author: MOORE, Judge.

text:
    Jamie Diana TURNER v. Courtney Amos TURNER.
    2141027.
    Court of Civil Appeals of Alabama.
    May 20, 2016.

      Mari Morrison, Birmingham, for appellant.
    Denise J. Pomeroy of Dominick, Feld, Hyde, P.C., Birmingham, for appellee.
   MOORE, Judge.

Jamie Diana Turner (“the mother”) appeals from a judgment entered by the Jefferson Circuit Court (“the trial court”) divorcing her and Courtney Amos Thomas (“the father”) on the ground of adultery, awarding custody of the parties’ child, C.A.T. (“the child”), to the father, ordering the mother to pay child support, ordering the mother to reimburse the father for certain expenses he had incurred on behalf of the child, and ordering the mother to pay certain fees for the child’s guardian ad litem and a portion of the father’s attorney’s fees. We affirm the trial court’s judgment in part and reverse it in part.

I. Ground for Divorce

Alabama law recognizes adultery as a ground for divorce. See § 30-2-l(a)(2), Ala.Code 1975. Caselaw has not explicitly defined the meaning of “adultery” for the purpose of applying § 30—2—1 (a)(2), 1 Judith S. Crittenden & Charles P. Kindregan, Jr., Alabama Family Law § 5:8 (2008), but the appellate courts of this state have clarified that a trial court may divorce parties only for adulterous conduct preceding the filing of the divorce complaint. See Morgan v. Morgan, 183 So.3d 945, 955 (Ala.Civ.App.2014) (“[T]he party alleging adultery must present sufficient evidence to establish that the adulterous behavior took place before the filing of the divorce complaint.”). Hence, when the record contains insufficient evidence indicating that a spouse committed adultery before the filing of the complaint for a divorce, a trial court errs in divorcing the parties based on adultery. See, e.g., Ragan v. Ragan, 655 So.2d 1016 (Ala.Civ.App.1995).

In this case, the father did not request that the trial court divorce the parties on the ground of adultery. At trial, the father testified that before November 27, 2012, the date the mother filed the divorce complaint, he had seen the mother talking with Jamie Gamble at one or more of the child’s baseball games. The father testified that he had objected to the mother’s interaction with Gamble because “she didn’t really know [Gamble].” The father also testified that, in the period leading up to the service of the divorce complaint, there was “[n]o communication, a lot of secretness, texting and on the phone all time.” The mother testified that Gamble had attended one of the child’s baseball games in the fall of 2012 and that he had sat with her at that game, but, she said, she had started “dating” Gamble only “a couple of months” before April 2013. The mother gave birth to a child fathered by Gamble on December 29, 2013, and gave birth to another child, who was also fathered by Gamble, on December 10, 2014. The mother admitted that she had committed adultery, meaning that she had engaged in sexual relations and had cohabited with Gamble while she was still married to the father, but maintained that any adulterous activity occurred only after the parties had separated and she had filed for a divorce.

Incidents of adultery occurring after a divorce complaint is filed are admissible to corroborate evidence of adultery before the date of filing, but such incidents cannot be the sole basis for granting a divorce on the ground of adultery. Smith v. Smith, 599 So.2d 1182, 1184 (Ala.Civ.App.1991). The record contains undisputed evidence indicating that the mother cohabited with and engaged in sexual intercourse with Gamble after the filing of the divorce complaint, but the record contains insufficient evidence of any similar adulterous conduct before that date. See Scott v. Scott, 215 Ala. 684, 112 So. 218 (1927) (explaining that evidence of post-filing incidents of adulterous conduct may be admitted as confirmatory or cumulative evidence of the same or similar pre-filing incidents of the same conduct). The mere fact that the mother was seen in a public venue with Gamble and that she had engaged in unexplained acts of “secretness” as well as had frequently used her cellular-telephone and text-messaging service to communicate with unknown persons does not equate to evidence of adulterous conduct, see Capone v. Capone, 962 So.2d 835 (Ala.Civ.App.2006), which, in this state, must be of such a nature as to “lead the guarded discretion of a reasonable and just mind to the conclusion of adultery as a necessary inference.” Maddox v. Maddox, 281 Ala. 209, 212, 201 So.2d 47, 49 (1967). Without sufficient evidence of any pre-filing adulterous conduct, the clear evidence regarding the mother’s post-filing relationship with Gamble cannot be considered as sufficiently supporting adultery as the ground for the parties’ divorce. See Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215 (1963). Therefore, we reverse the judgment insofar as it divorced the parties on the ground of adultery.

II. Child Custody

The child was born to the mother before the marriage between the mother and the father. In its judgment, the trial court determined, based on the parties’ stipulation, that the child was the parties’ child and awarded sole physical custody of the child to the father, subject to the right of scheduled visitations by the mother. The mother contends that the trial court reached its custody determination by erroneously limiting the testimony of the child and by erroneously basing its decision on the mother’s adultery. We disagree.

The child was 10 years old at the time of the trial. The mother notified the trial court that she intended to call the child to testify about, among other things, the father’s “taking [the child’s] money as well as selling [the child’s toys] and pawning or doing whatever with them.” After a lunch recess, the trial court informed the parties that they would not be allowed to examine the child regarding the alleged taking of the child’s property by the father. The trial court reasoned that the property in question was actually owned by the parents unless otherwise vested in the child by an order of the trial court and that the father would have had an unrestricted right to dispose of the property, particularly if the father had done so as a disciplinary measure. The trial court indicated that the father’s disposition of the property would not affect the custody determination. The mother’s attorney indicated that she expected that the child would have testified that the father had sold the child’s bicycle and had kept the proceeds of the sale and that the father had, against the child’s wishes, sold video games the mother and others had given the child.

The father denied that he had ever taken money from the child. He explained that, for disciplinary reasons, he did on occasion withhold from the child money the child otherwise would have received. The father testified that he had sold a “Power Wheel” that he had purchased as a Christmas gift for the child because the child had outgrown it and that the proceeds from that sale had been used to purchase Christmas gifts for the child the following year. The father also testified that he had sold a bicycle he had given the child in order to purchase the child a new bicycle. The father further testified that the child had traded-in video games that were compatible with a gaming system the child had once used in the mother’s home, but which had since disappeared without explanation, in order to obtain new video games that would be compatible with a new gaming system the father had purchased for the child for use at the father’s home.

On appeal, the mother does not argue that the reasons given by the trial court for excluding the testimony of the child were erroneous, so that argument is waived. Jones v. Sherrell, 52 So.3d 527, 533 (Ala.Civ.App.2010). The mother instead argues that she intended to use the child’s testimony to prove that the father lacked sufficient financial means to properly care for the child, a relevant factor in determining custody of the child. See Ex parte Devine, 398 So.2d 686 (Ala.1981). However, the mother did not argue that point to the trial court. The mother cannot place the trial court in error for excluding the child’s testimony “by presenting a new purpose for the requested testimony” on appeal. Cooper v. Cooper, 160 So.3d 1232, 1243 (Ala.Civ.App.2014). Moreover, the mother questioned the father at length about the father’s employment and financial circumstances, and the trial court fashioned a child-support award to assure that the material needs of the child would be met in accordance with the means of the parents. We conclude that the trial court did not exceed its discretion in excluding the proffered testimony and that the mother has failed to show that the exclusion of the child’s testimony has probably injuriously affected her substantial rights. Cooper, 160 So.3d at 1240 (setting out standard of appellate review of ruling excluding testimony of child in a divorce case).

