand. Clearly it was apparent by the conclusion of Laakkonen’s testimony that the State had failed to prove the prior conviction for impeachment purposes. However, Laakkonen failed to object until closing arguments, after the State had rested its case and after all the evidence had been presented to the jury.

This Court in Desimer v. State, 535 So.2d 238 (Ala. Crim.App.1988), held that because no objection was made when the witness stated that he had no prior conviction we could not consider whether the prosecutor had erred in failing to rebut the witness’s negative answer. See also Cook v. State, 574 So.2d 905 (Ala.Crim.App. 1990).

Here, Laakkonen’s objection, which did not come until the State’s closing argument, was untimely. Thus, the issue that the State failed to prove Laakkonen’s prior conviction is not preserved for appellate review and this Court will not consider it. See Desimer, supra.

II.

Laakkonen next argues in his original brief that the evidence was insufficient for the jury to find that he had actual or constructive possession of the crack cocaine that was found in the glove compartment of his truck.

Because Laakkonen was not in actual possession of the cocaine the State had to prove that Laakkonen had constructive possession of the drugs. See Ex parte J.C., 882 So.2d 274 (Ala.2003). In Ex parte J.C. the Alabama Supreme Court stated:

“ ‘In order to establish constructive possession, the State must prove “(1) [a]ctual or potential physical control, (2) intention to exercise dominion and (8) external manifestations of intent and control.” ’

“Ex parte Fitkin, 781 So.2d 182, 188 (Ala.2000) (quoting Bright v. State, 673 So.2d 851, 852 (Ala.Crim.App.1995)).... ‘ “When constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substances.”’ Ex parte Tiller, 796 So.2d [310] at 312 [(Ala. 2001) ] (quoting Posey v. State, 736 So.2d 656, 658 (Ala.Crim.App.1997)).

“ ‘While non-exclusive possession may raise a suspicion that all the occupants had knowledge of the contraband found, a mere suspicion is not enough. Some evidence that connects a defendant with the contraband is required. Generally, the circumstances that provide that connection include:
“ ‘ “(1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the defendant is confronted with the possibility that illicit drugs will be found; (5) evidence that debris of the contraband was found on defendant’s person or with his personal effects; (6) evidence which shows that the defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.” ’
“Grubbs v. State, 462 So.2d 995, 997-98 (AIa.Crim.App.1984) (quoting Temple v. State, 366 So.2d 740, 743 (Ala.Crim.App. 1978)).”

882 So.2d at 277-78. “Constructive possession of contraband may be shown by proof of dominion and control over a vehicle containing contraband. United States v. Brunty, 701 F.2d 1375, 1382 (11th Cir.), cert, denied, 464 U.S. 848,104 S.Ct. 155, 78 L.Ed.2d 143 (1983); United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983).” United States v. Clark, 732 F.2d 1536,1540 (11th Cir.1984). A controlled substance may be jointly possessed, and possession may be established by circumstantial as well as direct evidence. Knight v. State, 622 So.2d 426, 430 (Ala.Crim.App.1992). “Proximity to illegal drugs, presence on the property where they are located, or mere association with persons who do control the drugs may be sufficient to support a finding of possession when accompanied with testimony connecting the accused with the incriminating surrounding circumstances.” German v. State, 429 So.2d 1138,1142 (AIa.Crim.App.1982).

The evidence in this case showed that Laakkonen was driving the truck in which the crack cocaine was found. He and Mullins were the occupants of the truck, which was parked in close proximity to a house where crack cocaine was known to be sold. Laakkonen admitted to police that he and Mullins specifically went to the house for the purpose of purchasing crack cocaine and that he did in fact buy $100 worth of crack cocaine at the house from two different people — although he had claimed he purchased the drugs for other people. Mullins was seen openly lighting a crack pipe while sitting with Laakkonen in his truck. Based on the record before us, we hold that the State presented sufficient evidence from which a jury could reasonably find that Laakkonen was in constructive possession of the crack cocaine discovered in the glove compartment of his truck. Ex parte J.C., supra.

