text:
    Raymond P. BAHAKEL and Ambassador Limousine Service, Inc. v. DRIVETRAIN AUTOMOTIVE SUPERCENTER, INC.
    2140987.
    Court of Civil Appeals of Alabama.
    May 6, 2016.

      Thomas P. Willingham and Mary Leah Miller of Law Offices of Thomas P. Will-ingham, P.C., Birmingham, for appellants.
    Kori L. Clement of Hare & Clement, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

Raymond P. Bahakel and Ambassador Limousine Service, Inc. (“Ambassador”), appeal from a summary judgment entered by the Tuscaloosa Circuit Court against Ambassador and in favor of Drivetrain Automotive Supercenter, Inc. (“Drivetrain”). We reverse and remand.

Procedural History

Bahakel is the sole shareholder of Ambassador, which operates a limousine business. Pursuant to that business, Ambassador owns a modified 2005 Ford Excursion sport-utility vehicle that it uses as a-stretch limousine (“the vehicle”). Ba-hakel commenced a lawsuit against Drive-train, arising out of an agreement by Dri-vetrain to perform work on the vehicle. The plaintiffs were identified in the complaint as “Raymond P. Bahakel, individually and d/b/a Ambassador Limousine Service, Inc.” It is undisputed that Ambassador is a separate legal entity incorporated in Alabama.

The complaint asserted that Drivetrain had agreed to replace the vinyl top of the vehicle and had, after performing work on the vehicle, submitted an invoice to Bahak-el stating that Ambassador owed $31,035.65 for the work. Drivetrain refused to return the vehicle unless that sum was paid.

The complaint asserted that Drivetrain was not entitled to the amount shown on the invoice and asserted causes of action against Drivetrain based on various theories of recovery. The complaint also requested a judgment declaring that Drive-train was not entitled to the amount claimed on the invoice and that Drivetrain was improperly withholding possession of the vehicle.

In response to the complaint, Drivetrain filed a counterclaim in which it asserted that “Ambassador Limousine Service, Inc. is an Alabama Corporation,” that Drive-train had entered into a contract with Ambassador whereby Drivetrain agreed to perform work on the vehicle, that Drive-train had performed work pursuant to that contract, and that Drivetrain had not been paid for its work. Drivetrain asserted causes of action against the “plaintifficoun-terclaim defendant” alleging open account, breach of contract, quantum meruit, and unjust enrichment.

Drivetrain filed a motion for a summary judgment on the claims asserted against it and a motion for a summary judgment on Drivetrain’s counterclaim. ■ Bahakel and Ambassador submitted a response to Dri-vetrain’s motions, which was supported in part by an affidavit executed by Bahakel. Drivetrain filed a motion to strike portions of Bahakel’s affidavit, which the trial court granted.

The trial court granted Drivetrain’s motion for a summary judgment on the claims alleged against it, granted Drivetrain’s motion for a summary judgment on its counterclaim against Ambassador, and awarded Drivetrain $31,035.16 in compensatory damages against Ambassador. Bahakel and Ambassador filed postjudgment motions requesting the trial court to reconsider its ruling striking portions of Bahakel’s affidavit and requesting the trial court to vacate the summary judgments in favor of Drivetrain. The trial court denied those motions, and Bahakel and Ambassador appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Bahakel and Ambassador challenge only the trial court’s summary judgment in favor of Drivetrain on its counterclaim. They do not appeal from the trial court’s summary judgment on the claims against Drivetrain.

Material Facts

The vehicle was manufactured in 2005 and has been driven approximately 130,000 miles. Bahakel testified during deposition that he had purchased a new vinyl top for the vehicle, that he had had the new top shipped to Drivetrain, and that Jeffrey Menefee, who is a representative of Drive-train, had informed Bahakel that Drive-train would install the new top on the vehicle. Bahakel also testified that Mene-fee informed Bahakel that he estimated that Drivetrain might expend up to 100 hours of labor in order to replace the top:

“I asked [Menefee] what would it take. He — how much would it be. He said he wasn’t sure of the exact total, but it could run up to a hundred hours. I said, ouch. That’s a lot. He goes, well, I’m not sure that it’s going to run to that, but it could. If I take me and my two guys and we each work on it all day for three days, we can get this knocked out. So, I agreed to let him do it based on that.”

Bahakel testified that Menefee told Ba-hakel that Drivetrain’s hourly rate for the work would be “discounted],” although Bahakel admitted that he did not ask how much the hourly rate would be. Drive-train’s responses to interrogatories indicate that it charged Ambassador $50 per hour for body work and $75 per hour for mechanical work on the vehicle. According to Bahakel, Menefee also informed him that he and other laborers would complete the job but that Menefee would not charge for his own labor.

At some point after Drivetrain began working on the vehicle, rust was discovered on the roof of the vehicle beneath the old vinyl top. According to Bahakel, he was presented with the option of having the rust removed with a sandblaster, which would be less expensive than removing the rust by hand. Bahakel testified that Me-nefee informed Bahakel that Bahakel would be responsible for the cost of renting the sandblaster, which would be “a few hundred dollars,” as well as the cost of the sand to use in the sandblaster, and that it would take one day’s worth of labor to remove the rust. Accordingly, Bahakel authorized Drivetrain to remove the rust. Ambassador and Bahakel assert that Dri-vetrain, however, invoiced Ambassador for over 40 hours of labor “for the sandblasting.”

Bahakel testified that, several weeks before the vinyl-top-replacement job started, Drivetrain had painted the right side of the vehicle and that portions of the paint had later “bubbled up.” Bahakel also testified that, while replacing the vinyl top, Drivetrain’s workers had accidentally removed paint from a portion of the left side of the vehicle. According to Bahakel, Dri-vetrain had, without permission, fixed the mistakes on both sides of the vehicle during the vinyl-top-replacement job. Bahak-el testified that, although he had not been charged in the past for Drivetrain’s mistakes, he was charged for the repairs to the painting work.

Bahakel testified that, on one occasion before the job was finished, a representative of Drivetrain had requested that Dri-vetrain be paid $3,000 and had informed Bahakel that “the worst part of the job had been completed.” Later, however, Bahakel was presented with an invoice for $31,035.16. According to Bahakel and Ambassador, Ambassador was charged for a total of 547.4 hours of labor.

Bahakel testified during deposition that, in the past, he had had vinyl tops replaced on other vehicles and that he had received estimates from other automotive shops for the same work performed by Drivetrain. In Bahakel’s opinion, a reasonable charge for Drivetrain’s work, including the rust removal, would have been between $5,000 and $10,000.

Bahakel and Ambassador also assert that Menefee charged Ambassador for 51.5 hours of his own work, despite allegedly promising Bahakel that Menefee would not charge for his time. In support of that averment, Bahakel and Ambassador rely on a copy of the invoice. Although the invoice does not clearly indicate how many hours Menefee, in particular, billed for his work, Drivetrain has not disputed the assertion that Menefee billed for 51.5 hours of work.

Finally, Bahakel and Ambassador assert that, after the job had been completed, Bahakel discovered that there were spots on the vinyl top, that there were footprints on the carpet in the vehicle, that an escape window “was allowing water to pour through it,” that the batteries of the vehicle were dead, that the paint on the vehicle had “thin spots” and “an orange peel type of effect,” and that the vinyl top was not “completely smooth or level.” Bahakel and Ambassador assert that Bahakel spent $1,345 to fix the damaged window.

Standard of Review

Our supreme court has recognized the following standard of review of a summary judgment:

“We apply the same standard of review the trial court used in determining whether the evidence presented to the trial court created a genuine issue of material fact. Jefferson County Comm’n v. ECO Preservation Services, L.L.C., 788 So.2d 121 (Ala.2000) (quoting Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988)). Once a party moving for a summary judgment establishes that no genuine issue of material fact exists, the burden shifts to the nonmov-ant to present substantial evidence creating a genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). ‘Substantial evidence’ is ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, we view the evidence in the light most favorable to the nonmovant and entertain such reasonable inferences as the jury would have been free to draw. Jefferson County Comm’n v. ECO Preservation Servs., L.L.C., supra (citing Renfro v. Georgia Power Co., 604 So.2d 408 (Ala.1992)).”

Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000).

Discussion

Standing

We note initially that Drivetrain asserts in its appellee’s brief to this court that, because the judgment at issue in this case was entered against Ambassador and not against Bahakel personally, Bahakel does not have standing to pursue this appeal. Regardless of the merits of that argument, it is not disputed that Ambassador would have standing to appeal.

Although no suggestion has been expressly made by Drivetrain, we reject any suggestion that Ambassador has not appealed from the judgment against it. The notice of appeal lists the appellants as “Raymond P. Bahakel, individually, and d/b/a Ambassador Limousine Service, Inc.” It is undisputed that the judgment was entered against Ambassador, although the trial court incorrectly identified Ambassador as “Ambassador Limousine, Inc.” It is also undisputed that Bahakel is the sole shareholder of Ambassador and that he makes decisions for Ambassador. Bahakel and Ambassador are represented by the same attorney who filed the notice of appeal.

Notices of appeal should be liberally construed. See Gollotte v. Peterbilt of Mobile, Inc., 582 So.2d 459, 462 (Ala.1991) (“This Court has, on many occasions, manifested a willingness to construe notices of appeal liberally.”); Edmondson v. Blakey, 341 So.2d 481, 484 (Ala.1976) (“The spirit of the [Alabama Rules of Appellate Procedure] is recognized and restated to insure the just, speedy and inexpensive determination of every appellate proceeding on its merits. The only jurisdictional rule in the entire rules is the timely filing of the notice of appeal. Nothing in the rules is designed to catch the unwary on technicalities.”); McLin v. State, 840 So.2d 937, 941 (Ala.Crim.App.2002) (considering the adequacy of a notice of appeal and stating that “both state and federal caselaw suggest that appellate rules should be liberally construed so as not to ‘catch the unwary on technicalities’ ” (quoting Edmondson, 341 So.2d at 483)). Notwithstanding what may have been an improper use of the abbreviation for the term “doing business as” in the notice of appeal, this court concludes that Ambassador has appealed from the judgment against it.

Summary Judgment

Ambassador argues that the trial court erred in granting Drivetrain’s motion for a summary judgment because, Ambassador asserts, genuine issues of fact exist as to Drivetrain’s breach-of-contract claim. “The elements of a breach-of-contract claim are: (1) the existence of a valid contract binding upon the parties in the action, (2) the plaintiffs own performance, (3) the defendant’s nonperformance, or breach, and (4) damage.” Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So.2d 665, 673 (Ala.2001).

Ambassador argues that there is at least a question of fact as to how much it had agreed to pay for the work to be performed by Drivetrain. We agree. Bahak-el testified during deposition that Menefee estimated that Drivetrain might expend up to 100 hours of labor to replace the vinyl top and that it would take approximately 1 day to remedy the rust problem, assertions that Drivetrain does not dispute. Ambassador, however, was billed for more than 500 hours of labor. Thus, Ambassador has demonstrated that there is a legitimate factual dispute in this matter as to how much Drivetrain was entitled to receive for the work it agreed to perform.

The trial court’s summary judgment in favor of Drivetrain is due to be reversed. We pretermit discussion of Ambassador’s other arguments for reversal of that judgment, as well as Ambassador’s arguments for reversal of the trial court’s order striking portions of Bahakel’s affidavit.

REVERSED AND REMANDED.

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

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

      . It appears that the vehicle was returned to Bahakel after he submitted a replevin bond to the trial court clerk.

      . Although Drivetrain’s counterclaim contains some typographical errors that make it somewhat unclear, this court is convinced that Drivetrain sought a judgment against Ambassador and not against Bahakel individually.

      . The trial court’s judgment identifies "Ambassador Limousine, Inc.” as the judgment debtor. As noted, Ambassador’s correct name is Ambassador Limousine Service, Inc.

      . Although Drivetrain relied only on a theory of breach-of-contract in support of its motion for a summary judgment on its counterclaim and expressly declined to waive its other theories of recovery, the trial court’s summary judgment in favor of Drivetrain is a final appealable judgment. Although supported by multiple theories, Drivetrain had only one "claim” against Ambassador for purposes of determining the finality of the judgment. See Ivey v. King, 142 So.3d 467, 477 n. 8 (Ala.2013).

      . In support of that averment, Bahakel and Ambassador rely on a copy of the invoice submitted by Drivetrain. It is not entirely clear from that invoice exactly how many labor hours were expended in order to remedy the rust problem on the roof. Drivetrain, however, has not disputed the assertion that it expended 40 hours of labor on that aspect of its work on the vehicle.

      . In support of that averment, Bahakel and Ambassador rely on a portion of the record containing the invoice submitted by Drive-train. Although they assert that Drivetrain billed Ambassador for 547.4 hours, the invoice appears to indicate that Drivetrain billed Ambassador for 502.4 hours. Drive-train has not disputed Bahakel and Ambassador's assertion regarding the number of hours Drivetrain billed.


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Tony Hayden KWASIGROH v. Samantha Leanne KWASIGROH.
    2150038.
    Court of Civil Appeals of Alabama.
    May 13, 2016.

      Christine Frieder, Huntsville, for appellant.
   THOMPSON, Presiding Judge.

Tony Hayden Kwasigroh (“the father”) appeals from a judgment of the Madison Circuit Court (“the trial court”) that denied both the father’s petition to modify custody and child support and a counterclaim filed by Samantha Leanne Kwasi-groh (“the mother”) to modify custody and child support.

The parties were divorced on October 7, 2011. In the divorce judgment, the trial court awarded the parties joint custody of their four minor children. No child support was awarded to either party.

On July 29, 2013, the trial court entered a judgment that incorporated an agreement of the parties that modified the divorce judgment. In that July 29, 2013, judgment, the trial court ordered that the joint-custody award be maintained but ordered the father to pay $500 per month in child support.

On January 28, 2014, the father filed a petition seeking to modify custody, an award of child support, and to have the mother held in contempt for alleged violations of certain provisions of the previous judgments. The mother answered and counterclaimed, seeking an award of sole legal and sole physical custody of the children and a recalculation of child support. On December 22, 2014, the trial court appointed a guardian ad litem to represent the children.

The trial court received ore tenus evidence at a hearing over the course of two days in July 2015. On August 12, 2015, the trial court entered an order in which it, among other things, denied both parties’ requests for a modification of custody and ordered the parties to submit a joint ealcu-lation of the child-support arrearage owed by the father.

On August 25, 2015, the father filed a purported postjudgment motion raising arguments pertaining to, among other things, the trial court’s failure to modify child support and requesting a hearing on the motion. However, a Rule 59(e), Ala. R. Civ. P., postjudgment motion may be filed only in reference to a final judgment. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala.2003); Malone v. Gainey, 726 So.2d 725, 725 n. 2 (Ala.Civ.App.1999). The trial court’s August 12, 2015, order did not rule on the mother’s claim for the determination of the father’s child-support arrearage, and it instead ordered that additional evidence be presented with regard to that claim. Accordingly, the August 12, 2015, order was not a final judgment. Trousdale v. Tubbs, 929 So.2d 1020, 1022-23 (Ala.Civ.App.2005).

On August 27, 2015, the trial court entered an order denying the father’s purported postjudgment motion. As a part of that order, the trial court ordered thfe parties to compute the father’s child-support arrearage and to submit those calculations to it. On September 3, 2015, the trial court entered an order finding that the father had a child-support arrearage in the amount of $11,721.88 and entering a judgment in favor of the mother in that amount. The September 3, 2015, order, because it resolved the last of the parties’ pending claims, constituted a final judgment. Stockton v. CKPD Dev. Co., 936 So.2d 1065, 1069-70 (Ala.Civ.App.2005). The father timely appealed.

The father asserts various arguments that the trial court erred in refusing to modify his child-support obligation. The record reveals the following pertinent facts.