The mother next argues that the trial court erred in overruling her objection to a line of questioning by the guardian ad litem regarding her post-filing relationship with Gamble. The record shows that the mother did not raise an objection until the guardian ad litem had already been questioning the mother about her relationship with Gamble for several pages of the transcript, and, then, when the mother’s counsel did object, he did not state a ground for the objection. “Generally speaking, in order to preserve for appellate review an issue regarding an error in the admission of evidence, an appellant must have made a timely and specific objection to the evidence at trial.” Johnson v. L.O., 42 So.3d 759, 762 (Ala.Civ.App.2010). Later, the mother’s counsel objected “to this entire line of questioning,” stating: “It is badgering.” Now, on appeal, the mother argues that the trial court erred in receiving the evidence of adultery because, she says, it was not relevant to the custody determination. 'When the grounds for an objection are stated, this impliedly waives all other grounds for the objection to the evidence; and the objecting party cannot predicate error upon a ground not stated in the trial court, but raised for the first time on appeal.” Nichols v. Southeast Prop. Mgmt., Inc., 576 So.2d 660, 662 (Ala.1991) (citations omitted).

The mother also argues that the trial court premised its custody determination on her adultery.

“The trial court may consider a parent’s adultery in determining custody; however, ‘acts of adultery do not bar an award of custody to the party who committed adultery. Etheridge v. Etheridge, 375 So.2d 474, 475 (Ala.Civ.App.1979). Rather, in order to deprive a parent of custody because of his or her act of adultery, there must be evidence that the adultery had a ‘direct bearing upon the welfare of [the] children.’ Hearold v. Hearold, 620 So.2d 48, 49 (Ala.Civ.App.1993).”

J.H.F. v. P.S.F., 835 So.2d 1024, 1029 (Ala.Civ.App.2002). The mother argues that the trial court erroneously relied on the fact that the mother had engaged in a sexual relationship with Gamble to deny her custody of the child.

With regard to custody, the trial court stated in paragraph 5 of the divorce judgment:

“[T]he Court finds that the [mother] is unfit for custody [for reasons] including] but not limited to the following:
“a. [Gamble] had the minor child ... in his car and got into an accident. He fled the scene of the accident and left the child in the car. The minor child suffered a seat belt laceration to the neck, but the [mother] failed to take the child to the hospital for it.... The [father] took the child to the hospital and had him examined and treated. Yet the [mother] continued to allow [Gamble] to care for the minor child.
“b. The minor child has extensive problems and absences while in the care of the [mother] in which his grades suffered.
“c. ... [A] witness testified that the child came to her house and stated he was home alone and that his mother was not there. The child stayed with her and stayed in her home until approximately 9:00 p.m. or 10:00 p.m. that night.
“d. ... [A] witness observed [Gamble] ... stay overnight with the child present.
“e. ... [Gamble] has an extensive criminal history from eluding the police to burglary.
“f. ... [T]he [mother] has had two children during the pendency of this marriage one of which is [Gamble’s child].
“g. ... [T]he child went without his prescription [medication] for (10) days because the [mother] would not give the [father the child’s] prescription.
“h.... [T]he child has come to the [father’s] house improperly dressed.”

The judgment does not directly provide that the mother is unfit for custody because she engaged in an adulterous relationship with Gamble. To the extent that it may be construed as considering that relationship, the judgment shows that the trial court considered not just the fact of the relationship but also that it concentrated on the effects of that relationship on the best interests and welfare of the child. The evidence in the record shows that Gamble has multiple felony convictions and that he was, in fact, incarcerated at the time of the divorce trial. While the divorce action was pending, the mother, without investigating Gamble’s background, had allowed Gamble to assume caregiving responsibilities for the child and had allowed the child to ride in an automobile being driven by Gamble, which led to an automobile accident that Gamble fled, leaving the child alone. The mother has two other children by Gamble, who, due to his incarceration, does not pay child support. The second child was conceived after the mother learned of Gamble’s criminal background. All of the mother’s children live with her in her two-bedroom house. The trial court considered the foregoing evidence as establishing that the mother’s relationship had detrimentally affected the child, which was the court’s prerogative. supra. Moreover, the terms of the judgment itself demonstrate that the trial court did not adjudicate the custody of the child solely on the ground of the mother’s adultery, as she argues.

The mother does correctly assert that some of the specific findings of fact made by the trial court about her fitness to parent the child are not borne out by the evidence in the record. Specifically, we cannot find evidence in the record to support the findings made in subpara-graphs b. and g. of paragraph 5 of the judgment. Nevertheless, once the child was legitimated, the trial court did not have to find the mother unfit in order to award custody of the child to the father; rather, that determination rested entirely on the best interests of the child. See B.E.B. v. H.M., 822 So.2d 429 (Ala.Civ.App.2001). The mother does not argue that the trial court erred in implicitly determining that the best interests of the child would be served by placing the child in the custody of the father. On appellate review, we presume that that implied determination is correct, and our review of the record shows that the trial court received sufficient evidence from which it could have reached its conclusion. See Long v. Long, 109 So.3d 633, 645-46 (Ala.Civ.App.2012) (explaining standard of review of initial custody determinations in disputes involving natural parents). Hence, any erroneous specific finding regarding the alleged unfitness of the mother would be, at best, harmless error that will not support a reversal of the trial court’s judgment. See Rule 45, Ala. R.App. P.

III. Child Support

The mother next argues that the trial court erred in computing child support, specifically, in failing to find the father voluntarily underemployed. Rule 32(B)(5), Ala. R. Jud. Admin., provides, in pertinent part:

“If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent’s imputed income.”

“[T]he determination that a parent is voluntarily unemployed or underemployed ⅛ to be made from the facts presented according to the judicial discretion of the trial court.’ ” Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007) (quoting Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992)).

In the present case, the evidence indicates that, during the marriage, the father had suffered an on-the-job injury and that he had received workers’ compensation benefits for over two years. The father testified that he had since obtained part-time employment for a department-store chain. He testified that, since he has been working for that chain, he has been promoted, has received a pay increase, and has had his hours increased to between 22 and 35 hours per week. Considering the fact that the father is apparently successfully endeavoring to receive more hours and more pay at his current employment, we cannot conclude that the trial court erred in not finding the father voluntarily underemployed. Therefore, we decline to reverse the judgment on the basis that the trial court used the actual employment income of the father when computing the child-support obligation of the mother rather than imputing additional income to the father under Rule 32(B)(5).

The mother also argues that the trial court erred in ordering her to pay child support retroactive to June 15, 2015, and in ordering her to reimburse the father for certain expenses he had incurred on behalf of the child while the child was in his custody during the pendency of the divorce action. We note, however, that the mother has failed to cite any authority in support of those arguments. Therefore, we will not reverse the trial court’s judgment on those points. See Rule 28(a)(10), Ala. R.App. P. (requiring an appellant to cite authority in support of his or her position).

IV. Attorney’s Fees and Guardian ad Litem’s Fees

The mother next argues that the trial court erred in ordering her to pay the guardian ad litem’s fees and in ordering her to pay $15,000 of the father’s attorney’s fees.