For the foregoing reasons, we grant the State’s application for rehearing and withdrawn our original opinion. Laakkonen’s conviction is due to be affirmed.

APPLICATION FOR REHEARING GRANTED; OPINION OF DECEMBER 21, 2007, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

BASCHAB, P.J., and McMILLAN, SHAW, and WISE, JJ„ concur. WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

I disagree with the majority’s conclusion that Laren Edward Laakkonen did not raise on appeal the issue of whether his conviction is due to be reversed because the trial court in its charge to the jury improperly attributed a prior conviction to Laakkonen that the State failed to prove. In its opinion, this Court holds that, as concerning the use of his prior conviction, in his initial brief on appeal Laakkonen raised only the issue of whether “the State failed to prove his prior conviction after he stated on cross-examination that he could not recall the conviction.” Laakkonen, 21 So.3d at 1263. The majority concludes that Laakkonen had a duty to cure the State’s failure to properly impeach him and that because he failed to object to the State’s failure, the issue is not properly before this Court.

I concede that Laakkonen did not object to the State’s failure to prove that he had a prior conviction. Frankly, I do not know of any defense counsel who would have raised such an objection. I agree with the majority that because no objection was raised, that issue is waived on appeal.

But the majority’s opinion elevates form over substance. Laakkonen points out in his original brief on appeal that the relevant objections made at trial were (1) to the prosecutor’s argument that Laakkonen had a prior conviction when evidence of such a conviction was never properly introduced, and (2) to the trial court’s charge to the jury in which it stated that evidence had been introduced that Laakkonen had been convicted of giving false information to a law-enforcement officer when in fact no such evidence had been introduced. However, only the trial court’s error in charging the jury was preserved at trial.

I know of no law that says this Court cannot discern what is actually being argued in an appellate brief simply because a concise statement is not set out in boldfaced type at the outset of an argument. Admittedly, Laakkonen’s brief is not a model of clarity. Nonetheless, the errors complained of on appeal can be clearly discerned in the body of his argument and a review of the portions of the record cited in his argument.

Laakkonen argues that the following jury instruction given by the trial court was improper:

“The credibility of a criminal defendant may be attacked by introducing evidence that the defendant has been convicted of certain crimes. Evidence has been introduced in this case that the defendant has been convicted of giving false information to a law enforcement officer. Evidence of a prior criminal conviction for impeachment purposes only — is for impeachment purposes only and may not be considered as substantive evidence to prove the defendant’s guilty. However, if you are reasonably satisfied from the evidence that the defendant has been convicted of the crime of giving false information to a law enforcement officer, that evidence can be considered by you in determining the credibility of the defendant’s testimony; that is, whether or not you believe that this defendant is telling the truth. You may consider the conviction for giving false information to a law enforcement officer, along with all of the other evidence in this case, in determining what weight you will give the defendant’s testimony.”

(Laakkonen’s brief at p. 18 (citing R. 143).)

Laakkonen argues on appeal that “based on the foregoing” declarations of the State and the trial court, the State was erroneously permitted to place before the jury that Laakkonen had been impeached “with a prior conviction without properly introducing authentic documentation thereof when Mr. Laakkonen did not admit to the prior conviction.” (Laakkonen’s brief at p. 19.) The error that is the subject of Laak-konen’s argument on appeal is not that the State failed to prove the prior conviction, but that the State improperly argued to the jury that such a conviction had been proven, and the trial court’s compounding of the error by instructing the jury that evidence of a conviction had been introduced when in fact it had not. Both errors were properly objected to at trial.