At the time the July 29, 2013, modification judgment was entered, the father had been employed by an employer he referred to as “SAIC,” earning approximately $100,000 each year. The father lost that job in March 2014; the record does not indicate why the father lost that job.

The father was then unemployed until August 1, 2014, when he was hired as a full-time science teacher earning in the “mid thirties” each year. The father resigned that job after only three months to avoid being fired. The father stated that the incident that led to his resignation occurred when a student challenged the father to a wrestling match during class and the father agreed and wrestled the student. The father stated that the wrestling incident was a “poor choice” that resulted in his losing that teaching job.

The father testified that, after he lost the teaching job, he submitted 50 to 60 job applications during a 2-month period before he obtained a job selling generators. The father stated that he had had difficulty finding another job, and that his income had decreased, because of arrest records and mugshots that were posted online. The father blamed the mother for bringing the charges against him that resulted in the arrest records being online. One mugshot was online as a result of a charge of theft of property brought by the mother; that charge was later dismissed. The father also had been charged with domestic violence and harassment against the mother before the entry of the July 29, 2013, modification judgment; the father testified that those charges had resulted in a “not-guilty” decision after he completed “diversion.”

The father testified that he had been employed selling home standby generators since January 2015. The father’s testimony indicates that he is an independent contractor; he stated that he was paid only if and when he made sales. The father submitted into evidence an exhibit that he represented indicated his income as being $7,600 between January 28, 2015, and June 12, 2015. That exhibit was a “vendor quick report,” apparently showing amounts the generator seller had paid him; several amounts were marked out on that exhibit, and a handwritten figure indicates that the amounts on that exhibit represent an income of $1,266 per month. On his CS-41 Child-Support-Obligation Income Statement/Affidavit, filed pursuant to Rule 32, Ala. R. Jud. Admin., the father represented that his income was $1,266 per month. We note that the father testified that he receives food stamps and other government>assistance benefits in the amount of $750 per month; those amounts are not included in a determination of a parent’s gross income for the purposes of determining child support. Rule 32(B)(2)(b), Ala. R. Jud. Admin.

The father admitted that he has not paid child support since January 2014. The father testified that, at that time, he lost the job at which he had earned $100,000, a year, and he claimed that he had not paid child support because of a lack of income and because the children have been living with him three out of four weeks each month. The father testified that the current physical-custody arrangement is one of joint physical custody, with the parties alternating weeks when they have physical custody of the children, but that the.children stay with him when the mother is working night shifts, even if it is the mother’s week to have custody.. The father testified that the oldest child lives with the father and does not , stay overnight at the mother’s home like the other children.

The mother testified that she had been a stay-at-home mother before she became a nurse five years before the hearing in this matter, and she stated that she was considering going back to school to become a nurse practitioner. The mother testified that she had been employed at Huntsville Hospital in the cardiovascular-intensive-care unit since August 2014. She testified that she was also listed as an employee oh the payrolls of two nursing homes at which she had previously been employed. The mother explained that she occasionally saw patients at one of those nursing homes but that she rarely worked at the other.

The mother testified that she earns $21.80 per hour and that she earns approximately $3,000 per month if she works extra shifts.. She testified. that she currently worked the night shift but was trying to move to the day shift. She stated that she had already discussed changing shifts with her manager, who had just hired 24 new workers, and was told that she would receive the next day-shift position that became available. She stated that she normally worked three nights out of the week but that she keeps the weekends free so that she can spend time with the children and attend their events. The mother testified that a complaint against her was received by the nursing board from the father, who reported that the mother had stolen drugs from Huntsville Hospital.

The mother testified that she put the children on her health insurance when she started working for her current employer. The father is under a previous court order to pay 75% of the children’s uninsured medical expenses. The mother testified that one of the children needs braces and that the braces will cost $5,000 even with dental insurance. She stated that she asked the father to help her pay for the braces, but, she said, he told her that he could not afford to help. The mother testified that she has been working extra shifts to earn money to pay for the child’s braces.

After the hearing, the trial court issued an order. on July 8, 2015, requiring the children’s guardian ad litem to visit the mother’s home, which she shares with her fiancé, within 30 days and then to submit a written report to the court. In her report to the trial court, the guardian ad litem noted, in pertinent part:

“The father has not paid support as ordered, stating that he was unemployed and unable to pay. The mother has taken an overnight nursing job for higher pay. However, this makes her unable to have the children for a significant portion.of her weeks, and the children, as a result, have spent approximately 75% of their time in the father’s care.”

In her recommendations to the trial court on the issues of child support and child custody, the guardian ad litem expressed the opinion that the father should not “be rewarded for failure to pay child support, thus forcing the mother to work overnights for higher pay [and] forcing the mother to relinquish the children to the father for much of her week.”

We note that, during the pendency of this matter, the father failed to respond to the mother’s requests for admissions. The requests for admissions largely concerned questions pertinent to the issue of custody of the parties’ children. On October 28, 2014, the trial court entered an order granting the mother’s motion to deem admitted her requests for admissions to the father. Thus, the mother’s requests for admissions were deemed conclusively established. Rule 36, Ala. R. Civ. P. During the hearing, the mother’s attorney repeatedly objected to testimony provided by the father that contradicted those deemed admissions, and the trial court eventually gave the mother a standing objection.

The father did not seek to have the October 28, 2014, order set aside, and he made no objection to the trial court’s consideration of the deemed admissions when the hearing began. However, in his testimony, the father asked the trial court to base its judgment on the ore tenus evidence presented at the hearing rather than on the deemed admissions. The record contains no indication that the trial court agreed to disregard the October 28, 2014, order regarding the mother’s requests for admissions. In his brief on appeal, the father has not addressed the effects of the October 28, 2014, order on appeal, nor has he argued that the trial court abused its discretion in entering that order. See Thomson v. Bank, 506 So.2d 1012, 1014 (Ala.Civ.App.1987) (a determination whether to deem requests for admissions admitted due to a failure to respond, or to an untimely response, is within the trial court’s discretion).

The requests for admissions that were deemed admitted by virtue of the October 28, 2014, order and that could be said to affect that part of the trial court’s judgment concerning child support established that, at the time the October 28, 2014, order was entered, the father had no basis for the allegations in his petition to modify, that he had anger issues, that he was unemployed because he could not control his anger, that he had refused to seek employment, and that he could obtain employment if he obtained treatment for his anger issues.

On appeal, the father argues that the trial court erred by failing to modify his child-support obligation. The July 29, 2013, modification judgment, which the parties both sought to modify in this current action, contains a finding that the provision in that judgment ordering the father to pay $500 per month in child support was a deviation from the Rule 32, Ala. R. Jud. Admin., child-support guidelines. That July 29,2013, judgment, which incorporated an agreement of the parties, further states that both the mother and the father had agreed that the deviation was “fair and equitable.” Thus, in arguing that his child-support obligation should be reduced, the father is arguing that the facts warrant a modification of the amount of child support to which he agreed in July 2013 and which constituted a deviation from the child-support guidelines.

This court has held that when the child-support judgment a party seeks to modify constituted a deviation from the Rule 32 child-support guidelines, the party seeking the modification must demonstrate that there exists a material change in the circumstances from those circumstances that resulted in the earlier deviation from the child-support guidelines. Milligan v. Milligan, 149 So.3d 623, 626 (Ala.Civ.App.2014) (“[Wjhen a trial court ratifies an agreement to deviate from the Rule 32 child-support guidelines, that agreement may be modified upon a showing of a substantial and continuing material change from the circumstances that had resulted in the initial deviation.”). In other words, the trial court could modify the father’s child-support obligation if the father demonstrated that there had been a material change in the circumstances from the circumstances that had resulted in the parties’ and the trial court’s decision to deviate from the child-support guidelines in establishing the father’s child-support obligation in the July 29, 2013, modification judgment. Jones v. Jones, 101 So.3d 798, 803 (Ala.Civ.App.2012).