The mother filed a motion to appoint a guardian ad litem for her then unborn child on October 3, 2013. On January 31, 2014, after a hearing on the matter, the trial court appointed a guardian ad litem for both that child, who was born on December 29, 2013, and the parties’ child. On December 9, 2014, the trial court ordered each party to pay $3,087.75 to the guardian ad litem. The father paid his portion, but the mother did not. At the outset of the trial of the case on April 6, 2015, the mother informed the trial court that she lacked the ability to pay her portion of the guardian ad litem’s fees. After the trial court indicated that the trial would not proceed, the child’s maternal grandmother tendered a check to the guardian ad litem for the mother’s portion of the fees. The guardian ad litem later submitted another bill in the amount of $6,043.75. The trial court indicated that it intended to order the mother to pay that bill in its entirety, and directed the guardian ad litem to prepare an order to that effect, but the trial court subsequently set a hearing for October 5, 2015, to consider the mother’s objections to the fees. The mother appealed on September 10, 2015, and represents to this court that the October 5 hearing did not take place.

The trial court entered an interlocutory order requiring the parties to each pay $3,087.75 of the guardian ad li-tem’s fees; the propriety of that interlocutory order can be reviewed on appeal from the final judgment of divorce. See Robert S. Grant Constr., Inc. v. Frontier Bank, 80 So.3d 901 (Ala.2011). The trial court entered an order stating its intent to require the mother to pay the balance of the fees, but it did not actually adjudicate the matter. See generally Hayes v. Hayes, 16 So.3d 117, 120 (Ala.Civ.App.2009) (oral statement of intent to rule does not amount to rendition and entry of judgment as contemplated by Rule 58, Ala. R. Civ. P.). The failure of the trial court to enter a conclusive order on that outstanding issue does not affect the finality of the divorce judgment, see State Dep’t of Human Res., 69 So.3d 895, 896 n. 1 (Ala.Civ.App.2011), but it does mean that the issue whether it is appropriate to hold the mother responsible for the balance of the guardian ad litem’s fees is not ripe for appellate review. See generally Ex parte Kelley, [Ms. 1131451, Nov. 6, 2015] _ So.3d _ (Ala.2015) (alleged errors regarding sexual-torture case were not ripe for appeal when no judgment of conviction was rendered or entered). Hence, this court will consider only the propriety of the order requiring the mother to pay $3,087.75 in fees.

Before paying the fees, the mother objected only on the ground that she could not afford to pay the amount. The mother later argued that the fees were unreasonable and excessive.

“Rule 17(d) of the Alabama Rules of Civil Procedure provides that when a guardian ad litem has been appointed, the court must ascertain what is a reasonable fee for his services, and that fee will be taxed as a part of the costs in the action. The matter of the guardian ad litem’s fee is within the discretion of the trial court, subject to correction only for abuse of discretion. Commercial Standard Insurance Company v. New Amsterdam Casualty Company, 272 Ala. 357, 362, 131 So.2d 182, 186 (1961).”

Englund v. First Nat’l Bank of Birmingham, 381 So.2d 8, 12 (Ala.1980). This court has held that a trial court should establish a guardian ad litem’s fees using the same criteria as are applicable to awards of attorney’s fees in general. See Roberts v. Roberts, 189 So.3d 79 (Ala.Civ.App.2015).

The trial court received itemized invoices detailing the services provided and the time spent by the guardian ad litem. The mother now objects on appeal to the scope of the guardian ad litem’s appointment and some of the. time entries, but she did not make those same objections at trial, and, therefore, we cannot consider them on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala.1992) (“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.”). The time entries reflect that the guardian ad litem devoted his time to matters relating to the litigation, including repeated efforts to join Gamble as a party and to obtain paternity testing for the two children of the mother born while the action was pending. The time entries also show that the guardian ad litem spent a reasonable amount of time on each task. The guardian ad litem, who is an attorney who has practiced law for 48 years, charged $180 per hour for his services. See Roberts, supra (affirming judgment awarding guardian ad litem’s fees based on an hourly rate of $200 per hour).

According to the child-support forms in the record, the mother earns approximately $1,650 in gross monthly wages. The father earns approximately $1,310 in gross monthly wages. The record indicates that the parties do not have substantial monetary assets. The mother essentially argues that the guardian ad litem should not have invested as much time in what she argues was a “simple” divorce action knowing the parties’ relatively limited financial circumstances. The mother herself requested the appointment of the guardian ad litem, and the trial court had presided over the divorce action since its inception, observing firsthand the complexities of the case that required the intervention of the guardian ad litem. Based on the record before us, we cannot conclude that the trial court exceeded its discretion in awarding the guardian ad litem a fee of $6,172.50 or in ordering the mother to pay $3,087.50.

We do agree, however, that the trial court exceeded its discretion in ordering the mother to pay $15,000 of the father’s attorney fees. As an exception to the “American rule,” a trial court may order one spouse in a divorce action to pay the attorney’s fees of the opposing spouse on the same principles as alimony, pursuant to its equitable jurisdiction. See Ex parte Smith, 34 Ala. 455 (1859).

“ ‘Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala.Civ.App.1994). “Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.” Figures v. Figures, 624 So.2d 188, 191 (Ala.Civ.App.1993).’ ”

Lackey v. Lackey, 18 So.3d 393, 402 (Ala.Civ.App.2009) (quoting Glover v. Glover, 678 So.2d 174, 176 (Ala.Civ.App.1996)). A trial court

“is not required to set forth a detailed analysis of all the applicable factors considered by it in exercising its discretion in establishing a reasonable attorney fee. However, where the trial court’s order does not articulate the basis for its attorney-fee award, we are left to search the record for the basis for the award. The record ‘must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how it calculated the attorney fee.’ Pharmacia [Corp. v. McGowan], 915 So.2d [549] at 553 [ (Ala.2004) ].”

Diamond Concrete & Slabs, LLC v. Andalusiau-Opp Airport Auth., 181 So.3d 1071, 1076 (Ala.Civ.App.2015).

The trial court did not articulate its reasons for ordering the mother to pay $15,000 of the father’s attorney’s fees. The trial court may well have determined that the mother prolonged the case as a result of her post-filing pregnancies, causing increased litigation expenses, and that the action resulted in a judgment generally favorable to the father. On the other hand, the trial court may have relied on its erroneous finding that the mother’s adultery caused the breakdown of the marriage and the resulting litigation. In either case, it remains that the mother would have to sacrifice the entirety of her after-tax income for a substantial part of a year just to pay that award, assuming she could forgo her other financial obligations, including the support of her children. It would be inequitable to allow the mother to be subjected to such a heavy financial burden without a clearer understanding of the trial court’s basis for the award. Therefore, we reverse the judgment insofar as it ordered the mother to pay $15,000 of the father’s attorney’s fees, and we remand the cause for the trial court to articulate its reasons for the award and to consider decreasing the award in light of our disposition of this appeal.

V. Reimbursement for Child-Gare Expenses

The trial court ordered the mother to reimburse the father $823 “for her share of the minor child’s expenses.” The mother contends that the trial court based its award on receipts submitted by the father for the child’s food, clothing, day care, and extracurricular activities that were incurred while the divorce action was pending and that the award violates a pen-dente lite order to which the parties had consented. However, the mother does not cite the pages of the record that support her contentions. “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed.” Friedman v. Fried man, 971 So.2d 23, 31 (Ala.2007). We cannot reverse the judgment on this ground.