The record shows that as the prosecutor began cross-examining Laakkonen, the following colloquy occurred:

“Q: [BY THE PROSECUTOR]: Your date of birth, please, sir?
“A. [BY LAAKKONEN]: 1/7/64.
“Q.: Uh-huh. (Affirmative.) And is — - — - — " your Social Security number?
“A.: Yes, sir.
“Q.: Could you, please, tell these folks what you were doing in the building on September 27, 2001?
“A.: 2001 1 can’t remember it.
“Q.: Weren’t you in court on that date?
“A.: I may have, but I’m not for sure.
“Q.: Were you not convicted of giving false information to a police officer on that date in this building?
“A.: Not that I recall, I mean.
“Q.: Well, how many times have you been arrested for that, sir?
“A.: Not that I recall, none.
“Q.: Do you have any children with the same name as you?
“A.: No, sir.
“Q.: Back in that time or in — -have you ever lived at 2401 Huntsville Street, Huntsville, Alabama, 35811?
“A.: Yeah, about ten years ago.
“Q.: But you don’t remember September 27, 2001?
“A.: No. Not that I can say.
“Q.: I beg your pardon?
“A.: Not that I can say remember.”

(R. 130-31.) A different line of questioning was pursued for a time, then the prosecutor said:

“Q.: And you don’t remember that giving false information to a police officer conviction in 2001?
“A.: Not that I remember, sir.
“Q.: Not that you remember. May have happened?
“A.: It could, I mean, to be honest with you.”

(R. 132.) The prosecutor then changed his line of questioning.

A review of the record shows that the issue whether Laakkonen had ever been convicted for providing a false name to a police officer was not discussed during the remainder of the trial. The State never offered any proof that such a conviction had occurred.

The majority opinion takes Laakkonen to task for his failure to object to the State’s “error” in failing to properly impeach him. Laakkonen, 21 So.3d at 1265. However, it is not a defendant’s duty to remind the State in a timely manner that it failed to impeach him.

The State contends, and the majority apparently concurs, that because Laakko-nen’s attorney did not object “to the prosecutor’s unsuccessful impeachment effort,” the issue is not preserved for appellate review. (State’s brief, p. 8.) As the State points out in its brief, to preserve an issue for appellate review, an objection is required at the time of the “offending question.” (State’s brief, p. 8.)

During the prosecutor’s questioning of Laakkonen regarding whether he had a prior conviction, no “offending” question was asked. The prosecutor was within his rights to ask Laakkonen on cross-examination about whether he had ever been convicted of giving a false name to a police officer. See Rule 609(a)(2), Ala. R. Evid. (evidence of a prior conviction may be used to attack the credibility of a witness if the crime for which the witness was convicted involved dishonesty or a false statement). Furthermore, at that point, Laakkonen could not have been aware that the State would not attempt to properly prove the conviction. Thus, at the time of the questioning, Laakkonen’s attorney had no basis for objecting. The impeachment of Laak-konen occurred during the defense’s casein-chief. The only time that it would have been apparent that the State was not going to introduce his purported conviction was when the State failed to request to proceed with rebuttal. At that time Laak-konen could have moved for a mistrial and, if the trial court denied the motion,' could have in that manner preserved any error committed by the trial court.

However, when the prosecutor attempted to assert during closing arguments that Laakkonen had been impeached by evidence of a conviction of a crime, which was improper because the State never proved that Laakkonen had such a conviction, there was a valid ground for an objection.

“In Ex parte Peagler, 516 So.2d 1369, 1371 (AIa.1987), the Alabama Supreme Court held that in attempting to impeach a hostile witness by questioning the witness about a prior conviction, a prosecutor must be prepared to rebut a negative answer with proper proof of the prior conviction: ‘ “When a witness denies that he has been convicted of the crime, it becomes incumbent upon the impeaching party to prove the conviction.” ’ ”

Covington v. State, 620 So.2d 122, 126 (Ala.Crim.App.1993); see also Jennings v. State, 588 So.2d 540, 542 (Ala.Crim.App. 1991). Proving the conviction “ ‘ “can be done by introducing the original court record of the conviction or a certified or sworn copy. The prior conviction cannot be proven by the offering of oral testimony by the impeaching party. See Headley v. State, 51 AlaApp. 148, 283 So.2d 458 (1973).” ’ ” Jennings, 588 So.2d at 542 (quoting Ex parte Peagler, 516 So.2d 1369, 1371 (Ala.1987), quoting in turn Gregath v. Bates, 359 So.2d 404, 408 (Ala.Civ.App. 1978)) (emphasis omitted). The record shows that the State never presented any evidence of Laakkonen’s alleged prior conviction, or that the prosecutor stood ready to prove the existence of the alleged prior conviction.

