author: SELLERS, Justice.

text:
    DAPHNE AUTOMOTIVE, LLC, and Robin Sanders v. EASTERN SHORE NEUROLOGY CLINIC, INC., and Rassan Tarabein
    1151296
    Supreme Court of Alabama.
    August 11, 2017
    Christopher S. Williams and J. Burruss Riis of Hand Arendall LLC, Mobile, for appellants.
    David P. Shepherd and Asheton W. Sawyer of The Law Offices of David P. Shepherd, Fairhope, for appellees.
   SELLERS, Justice.

Daphne Automotive, LLC, and its employee, Robin Sanders (hereinafter sometimes collectively referred to as "the dealership"), appeal from an order of the Baldwin Circuit Court denying their motion to compel arbitration of the claims filed against them by Eastern Shore Neurology Clinic, Inc. ("Eastern Shore"), and Rassan Tarabein. We affirm.

Facts and Procedural History

Rassan Tarabein is the owner of Eastern Shore. Tarabein also owns another company-Infotec, Inc. Tarabein hired his nephew, Mohamad Tarbin, as an employee of Infotec. As part of the nephew's compensation, Tarabein agreed to provide him with the use of a vehicle for as long as he was employed with Infotec. Accordingly, Tarabein purchased, through Eastern Shore, a 2014 Toyota RAV4 sport-utility vehicle ("the vehicle") from Daphne Automotive; the total purchase price was $25,000. Tarabein, the nephew, and the dealership agreed that the dealership would arrange for the vehicle to be titled in the nephew's name, but that Eastern Shore would be listed on the title as lienholder. In conjunction with the sale, the nephew signed a document entitled "Terms and Conditions," i.e., the sales contract, which contained the following arbitration provision:

"Buyer/lessee and dealer agree that all claims, demands, disputes or controversies of every kind or nature between them arising from, concerning or relating to any of the negotiations involved in the sale, lease, or financing of the vehicle, the terms and provisions of the sale, lease, or financing agreements, the arrangements for financing ..., the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease, or financing shall be settled by binding arbitration in accordance with the procedure set forth on separate Arbitration Agreement form."

(Emphasis added.)

The stand-alone arbitration agreement referenced in the sales contract was signed by the nephew and the dealership and similarly provides:

"Buyer/lessee and dealer agree that all claims, demands, disputes or controversies of every kind or nature that may arise between them concerning any of the negotiations leading to the sale, lease or financing of the vehicle, terms and provisions of the sale, lease or financing agreement, arrangements for financing, purchase of insurance, purchase of extended warranties, or service contracts, the performance or condition of the vehicle, or any other aspects of the vehicle and its sale, lease, or financing shall be settled by binding arbitration conducted pursuant to the provisions of ( 9 U.S.C. Section 1 et seq. ). And according to the Commercial Rules of the Better Business Bureau of South Alabama, Inc. Without limiting the generality of the foregoing, it is the intention of the buyer/lessee and the dealer to resolve by binding arbitration all disputes between them concerning the vehicle, its sale, lease or financing and its condition including disputes concerning the terms and conditions of the sale, lease or financing, the condition of the vehicle, any damage to the vehicle, the terms and meanings of any of the documents signed or given in connection with the sale, lease or financing[,] any representations, promises or omissions made in connection with the negotiations for the sale, lease or financing of the vehicle, or any terms, conditions, or representations made in connection with the financing, credit life insurance, disability insurance, and vehicle extended warranty of service contract purchased or obtained in connection with the vehicle.
"....
"Neither of us [is] committed by the terms of this agreement to arbitrate unless you sign below, in which event we will both be committed."

(Emphasis added.) The nephew also signed an Alabama Department of Revenue power-of-attorney form authorizing the dealership to apply for a certificate of title for the vehicle. Tarabein, on the other hand, executed only the documents to establish Eastern Shore as lienholder on the title for the vehicle. The dealership thereafter submitted the application for the certificate of title, neglecting, however, to list Eastern Shore as the lienholder.

In January 2014, the Department of Revenue issued to the nephew an original certificate of title for the vehicle that listed no lienholders. In April 2014, Tarabein terminated the nephew's employment with Infotec. Tarabein made repeated requests for the nephew to return possession of the vehicle to Eastern Shore, but the nephew refused. In June 2014, Tarabein, believing Eastern Shore was listed as lienholder on the title for the vehicle, inquired of the dealership why he had not received the title to the vehicle. According to Tarabein, the dealership informed him that when it applied for the certificate of title it listed Eastern Shore as a lienholder. After investigating the matter further, the dealership informed Tarabein that the certificate of title for the vehicle had been mailed to the nephew's address. The dealership contacted the nephew, who denied that he had received the certificate of title for the vehicle. According to Tarabein, the dealership never informed him that it had failed to list Eastern Shore as a lienholder on the application for the certificate of title. Rather, he argues, after it became aware of its error, the dealership engaged in a fraudulent scheme of forging the nephew's name on the Department of Revenue power-of-attorney form in order to replace the original certificate of title with a certificate of title listing Eastern Shore as the lienholder. As a result, the nephew held an original certificate of title free and clear of any lienholder, and Eastern Shore held a reissued certificate of title for the same vehicle listing it as the lienholder. After Eastern Shore received its certificate of title, it engaged a towing company to repossess the vehicle. After the vehicle was repossessed and delivered to Eastern Shore, an officer from the Baldwin County Sheriff's Office appeared at Eastern Shore to arrest Tarabein. Tarabein was able to avoid arrest by producing the certificate of title listing Eastern Shore as the lienholder. According to Tarabein, the incident concerning the arrest was the first time he became aware of the possible existence of another certificate of title for the vehicle.

Tarabein and Eastern Shore (hereinafter collectively referred to as "the plaintiffs") sued the dealership, asserting against Daphne Automotive claims of breach of contract, negligent and wanton supervision, and misrepresentation; against Sanders a claim of negligence; and against both claims of suppression, fraudulent inducement, and civil conspiracy, and seeking damages for mental anguish. The dealership moved to compel arbitration and to stay the litigation based upon the arbitration provision in the sales contract and the stand-alone arbitration agreement (hereinafter referred to collectively as "the arbitration agreements"), both of which the nephew had signed in conjunction with the sale of the vehicle. On September 12, 2016, the trial court entered an order denying the dealership's motion to compel arbitration. The dealership appeals pursuant to Rule 4(d), Ala. R. App. P.