Conclusion

Based on the foregoing, we affirm the judgment of the trial court in part and reverse the judgment in part, and we remand the cause for further proceedings consistent with this opinion. The mother’s and the father’s requests for attorney’s fees on appeal are denied.

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

PITTMAN and DONALDSON, JJ., concur.

THOMPSON, P.J., and THOMAS, J., concur in the result, without writings.

      . We note that this amount does not equal the total derived from adding the individual amounts that the trial court ordered each party to pay.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    Ex parte T.M. (In re T.M. v. C.M.).
    2150570.
    Court of Civil Appeals of Alabama.
    May 27, 2016.

      Edward E. May II of May Legal Group LLC, Birmingham, for petitioner.
    Elma Rose Walton, Anniston, for respondent.
   PITTMAN, Judge.

T.M. (“the mother”) petitions this court for a writ of mandamus directing the Jefferson Family Court to vacate judgments denying the mother’s motion to dismiss a paternity action brought by C.M. (“the alleged father”) and directing the mother to make her ehild (“the child”) available for paternity testing. We deny the petition.

Procedural History

The materials before this court indicate that the mother and the alleged father were married at some point, that they were divorced in August 2006, and that the child was bom in January 2012. In December 2012, the alleged father filed a paternity action in the Calhoun Circuit Court, which was acting as a juvenile court, asserting that the alleged father is the biological father of the child, that he should be awarded custody of the child, and that the mother should be ordered to pay child support. In August 2013, the alleged father’s paternity action was transferred to the Jefferson Family Court (“the juvenile court”).

In September 2014, the mother filed in the juvenile court a motion to dismiss the paternity action. In her motion, the mother asserted that she had given birth to the child while she was allegedly married at common law to another man, M.H., and that, pursuant to § 26-17-204(a)(l), Ala. Code 1975, M.H. is presumed to be the child’s father. Thus, the mother asserted, the alleged father was precluded from pursuing a paternity action under § 26-17-607(a), Ala.Code 1975. Section 26-17-607(a) provides, in part, that, “[i]f the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.”

After multiple continuances, the juvenile court, on March 17, 2016, rendered judgments denying the mother’s motion to dismiss and directing the mother to make the child available for paternity testing. The mother did not make the child available for paternity testing as directed by the juvenile court. Rather, she filed a mandamus petition with this court on April 13, 2016.

Discussion

The alleged father argues that the mother’s mandamus petition was not timely filed. Rule 21(a)(3), Ala. R.App. P., requires mandamus petitions to be filed “within a reasonable time.” Rule 21(a)(3) further provides that “[t]he presumptively reasonable time for filing a petition ... shall be the same as the time for taking an appeal.”

The father’s paternity action is subject to the Alabama Rules of Juvenile Procedure. See Ex parte A.E.Q., 102 So.3d 388, 390-91 (Ala.Civ.App.2012) (indicating that a paternity action pending in the Jefferson Family Court was subject to the Alabama Rules of Juvenile Procedure). See also Ex parte M.A.G., 160 So.3d 22, 23 n. 1 (Ala.Civ.App.2014) (“[Ajetions concerning child support that are filed in the Jefferson Family Court and docketed with a case number having a ‘CS’ prefix are governed by the Alabama Rules of Juvenile Procedure.”). Rule 28(C), Ala, R. Juv. P., provides that an appeal must be filed within 14 days of the entry of the judgment from which the appeal is taken. See also Rule 4(a)(1)(E), Ala. R.App. P. (requiring an appeal from a final judgment of a juvenile court to be filed within 14 days of the entry of that judgment). It appears that the judgments at issue in this case were entered on March 17, 2016. See note 2, supra. Thus, the presumptively reasonable time for the mother to have filed her mandamus petition was March 31, 2016. A.E.Q., supra. The mother did not file her petition until April 13, 2016,

The mother couches her argument in terms of the juvenile court’s subject-matter jurisdiction over the alleged father’s paternity action. Although A.E.Q. indicates that a petitioner seeking mandamus relief from a judgment that is allegedly void for lack of subject-matter jurisdiction must still comply with the procedural requirements of Rule 21(a)(3), Ala. R.App. P., our supreme court has recently indicated that a mandamus petition that is filed outside the presumptively reasonable time may be considered if it challenges a judgment that is void for lack of subject-matter jurisdiction. Ex parte K.R., [Ms. 1141274, March 25, 2016] _ So.3d _, _ (Ala.2016).

This court’s precedent has suggested that, if a paternity action is commenced by a person precluded from maintaining such an action under § 26-17-607(a), the court in which the action is commenced does not acquire subject-matter jurisdiction over the action. See Ex parte S.E., 125 So.3d 720, 722 (Ala.Civ.App.2013); and D.B. v. A.K., 93 So.3d 946, 948 n. 3 (Ala.Civ.App.2012). Accordingly, out of an abundance of caution, we will consider the merits of the mother’s mandamus petition, notwithstanding that it may have been untimely filed.

“ ‘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).”

Ex parte S.T., 149 So.3d 1089, 1090-91 (Ala.Civ.App.2014).

If the child has a presumed father, then the alleged father would be precluded from maintaining an action to disprove the presumed father’s paternity unless the alleged father can present evidence showing that the presumed father has not “persist[ed] in his status as the legal father of [the] child.” § 26-17-607(a). See C.L.W. v. Madison Cty. Dep’t of Human Res., 170 So.3d 669, 673 (Ala.Civ.App.2014); and J.S.M. v. Cleburne Cty. Dep’t of Human Res., 140 So.3d 484, 486 (Ala.Civ.App.2013). The mother asserts that M.H. is the child’s presumed father pursuant to the mother’s and M.H.’s alleged common-law marriage.

A common-law marriage is sufficient to establish the existence of a presumed father under § 26-17-204(a)(l), Ala.Code 1975, which provides that a man is a presumed father if he and the mother of the child at issue were “married” at the time of the child’s birth. See Ex parte A.M.E., 144 So.3d 392 (Ala.Civ.App.2014) (indicating that a common-law marriage constitutes a marriage for purposes of § 26-17-204(a)(1)). The materials that the mother has submitted in support of her mandamus petition, however, do not establish that the mother and M.H. were married at common law when the child was born.

The mother has submitted portions of a judgment entered by the Calhoun Circuit Court (“the Calhoun Circuit Court’s judgment”), which appears to have modified custody awards that had been made with respect to two of the mother’s other children, one of whom apparently was fathered by the alleged father and the other of whom apparently was fathered by another man, J.L. The Calhoun Circuit Court’s judgment does not reference the child at issue in the present case.

Among other directives, the Calhoun Circuit Court’s judgment ordered the mother “and her common law husband, [M.H.,] ” to participate in marital counseling. The judgment states that it was based on an agreement that had been reached by the mother, the alleged father, and J.L., and it was executed by the attorneys for those three parties. Neither M.H., nor a representative of M.H., executed the agreement that was the basis of the Calhoun Circuit Court’s judgment.

There is nothing in the Calhoun Circuit Court’s judgment specifically indicating that the issue of the mother’s alleged common-law marriage to M.H. was actually disputed or adjudicated or that the alleged father had agreed to that particular aspect of the Calhoun Circuit Court’s judgment. The mother does not point this court to authority that would support any suggestion that execution of the agreement in that case by the alleged father’s attorney is dispositive of the issue of the mother’s common-law marriage to M.H. for purposes of the present case. The mother also fails to discuss any of the requirements for establishing a common-law marriage. It is not an appellate court’s duty to perform a party’s legal research or to craft legal arguments on a party’s behalf. Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994).