“ ‘It has long been the rule in Alabama that, although counsel should be given considerable latitude in drawing reasonable inferences from the evidence, they may not argue as a fact that which is not supported by the evidence.... This has been the rule since it was first stated in McAdory v. State, 62 Ala. 154[, 163] (1878):
“ ‘ “[C]ounsel should not be permitted to comment upon facts not proved before the jury as true, and not legally competent and admissible as evidence. However reluctant an appellate court may be to interfere with the discretion of a primary court in regulating the trial of cases, if it should appear that it had refused, to the prejudice of a party, to compel counsel to confine their arguments and comments to the jury, to the law and evidence of the case under consideration — if it had permitted them to refer to and comment upon facts not in evidence, or which would not be admissible as evidence, it would be a fatal error....” ’
“[Ex parte ] Washington, 507 So.2d [1360] at 1361-62 [ (Ala.1986) ]. See also King v. State, 518 So.2d 191, 194 (Ala. Cr.App.1987). ‘[F]or the state’s attorney to ask a question which implies the existence of a factual predicate which the examiner knows he [or she] cannot support by the evidence is unprofessional conduct.’ Daniel v. State, 534 So.2d 1122,1126 (Ala.Cr.App.1988).”

Covington, 620 So.2d at 125-26.

“ ‘ “Laying prejudicial allegations before the jury ‘by dint of cross-examination without being prepared to prove them is generally regarded as reversible error.’ United States v. Brown, 519 F.2d 1368, 1370 (6th Cir.1975).” ’ ” Covington, 620 So.2d at 126 (quoting Daniel v. State, 534 So.2d 1122, 1126 (Ala.Crim.App.1988)); see also Hooper v. State, 585 So.2d 142, 151 (Ala.Crim. App.1991); and Gillespie v. State, 549 So.2d 640, 645 (Ala.Crim.App.1989).

Nevertheless, in this case, the trial court did not rule on Laakkonen’s objection during the prosecutor’s closing arguments. When Laakkonen’s attorney objected, the trial court merely stated, “Let’s move on,” and the prosecutor continued his closing. (R. 135.) It is incumbent upon counsel to obtain an adverse ruling to preserve an issue for appellate review. See Jones v. State, 895 So.2d 376 (Ala.Crim.App.2004); and Ragsdale v. State, 448 So.2d 442 (Ala. Crim.App.1984). Thus, Laakkonen’s challenge to the prosecutor’s closing argument is not preserved for appellate review.

I point out again, however, that at the time the prosecutor was asking Laakkonen whether he had a prior conviction for giving a false name to a police officer, there was no basis for an objection. It is ludicrous to place the burden upon defense counsel to object when his client states he cannot remember whether he had been convicted. As pointed out in the cases cited above, when a witness testifies that he does not recall a prior conviction, the State bears the burden of proving such a conviction.

Laakkonen had no basis for an objection when the prosecutor questioned him about whether he had a prior conviction and, at the conclusion of his case-in-chief, perhaps made a strategic decision not to risk reminding the State that there was an opportunity to prove the conviction in rebuttal and once more bring the matter to the attention of the jury. Because Laakkonen failed to move for a mistrial he could not predicate error on the failure of the State to properly prove the conviction.

Laakkonen’s attorney objected at the appropriate time, i.e., when the prosecutor began telling jurors during his closing argument that Laakkonen had been impeached with evidence of a prior conviction. Defense counsel should have requested a ruling from the trial court as to his objection, and having failed to obtain the ruling, failed to preserve the error.