Standard of Review

"This Court's standard of review on an appeal from a trial court's order granting or denying a motion to compel arbitration is well settled. Bowen v. Security Pest Control, Inc., 879 So.2d 1139, 1141 (Ala. 2003). A direct appeal is the proper procedure by which to seek review of such an order, Rule 4(d), Ala. R. App. P., and this Court will review de novo the trial court's grant or denial of a motion to compel arbitration. Bowen, 879 So.2d at 1141. The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction involving interstate commerce. Polaris Sales, Inc. v. Heritage Imports, Inc., 879 So.2d 1129, 1132 (Ala. 2003). The party seeking to compel arbitration must present some evidence tending to establish its claim. Wolff Motor Co. v. White, 869 So.2d 1129, 1131 (Ala. 2003). Once the moving party meets that initial burden, the party opposing arbitration has the burden of presenting evidence tending to show that the arbitration agreement is invalid or that it does not apply to the dispute in question. Bowen, 879 So.2d at 1141. See also Title Max of Birmingham, Inc. v. Edwards, 973 So.2d 1050, 1052-53 (Ala. 2007)."

Alabama Title Loans, Inc. v. White, 80 So.3d 887, 891-92 (Ala. 2011).

Discussion

At the outset, we note that the parties do not dispute that the underlying transaction involves interstate commerce. They do, however, dispute the existence of a contract calling for arbitration of the plaintiffs' claims against the dealership insofar as the plaintiffs did not sign the arbitration agreements. It is well established that " ' " '[a]rbitration is a matter of contract, and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.' " ' " Custom Performance, Inc. v. Dawson, 57 So.3d 90, 97 (Ala. 2010) (quoting Central Reserve Life Ins. Co. v. Fox, 869 So.2d 1124, 1127 (Ala. 2003), quoting in turn AT & T Techs., Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), quoting in turn United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ). "A party typically manifests its assent to arbitrate a dispute by signing the contract containing the arbitration provision." Smith v. Mark Dodge, Inc., 934 So.2d 375, 380 (Ala. 2006).

There are, however, exceptions to the general rule that nonsignatories to an arbitration provision cannot be compelled to arbitrate their claims. In this case, the dealership relies on the third-party-beneficiary and equitable-estoppel exceptions.

"[T]he third-party-beneficiary exception ... provides that '[a] nonsignatory can be bound to an arbitration agreement if "the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to incidental[,] benefit upon the third party." ' Custom Performance, [Inc. v. Dawson,] 57 So.3d [90] at 97 [ (Ala. 2010) ] (quoting Dunning v. New England Life Ins. Co., 890 So.2d 92, 97 (Ala. 2003) ). [Another] exception is closely related and provides that a nonsignatory to a contract having an arbitration agreement will be treated as a third-party beneficiary of the contract regardless of whether the nonsignatory meets the legal definition of a third-party beneficiary 'when he or she asserts legal claims to enforce rights or obtain benefits that depend on the existence of the contract that contains the arbitration agreement.' Custom Performance, 57 So.3d at 98 (emphasis omitted). This exception is referred to as the equitable-estoppel exception because of the inequity that would result if a party were allowed to simultaneously claim the benefits of a contract while repudiating its burdens and conditions."

MTA, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 114 So.3d 27, 31 (Ala. 2012).

The dealership argues that the plaintiffs are third-party beneficiaries of the sales contract between it and the nephew because, its says, the plaintiffs purchased the vehicle to compensate the nephew for his employment with Infotec. The dealership further argues that, even if the plaintiffs are not in fact third-party beneficiaries of the sales contract, they are estopped from denying arbitration because, it says, their claims are dependent on the sales contract, which contains and references the arbitration agreements. The plaintiffs, on the other hand, assert that the dealership has failed to meet its burden of demonstrating that, at the time the nephew and the dealership executed the sales contract, they intended to bestow a direct, as opposed to an incidental, benefit upon the plaintiffs. Specifically, the plaintiffs state that, although they financed the purchase of the vehicle and Eastern Shore was ultimately listed as lienholder on the certificate of title, the person directly benefiting from the sale of the vehicle was the nephew-he was the only intended user of the vehicle, the vehicle was titled in his name, the vehicle was part of his compensation as an employee of Infotec, and it was agreed that he would enjoy the use of the vehicle for as long as he was an employee of the company.

In response to the dealership's equitable-estoppel argument, the plaintiffs assert that their claims against the dealership are not dependent on the sales contract. Rather, they say their claims are based on a separate and distinct agreement between them, the nephew, and the dealership in which it was agreed that the vehicle would be titled in the nephew's name, but that Eastern Shore would be listed as a lienholder on the certificate of title. According to the plaintiffs, it is this agreement the dealership breached when it failed to list Eastern Shore as lienholder on the certificate of title for the vehicle. Finally, the plaintiffs assert that their claims against the dealership do not fall within the scope of the arbitration agreements.

Although we find the plaintiffs' arguments persuasive, it is ultimately unnecessary for this Court to conduct any inquiry as to whether the plaintiffs are third-party beneficiaries under the sales contract or whether the doctrine of equitable estoppel is applicable because we agree with the plaintiffs that the dealership is seeking to enforce the arbitration agreements beyond the scope of those agreements. Specifically, the arbitration agreements, as quoted above, are broad insofar as they apply to "all claims, demands, disputes or controversies of every kind or nature." However, the agreements are limited to disputes that arise "between them," i.e, the "buyer/lessor" (nephew) and the "dealer[ship]." Stated differently, the language employed in the arbitration agreements is not broad enough to encompass the plaintiffs, who are nonsignatories to those agreements. See MTA, 114 So.3d at 32-33 ("[R]egardless of whether the third-party-beneficiary or equitable-estoppel exception might otherwise apply, the narrow scope of the arbitration provisions ... precludes this Court from requiring MTA to arbitrate its third-party claims against Merrill Lynch."). In MTA, an employer entered into a deferred-compensation agreement with its employee pursuant to which the employer agreed to pay $750,000 to the employee's two children in the event the employee died before a certain age; the employee did in fact die before the specified age. A trust was established for the children's benefit; however, the employer paid less than $750,000 into the trust. The trustee of the trust had entered into three agreements with a brokerage firm to open an account to house and manage the assets of the trust; each agreement contained an arbitration provision. The children sued the employer, alleging breach of contract and unjust enrichment arising out of the employer's alleged failure to pay the full agreed-upon amount into the trust. The employer in turn filed a third-party complaint against the trustee and the brokerage firm. The brokerage firm moved the trial court to compel arbitration of the employer's third-party claims against it pursuant to the agreements between the trustee and the brokerage firm, which the employer had not signed. The brokerage firm argued to the trial court and on appeal that the employer was required to arbitrate its third-party claims against it based on the equitable-estoppel exception. This Court concluded:

"In the instant case, the arbitration provisions in the identified contracts are broad in the sense that they apply to 'any controversies' and 'all controversies,' but narrow in the sense that they apply only to controversies between 'the parties,' 'the customer' and [the brokerage firm], or 'the client' and [the brokerage firm]. The contracts containing the arbitration provisions do not define the terms 'the customer' or 'the client' in such a way that would encompass [the employer], and although [the brokerage firm] argues that [the employer] is effectively a party to the contracts containing the arbitration provisions because it was a party to the [agreement between the employer and the employee] and the grantor of the trust, we disagree. Regardless of [the employer's] involvement in establishing or funding the trust, it is neither the trust nor the trustee and is accordingly a nonsignatory to the contracts and can be held subject to the arbitration provisions only as set forth supra. See also Porter Capital Corp. [v. Thomas,] 101 So.3d [1209] at 1209 [ (Ala. Civ. App. 2012) ] (arbitration agreement entered into by borrower did not apply to borrower's shareholder or borrower's guarantor). Thus, regardless of whether the third-party-beneficiary or equitable-estoppel exception might otherwise apply, the narrow scope of the arbitration provisions in the [agreements between the trustee and the brokerage firm] precludes this Court from requiring [the employer] to arbitrate its third-party claims against [the brokerage firm]."

114 So.3d at 32-33.

Likewise, in this case, regardless of whether the third-party-beneficiary exception or the equitable-estoppel exception might otherwise apply, the narrow scope of the arbitration agreements precludes the plaintiffs from being required to arbitrate their claims against the dealership because those agreements are limited by their terms to disputes between the signatories. See Jack Ingram Motors, Inc. v. Ward, 768 So.2d 362 (Ala. 1999) (holding that an arbitration provision that limited its scope to the buyer/lessor and dealer was not broad enough to cover a nonsignatory); see also Cook's Pest Control, Inc. v. Boykin, 807 So.2d 524, 527 (Ala. 2001), explaining:

"The narrow scope of the arbitration agreement serves as an independent basis for affirming the trial court's order denying Cook's motion to compel arbitration of Allen's claims against Cook's. The text of the arbitration clause limits its application to disputes arising between Cook's and the 'customer' (Knollwood).... This Court has held that a nonsignatory cannot require arbitration of a claim by the signatory against the nonsignatory when the scope of the arbitration agreement is limited to the signatories themselves. See Southern Energy Homes, Inc. v. Gary, 774 So.2d 521 (Ala. 2000).... We have recognized that the rule requiring that a contract be construed most strongly against the party who drafted it applies to an agreement to arbitrate. See Homes of Legend, Inc. v. McCollough, 776 So.2d 741 (Ala. 2000). We conclude that Cook's is attempting to enforce the clause beyond its scope, and the motion to compel arbitration fails for this reason."

Conclusion

Based on the foregoing, we conclude that the dealership has failed to meet its burden of proving the existence of a contract calling for arbitration. The sales contract containing the arbitration provision and the stand-alone arbitration agreement are both limited in their scope to disputes arising between the parties to the contract and the agreements-the nephew and the dealership. Accordingly, the trial court did not err in denying the dealership's motion to compel arbitration of the plaintiffs' claims against the dealership.

AFFIRMED.

Stuart, C.J., and Parker and Wise, JJ., concur.

Shaw, J., concurs in the result.

      This case was originally assigned to another Justice on this Court. It was reassigned to Justice Sellers on May 31, 2017.

      The documents establishing Eastern Shore as lienholder are not included in the record on appeal; we assume such documents contain no provision regarding arbitration.

      On October 13, 2016, this Court entered an order granting the dealership's motion to stay the proceedings below in their entirety pending the outcome of this appeal.


source: Caselaw Access Project

author: PITTMAN, Judge.

license: Public Domain

text:
    EX PARTE Carrie Suzanne BRAGG
    (In re: Carrie Suzanne Bragg v. Walter Alexander Roche, Jr.)
    2160752
    Court of Civil Appeals of Alabama.
    August 11, 2017
    Jerry M. Blevins, Montgomery, for petitioner.
    John E. Medaris, Pelham, for respondent.
   PITTMAN, Judge.

Carrie Suzanne Bragg ("the mother") petitions this court for a writ of mandamus directing the Chilton Circuit Court (1) to vacate its order denying her motion to transfer an action filed by Walter Alexander Roche, Jr. ("the father"), to the Shelby Circuit Court and (2) to transfer the father's action to the Shelby Circuit Court. We grant the mother's petition and issue the writ.

On May 5, 2017, the father petitioned the Chilton Circuit Court to modify the child-custody provisions of the judgment divorcing him and the mother ("the divorce judgment"). The Chilton Circuit Court docketed the father's action as case number DR-13-900186.03. On May 9, 2017, the mother petitioned the Shelby Circuit Court to modify the visitation provisions of the divorce judgment. On May 20, 2017, the mother filed a motion to transfer the father's action ("the motion to transfer") and supported it with an affidavit in which she attested that she and the parties' two children had lived in Shelby County for more than three consecutive years before the filing of the father's modification petition and stating that, as the custodial parent, she wanted the father's action transferred to the Shelby Circuit Court pursuant to § 30-3-5, Ala. Code 1975, the Code section governing the venue of actions seeking, among other things, the modification of the child-custody provisions of divorce judgments.

On May 24, 2017, before the Chilton Circuit Court had had an opportunity to rule on the motion to transfer, the mother petitioned this court for a writ of mandamus directing the Chilton Circuit Court to transfer the father's action to the Shelby Circuit Court. On May 25, 2017, we denied the mother's petition. See Ex parte Bragg (No. 2160656, May 25, 2017), 246 So. 3d 142 (Ala. Civ. App. 2017) (table). The mother then petitioned our supreme court for a writ of mandamus directing the Chilton Circuit Court to transfer the father's action to the Shelby Circuit Court; our supreme court denied that petition on May 26, 2017. See Ex parte Bragg (No. 1160748, May 26, 2017), --- So. 3d ---- (Ala. 2017) (table).

Also on May 26, 2017, the Chilton Circuit Court held a hearing at which it considered, among other things, the motion to transfer. Later that same day, the Chilton Circuit court entered an order that, among other things, denied the motion to transfer. On June 30, 2017, within the 42-day presumptively reasonable period following the denial of the motion, see Rules 21(a)(3) and 4(a)(1), Ala. R. App. P., the mother filed the mandamus petition now before us.