We note that there exists

“a rebuttable presumption that child support should be modified when the difference between the existing child-support award and the amount determined by application of these guidelines varies more than ten percent (10%), unless the variation is due to the fact that the existing child-support award resulted from a rebuttal of the guidelines and there has been no change in the circumstances that resulted in the rebuttal of the guidelines.”

Rule 32(A)(3)(c), Ala. R. Jud. Admin, (emphasis added). Thus, the rebuttable presumption provided in Rule 32(A)(3)(c) is applicable only if the father has demonstrated a material change in the circumstances from those circumstances that resulted in the July 29, 2013, child-support determination.

Accordingly, we address the father’s argument that there has been a material change in circumstances. See Duke v. Duke, 872 So.2d 153, 156-57 (Ala.Civ.App.2003).

“For the purposes of modifying child support, ‘ “[fjactors indicating a change of circumstances include a material change in the needs, conditions, and circumstances of the child.” ’ Duke [v. Duke ], 872 So.2d [153] at 156 [ (Ala.Civ.App.2003) ] (quoting State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995)). The parent seeking the modification bears the burden of proof. Cunningham v. Cunningham, 641 So.2d 807, 809 (Ala.Civ.App.1994).
“ “Whether circumstances justifying modification of support exist is a matter within the trial court’s discretion. [Cunningham v. Cunningham, 641 So.2d 807 (Ala.Civ.App.1994).] We will not disturb the trial court’s decision on appeal unless there is a showing that the trial court abused that discretion or that the judgment is plainly and palpably wrong. Id.; Douglass v. Douglass, 669 So.2d 928, 980 (Ala.Civ.App.1995).’ ”

Milligan v. Milligan, 149 So.3d at 626 (quoting Romano v. Romano, 703 So.2d 374, 375 (Ala.Civ.App.1997)).

The father argues that his income has been reduced dramatically since the entry of the July 29, 2013, modification judgment. We agree that the record demonstrates that the father’s income has decreased significantly from the $100,000-a-year salary that he was earning at the time of the July 29, 2013, modification judgment. Such a decrease in income has been held to be a material change in circumstances. H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1280 (Ala.Civ.App.2009). “However, the fact that a change in circumstances has occurred does not necessarily end the inquiry and require that the father’s child-support obligation be modified.” Id. In this case, the trial court determined that the father’s reduction in income was a result of his being voluntarily underemployed. In its August 27, 2015, order addressing the father’s purported postjudgment motion, the trial court found:

“[The father] seeks to have the court relieve him of his obligation to pay child support.
“The record herein amply establishes that [the father] is underemployed, as the result of his own misconduct. Furthermore, [the father’s] refusal to pay his child support, coupled with his suggestion that his ex-wife should provide all of the support for his four children and pay HIM child support as well, causes the court to question whether [the father] possesses the good judgment and work ethic necessary to successfully parent the minor children of the parties.”

(Capitalization in original.)

The determination of whether a parent with a child-support obligation is voluntarily unemployed or underemployed is within the trial court’s discretion. Griggs v. Griggs, 638 So.2d 916, 918 (Ala.Civ.App.1994). The evidence in this case indicates that, after the father lost his job at which he earned $100,000 per year, he accepted employment at which he earned approximately $35,000 annually as a teacher. However, the father was forced to resign from that employment after only three months to avoid termination of his employment because he engaged in wrestling with a student in a classroom. The father’s deemed admissions, in response to the mother’s requests for admissions, establish that the father’s anger issues have impacted the father’s employment prospects. Thus, although the father argues in his brief submitted to this court that the trial court erred in determining that he was voluntarily underemployed, we conclude that the evidence supports the trial court’s determination that the father was capable of earning more income. See Bittinger v. Byrom, 65 So.3d 927 (Ala.Civ.App.2010) (affirming a finding of voluntary underemployment when the trial court based its determination on the parent’s probable earning level based on his recent work history); Rule 32(B)(1), Ala. R. Jud. Admin, (defining “income” in part, as “the actual gross income the parent has the ability to earn if the parent is ... underemployed”).

Rule 32 provides, in part:

Unemployment; Underemployment. 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. In determining the amount of income to be imputed to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earning level of that parent, based on that parent’s recent work history, education, and occupational qualifications, and on the prevailing job opportunities and earning levels in the community....”

Rule 32(B)(5), Ala. R. Jud. Admin, (emphasis added).

In this case, the trial court did not make any findings imputing income to the father or specifying the amount of income it might have imputed to him. The Rule 32 child-support guidelines and our case-law require that the trial court impute to the father the amount of income it determines he is capable of earning and to calculate child support pursuant to the guidelines based on that amount of income. Rule 32(B)(5); Herboso v. Herboso, 881 So.2d 454, 457 (Ala.Civ.App.2003); and Van Houten v. Van Houten, 895 So.2d 982, 986-87 (Ala.Civ.App.2004). We note that Rule 32(B)(9), Ala. R. Jud. Admin., addresses the determination of child support when parents share joint physical custody of the children “unless the court determines, pursuant to other provisions of this rule, that it should deviate from the guidelines.” Rule 32(B)(9)(c), Ala. R. Jud. Admin.; see also Rule 32(A)(1), Ala. R. Jud. Admin, (setting forth circumstances in which a trial court might deviate from the child-support guidelines).

In H.J.T. v. State ex rel. M.S.M., 34 So.3d at 1281, the State responded to the argument of the father in that case asserting that the trial court in that case had erred in denying the father’s claim to modify child support by arguing that he had “the ability to maintain his previous income level”; in other words, the State maintained that the father was voluntarily underemployed. This court reversed the trial court’s judgment and remanded the case for the trial court to apply the Rule 32 child-support guidelines or to make factual findings explaining its determination that the facts warranted a deviation from the guidelines, stating:

“The record does not indicate whether the trial court intended to impute income to the father pursuant to Rule 32(B)(5) when it denied the father’s claim seeking a child-support modification. The trial court made no reference to the child-support guidelines, and it does not appear that it applied the guidelines in reaching its ruling. The trial court may deviate from the Rule 32, Ala. R. Jud. Admin., child-support guidelines when it makes factual findings justifying that deviation. State ex rel. Golden v. Golden, 710 So.2d 924 (Ala.Civ.App.1998). However, there is no indication in the record that the trial court made a finding that, given the facts of this case, the application of the child-support guidelines would be ‘ “ ‘manifestly unjust or inequitable.’ ” ’ State ex rel. Roberts v. Roberts, 725 So.2d [980] at 981 [ (Ala.Civ.App.1998) ] (quoting Stewart v. Kelley, 587 So.2d 384, 385 (Ala.Civ.App.1991), quoting in turn Rule 32(A)(ii), Ala. R. Jud. Admin.).
“ ‘If the trial court fails to apply the guidelines or to present findings of fact based upon evidence before the court indicating why the guidelines were not followed, this court will reverse.’ State ex rel. Roye v. Hogg, 689 So.2d 131, 133 (Ala.Civ.App.1996); State ex rel. Roberts v. Roberts, 725 So.2d at 981-82 (same).”

H.J.T. v. State ex rel. M.S.M., 34 So.3d at 1281.

The trial court in this case determined that the father was voluntarily underemployed, and the evidence supports that determination. Accordingly, we reverse the trial court’s judgment insofar as it addresses the issue of child support and remand this cause for the trial court to make findings of fact regarding whether to impute income to the father and, if so, what level of income the father is capable of earning. The trial court should assess child support in compliance with the Rule 32 child-support guidelines or specify, if necessary, any reasons, including that the father is voluntarily underemployed, that justify a deviation from the application of those guidelines. H.J.T. v. State ex rel. M.S.M., supra.

REVERSED AND REMANDED.

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

      . For the purposes of this opinion, we have characterized the custodial awards as those awards are properly defined under § 30-3-151, Ala.Code 1975.

      . The specific language of the mother’s counterclaim did not seek a determination of the father’s child-support arrearage, but it is clear that that claim was tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P.