However, counsel did properly take exception to the trial court’s charge to the jury that evidence of the prior conviction had been introduced into evidence, and his challenge to the trial court’s improper jury instruction was properly preserved. The improper instruction constituted reversible error. After the trial court finished its instructions, but before the jury began its deliberations, Laakkonen’s attorney entered his exception to the trial court’s charge, saying that no evidence had been presented showing that Laakkonen had a prior conviction. The trial court responded by saying that Laakkonen indicated on the record he could not recall whether he had such a conviction and Laakkonen’s attorney had not objected. (R. 154.)

The trial court’s instruction to the jury that evidence of a prior conviction had been introduced when in fact no such evidence had been presented was prejudicial to Laakkonen by giving the imprimatur of the court to the unproven fact of Laakko-nen’s prior conviction. Thus, Laakkonen’s conviction must be reversed.

Because I would reverse the judgment of the trial court, I respectfully dissent from the majority opinion.

      . Laakkonen’s first name is spelled “Laren” and "Loren” in various portions of the record. However, the indictment lists his name as "Laren.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . We did not address the first issue — the sufficiency issue — in our December 21, 2007, opinion because we found reversible error related to the second issue.

      . In fact, this issue was not raised until Laak-konen filed a supplemental brief on this issue at this Court’s direction. In March 2008, we issued an order withdrawing our December 21, 2007, opinion and directing the parties to brief the issue of the propriety of the circuit court's jury instruction on the use of a prior conviction and whether that issue had been preserved. We subsequently set aside that order. The effect of setting aside that order was to reinstate our December 21, 2007, opinion and to render the supplemental briefs that were filed in response to our March order a nullity. Accordingly, we have not considered the supplemental briefs.


author: LYONS, Justice. MURDOCK, Justice

text:
    Ex parte Laren Edward LAAKKONEN (In re Laren Edward Laakkonen v. State of Alabama).
    1080650.
    Supreme Court of Alabama.
    April 24, 2009.
    Jake Watson of Watson Graffeo, P.C., Huntsville, for petitioner.
    Submitted on petitioner’s brief only.
   LYONS, Justice.

The petition for the writ of certiorari is denied.

In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1978).

WRIT DENIED.

COBB, C.J., and STUART and BOLIN, JJ., concur.

MURDOCK, J., concurs specially.

MURDOCK, Justice

(concurring specially).

I concur in the denial of the petition for a writ certiorari. I write separately to explain my reason for doing so and my reasons for agreeing with the statement by the Court today that our denial of certiora-ri should not be construed as agreement with the rationale of the opinion of the Court of Criminal Appeals in this case or, for that matter, the result reached by the Court of Criminal Appeals.

I do not agree with the result reached by the Court of Criminal Appeals or with the rationale stated in Part I of its opinion. Instead, I agree in large measure with the views expressed by Judge Welch in his dissenting opinion.

The Court of Criminal Appeals explains its decision as follows:

“[T]he State had failed to meet its burden of proving Laakkonen’s prior conviction .... [A]n error during the evi-dentiary portion of a trial should be objected to as soon as the error becomes apparent.”

Laakkonen v. State, 21 So.3d 1261, 1265 (Ala.Crim.App.2008) (emphasis added). As a threshold matter, I note that this explanation confuses the concept of a party’s failing to adequately or properly prove some element of its case with an “error.” Parties do not commit error; trial courts commit errors.