In pertinent part, § 30-3-5 provides:

"Notwithstanding any law to the contrary, venue of all proceedings for petitions or other actions seeking modification ... of a final decree awarding custody of a child or children to a parent and/or granting visitation rights ... is changed so that venue will lie in: (1) the original circuit court rendering the final decree; or (2) in the circuit court of the county where both the current custodial parent ... and the child or children have resided for a period of at least three consecutive years immediately preceding the filing of the petition or other action. The current or most recent custodial parent shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action."

In Johnson v. Meadows, 628 So.2d 892, 893 (Ala. Civ. App. 1993), this court explained:

"The legislature has addressed the question of venue for proceedings seeking custodial modifications where the current custodial parent and the child no longer reside in the county which issued the custody decree. Ala. Code 1975, § 30-3-5. That code section provides that venue will lie in either the circuit court which granted custody to the current custodial parent or in the circuit court of the county wherein the current custodial parent and the minor child have resided for a period of at least three consecutive years immediately preceding the filing of the petition. Section 30-3-5 does not give the trial court discretion either to grant or to deny a motion by the custodial parent to transfer venue. Ex parte Baker, 575 So.2d 98 (Ala. Civ. App. 1990). If venue is proper in more than one jurisdiction, the current custodial parent is granted the right to choose the venue. Ex parte Baker."

Because the undisputed evidence indicates that the mother was the custodial parent and that she and the parties' two children had lived in Shelby County for more than three consecutive years before the filing of the father's modification petition, the mother had the right to choose the venue for the father's action. Therefore, the Chilton Circuit Court erred in denying the motion to transfer. Accordingly, we grant the mother's petition and issue a writ of mandamus directing the Chilton Circuit Court (1) to vacate its order denying the motion to transfer and (2) to enter an order transferring the father's action to the Shelby Circuit Court.

PETITION GRANTED; WRIT ISSUED.

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

      In Ex parte Bragg, 237 So. 3d 235 (Ala. Civ. App. 2017), this court granted a previous petition for a writ of mandamus filed by the mother in connection with an earlier action involving these same parties.

      The divorce judgment was a Tennessee judgment, which the Chilton Circuit Court had domesticated in November 2013.


author: DONALDSON, Judge.

text:
    Michael Darren STOWE v. ALABAMA BOARD OF PARDONS AND PAROLES
    2160313
    Court of Civil Appeals of Alabama.
    August 18, 2017
    Michael Darren Stowe, pro se.
    Laura B. Mest, asst. atty. gen., Alabama Board of Pardons and Paroles, for appellee.
   DONALDSON, Judge.

Michael Darren Stowe appeals from an order of the Montgomery Circuit Court ("the trial court") dismissing his action for lack of subject-matter jurisdiction. We affirm the judgment, albeit for reasons different than those expressed in the trial court's order.

Facts and Procedural History

Stowe filed a petition pursuant to § 41-9-645, Ala. Code 1975, seeking to purge information contained within a postsentence investigation report included within his records and relied upon by the Alabama Board of Pardons and Paroles ("the Board") and the Alabama Department of Corrections ("ADOC") for classification purposes.

According to the documents contained in the record, Stowe pleaded guilty to manslaughter and first-degree assault in the Coosa Circuit Court and was sentenced to serve 20 years in the custody of ADOC. Stowe waived a presentence investigation report, and the Board instead completed a postsentence investigation report ("the PSI report"). See § 13A-5-5, Ala. Code 1975 (requiring a "presentence or postsentence investigation report [to be] completed and filed on every defendant convicted of a felony offense").

In his petition to the trial court, Stowe claimed three instances of erroneous information that he asserts are contained within the PSI report. Stowe argued that the incorrect information has prevented Stowe from receiving a lower classification status with ADOC. Stowe did not provide a copy of the PSI report to the trial court or to this court on appeal.

The Board filed a motion to dismiss Stowe's petition in the trial court in which it asserted, among other things, that the trial court lacked subject-matter jurisdiction, that Stowe had waived the right to challenge the PSI report, that § 41-9-645 is inapplicable to presentence and postsentence reports, and that Stowe is barred by the doctrine of laches from challenging information contained in the PSI report that was completed six years earlier. The Board filed a proposed order along with its motion. Stowe filed a response in opposition to the Board's motion to dismiss, and on January 23, 2017, after a hearing, the trial court entered the following order dismissing Stowe's petition based on a lack of subject-matter jurisdiction:

"Petitioner comes before the Court seeking to have records expunged from a report prepared by the Parole Board's officer. Petitioner refers to these records as 'criminal records' that he seeks to have expunged, citing Ala. Code 41-9-645 [and]-646.
"The Parole Board responds arguing that the records Petitioner seeks to have expunged are actually 'details of the offense' that are included in a Report of Investigation (Postsentence Report) and do not fall under the definition of 'criminal records'. The Board further argues that to challenge the 'details of an offense' the proper court to bring that challenge would be the county of conviction, in this case Coosa County Circuit Court.
"The Parole Board's arguments are well taken in that 'details of an offense' are not considered criminal record for the purpose of the statutes that Petitioner cites. There holding, it would appear that this Court would lack jurisdiction to review the 'details of an offense' committed in another county.
"For the foregoing reasons the Court ORDERS that this action be DISMISSED for lack of jurisdiction, with cost taxed to the Petitioner."

(Capitalization in original.)

Stowe timely filed a motion to alter, amend, or vacate the order, which the trial court denied. On February 27, 2017, Stowe timely filed a notice of appeal to this court. "An appeal from a judgment denying a request for relief under § 41-9-645 falls within the jurisdiction of this court." McMillian v. State, 175 So.3d 186, 187 (Ala. Civ. App. 2015) (citing Ex parte Teasley, 967 So.2d 732 (Ala. Crim. App. 2007) ).

Standard of Review

"In Newman v. Savas, 878 So.2d 1147, [1148-49] (Ala. 2003), [the supreme court] set forth the standard of review of a ruling on a motion to dismiss for lack of subject-matter jurisdiction:

" 'A ruling on a motion to dismiss is reviewed without a presumption of correctness. Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993). This Court must accept the allegations of the complaint as true. Creola Land Dev., Inc. v. Bentbrooke Housing, L.L.C., 828 So.2d 285, 288 (Ala. 2002). Furthermore, in reviewing a ruling on a motion to dismiss we will not consider whether the pleader will ultimately prevail but whether the pleader may possibly prevail. Nance, 622 So.2d at 299.' "

Hall v. Environmental Litig. Grp., P.C., 157 So.3d 876, 879 (Ala. 2014). See also Ex parte Safeway Ins. Co. of Alabama, Inc., 990 So.2d 344, 350 (Ala. 2008) ("[W]hen reviewing a trial court's ruling on motion to dismiss based on a facial challenge to the trial court's subject-matter jurisdiction, [an appellate court] must not afford the trial court's ruling a presumption of correctness and must accept the allegations in the complaint as true.").