      . We note that the father has argued, as one of luis issues on appeal, that the trial court erred in denying his August 25, 2015, "post-judgment” motion without granting his request for a hearing on that motion. The father cites Rule 59(g), Ala. R. Civ. P., and Kitchens v. Maye, 623 So.2d 1082 (Ala.1993), in support of his argument that it can be error for a trial court to fail to conduct a hearing requested in a Rule 59 postjudgment motion. However, because the father’s August 25, 2015, motion was not taken from a final judgment, it was not a valid postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P. Ex parte Troutman Sanders, LLP, supra; Malone v. Gainey, supra. Therefore, Rule 59(g) does not provide support for the father’s argument that he was entitled to a hearing on his August 25, 2015, motion. The father has not cited any other authority in support of his argument that the trial court erred in failing to conduct a hearing on his August 25, 2015, motion. Accordingly, he has failed to demonstrate error with regard to this issue.

      . Because neither party has appealed the trial court’s ruling on their claims seeking a custody modification, we do not address the parts of the trial court's orders and judgment pertaining to those claims.

      . The father’s testimony was that he was a "1099 employee.”

      . The guardian ad litem noted that the mother had applied to be transferred to the day shift and that she was engaged to be married and that her fiancé could assist her in taking care of the children when she continued to work nights pending her transfer to the day shift.

      . This opinion should not be interpreted as indicating that such an objection would be proper.

      .We note that, in his petition, the father sought a change in custody and an award of child support. He did not plead a claim seeking a modification of child support if the trial court denied his custody-modification claim. However, the parties and the trial court appear to have treated such a claim as having been tried by the implied consent of the parties pursuant to Rule 15(b), Ala. R. Civ. P.

      . The parties did not address whether the application of the child-support guidelines would result in a 10% variance in the father’s child-support obligation. We note that the father submitted into evidence a child-support calculation, based on his claim of earning only $1,266 per month, that resulted in a determination that the mother should pay $938 per month toward the children’s support and the father should pay $483 per month. However, that calculation was clearly based on an assumption that one of the parties would receive sole physical custody of the children and the other would receive an award of visitation. The trial court, however, left in place the award of joint custody of the children.


author: KELLUM, Judge.

text:
    Carlos Benard SINGLETON v. STATE of Alabama.
    CR-14-0344.
    Court of Criminal Appeals of Alabama.
    Sept. 18, 2015.
    Rehearing Denied Dec. 11, 2015.
    Certiorari Quashed May 13, 2016 Alabama Supreme Court 1150315.

      Ashley Nicole Smith, Montgomery, for appellant.
    Luther Strange, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   On Application for Rehearing

KELLUM, Judge.

This Court’s opinion issued on May 29, 2015, is withdrawn, and the following is substituted therefor.

The appellant, Carlos Benard Singleton, appeals from the circuit court’s revocation of his probation. On February 29, 2011, Singleton pleaded guilty to attempted sexual abuse of a child less than 12 years old, a violation of §§ 13A-4-2 and 13A-6-69.1, Ala.Code 1975. The circuit court sentenced Singleton to 15 years’ imprisonment; the sentence was split, and he was ordered to serve 1 year in prison followed by 5 years’ supervised probation. The circuit court ordered Singleton to pay $50 to the crime victims compensation fund and court costs.

On September 26, 2014, Singleton’s probation officer filed a delinquency report alleging that Singleton had violated the terms and conditions of his probation by testing positive for cocaine in June 2014, by fading to complete drug testing when ordered, by failing to report, by failing to participate in a scheduled “maintenance polygraph,” and by failing to notify his probation officer of a change of address. (C. 21.)

The circuit court conducted a probation-revocation hearing on November 6, 2014. At the hearing, Singleton’s probation officer, Laura Vandam, testified that Singleton tested positive for cocaine on June 30, 2014. According to Vandam, Singleton also failed to report for random drug screens in July 2014 and September 2014. Vandam testified that Singleton, who was homeless, failed to report weekly as required by law, refused to complete a scheduled “maintenance polygraph” as required by the Sex Offender Management Program, and failed to report a change of his address. Singleton testified that he was in poor health and had recently been hospitalized. Singleton admitted that he had used cocaine once while on probation. Singleton stated that he had stayed with his mother, who was also in poor health, for a week and a half to help her but that he did not inform his probation officer of his location when he was there. After considering the evidence presented at the revocation hearing, the circuit court entered an order on November 6, 2014, in which it revoked Singleton’s probation and ordered Singleton to serve the balance of his sentence in the custody of the Alabama Department of Corrections. This appeal followed.

I.

Singleton contends that the 15-year sentence originally imposed by the circuit court is illegal because, he argues, the sentence exceeded the maximum sentence allowed by law and grants an unauthorized term of probation under the law. Citing this Court’s decision in Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), Singleton maintains that the circuit court’s revocation of his probation is due to be reversed based on the illegality of the original sentence.

Initially, we note that, although the legality of Singleton’s sentence was not first argued in the circuit court, we have held that “[m]atters concerning unauthorized sentences are jurisdictional.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., McCall v. State, 794 So.2d 1243 (Ala.Crim.App.2000); Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App.1999).

The record indicates that Singleton pleaded guilty to attempted sexual abuse of a child less than 12 years old and that he was sentenced to 15 years’ imprisonment. The 15-year sentence was split pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, and Singleton was ordered to serve 1 year in prison followed by 5 years’ supervised probation.

The crime of sexual abuse of a child less than 12 years old is a Class B felony. See § 13A-6-69.1(b), Ala.Code 1975. An attempt of a Class B felony is punishable as a Class C felony, see § 13A-4-2(d)(3), Ala.Code 1975, and a person convicted of a Class C felony may be sentenced to “not more than 10 years or less than 1 year and 1 day” in prison. § 13A-5-6(a)(3), Ala. Code 1975. Section 13A-5-2(d), Ala.Code 1975, provides:

“Every person convicted of a felony, misdemeanor, or violation, except for the commission of a criminal sex offense involving a child as defined in Section 15-20-21(5), may be placed on probation as authorized by law.”

Section 15-20-21(5), Ala.Code 1975, defines a “criminal sex offense involving a child” as “a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.” The Split Sen-tenee Act prohibits splitting the sentence of an offender convicted of “a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.” § 15-18-8(a), Ala,Code 1975. Further, under the Split Sentence Act, “[probation may not be granted for a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.” § 15-18-8(b), Ala. Code 1975.

In this case, the record contains a pro se motion filed by Singleton in which he acknowledges that he was sentenced as a habitual felony offender. Even with one prior felony’ conviction, Singleton — who pleaded guilty to a Class C félony — could be sentenced to not more than 20 years or less than 2 years. See §§ 13A-5-9(a)(l) and 13A-5-6(a)(2), Ala.Code 1975. Therefore, contrary to Singleton’s contention on appeal, the circuit court’s 15-year sentence did not exceed the maximum authorized by law.

Furthermore, the circuit court’s imposition of a probationary term was proper. The circuit court sentenced Singleton under the Split Sentence Act. Section ‘16-18-8(b) of the Split Sentence Act prohibits the imposition of a split sentence in cases where a defendant is convicted of a criminal sex offense involving a child that constitutes a Class A or a Class B felony. However, the Split Sentence Act does not prohibit the imposition of a split sentence when the conviction os for an offense that is a Class C felony.

Although Singleton contends on appeal that the circuit court’s sentence granting him probation was illegal because § 13A-5-2(d) prohibits probation for a person convicted of a sex offense involving a child, this Court has previously recognized that the Split Sentence Act

“allows the circuit court to impose sentences that would, under other statutory sentencing schemes, be illegal. For example, under § 15-22-54(a), Ala.Code 1975, circuit courts do not have the aur thority in felony cases to impose terms of probation that exceed five years; the Split-Sentence Act, however, allows circuit courts to impose probationary terms that exceed five years. See, e.g., Hatcher v. State, 547 So.2d 905, 906 (Ala.Crim.App.1989)(Tt is clear to this Court that the legislature, in enacting the provision of § 15-18-8, intended to provide that a defendant could be sentenced to mandatory confinement for a period not exceeding three years, after which the defendant would be placed on probation for the remainder of his sentence, even if that sentence were 15 years.’).”