Moreover, the fact that one party attempts to impeach another during cross-examination, but fails in this effort because it does not receive affirmative answers to its cross-examination questions, does not obligate the other party’s counsel to object to those questions. It is true that “in attempting to impeach a hostile witness by questioning the witness about a prior conviction, a prosecutor must be prepared to rebut a negative answer with proper proof of the prior conviction.” Covington v. State, 620 So.2d 122, 126 (Ala.Crim.App. 1993), summarizing holding in Ex parte Peagler, 516 So.2d 1369, 1371 (Ala.1987). (Such proper proof includes the original court record of the prior conviction or a certified or sworn copy of the same.) It is also true, as Judge Welch explains in his dissent to the Court of Criminal Appeals’ opinion, that “ ‘ “ ‘[Paying prejudicial allegations before the jury “by dint of cross-examination without being prepared to prove them is generally regarded as reversible error.” United States v. Brown, 519 F.2d 1368, 1370 (6th Cir.1975).”” ” 21 So.3d at 1270 (Welch, J., dissenting, quoting Covington v. State, 620 So.2d at 126). Nonetheless, Laakkonen’s counsel was under no obligation at the time the questions were being put to his client on cross-examination to object to those questions. For all defense counsel knew at the time, the State would eventually follow up those questions with proper evidence of the prior convictions. Only at such time as it became apparent that the State would not or could not do so did the objectionable nature of the State’s earlier cross-examination questions become known. Even then, Laakkonen’s counsel had no obligation to object to the questions themselves.

Specifically, if defense counsel was willing — for strategic or other reasons — to live with whatever negative suggestions those questions had left in the minds of the jurors, he might decide to refrain from interposing any objection to the questions themselves, knowing that he eventually could object to any effort to charge the jury as to the import of a prior conviction because, quite simply, no prior conviction had been proven. Strategic reasons for not objecting to the cross-examination questions themselves could include a desire not to bring more attention to the issue or a desire not to educate the State, before it rested, as to the proper manner of proving a prior conviction. Accordingly, it was perfectly within defense counsel’s prerogative to make a strategic decision not to object to the cross-examination questions in their own right, but to object only if and when an effort was made to give a prior-conviction charge to the jury and then to object to the charge itself as being without a proper factual predicate.

Thus, it appears to me that the Court of Criminal Appeals was incorrect to base its decision on the fact, as that court put it, that “Laakkonen failed to object to the State’s attempt to impeach him while he was on the witness stand.” 21 So.3d at 1265. There was nothing at that juncture to which defense counsel was obligated to object. The State was attempting to impeach his client; the attempt was failing. Defense counsel certainly was under no obligation to object to that.

Notwithstanding the foregoing concerns regarding the opinion of the Court of Criminal Appeals and the result it reaches, I have concurred to deny certiorari review because the defendant has failed to address the two supposed 'procedural defaults upon which the Court of Criminal Appeals bases its opinion. These are the supposed insufficiency of Laakkoneris principal brief in that court and Laakko-neris supposed failure to preserve error in the trial court by not objecting to the cross-examination questions regarding his prior convictions. Obviously, for the reasons discussed above, I disagree with the Court of Criminal Appeals as to whether there was any procedural default in the latter regard. Also, I agree with Judge Welch that the majority of the Court of Criminal Appeals is incorrect to view La-akkoneris brief as insufficient. 21 So.3d at 1265 (Welch, J., dissenting). In his petition to this Court, however, Laakkonen addresses only the substantive merits of the impropriety of the jury charge as to prior convictions. As such, the petition provides this Court with no proper basis under Rule 39, Ala. R.App. P., for granting certiorari review of the decision rendered by the Court of Criminal Appeals in this case. See generally Rule 39(a)(1)(D) and Rule 39(d)(3).

      . Indeed, " 'for the state’s attorney to ask a question which implies the existence of a factual predicate which the examiner knows he [or she] cannot support by the evidence is unprofessional conduct.'" Covington, 620 So.2d at 126 (quoting Daniel v. State, 534 So.2d 1122, 1126 (AIa.Crim.App.1988)).


author: WISE, Presiding Judge.

text:
    Gregory Lee DISON v. STATE of Alabama.
    CR-07-0389.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.
    Rehearing Denied April 24, 2009.
    Basil Timothy Case, Muscle Shoals, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

The appellant, Gregory Lee Dison, pled guilty to third-degree arson, a violation of § 13A-7-43, AIa.Code 1975. The trial court sentenced him to serve a term of twelve months in the Lauderdale County Detention Center. Dison did not file any post-judgment motions. This appeal followed.