Discussion

The statutes pertaining to the Alabama Criminal Justice Information Center ("the ACJIC") and the Alabama Criminal Justice Information Center Commission ("the ACJICC") are codified at § 41-9-590 et seq., Ala. Code 1975, and contained within Article 23, which is entitled "Criminal Justice Information Center Commission." Section 41-9-645, entitled "Purging, modification or supplementation of criminal records-Applications to agencies by individuals; appeals to circuit courts upon refusal of agencies to act, etc.; costs," provides:

"[I]f an individual believes such information to be inaccurate or incomplete, he may request the original agency having custody or control of the detail records to purge, modify or supplement them and to so notify the ACJIC of such changes.
"Should the agency decline to so act or should the individual believe the agency's decision to be otherwise unsatisfactory, the individual or his attorney may within 30 days of such decision enter an appeal to the circuit court of the county of his residence or to the circuit court in the county where such agency exists, with notice to the agency, pursuant to acquiring an order by such court that the subject information be expunged, modified or supplemented by the agency of record. The court in each such case shall conduct a de novo hearing and may order such relief as it finds to be required by law. Such appeals shall be entered in the same manner as appeals are entered from the court of probate; except, that the appellant shall not be required to post bond nor pay the costs in advance. If the aggrieved person desires, the appeal may be heard by the judge at the first term or in chambers. A notice sent by registered or certified mail shall be sufficient service on the agency of disputed record that such appeal has been entered."

Pursuant to § 41-9-594(a), Ala. Code 1975, which falls under the same article, the ACJICC is empowered to promulgate "rules, regulations, and policies for the performance of the responsibilities charged to it in this article." Alabama Admin. Code (ACJICC), Rule 265-X-2-.03., governs the procedural process for reviewing and challenging criminal history information pursuant to § 41-9-645. See McMillian v. State, 175 So.3d 186, 188 (Ala. Civ. App. 2015) (holding that a petitioner's failure to comply with the terms of § 41-9-645 prevented the invocation of the trial court's appellate jurisdiction).

On appeal, Stowe argues, among other things, that his challenge of the allegedly incorrect information contained in the PSI report is governed by § 41-9-645, which provides for an appeal to the circuit court in the county where the agency responsible for the records is located, and that, because the Board is located within Montgomery County, jurisdiction is proper in the Montgomery Circuit Court. The Board argues that Stowe is challenging the "details of the offense" portion of the PSI report and that jurisdiction is therefore proper in the Coosa Circuit Court. Assuming, without deciding that, Stowe's assertion is correct-i.e., that Stowe's challenge to the information in the PSI report is governed by § 41-9-645, this court must still determine whether the trial court had subject-matter jurisdiction because "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987).

"Under the Alabama Administrative Procedure Act (AAPA) §§ 41-22-1 through -27, Ala. Code 1975, the exhaustion of administrative remedies is a jurisdictional prerequisite to filing an action." Ex parte Crestwood Hosp. & Nursing Home, Inc., 670 So.2d 45, 46 (Ala. 1995).

"Alabama provides statutory procedures in the [Alabama Administrative Procedure Act] for reviewing the actions of administrative agencies. It is a mainstay of administrative procedure that a party must exhaust all applicable administrative remedies before seeking relief in the courts. § 41-22-20(a), Ala. Code 1975. The purpose of these administrative procedures is '[t]o simplify the process of judicial review of agency action as well as increase its ease and availability. In accomplishing its objectives, the intention of this chapter is to strike a fair balance between these purposes and the need for efficient, economical and effective government administration.' § 41-22-2(b)(7), Ala. Code 1975. To allow a plaintiff to raise issues in court that have been addressed by an administrative agency, without having exhausted that administrative process, would frustrate the orderly administration of justice. See Ex parte Gadsden Country Club, 14 So.3d 830, 832 (Ala. 2009)."

Ex parte Worley, 46 So.3d 916, 921 (Ala. 2009).

In McMillian, supra, this court held that the trial court in that case lacked subject-matter jurisdiction to consider McMillian's petition filed pursuant to § 41-9-645, noting that the record was devoid of any indication that McMillian had followed the procedure set out by Rule 265-X-2-.03 of the Alabama Administrative Code or that he had complied with the requirements of the Alabama Administrative Procedure Act ("the AAPA"), § 41-22-1 et seq., Ala. Code 1975, regarding administrative appeals. 175 So.3d at 188 n. 2. See also W.A.A. v. Board of Dental Exam'rs of Alabama, 156 So.3d 973, 977 (Ala. Civ. App. 2014) (dismissing a corporation's appeal based on the corporation's failure to properly invoke the jurisdiction of the circuit court by complying with the AAPA).

The ACJICC, pursuant to its authority granted in § 41-9-594, " 'has established an internal administrative appeal procedure as a prerequisite for seeking appellate review in the circuit court.' " Teasley, 967 So.2d at 734 (quoting Baker v. State, 877 So.2d 639, 641 (Ala. Crim. App. 2003) (Shaw, J., concurring in the result), citing in turn Rule 265-X-2-.03 ). Rule 265-X-2-.03, which details the necessary procedure for "challenging criminal history record information," provides that, after an individual submits a request to the ACJIC to review his or her criminal-history-record information, that individual may, within one year, submit an application to challenge inaccurate or incomplete criminal-history-record information. Along with the application, the individual "must include, at a minimum":

"1. The charge and DATE of each specific arrest or disposition being challenged;
"2. The Name of the ARRESTING AGENCY OR COURT for each arrest or disposition being challenged;
"3. A listing of each specific arrest or disposition being challenged;
"4. The details related to why each specific arrest is incorrect or incomplete;
"5. What the applicant believes to be the correct information for each arrest or disposition being challenged;
"6. Where the applicant obtained what he/she believes to be the correct supporting information (if applicable); and
"7. Official documentation from the arresting agency or court (if applicable) to support each arrest or disposition being challenged."