Mosley v. State, 187 So.3d 1194, 1202 n. 4 (Ala.Crim.App.2015).

In the instant case, Singleton was convicted of a Class C felony. See §§ 13A-6-69.1(b) and § 13A-4-2(d)(3), Ala.Code 1975. Because Singleton was convicted of a Class C felony and was sentenced under the Split Sentence Act, the circuit court properly exercised its discretion in granting Singleton a term of probation. Therefore, Singleton is not entitled to relief on this issue.

n.

Singleton also contends that the circuit court erred by revoking his probation because, he argues, "there were other measures short of confinement that would have adequately protected the community from further criminal activity by him and avoided depreciating the seriousness of the violation.” (Singleton’s brief, p. 16.)

Section 15-22-54(d)(4), Ala.Code 1975, provides:

“The court shall not revoke probation and order the confinement of the probationer for violations of the conditions of probation unless the court finds on the basis of the original offense and the probationer’s intervening conduct, either of the following:
“a. No measure short of confinement will adequately protect the community from further criminal activity by the probationer.
“b. No measure short of confinement will avoid depreciating the seriousness of the violation.”

The evidentiary standard applicable to a probation revocation is:

“‘“Probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime. A proceeding to revoke probation is not a criminal prosecution, and we have no statute requiring a formal trial. Upon a hearing of this character, the court is not bound by strict rules of evidence, and the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt.” ’
“Martin v. State, 46 Ala.App. 310, 312, 241 So.2d 339, 341 (Ala.Crim.App.1970)(quoting State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967) (citation omitted)). Under that standard, the trial court need ‘only to be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation.’ Armstrong v. State, 294 Ala. 100, 103, 312 So.2d 620, 623 (1975). Absent a clear abuse of discretion, a reviewing court will not disturb the trial court’s conclusions. See Moore v. State, 432 So.2d 552, 553 (Ala.Crim.App.1983), and Wright v. State, 349 So.2d 124, 125 (Ala.Crim.App.1977).”

Ex parte J.J.D., 778 So.2d 240, 242 (Ala.2000).

In the instant case, the evidence presented to the circuit court established that Singleton violated the terms and conditions of his probation when he tested positive for cocaine, repeatedly failed to report to his probation officer or appear for drug tests, refused to submit to a polygraph test, and failed to notify his probation officer that he had changed his address. Given the nature of the underlying crime for which Singleton was on probation — attempted sexual abuse of a child less than 12 years old — and the extent of his probation violations, we cannot say that the circuit court abused its discretion when it revoked Singleton’s probation and ordered Singleton to serve the balance of his sentence in the custody of the Alabama Department of Corrections. Accordingly, the judgment of the circuit court revoking Singleton’s probation is due to be affirmed.

APPLICATION FOR REHEARING GRANTED; OPINION OF MAY 29, 2015, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

WELCH, BURKE, and JOINER, JJ., concur. WINDOM, P.J., concurs in the result.

      . As a condition of his probation, Singleton was ordered to participate in a "specialized sex offender treatment program that utilizes the clinical polygraph technique as part of the treatment guidelines for sex offenders.” (C. 54.).

      . For purposes of appellate review, we have combined the first and second issues raised in Singleton’s brief on appeal.

      . Section 15-20-21(5) was repealed by Act No. 2011-940, Ala. Acts 2011, § 49, effective July 1, 2011, and was replaced by § 15-20A-48(a), which provides:
      "For the purposes of Sections 13A-5-2, 13A-5-6, 14-9-41, 15-18-8, 15-22-27.3, or any other section of the Code of Alabama 1975, a criminal sex offense involving a child shall mean a conviction for any sex offense in which the victim was a child under the age of 12 or any offense involving child pornography.”
      Because the law in effect at the time of the commission of the offense controls, § 15-20-21 (5) applies in the instant case. See Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990)("A defendant’s sentence is determined by the law in effect at the time of the commission of the offense.").


author: LABARGA, C.J.

text:
    Stanley MCCLOUD, Petitioner, v. STATE of Florida, Respondent.
    No. SC14-1150
    Supreme Court of Florida.
    [January 19, 2017]

      James S. Purdy, Public Defender, and Nancy Jean Ryan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida; Wesley Harold Heidt, Bureau Chief, and Kristen Lynn Davenport, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   LABARGA, C.J.

Stanley McCloud seeks review of the Fifth District Court of Appeal’s decision in McCloud v. State, 189 So.3d 474 (Fla. 5th DCA 2014), which the district court issued on remand in light of this Court’s decision in Haygood v. State, 109 So.3d 735 (Fla. 2013). McCloud cites as authority Daugherty v. State, 96 So.3d 1076 (Fla. 4th DCA 2012), rev. granted, 143 So.3d 917 (Fla. 2014) (table), a decision of another district court of appeal pending in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418, 421 (Fla. 1981). As explained below, we approve the holding of the Fifth District, but not the reasoning.

As we begin, we note that this case involves a jury instruction consistent with that deemed to be fundamentally erroneous in State v. Montgomery, 39 So.3d 252 (Fla. 2010). The petitioner, Stanley McCloud, was convicted of second-degree murder. He initially challenged his conviction because the jury instruction on the required lesser included offense of manslaughter by act erroneously required the jury to And that he intended to cause the death of the victim. At that time, McCloud’s conviction was affirmed on the grounds that the jury also received a jury instruction on manslaughter by culpable negligence. See McCloud v. State, 53 So.3d 1206 (Fla. 5th DCA 2011).

McCloud sought review of that decision in this Court. We granted jurisdiction, quashed, and remanded in light of our decision in Haygood, which held

that giving the manslaughter by culpable negligence instruction does not cure the fundamental error in giving the erroneous manslaughter by act instruction where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act, but does not reasonably support a finding that the death occurred due to the culpable negligence of the defendant.

109 So.3d at 743; McCloud v. State, 137 So.3d 1021 (Fla. 2014) (table).

On remand, the district court again affirmed McCloud’s conviction, this time concluding that the order of the lesser included offenses as presented to the jury dictates the number of steps removed from the offense of conviction, and thus, whether a fundamental error or harmless error analysis applies. The decision of the district court on remand is the decision currently before this Court.

We have contemporaneously issued our opinion in Daugherty v. State, No. SC14-860 (Fla. Jan. 12, 2017), which raises the same question of law as the present case; that is, how to properly determine the number of steps that the lesser included offense of manslaughter is removed from second-degree murder, the offense of conviction. In Daugherty, we quashed the decision of the Fourth District Court of Appeal and held that

where a defendant is convicted of second-degree murder after the jury is erroneously instructed on the lesser included offense of manslaughter by act, the one step removed analysis to determine fundamental error is not based on the order of the offenses on the verdict form. Rather, because manslaughter as a matter of degree is a next lesser offense of second-degree murder, giving an erroneous instruction on manslaughter by act constitutes fundamental error even if manslaughter is not listed immediately below second-degree murder on the verdict form.

Id. at 2.

Because the Fifth District in McCloud employed the same reasoning as the Fourth District in Daugherty and applied an erroneous steps removed analysis, we disapprove of the reasoning in McCloud. However, because we conclude that the error caused by the incorrect instruction was cured by the jury’s consideration of other offenses also one step removed from the offense of conviction, we approve the ultimate holding of the district court.

FACTS AND PROCEDURAL BACKGROUND

McCloud was charged with first-degree murder in the death of his wife, Sandra McCloud. McCloud shot Sandra with a .357 magnum in her bedroom and in the presence of their two small children. Sandra died from a single gunshot wound to the chest. One of the children sustained a grazing wound from the same gunshot. Both McCloud and Sandra had been drinking for hours before the murder. Sandra’s blood alcohol level was .16.