During the suppression hearing, Jimmy Collier testified that he was a deputy state fire marshal with the Office of the State Fire Marshal; that, as part of his job, he was assigned to the cause and origins of fires and explosions; and that his procedures and policies were governed by Title 36, Chapter 19 of the Code of Alabama. He also testified that he investigated a fire that occurred on February 3, 2007, at 67475 County Road 31 in Killen, Alabama; that, during the week of February 11, 2007, he was contacted by Dick Blake at the Center Star Fire Department and was told that Dison had information he wanted to disclose about the fire; that Dison’s mother lived next door to the mobile home that had burned; that he initially met with Dison at his mother’s house; and that, in that meeting, Dison told him that he was sleeping, his mother woke him up, she had discovered the fire, and she telephoned 911.

Collier also testified that he later contacted Dison and asked him to set up a time to meet with him and talk to him about the information he wanted to disclose; that they agreed to meet at the sheriffs department satellite office in Center Star because he did not have an office to work out of; that, on February 20, 2007, he met with Dison; that Dison gave two different statements on that date; that, at the time of the first statement, he was just talking to Dison as a witness; that, before the first statement, he administered an oath to Dison; that that is part of his procedure; that he would tell a witness he was giving a sworn statement under oath, the penalty for lying was making a false statement, and he could be charged with perjury; and that, after he administered the oath, Dison did not do anything to indicate that he was not talking to him of his free will.

Collier further testified that Dison said some things in the initial statement that he knew were not correct; that he did not have Dison sign that statement because he did not believe him; that he told Dison that he did not believe the information he had given him; that, at that point, he stopped the interview and advised Dison of his Miranda rights; and that, at that time, he took another statement from Di-son. Finally, he testified that he was not a notary and that he relied on § 36-19-17, Ala.Code 1975, when he placed Dison under oath.

Dison argues that the trial court erroneously denied his motion to suppress his statements to Collier. Specifically, he contends that Collier told him he was under oath, advised him of the penalty of perjury, and told him that making a false statement under oath was perjury; that, because Collier was not a notary, his statements were not sworn and he could not be held under penalty of perjury; and that he was tricked and/or deceived into giving the statements.

Section 36-19-17, Ala.Code 1976, provides:

“The fire marshal or his deputies, when in their opinion it is necessary, may take or cause to be taken the testimony on oath of all persons supposed to be cognizant of any facts or have means of knowledge in relation to the matter as to which an investigation is being held and shall cause the same to be reduced to writing.”

Further, § 36-19-19, Ala.Code 1975, provides:

“The fire marshal or his deputies may, each, in any county of this state, summon and compel the attendance of witnesses before them or either of them to testify in relation to any matter which is, by the provisions of this article, a subject of inquiry and investigation, and may require the production of any book, paper or document deemed pertinent thereto by them or either of them. The said fire marshal or his deputies may each administer oaths and affirmations to any person or persons appearing as witnesses before them, and false swearing in any matter or proceedings aforesaid shall be deemed perjury and shall be punished as such.”

(Emphasis added.)

Based on §§ 36-19-17 and 36-19-19, Ala.Code 1975, Collier was authorized to administer an oath to Dison. Further, § 36-19-19, Ala.Code 1975, specifically provides that any false swearing would be punishable as perjury. Therefore, Collier’s statements were not misrepresentations, and Dison was not tricked or deceived into giving the statements. Accordingly, the trial court properly denied Dison’s motion to suppress, and we affirm the trial court’s judgment.

AFFIRMED.

WELCH, WINDOM, and KELLUM, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The State argues that the record does not show that Dison reserved the right to appeal the denial of his motion to suppress. The record does not include a transcript of the guilty plea proceedings. However, during the sentencing hearing, defense counsel stated that Dison had entered a best interest plea and that he had reserved issues for appeal. Neither the trial court nor the prosecutor refuted that assertion. Further, in response to an order from this court, appellate counsel certified that Dison reserved the right to appeal the denial of his motion to suppress before he entered his guilty plea. Therefore, it appears that Dison reserved the right to raise this argument on appeal.