Rule 265-X-2-.03(3)(c). Upon receipt of the application, all documentation concerning the challenged criminal-history-record information will be forwarded to the agency originally having custody or control (the "reviewing agency") of the specific record(s) being challenged. Rule 265-X-2-.03(3)(e). Should the agency originally having custody or control of the record(s) determine the challenged criminal history information to be inaccurate or incomplete, it shall purge, modify, or supplement the criminal-history-record information as appropriate and notify the ACJIC. Id. The ACJIC shall then inform the individual filing the application of the action taken by the reviewing agency. Id. Upon receipt of the reviewing agency's decision, if the individual believes the reviewing agency's decision to be unsatisfactory, he or she may then appeal to the ACJICC by sending an "Administrative Appeal request," in writing, to the ACJIC director. Rule 264-X-2-.03(f). Thereafter, if the individual wishes to challenge the ACJICC's decision, he or she may appeal to the appropriate circuit court as specified in §§ 41-9-643 through -646, Ala. Code 1975. Rule 265-X-2-.03(g).

Stowe has not alleged in his petition in the trial court, or on appeal, that he has pursued or exhausted the administrative remedies provided in Rule 265-X-2-.03. Stowe has not alleged that he has completed an "application to review or challenge" his criminal-history-record information with the ACJIC or that he has provided the ACJIC with the minimum information required under the rule. Further, Stowe has not alleged that he has received a decision of the reviewing agency, nor has he alleged that he has filed an "Administrative Appeal request" with the ACJIC director and received an unsatisfactory result from a hearing before the ACJICC. Moreover, Stowe has not alleged that he has complied with § 41-22-20, Ala. Code 1975 (the section of the AAPA concerning judicial review of decisions by administrative agencies).

Therefore, based on McMillian, Rule 265-X-2-.03, and the AAPA, because Stowe has failed to comply with the procedures set forth in Rule 265-X-2-.03 and has failed to exhaust his administrative remedies, Stowe did not properly invoke the jurisdiction of the trial court. Therefore, "the trial court had no subject-matter jurisdiction, and, consequently, no alternative but to dismiss the action." State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999).

Stowe also raises on appeal the issue whether the information contained in the PSI report is correct. Because of our holding, however, we do not reach the merits of that issue. See, e.g., Carey v. Howard, 950 So.2d 1131, 1135 (Ala. 2006) (declining to address the merits of a claim after determining the parties lacked standing and, thus, that the trial court lacked subject-matter jurisdiction).

Stowe also argues on appeal that his due-process rights were violated because, he asserts, the trial court did not allow him the opportunity to prosecute his case. Stowe points to the trial court's denial of his motion for a transport order, its denial of his motion to continue, and its refusal to allow Stowe to have his written deposition taken. Stowe cites McConico v. Culliver, 872 So.2d 872, 875 (Ala. Civ. App. 2003), in which this court held that "the trial court abused its discretion in denying McConico's motion seeking to testify by deposition and then by dismissing the case for lack of prosecution." In this case, Stowe's petition was dismissed based on a lack of subject-matter jurisdiction, not based on Stowe's failure to prosecute the case. Stowe has not provided this court with any authority demonstrating that a trial court's failure to grant a motion to allow the taking of a deposition, when the trial court lacks subject-matter jurisdiction, violates a person's due-process rights. And, as explained above, the only action the trial court could have properly taken was to dismiss the action. Property at 2018 Rainbow Drive, 740 So.2d at 1029.

Stowe next argues that the trial court and the Board engaged in wrongful ex parte communications and that the trial court erroneously adopted verbatim the Board's proposed order. Our supreme court has held that "a trial court's adoption of [an] order prepared by one of the parties is appropriate, so long as opposing counsel are furnished with a copy of the proposed order prior to its entry." General Motors Acceptance Corp. v. City of Red Bay, 825 So.2d 746, 749 (Ala. 2002) (citing Ex parte Masonite Corp., 681 So.2d 1068 (Ala. 1996) ).

Stowe asserts that he was not aware of the proposed order submitted to the trial court by the Board until he received a copy that was contained in the record on appeal. Stowe has waived this argument, however, because he did not first raise this argument in the trial court. "[An appellate court] cannot consider arguments raised for the first time on appeal; rather, [its] review is restricted to the evidence and arguments considered by the trial court." Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992). We note that, even if this argument had been properly preserved for appellate review, and even if Stowe could demonstrate that the Board did not provide him with a copy of the proposed order before its entry (an allegation that the Board denies), such a failure by the Board would not require a reversal. D.S.H. v. E.B.H., [Ms. 2140159, Nov. 20, 2015] --- So.3d ----, ---- (Ala. Civ. App. 2015) (Donaldson, J., concurring specially) (noting that "the procedural error in the preparation of an order or judgment does not, in itself, mandate the vacation or reversal of the order or judgment"). Further, "the record does not establish that the judgment entered by the trial court did not reflect the independent findings and conclusions reached by the trial judge, and the nonprevailing party [ (Stowe) ] had an opportunity to challenge the findings and conclusions set out in the judgment, albeit not until after it was entered." Id. (citing Ex parte Masonite, 681 So.2d at 1073 ).

Ultimately, when a trial court determines that it lacks subject-matter jurisdiction over an action, it has no choice but to dismiss the action. See 2018 Rainbow Drive, 740 So.2d at 1029. Accordingly, the judgment of the trial court dismissing Stowe's petition is affirmed for the reasons set forth above.

AFFIRMED.

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

      "PSI" refers to both presentence and postsentence investigation reports, unless otherwise specified.

      " ' "This court cannot assume error, nor can it presume the existence of facts [as] to which the record is silent." The appellant has the burden of ensuring that the record contains sufficient evidence to warrant reversal.' " White v. Riley Constr., Inc., 745 So.2d 877, 879 (Ala. Civ. App. 1999) (quoting Alfa Mut. Gen. Ins. Co. v. Oglesby, 711 So.2d 938, 942 (Ala. 1997) ).

      Our supreme court has interpreted the phrase "such information" in the first sentence of § 41-9-645 to refer to criminal records. See Mobile Press Register, Inc. v. Lackey, 938 So.2d 398, 403 n. 3 (Ala. 2006) ("Section 41-9-645 does not expressly refer to 'criminal records'; rather, the first paragraph of § 41-9-645 refers to 'such information.' We assume that 'such information' means criminal records, which are dealt with in § 41-9-643, Ala. Code 1975, the section that immediately preceded § 41-9-645 when those sections were originally adopted.").

      Although the Board has not raised any argument regarding Stowe's failure to comply with the Alabama Administrative Procedure Act, we are compelled to address this issue because it is a jurisdictional issue.