In a 911 call that he made shortly after the shooting and after leaving the Ocala home where he shot Sandra, a distressed McCloud stated that after retrieving his .357 magnum from his truck, he shot his wife in the chest and wanted to turn himself in. McCloud drove to a convenience store, where he was taken into custody. McCloud said during the 911 call:

She — she told me she went with the roo[f] man. And I — we’ve been separated for eight months. And I come back and she went with the roo[f] man. I was on my job making good money, and she told me that, and I could have been still there with my job. I’m going to turn myself in.

McCloud repeatedly made comments such as “I didn’t mean to do it, but she made me do it,” and “I — I’m sick and tired of this.”

In an interview at the police station during the hours after the shooting, McCloud continued to repeat that he shot Sandra because she relentlessly talked to him about having another man in her life. During this interview, McCloud stated that he pointed the gun at her to scare her, but did not intend to shoot and kill her. He suggested that he shot her in the dark at a point when the lights blinked in the bedroom and, in contrast to the 911 call, said he thought he shot Sandra in the shoulder. During this interview, McCloud first stated that the gun was in the truck, but then he quickly changed his statement and said that the gun was in the bedroom closet.

The bullet that killed Sandra entered the right side of her chest between the ribs, traveled through her right lung, and entered into the pericardial sac surrounding her heart. The bullet tore the upper part of her esophagus in half and lacerated her aorta. The bullet then grazed her left lung and exited her back. The medical examiner suggested that Sandra may have been sitting on the edge of the bed when she was shot, with McCloud standing one to two feet away. McCloud’s children were in bed with his wife when McCloud fired the shots, and the bullet grazed one of the children in the arm. Sandra was transported to the hospital with no obvious signs of life and was pronounced dead.

McCloud was convicted of the lesser included offense of second-degree murder. The jury was also instructed on the lesser included offenses of third-degree felony murder and manslaughter by act. On the verdict form, third-degree felony murder appeared between second-degree murder and manslaughter. On appeal, the district court concluded that, as a result of the order in which the offenses were instructed to the jury and listed on the verdict form, the erroneously instructed offense of manslaughter by act was two steps removed from second-degree murder, the offense of conviction. The district court stated:

In this case, the lesser included offense of manslaughter by act was two steps removed from the second-degree murder conviction due to the inclusion of the felony murder charge in the jury instructions and on the verdict form.

McCloud, 139 So.3d at 474-75. Relying on Pena v. State, the district court determined that a harmless error analysis was appropriate. 901 So.2d 781, 787 (Fla. 2005) (“However, when the trial court fails to properly instruct on a crime two or more degrees removed from the crime for which the defendant is convicted, the error is not per se reversible, but instead is subject to a harmless error analysis”).

The district court concluded that the use of the erroneous manslaughter by act instruction constituted harmless error and affirmed McCloud’s conviction and sentence. McCloud, 139 So.3d at 475. The district court also cited to Daugherty, 96 So.3d 1076, which applied the same steps-removed analysis on similar facts and concluded that the erroneous manslaughter by act instruction constituted harmless error. McCloud, 139 So.3d at 475. At the time, this Court had granted belated review in Daugherty, and we subsequently granted review in McCloud.

ANALYSIS

McCloud, who was convicted of second-degree murder, maintains that he is entitled to relief because the jury received an instruction on the lesser included offense of manslaughter by act that was consistent with the instruction held to be fundamentally erroneous under the facts and instructions given in Montgomery, 39 So.3d at 259. At trial, McCloud’s jury was instructed as follows:

Manslaughter, to prove the crime of manslaughter, the- State must prove the following two elements beyond a reasonable doubt. One, Sandra McCloud is dead. Two, A, Stanley McCloud intentionally caused the death of Sandra Gail McCloud or B, the death of Sandra McCloud was caused by the culpable negligence of Stanley McCloud.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.
In order to convict of manslaughter by intentional 'act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.
I will now define culpable negligence for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty without any conscious intention to harm, that violation is negligence, but culpable negligence is more than a failure to use ordinary care toward others.
In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life or the safety of persons exposed to its dangerous effects or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public or such an indifference to the rights of others as is equivalent to an intention— intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury.

The district court acknowledged that McCloud’s jury received a faulty jury instruction on manslaughter by act. McCloud, 139 So.3d at 474. However, the court concluded that because manslaughter was not placed immediately below second-degree murder but was preceded by third-degree felony murder, a harmless error analysis applied to the faulty instruction. In sum, the layout of the verdict form and the jury instructions rendered manslaughter two steps removed from second-degree murder because the lesser included offense of third-degree felony murder was placed between them. However, as we held in Daugherty, this was error. We explained:

This Court has consistently observed that manslaughter, a next lesser included offense of second-degree murder, is one step removed from second-degree murder. It is this relationship between the two offenses that undergirds this Court’s conclusion that the erroneous manslaughter instruction in Montgomery constituted fundamental error. However, this Court has previously concluded that third-degree felony murder— which, like manslaughter, is also a second-degree felony — is also one step removed from second-degree murder. See Herrington v. State, 538 So.2d 850, 851 (Fla. 1989). “Although third-degree felony murder is not a necessarily included offense of first-degree murder, it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jury instruction to that effect.” Green v. State, 475 So.2d 235, 236 (Fla. 1985).

No. SC14-860, at 14-15 (Fla. Jan. 12, 2017). We continued:

The district court’s interpretation of what constitutes a step removed improperly focused on the appearance of the verdict form and based a defendant’s entitlement to relief on an arbitrary set of circumstances — which lesser included offense is listed first when drafting the verdict form. We conclude that the determination of what constitutes a step removed is not based on the layout of the verdict form, but rather, the relationship between the offense of conviction and the erroneous lesser included offense instruction.
Manslaughter, a second-degree felony, is a next lesser offense of second-degree murder. However, as we previously observed in Herrington, so is third-degree felony murder (also a second-degree felony). Daugherty’s jury was instructed on multiple next lesser included offenses of the same degree of severity, and Daugherty was entitled to a proper instruction on each. The placement of third-degree felony murder on the verdict form did not, by mere virtue of its location between second-degree murder and manslaughter, remedy the error caused by the faulty manslaughter instruction. To conclude otherwise would leave to mere chance a defendant’s entitlement to relief based on how the verdict form is fashioned.

Id. at 16-17. Our analysis in Daugherty applies here.

Curing the Manslaughter by Act Error

In this case, the issue of intent was pertinent and material to what the jury had to consider to convict McCloud, who was charged with premeditated first-degree murder. Thus, the giving of an erroneous instruction on manslaughter by act, an offense one step removed from second-degree murder, constituted fundamental error where it required the jury to find that McCloud intended to cause the victim’s death. However, in Haygood, 109 So.3d at 743, we held that fundamental error caused by the then-erroneous standard jury instruction on manslaughter by act is not cured by the mere giving of an instruction on manslaughter by culpable negligence unless the evidence in the case reasonably supports a conviction of that offense. Thus, we now turn to whether the error in this case was cured because the jury was also instructed on third-degree felony murder, or because the jury was given the instruction on manslaughter by culpable negligence. Both lesser included offenses are second-degree felonies which, like manslaughter by act, are one step removed from second-degree murder.

Third-Degree Felony Murder

“Although third-degree felony murder is not a necessarily included offense of first-degree murder, it is, under certain circumstances and evidence, a proper permissive lesser included offense of first-degree murder, requiring a jury instruction to that effect.” Green, 475 So.2d at 236. Thus, similar to manslaughter by culpable negligence, the giving of the third-degree felony murder instruction is subject to a trial court’s determination that the evidence presented supports giving the instruction. In this case, the jury could reasonably have found McCloud guilty of third-degree felony murder based on the underlying crime of attempted aggravated assault with a firearm. McCloud’s jury received the following instruction on third-degree felony murder, with the underlying felonies of aggravated assault with a firearm and, alternatively, attempted aggravated assault with a firearm:

Third degree felony murder, before you can find the defendant guilty of third degree felony murder, the State must prove the following three elements beyond a reasonable doubt. One, Sandra McCloud is dead. Two, A, the death occurred as a consequence of and while Stanley McCloud was engaged in the commission of aggravated assault with a firearm, or B, the death occurred as a consequence of and while Stanley McCloud was attempting to commit aggravated assault with a firearm. Three, Stanley McCloud was the person who actually killed Sandra McCloud.
It is not necessary for the State to prove the killing was perpetrated with a design to affect death.
If you find that Stanley McCloud committed murder in the third degree and you also find that during the commission of the crime he possessed and/or discharged and/or caused death or great bodily harm with a firearm, your verdict should indicate such possession and/or discharge of a firearm and/or caused death or great bodily harm with a firearm.