We also note that the Calhoun Circuit Court’s judgment states that the parties thereto had recited their agreement to the Calhoun Circuit Court in November 2013, which occurred after the child had been born. The Calhoun Circuit Court’s judgment does not provide any indication as to how long the mother and M.H. allegedly had been married at common law. The mother fails to explain how, considering those circumstances, the Calhoun Circuit Court’s judgment shows that the mother and M.H. were married at common law at the time the child was born in January 2012.

The mother also relies on the child’s birth certificate, which identifies M.H. as the child’s father. The mother, however, does not point to any authority supporting a suggestion that the identification of M.H. as the child’s father on the child’s birth certificate establishes that the mother and M.H. were married at common law when the child was born. Dykes, supra.

In A.M.E., supra, this court held that affidavits submitted by A.M.E. and her alleged common-law husband, who both averred that they had been common-law spouses when the child at issue in A.M.E. was born, “were not sufficient, alone, to warrant a dismissal” of M.W.F.’s paternity action. 144 So.3d at 396. This court stated that M.W.F., the alleged father in that case, was entitled to “an evidentiary hearing in order to determine the validity of the mother’s claim of the existence of a common-law marriage,” id., before the trial court could “determine the issue of M.W.F.’s standing to seek a paternity adjudication.” 144 So.3d at 397.

Like the mother in A.M.E., the mother in the present case “has not shown a clear legal right to a writ ordering the [juvenile] court to dismiss [the alleged father’s] paternity action.” 144 So.3d at 397. The mother also has not shown a clear legal right to a writ directing the juvenile court to vacate its judgment requiring the mother to make the child available for paternity testing. The materials the mother has submitted with her mandamus petition simply do not establish that the mother and M.H. were married at common law when the child was bom or that M.H. should otherwise be considered the child’s presumed father.

We also note that, even if the mother’s evidence as to the alleged common-law marriage had been more persuasive, we are unable to determine from the materials before us whether the juvenile court has afforded the alleged father the evidentiary hearing to which he would be entitled under A.M.E. Based on the foregoing, we deny the mother’s petition for a writ of mandamus.

PETITION DENIED.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur.

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

      . Although the filings and orders from the court in Calhoun County that are before this court identify the “Calhoun Circuit Court” as the court in which the alleged father’s paternity action was commenced, that action was assigned a “CS” case number, which indicates that the circuit court was acting as a juvenile court. See L.M. v. K.A., 177 So.3d 1174, 1177 (Ala.Civ.App.2015).

      . The juvenile court's judgments denying the mother’s motion to dismiss and ordering paternity testing are dated March 17, 2016. Although there is no indication of whether the judgments were actually entered on that date, see Rule 1(A), Ala. R. Juv. P., and Rule 58(c), Ala. R. Civ. P., the alleged father asserts in his answer to this court that they were, and the mother has not challenged that assertion.

      . To the extent the mother could argue that M.H. is the presumed father of the child pursuant to § 26-17-204(a)(4), Ala.Code 1975, based on the identification of M.H. as the child’s father on the child’s birth certifícate, we note that the mother does not point to any evidence or authority indicating that M.H. consented to being identified as such or indicating that he and the mother "have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with the law,” which are additional requirements of § 26-17-204(a)(4). We also note that the mother does not support with evidence her additional assertions that the child has lived with the mother and M.H. since the child’s birth and that M.H. has "welcomed [the child] into his home and provided for [the child its] entire life.” See § 26-17-204(a)(5), Ala.Code 1975.

      . The court also notes that the materials before us do not demonstrate whether M.H. has persisted in the alleged presumption of paternity.

      . Pursuant to Rule 38, Ala. R.App. P., which authorizes an appellate court to award damages to an appellee if the court determines "that an appeal is frivolous,” the alleged father requests an award of the attorney’s fees he claims he has incurred in responding to the mother’s mandamus petition. We deny that request.


author: THOMAS, Judge.

text:
    Ex parte BAPTIST HEALTH SYSTEM, INC. (In re Laura Wyatt v. Baptist Health System, Inc.).
    2150580.
    Court of Civil Appeals of Alabama.
    May 27, 2016.

      Keith J. Pflaum of Porterfield, Harper, Mills, Motlow & Ireland, P.A., Birmingham, for petitioner.

      John R. Jacobs and J. Thomas Walker of Maples, Tucker & Jacobs, LLC, Birmingham, for respondent.
   THOMAS, Judge.

In December 2015, Laura Wyatt was injured while handling laundry during the course of her employment at Shelby Baptist Medical Center (“the medical center”). Wyatt filed in the Jefferson Circuit Court (“the trial court”) a complaint seeking workers’ compensation benefits from her employer, Baptist Health System, Inc. (“Baptist”), which owns and operates the medical center. On January 20, 2016, Baptist filed in the trial court a motion to change venue under the forum non conve-niens statute, Ala.Code 1975, § 6-3-21.1, seeking to have the action transferred to the Shelby Circuit Court. In support of its motion, Baptist attached the affidavit of Kerry D. Black, its executive director of legal services, who stated that Wyatt’s home address indicated that she resided in Shelby County, that Wyatt was employed at the medical center, which is located in Shelby County, that the accident occurred at the medical center, and that Wyatt was initially treated for her injuries at the medical center. Thus, Baptist argued, transfer of the action to the Shelby Circuit Court was required because it would be the more convenient forum for the parties and the witnesses and because Shelby County has a far stronger connection or nexus to the action than does Jefferson County.

Wyatt responded to Baptist’s motion. She argued that transfer of the action to the Shelby Circuit Court was not required under § 6-3-21.1. As support for her argument that the action should not be transferred, Wyatt presented evidence indicating that Baptist’s principal place of business was located in Jefferson County and that, after her initial treatment at the medical center, she had received further treatment for her injuries in Jefferson County from Dr. Keneshia Kirksey at the University of Alabama Birmingham Hospital Spain Rehabilitation Clinic. Those facts, Wyatt contended, indicated that Jefferson County was an appropriate forum with sufficient connection to the action. Wyatt further argued that because, she said, Baptist had not presented evidence indicating that Shelby County would be a “significantly more convenient” forum, see Ex parte Nichols, 757 So.2d 374, 378 (Ala.1999), Baptist’s motion should be denied.

After a hearing, the trial court denied Baptist’s motion on March 11, 2016. Baptist timely filed this petition for a writ of mandamus on April 15, 2016. After a consideration of the arguments raised by both parties, we grant the petition.

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for a writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e,, whether it exercised its discretion in an arbitrary and capricious manner.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘A writ of mandamus is an extraordinary remedy, requiring the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ Ex parte Nichols, 757 So.2d 374, 376 (Ala.1999).”

Ex parte Yocum, 963 So.2d 600, 602 (Ala.2007).

Baptist relies on the forum non conve-niens statute, specifically § 6-3-21.1(a), which reads:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein. Provided, however, this section shall not apply to eases subject to [Ala.Code 1975,] Section 30-3-5.”