      A copy of the application is contained within Appendix A to Rule 265-X-2-.03.


author: THOMAS, Judge.

text:
    Kerry HARDY v. Kimberly Dawn JOHNSON
    2160115
    Court of Civil Appeals of Alabama.
    August 18, 2017
    Michael F. Braun, Montgomery, for appellant.
    Joel Lee Williams, Troy, for appellee.
   THOMAS, Judge.

In August 2015, Kerry Hardy ("the father") filed a complaint in the Coffee Circuit Court ("the trial court") to modify the child-custody provisions of a 1998 judgment, as amended, divorcing him from Kimberly Dawn Johnson ("the mother"). The mother moved to dismiss the father's complaint, but her motion was denied; on November 30, 2015, she answered the complaint and filed a counterclaim in which she sought the establishment of a child-support arrearage and a finding of contempt against the father for his failure to pay child support. After a trial held on June 21, 2016, the trial court entered a judgment on June 23, 2016, awarding the father custody of the parties' child, holding the father in contempt for his failure to pay child support, and ordering the father to pay $2,500 toward the mother's attorney fees. The June 2016 judgment established a $81,945 child-support arrearage and specifically determined that an arrearage judgment entered in 2000 had determined that the father had accumulated a child-support arrearage of $7,200, that the father had not paid anything toward the 2000 arrearage judgment, and that the father had not paid child support for a total of 151 months between December 2002 and July 2015.

On August 17, 2016, the mother filed a process of garnishment. The father filed a Rule 77(d), Ala. R. Civ. P., motion for extension of time to appeal on August 30, 2016. The trial court denied the father's motion.

On September 30, 2016, the father filed a motion that he styled as a Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate ("the Rule 59 motion") the June 23, 2016, judgment. In the Rule 59 motion, he argued, among other things, that the trial court had erred by failing to order the mother, who was incarcerated in a federal prison on the date of the June 2016 judgment, to pay child support and that certain of the child-support installments that the trial court had included in the computation of the arrearage were presumed to have been satisfied by the operation of Ala. Code 1975, § 6-9-191, which provides that a judgment is presumed to have been satisfied after the lapse of 10 years. On the same date, the father filed a "Motion to Partially Satisfy Judgment," in which he asserted again that, under § 6-9-191, the 2000 arrearage judgment and any child-support installment that had become due before December 2005 were presumed to have been satisfied. In addition, the father requested that the motion to partially satisfy the judgment be tried by a jury, as permitted by Ala. Code 1975, § 6-9-180. The father also filed a motion to stay the garnishment on September 30, 2016.

The trial court denied the Rule 59 motion on September 30, 2016, stating in its order that the motion had been untimely filed. On that same date, the trial court also denied the motion to partially satisfy the judgment. After permitting the mother to file a response to the motion to stay the garnishment, the trial court denied the father's motion to stay the garnishment on October 5, 2016. On November 8, 2016, the father filed a notice of appeal.

On appeal, the father asserts three arguments. His first argument is that the trial court erred by denying the Rule 59 motion insofar as that motion sought to have the trial court order the mother to pay child support despite her incarceration. His second argument is that the trial court erred by denying his motion to partially satisfy the judgment because, he says, portions of the child-support arrearage were presumed satisfied by operation of § 6-9-191 and, he further contends, he was entitled to a jury trial on the issue of the satisfaction of the judgments under § 6-9-180. Finally, the father argues that the trial court erred by denying his motion to stay the garnishment.

The father's appeal, insofar as it seeks review of the denial of that portion of the Rule 59 motion regarding the trial court's failure to order the mother to pay child support, is untimely. The Rule 59 motion sought an amendment of the June 2016 judgment to include an award of child support. Nothing in that portion of the Rule 59 motion could be said to be a Rule 60(b), Ala. R. Civ. P., motion, which would have been timely filed. That is, the father did not seek relief from that portion of the June 2016 judgment failing to order the mother to pay child support based on excusable neglect; based on newly discovered evidence; based on fraud, misrepresentation, or other misconduct; based on voidness; based on satisfaction or release of the judgment or the reversal of a prior judgment on which the June 2016 judgment was based; or for any other reason justifying relief from the judgment. See Rule 60(b). As it properly concluded, the trial court lacked jurisdiction to amend the June 2016 judgment on the father's untimely postjudgment motion because the Rule 59 motion was filed more than 30 days after the entry of the June 2016 judgment. See Rule 59(e), Ala. R. Civ. P. (requiring that a postjudgment motion seeking to alter, amend, or vacate a judgment be filed within 30 days after the entry of the judgment). Moreover, the father's untimely Rule 59 motion did not toll the time for filing a notice of appeal from the June 2016 judgment. See Greer v. Greer, 516 So.2d 719, 720 (Ala. Civ. App. 1987). Because the father failed to timely appeal the June 2016 judgment within 42 days of its entry, see Rule 4(a)(1), Ala. R. App. P., we cannot review the propriety of the provisions relating to child support in the June 2016 judgment. See Greer, 516 So.2d at 720. Insofar as the father seeks such review, his appeal is dismissed.

We turn now to the father's request for review of the denial of his motion to partially satisfy the judgment. He contends that he brought his motion pursuant to § 6-9-180, which provides: "If the motion or application is to enter satisfaction of a judgment under the Alabama Rules of Civil Procedure or to set aside the entry of satisfaction of a judgment, on request of either party, the issue of fact must be tried by a jury." Thus, he argues, the trial court erred by denying his motion without first holding a trial on the matter before a jury.

A motion seeking to declare a judgment satisfied under § 6-9-180 appears to be akin to or in the nature of a Rule 60(b)(5), Ala. R. Civ. P., motion. Rule 60(b)(5) provides that a trial court may relieve a party from the effect of a judgment if "the judgment has been satisfied, released, or discharged ...." In addition, we note that " Rule 60(b)(5) applies only when 'new facts or new law arises after the original judgment is entered ....' " Anderson v. Anderson, 686 So.2d 320, 323 (Ala. Civ. App. 1996) (quoting Pollard v. Etowah Cty. Comm'n, 539 So.2d 225, 228 (Ala. 1989), and Satterfield v. Winston Indus., Inc., 553 So.2d 61, 63 (Ala. 1989) ). When the issue is a purely legal one, the denial of a motion made pursuant to Rule 60(b)(5) is reviewed de novo; however, as a general rule, and when a trial court is required to weigh the facts or make credibility determinations, the denial of a Rule 60(b)(5) motion is reviewed under the abuse-of-discretion standard. See Antoine v. Oxmoor Preservation/One, LLC, 130 So.3d 1204, 1217 (Ala. Civ. App. 2012).