The jury was instructed on aggravated assault and attempted aggravated assault as follows:

Aggravated assault with a firearm, the crime of aggravated assault with a firearm consist [sic]- of the following four elements. One, Stanley McCloud intentionally and unlawfully threatened either by word or act to do violence to Sandra McCloud.
Two, at the time Stanley McCloud appeared to have the ability to carry out the threat. Three, the act of Stanley McCloud created in the mind of Sandra McCloud a well-founded fear that the violence was about to take place. Pour, the assault was made with a firearm.
It is not necessary for the State to prove that the defendant had an intent to kill.
Attempt to commit crime, in order to prove that the defendant attempted, to commit the crime of aggravated assault with a firearm, the State must prove the following beyond a reasonable doubt. One, Stanley McCloud did some act toward committing the crime of aggravate [sic] assault with a firearm that went beyond just thinking or talking about it. Two, he would have committed the crime except that he failed.
It is not an attempt to commit aggravated assault with a firearm if the defendant abandoned his attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.

The State proved beyond a reasonable doubt the first element of third-degree felony murder, that Sandra McCloud is dead, and the third element, that Stanley McCloud killed her. However, the remaining inquiry is whether the second element of third-degree felony murder was satisfied, which is based on whether the underlying felony was proven.

The jury had to find as to the second element that Sandra McCloud’s death occurred as a consequence of and while McCloud was either engaged in the commission of aggravated assault with a firearm or an attempt to commit aggravated assault with a firearm. While the evidence may not support a finding of a completed aggravated assault, it does reasonably support a finding of attempted aggravated assault.-

During his interview with law enforcement after the shooting, McCloud stated that he wanted to scare Sandra with the gun. To that end, the jury could have found that McCloud attempted to commit aggravated assault but was unable to complete his attempt because Sandra was unaware of the gun. The jury could have reasonably convicted McCloud of third-degree felony murder based on the underlying felony of attempted aggravated assault.

Culpable Negligence

Moreover, the jury could have reasonably convicted McCloud of manslaughter by culpable negligence. Although the decision below was on remand from this Court post-Haygood, the district court failed to expressly evaluate under a fundamental error analysis whether the evidence supported a finding of manslaughter by culpable negligence, thus remedying the fundamental error caused by the erroneous instruction on manslaughter by act. Rather, the district court applied a harmless error analysis to the faulty manslaughter instruction in McCloud because, in its view, manslaughter by act was two steps removed from second-degree murder, the offense of conviction.

In Haygood, we concluded that fundamental error caused by the faulty instruction on manslaughter by act could be remedied where the jury was also instructed on manslaughter by culpable negligence, but only where the evidence reasonably supported that finding. 109 So.3d at 743. We explained that where the manslaughter by act instruction erroneously requires intent to kill, and “the only non-intentional homicide offense remaining for the jury’s consideration” is second-degree murder, fundamental error results. Id. However, if the jury is also instructed on manslaughter by culpable negligence, and there is evidence upon which the jury could reasonably find that non-intentional offense, the error caused by the manslaughter by act instruction is cured. Id.

In the present case, McCloud’s jury was instructed on the offense of manslaughter by culpable negligence as follows:

I will now define culpable negligence for you. Each of us has a duty to act reasonably towards others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence, but culpable negligence is more than a failure to use ordinary care towards others.
In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life or the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public or such an indifference to the rights of others as is equivalent to an intention— intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury.

“Every case of manslaughter by culpable negligence must be determined upon the facts and circumstances peculiar to it.” Scarborough v. State, 188 So.2d 877, 877 (Fla. 2d DCA 1966) (citing Fulton v. State, 108 So.2d 473 (Fla. 1959)). “There is nothing mystical about culpability. It comprehends blame, censure or some aspect of erratic conduct.” Fulton, 108 So.2d at 475.

During his interview, McCloud stated that he did not intend to shoot Sandra and only intended to scare her after she continued to talk to him about her relationship with another man. Both McCloud and Sandra had been drinking. The jury could have reasonably concluded that the act of pointing a gun at Sandra while under the influence of alcohol, and in the presence of two young children, revealed a reckless or grossly careless disregard for her safety, and that he shot her in the course of such reckless or grossly careless behavior. Thus, there was evidence in the record from which a jury could reasonably find McCloud guilty of manslaughter by culpable negligence.

Heat of Passion Instruction

The State argues that fundamental error did not occur because the jury was instructed that it could convict McCloud of manslaughter if it concluded that he shot Sandra in the heat of passion. As a part of the instruction on second-degree murder, the jury was instructed as follows:

Heat of passion, heat of passion is a valid theory of defense to the — to the depraved mind element of second degree murder. Passion is the state of mind when it is powerfully acted on and influenced by something external to itself. It is one of the emotions of the mind known as anger, rage, sudden resentment, or terror.
Pursuant to Florida law, if you believe defendant’s passion resulted in a state of mind where depravity, which characterized murder in the second degree is absent, you may return a verdict of manslaughter.

While this instraction gave the jury an alternative method of convicting McCloud of manslaughter, if the jury referred to the actual manslaughter instruction when deciding whether McCloud acted in the heat of passion, the faulty intent language would still have prevented it from convicting McCloud of manslaughter by act. Thus, we do not agree with the State that the heat of passion instruction, by itself, remedied the fundamental error caused by the instruction on manslaughter by act.

However, the heat of passion instruction informed the jury that it could convict McCloud of the broader crime of manslaughter. If the jury had referred back to the manslaughter instruction, that instruction referred to not only manslaughter by act, but also to manslaughter by culpable negligence, an offense which was supported by the record. Moreover, the jury could reasonably have found McCloud guilty of third-degree felony murder based on the underlying felony of attempted aggravated assault with a firearm.

CONCLUSION

The district court engaged in an erroneous “steps removed” analysis and improperly applied a harmless error analysis to evaluate the error caused by the erroneous instruction on manslaughter by act. Because the erroneously instructed lesser included offense of manslaughter by act was one step removed from the offense of conviction, a fundamental error analysis applies. However, with respect to lesser included offenses, the jury was properly instructed on two comparable and viable alternatives to manslaughter by act, both one step removed from the offense of conviction and supported by the evidence. Moreover, as to the issue of intent, the jury had for consideration the non-intentional lesser included offense of manslaughter by culpable negligence, which was reasonably supported by the evidence. Therefore, the jurors were not left with second-degree murder as the only other non-intentional lesser included offense for which they could convict McCloud. For these reasons, McCloud is not entitled to relief. Thus, we approve the ultimate holding in McCloud, but not the reasoning of the Fifth District.

It is so ordered.

PARIENTE, LEWIS, and QUINCE, JJ., and PERRY, Senior Justice, concur.

CANADY and POLSTON, JJ., concur in result only.

      . McCloud entered no contest pleas to culpable negligence resulting in injury to one of the children, and culpable negligence in exposing another child to injury.

      . We conclude that the evidence does not reasonably support a finding of a completed aggravated assault. We acknowledge that McCloud pointed a gun at Sandra and, by being in possession of the gun at that time, he appeared to be able to carry out a threat of violence using the firearm. However, the record does not reveal whether Sandra was actually threatened, nor does it reveal a well-founded fear on Sandra’s part. In fact, the State emphasized that Sandra's twenty-year-old son, who was at the home at the time of the shooting, did not hear yelling or fighting that night, and came to Sandra's bedroom upon hearing a "thud,” Moreover, McCloud’s statement that the lights went off' when- he shot her raises the question whether Sandra saw McCloud with the gun.