We explained the burden on a party seeking a change of venue under the forum non conveniens statute in Ex parte Veolia Environmental SVC, 122 So.3d 839, 842 (Ala.Civ.App.2013):

“Under the forum non conveniens statute, a trial court must transfer an action when a party seeking the transfer proves either (1) that the convenience of the parties or witnesses would be significantly aided by transfer, see Ex parte Nichols, 757 So.2d 374, 378 (Ala.1999) (‘[T]he burden is on the party moving for the transfer to prove that the transferee forum is significantly more convenient than the plaintiffs chosen forum.’), or (2) that the ‘interests of justice’ necessitate a transfer. Ex parte National Sec. Ins. Co., 727 So.2d 788, 790 (Ala.1998) (‘[T]he “interest of justice” [prong] requirefe] the transfer of [an] action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’).
“ ‘ “A defendant moving for a transfer under § 6-3-21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties or witnesses or based on the interest of justice.” ’ Ex parte Kane, 989 So.2d 509, 511 (Ala.2008) (quoting Ex parte National Sec. Ins. Co., 727 So.2d at 789). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d at 511. Further, ‘those facts “must be based upon ‘evi-dentiary material,’ which does not include statements of counsel in motions, briefs, and arguments.” ’ Ex parte Indiana Mills & Mfg., Inc., 10 So.3d [536,] 541 n. 3 [ (Ala.2008) ] (quoting Ex parte ADT Sec. Servs., Inc., 933 So.2d 343, 345 (Ala.2006)).”

Baptist argues that a change of venue under § 6-3-21.1 is warranted in this action because the facts demonstrate that Shelby County has the more significant connection to the action, especially because the accident giving rise to Wyatt’s claim occurred in Shelby County.

“‘The “interest of justice” prong of § 6-3-21.1 requires “the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.” Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, “in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the ‘nexus’ or ‘connection’ between the plaintiffs action and the original forum is strong enough to warrant burdening the plaintiffs forum with the action.” Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that “litigation should be handled in the forum where the injury occurred.” Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider “the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.” Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).’ ”

Ex parte Waltman, 116 So.3d 1111, 1115 (Ala.2013) (quoting Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008)).

Our supreme court explained a trial court’s duty to transfer an action under § 6-3-21.1 in Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748-49 (Ala.2010):

“Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the enactment of § 6-3-21.1 by the Alabama Legislature in 1987, a plaintiffs choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6-3-21.1, trial courts now have ‘the power and the duty to transfer a cause when “the interest of justice” requires a transfer.’ Ex parte First Family Fin. Servs., Inc., 718 So.2d 658, 660 (Ala.1998) (emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6-3-21.1 ‘must be considered in light of the fact that the Legislature used the word “shall” instead of the word “may” in § 6-3-21.1.’ 718 So.2d at 660. This Court has further held that ‘Alabama’s forum non conveniens statute is compulsory.’ Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala.2004).”

Our supreme court applied the interest-of-justice prong of § 6-3-21.1 to facts similar to those in the present case in Ex parte McKenzie Oil Co., 13 So.3d 346 (Ala.2008). The vehicular accident giving rise to underlying cause of action in Ex parte McKenzie Oil had occurred in Escambia County. Ex parte McKenzie Oil Co., 13 So.3d at 347. The plaintiff, Lee Harris Franklin, was injured in the accident and received treatment at a medical facility located in Escambia County. Id. Franklin, a resident of Clarke County, later brought an action in the Barbour Circuit Court against Gary Dewayne Heathcock, the intoxicated driver of the vehicle that had allegedly caused the accident, and McKenzie Oil Company (“McKenzie Oil”), the owner of the convenience store that had sold alcohol to an allegedly visibly intoxicated Heathcock; Franklin chose to file suit in Barbour County because McKenzie Oil’s corporate headquarters were located that county. Id.

As it began its analysis under § 6-3-21.1, our supreme court explained that “ ‘litigation should be handled in the forum where the injury occurred.’ ” Id. at 349 (quoting Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006)). The court noted that “McKenzie [Oil] therefore had the burden of demonstrating ‘ “that having the case heard in [Escambia] County would more serve the interest of justice....’”” Ex parte McKenzie Oil Co., 13 So.3d at 349 (quoting Ex parte First Tennessee Bank, 994 So.2d at 909, quoting in turn Ex parte Fuller, 955 So.2d at 416). The court stated that McKenzie Oil has demonstrated that “virtually none of the events or circumstances involved in this case occurred in or relate to Barbour County” and that “all material events in this case, including the accident, occurred in Escambia County,” and it concluded that the interest of justice would be better served by having the action tried in Escambia County. Id. at 349. Thus, the Ex parte McKenzie Oil court directed the trial court to transfer the action from Barbour County to Escambia County. Id. at 350.

In Ex parte Autauga Heating & Cooling, our supreme court considered whether a trial court had improperly applied the interest-of-justice prong of § 6-3-21.1 when it denied a motion to change venue from Montgomery County to Elmore County. Ex parte Autauga Heating & Cooling, 58 So.3d at 747. The underlying action in Ex parte Autauga Heating & Cooling had arisen from a vehicular accident that had occurred in Elmore County, but the plaintiff, Lori Lee Wright, a resident of Elmore County, had filed the action in the Montgomery Circuit Court. Id. In support of her contention that the Montgomery Circuit Court had properly denied the motion to change venue, Wright argued that the individual defendant, Richard Rogers, lived in Montgomery County and alleged, without evidentiary support, that she had undergone medical treatment in Montgomery County. Id. at 749. In addition, the materials presented in support of the mandamus petition filed in the supreme court indicated that the corporate defendant, Autauga Heating and Cooling, LLC, might have done business in Montgomery County as well as in Elmore County. Id. Based on those facts, our supreme court determined that, although the action had some connection to Montgomery County, “[tjhis Court sees no need to burden Montgomery County, with its weak connection to the ease, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defendant does some business there.” Id. at 750.

More recently, in Ex parte Wattman our supreme court considered whether the Perry Circuit Court had abused its discretion in denying motions seeking a change of venue to the Tuscaloosa Circuit Court based on the interest-of-justice prong of § 6-3-21.1. Ex parte Waltman, 116 So.3d at 1113-14. The movants, defendants John Wattman and Progressive Casualty Insurance Company (“Progressive”), argued that the following facts supported a conclusion that the action should be transferred to the Tuscaloosa Circuit Court: that the vehicular accident giving rise to the claims against the defendants had occurred in Tuscaloosa County, that the plaintiff resided in Tuscaloosa County, and that the company that had attached a trailer to a vehicle of one of the defendants had performed that task in Tuscaloosa County. Id. at 1113. The plaintiff, John Owens, had commenced the action in the Perry Circuit Court because Perry County was the principal place of business of one of the defendants, Griffin Wood Company, Inc. (“Griffin”). Id. In response to the motion to change venue, Owens argued that Perry County had a “strong interest in the affairs of one of its resident corporations” and that, based on the subrogation rights granted to employers in Ala.Code 1975, § 25-5-11(a), Perry County had strong interest in the litigation because “ ‘one of the employers and participants in Perry County’s all-important timber business has a right to be fully compensated for any benefits extended to [its employee,] Owens[,] from the party responsible for Owens’[s] injuries.’ ” Id.

According to our supreme court, a comparison of the connection to the forum county and to the proposed transferee county is required to apply § 6-3-21.1. Id. at 1115. The Ex parte Waltman court determined that Waltman and Progressive had established that Tuscaloosa County had a strong connection to the action because the accident had occurred in that county, the trailer that caused the accident had been installed in that county, and Wattman resided in that county. Id, at 1117-18. In contrast, our supreme court concluded, the only connection Perry County had to the litigation was that Griffin had its principal place of business in the county. Id. at 1118. Based on the comparatively weak connection Perry County had to the action, our supreme court determined that § 6-3-21.1 required the transfer of the action to Tuscaloosa County. Id. at 1119.

Based on Ex parte Waltman, Ex parte Autauga Heating & Cooling, Ex parte McKenzie Oil, and the authorities discussed in each of those cases, we cannot agree with Wyatt that the trial court properly denied Baptist’s motion to change venue. Wyatt lives in Shelby County, and she was injured in Shelby County at her place of employment. Baptist, which owns and operates the medical center at which Wyatt is employed, has its principal place of business in Jefferson County, but that factor is, according to Ex parte Waltman and Ex parte McKenzie Oil, of marginal importance in the analysis under § 6-3-21.1, especially when the venue to which the movant seeks to have the action transferred is the county in which the accident occurred. See Ex parte Waltman, 116 So.3d at 1117-18; Ex parte McKenzie Oil, 13 So.3d at 349.

The only factual difference between this case and Ex parte Wattman and Ex parte McKenzie Oil is that Wyatt not only has proven that Baptist’s principal place of business is in Jefferson County, but also has provided one additional connection to Jefferson County: Wyatt’s treatment by a physician located in Jefferson County. However, the more significant and relevant connections arise from the fact that the accident giving rise to Wyatt’s cause of action occurred in Shelby County, where she is employed by Baptist at the medical center. Wyatt is seeking workers’ compensation benefits from Baptist based on an alleged work-related accident at the medical center, and many of the facts and circumstances establishing her right to such benefits—like whether she was an employee of Baptist and whether her injury arose out of and in the course of that employment—would have arisen in, or concern evidence available more readily in, Shelby County. In addition, the people of Jefferson County would have little interest in a case involving whether workers’ compensation benefits are due to Wyatt, a Shelby County resident, arising from her employment in Shelby County. The fact that some evidence regarding her injury might come from a witness located in Jefferson County cannot prevent the conclusion that Shelby County has far stronger connections to Wyatt’s action than has Jefferson County. Thus, the fact that Wyatt received medical treatment in Jefferson County does not alter our conclusion that, under Wattman, Autauga Heating and Cooling, and McKenzie Oil, the interest-of-justice prong of § 6-3-21.1 requires transfer of Wyatt’s action to Shelby County.

Accordingly, we grant the petition for the writ of mandamus and direct the Jefferson Circuit Court to enter an order transferring the action to the Shelby Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

      . Both parties concede that venue is appropriate in either county. See Ala.Code 1975, § 25-5-81(a) (indicating that venue in a workers' compensation action is proper in the county in which the action would be brought if it sounded in tort), and Ala.Code 1975, § 6-3-7(a)(l) and (2) (governing venue of tort actions in which claims are asserted against a corporation, which is proper "[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred” or "[i]n the county of the corporation’s principal office in this state”). The materials submitted in support of and in opposition to the petition indicate that Baptist’s "principal office in this state” is located in Jefferson County.

      . Although that physician's convenience might be of some consequence to a determination whether the action should be transferred based on the convenience of the parties and witnesses, we pretermit discussion of that prong of the § 6-3-21.1 analysis in light of our conclusion that the interest of justice requires transfer of the present action to Shelby County because of its stronger connection to the action. See Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So.3d 371, 373 (Ala.2012).

      . Wyatt argues that her choice of forum should be given preference. See Ex parte Perfection Siding, Inc., 882 So.2d 307, 312 (Ala.2003) (“When venue is appropriate in more than one county, the plaintiff’s choice of one venue is generally given great deference.”). Wyatt also relies on the principle that a party seeking a change of venue under § 6-3-21.1 must demonstrate that the proposed forum is " ‘significantly more convenient' ” than the forum selected by the plaintiff. Ex parte Perfection Siding, Inc., 882 So.2d at 312 (quoting Ex parte New England Mut. Life Ins. Co., 663 So.2d 952, 956 (Ala.1995)). However, the authorities on which Wyatt relies focused on whether a transfer under § 6-3-21.1 was warranted under a convenience-of-the-parties analysis as opposed to an interest-of-justice analysis, an’ issue that we have pretermitted. See note 2, supra.


author: PER CURIAM.

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT 2016-05.
    No. SC16-1184
    Supreme Court of Florida.
    [February 9, 2017]
    Judge Frederic Rand Wallis, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Daytona Beach, Florida; and Barton Neil Schneider, Staff Liaison, Office of the State Courts Administrator, Tallahassee, Florida, for Petitioner
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions and asks that the Court authorize for publication and use the amended and newly adopted standard instructions. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending existing standard instruction 20.6 (Welfare Fraud—[Food Assistance Identification Card] [Authorization] [Certificate of Eligibility for Medical Services] [Medicaid Identification Card]) and adopting new jury instruction 20.6(a) (Welfare Fraud— [Selling] [Attempting to Sell] an EBT Card). No comments were received by the Committee. The Court did not publish the proposals after they were filed. The more significant amendments to the instructions are discussed below.

One amendment to instruction 20.6 is based upon section 414.39(2), Florida Statutes (2016), as amended by chapter 2016-185, section 1, Laws of Florida. There, the Legislature added the definition of “traffic” in new subsection (2)(b), which is included in the amended instruction. Also added to instruction 20.6 is the definition of an “EBT card.” Although an “EBT card” is not included in the elements of the offense of fraud under section 414.39(2)(a), it is included in a portion of the definition of “traffic.”

Newly adopted instruction 20.6(a) also derives from another amendment to section 414.39(2) by the 2016 Legislature, which added a new subdivision (c) defining a distinct offense of fraud. In pertinent part, instruction 20.6(a) includes the elements constituting the offense, which pertains to the defendant’s possession of two or more EBT cards issued to others, and the definitions for “EBT card,” “possess,” and “attempt.” In addition, as originally-proposed by the Committee, see supra, note 2, the Court includes in the instruction the recidivism enhancement provision from section 414.39(2)(c), as well as the paragraph in the Comments section that instructs judges that the jury should not be advised of any charge of prior convictions until after the defendant was convicted of the original charge, and in that case, a bifurcated proceeding should be conducted to determine if the defendant is subject to the recidivism enhancement.

Having considered the Committee’s original and amended reports, jury instructions 20.6, as proposed by the Committee, and 20.6(a), as originally proposed and as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion is final.

It is so ordered.

APPENDIX

20.6 WELFARE FRAUD—[FOOD ASSISTANCE IDENTIFICATION CARD] [AUTHORIZATION] [CERTIFICATE OF ELIGIBILITY FOR MEDICAL SERVICES] [MEDICAID IDENTIFICATION CARD] § 414.39(2), Fla. Stat.

To prove the crime of Welfare Fraud—[Food Assistance Identification Card] [Authorization] [Certificate of Eligibility for Medical Services] [Medicaid Identification Card], the State must prove the following two elements beyond a reasonable doubt:

Give la, lb, and/or 1c as applicable.
1. The defendant(Defendant) knowingly:
a. used, transferred, acquired, trafficked, altered, forged or possessed
b. attempted to use, transfer, acquire, traffic, alter, forge, or possess
c. aided and abetted another person in the use, transfer, acquisition, traffic, alteration, forgery or possession of [a food assistance identification card] [an authorization for the expenditure of food assistance benefits] [a certificate of eligibility for medical services] [a Medicaid identification card].
2.The use, transfer, acquisition, traffic, alteration, forgery, or possession was not authorized by law.

The law requires (insert the appropriate law pertaining to the relevant item).

§ ⅛¼.89(5), Fla. Stat.

If you find (Defendant) guilty of Welfare Fraud, you must also determine if the State proved beyond a reasonable doubt whether the value of the public assistance or identification wrongfully [received] [retained] [misappropriated] [sought] [used] was:

a. less than an aggregate value of $200 in any 12 consecutive months.
b. an aggregate value of $200 or more, but less than $20,000 in any 12 consecutive months.
c. an aggregate value of $20,000 or more, but less than $100,000 in any 12 consecutive months,
d. $100,000 or more in any 12 consecutive months.

§ JpU.39(5)(e), Fla. Stat.

The value of a food assistance authorization benefit is the cash or exchange value unlawfully obtained by the fraudulent act.

Definitions. Give as applicable.

“Aid or abet” means help, assist, or facilitate.

§ m.39(2)(b)

“Traffic” means trade, sell, or exchange.

1. Buying, selling, stealing, or otherwise effecting an exchange of food assistance benefits issued and accessed via electronic benefits transfer (EBT) cards, electronic benefits transfer (EBT) card numbers and personal identification numbers (PINs), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone;
2. Attempting to buy, sell, steal, or otherwise effect an exchange of food assistance benefits issued and accessed via electronic benefits transfer (EBT) cards, electronic benefits transfer (EBT) card numbers and personal identification numbers (PINs), or by manual voucher and signature, for cash or consideration other than eligible food, either directly, indirectly, in complicity or collusion with others, or acting alone;
3. Exchanging firearms, ammunition, explosives, or controlled substances for food assistance benefits;
4. Purchasing with food assistance benefits a product with the intent of obtaining cash or consideration other than eligible food by reselling the product, and subsequently intentionally reselling the product purchased with food assistance benefits in exchange for cash or consideration other than eligible food; or
5. Intentionally purchasing products originally purchased with food assistance benefits in exchange for cash or consideration other than eligible food.

An “attempt” to commit a crime is the formation of an intent to commit that crime and the doing of some act toward the commission of the crime other than mere preparation to commit the crime.

“Knowingly” means with actual knowledge and understanding of the facts or the truth.

An “EBT card” is issued by the Department of Children and Families or its agent to obtain food assistance benefits payments or temporary case assistance payments, including refugee cash assistance payments, asylum applicant payments, and child support disregard payments from the Department.

Optional Definition

“Knowingly” means an act done voluntarily and intentionally and not because of mistake or accident or other innocent reason. (Devitt & Blackmar— Federal Jury Practice and Instructions, Sec. 16.07)

Give if applicable. § 4,14.89(7), Fla. Stat.

It is not a defense that the defendant repaid the assistance or services obtained [or returned the authorization or identification wrongfully obtained].

Inferences, Give as applicable.

§ 4H-39(8)(a), Fla. Stat.

You may conclude that (defendant) did receive public assistance from the state if you find that there was a paid state warrant made to the order of the defendant.

§ 414-39(8)(b), Fla. Stat.

You may conclude that an identified recipient received public assistance from the state if you find that a transaction history generated by a Personal Identification Number (PIN) established a purchase or withdrawal by electronic benefit transfer.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2015 [175 So.3d 782] and 2017.

20.6(a) WELFARE FRAUD— [SELLING] [ATTEMPTING TO SELL] AN EBT CARD

§ 414.39(2)(c), Fla. Stat.

To prove the crime of Welfare Fraud—[Selling] [Attempting to Sell] an EBT card, the State must prove the following three elements beyond a reasonable doubt:

L (Defendant) possessed two or more electronic benefits transfer (EBT) cards.
2. The EBT cards were issued to someone other than (defendant).
&_ (Defendant) [sold] [attempted to sell] one or more of these EBT cards.

Definitions.

An “EBT card” is issued by the Department of Children and Families or its agent to obtain food assistance benefits payments or temporary case assistance payments, including refugee cash assistance payments, asylum applicant payments, and child support disregard payments from the Department.

To “possess” an EBT card means the defendant was aware of the presence of the EBT card and exercised control over the EBT card.

Give if applicable.

An “attempt” to commit a crime is the formation of an intent to commit that crime and the doing of some act toward the commission of the crime other than mere preparation to commit the crime.

Enhancement. Give if applicable if the jury finds the defendant guilty of Welfare Fraud—[Selling] [Attempting to Sell] an EBT card, § 414.89(2)(c), Fla. Stat,

Now that you have found the defendant guilty of Welfare Fraud—[Selling] [Attempting to Sell] an EBT card, you must further determine whether the State has proven beyond a reasonable doubt that the defendant was previously convicted of the same crime.

“Conviction” means a determination of guilt which is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comments

If a party requests a more complete instruction on the concept of possession, the trial .judge can insert language from Instruction 25.7 (Possession of a Controlled Substance).

This instruction can be used for Welfare Fraud—[Selling] [Attempting to Sell] an EBT Card based on a prior conviction. For Felony Welfare Fraud—[Selling] [Attempting to Sell] an EBT Card based on a prior conviction, it is error to inform the jury of prior convictions until the verdict on the underlying Welfare Fraud—[Selling] [Attempting to Sell] an EBT Card is rendered. Therefore, if the information or indictment contains an allegation of a prior Welfare Fraud—[Selling] [Attempting to Sell] an EBT Card conviction, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of Welfare Fraud—[Selling] [Attempting to Sell] an EBT Card, the historical fact of prior convictions shall be determined separately by the jury in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 2017.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and POLSTON, JJ., concur.

LAWSON, J., did not participate.

      . "EBT” stands for "electronic benefits transfer.”

      . In Report 2016-05 filed on July 6, 2016, the Committee originally proposed amendments to instructions 19.1-19.7, which pertain to bribery-related offenses, as well as to the two welfare fraud instructions at issue in this opinion. On August 26, 2016, the Court severed instructions 19.1-19.7 from the instant case because those instructions relied upon a district court of appeal decision in which the Court previously had accepted jurisdiction. See Czajkowski v. State, 178 So.3d 498 (Fla. 4th DCA 2015), review granted, No. SC15-2313, 2016 WL 1273464 (Fla. Mar. 24, 2016), review discharged, 202 So.3d 40 (Fla. 2016). As requested in the severance order, In re Std. Jury Instr. in Crim, Cases, No. SCI 6-1184 (Fla. Aug. 26, 2016) (order), the Committee filed an amended report and appendix pertaining solely to instructions 20.6 and 20.6(a), on August 31, 2016. However, the Committee changed its proposal to new instruction 20.6(a), by removing the recidivism enhancement instruction and changing its paragraph under the Comments section to provide that "it is unclear whether the existence of a prior violation will be treated as an element of the crime that must be found by the jury in a bifurcated proceeding, see State v. Harbaugh, 754 So.2d 691 (Fla. 2000), or whether a prior violation can be proven to the judge at sentencing.” Instructions 19.1-19.7 are now the subject of In re Standard Jury Instructions in Criminal Cases-Report 2016-10, No. SC 16-18 84 (Fla. petition filed Oct. 18, 2016).

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.