Generally, both a Rule 60(b)(5) motion and a motion made under § 6-9-180 must be directed to the judgment in the case in which the motion was filed. See Cattle Valley Farms, Inc. v. Russell Cty., 718 So.2d 722, 723 (Ala. Civ. App. 1998) (explaining that a Rule 60(b) motion seeking relief from a particular judgment should be filed in the case in which that judgment was entered); see also EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So.2d 502, 508 (Ala. 2005) ("[T]he typical approach for attacking a judgment under Rule 60(b) is by filing a motion in the court that rendered the judgment ...."). The father's motion to partially satisfy the judgment under § 6-9-180 was filed in the present action; however, the father's motion did not seek to establish that the June 2016 judgment had been partially satisfied. Instead, the father asserted that, by virtue of the presumption created by § 6-9-191 that judgments more than 10 years old are presumed satisfied, any child-support installments that were due between December 2002 and December 2005 (see note 3, supra) and the 2000 arrearage judgment were presumed to have been satisfied and, therefore, that the trial court had erred in determining that those pre-2005 child-support installments should be included in the total child-support arrearage computed in the June 2016 judgment. Thus, the father was seeking to have the trial court reconsider its calculation of the child-support arrearage in the June 2016 judgment as opposed to having the trial court declare that the father had taken some action after the entry of the June 2016 judgment to satisfy that judgment. We therefore conclude that the father's motion to partially satisfy the judgment was not a proper motion entitling the father to relief under either § 6-9-180 or Rule 60(b)(5).

Furthermore, the father's argument regarding the application of § 6-9-191 should have been made in the trial court before the entry of the June 2016 judgment calculating his total child-support arrearage. The mother's counterclaim, in which she requested that the trial court award her a total child-support arrearage based on the father's failure to pay the 2000 arrearage judgment and child-support installments that came due after the entry of the 2000 arrearage judgment, was sufficient to serve as a motion to revive the 2000 arrearage judgment and the past-due child-support installments that came due before December 2005 (see note 3, supra) under Ala. Code 1975, § 6-9-182. See Hines v. Cunningham, 622 So.2d 395, 397 (Ala. Civ. App. 1993). In the June 2016 judgment, the trial court specifically determined that the father had not satisfied the 2000 arrearage judgment and that the father had not paid child-support installments from December 2002 to July 2015 based on the father's lack of proof of certain payments he testified that he had made to the mother. The presumption created by § 6-9-191 may be rebutted, see Hines, 622 So.2d at 397, and, based on the trial court's judgment, it appears that the trial court had before it evidence indicating that the father had not paid the child-support installments, which evidence rebutted the presumption that the child-support installments had been satisfied by payment. See id. The father's motion to partially satisfy the judgment is nothing more than an attempt to have the trial court reconsider its determination of the child-support arrearage in the June 2016 judgment, and the trial court properly denied that motion. See Satterfield, 553 So.2d at 64 (explaining that the movant's argument that the trial court had been "deprived of the opportunity to consider whether [a] 1973 judgment should have been presumed satisfied under ... § 6-9-191" in a 1981 action did not entitle him to relief under Rule 60(b)(5) when the record reflected that the trial court had been presented "sufficient evidence to overcome the rebuttable presumption of satisfaction created by § 6-9-191"). Thus, we affirm the trial court's denial of the father's motion to satisfy the judgment.

The father's final argument is that the trial court erred by denying his motion to stay the garnishment. However, in contravention of Rule 28(a)(10), Ala. R. App. P., the father has failed to develop that argument or to cite authority supporting the conclusion that the trial court erred in denying the motion to stay the garnishment. See White Sands Grp., L.L.C. v. PRS II, LLC, 998 So.2d 1042, 1058 (Ala. 2008) (" Rule 28(a)(10) requires that arguments in briefs contain discussions of facts and relevant legal authorities that support the party's position. If they do not, the arguments are waived." (emphasis added)); see also Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala. 1992) (explaining that an appellate court is not required to do a party's legal research or to develop an argument on behalf of a party); and Bishop v. Robinson, 516 So.2d 723, 724 (Ala. Civ. App. 1987) (quoting Thoman Eng'g, Inc. v. McDonald, 57 Ala.App. 287, 290, 328 So.2d 293, 294 (Civ. App. 1976) ) (noting that an appellant should "present his issues 'with clarity and without ambiguity' " and "fully express his position on the enumerated issues" in the argument section of his brief); accord United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."). We therefore decline to consider that issue and we affirm the order of the trial court denying the father's motion to stay the garnishment.

APPEAL DISMISSED IN PART; AFFIRMED.

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

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

      The trial court determined that the child had begun living with the father during July 2015 and awarded credit against the father's child-support arrearage for those months the child lived with him.

      Section 6-9-191 reads: "If 10 years have elapsed from the entry of the judgment without issue of execution or if 10 years have elapsed since the date of the last execution issued, the judgment must be presumed satisfied, and the burden of proving it not satisfied is upon the plaintiff."

      The father asserted that the allegedly past-due child-support installments that had accrued before September 30, 2006, 10 years before he filed his motions, should be presumed to have been satisfied under § 6-9-191. However, the mother filed her counterclaim seeking the computation of a child-support arrearage on November 30, 2015. Thus, the date from which the 10-year period should be computed is November 30, 2015, making those installments due before December 2005 subject to the presumption of satisfaction contained in § 6-9-191. See Solinger v. Solinger, 57 Ala.App. 225, 228, 327 So.2d 721, 723 (Civ. App. 1975) (indicating that the relevant date for determining the application of the 10-year period contained in the predecessor statute to § 6-9-191 was the date of the petition seeking to revive the judgments).

      We note that, as argued by the mother in her appellate brief, this court has held that allegedly past-due and unpaid child-support installments are not considered judgments for purposes of the application of § 6-9-191. See Derringer v. Beadlescomb, 537 So.2d 34, 36 (Ala. Civ. App. 1988), and Tanana v. Alexander, 404 So.2d 61 (Ala. Civ. App. 1981). In Tanana, we relied on our supreme court's holding in Austin v. Austin, 364 So.2d 301, 302 (Ala. 1978), to explain that, "in the context of a custodial parent coming into court seeking a judicial determination of arrearage, ... alleged past-due and unpaid child support [installments] are not 'final judgments' for purposes of § 6-9-191 until there has been a judicial ascertainment and declaration of the amount past due." Tanana, 404 So.2d at 63. Our supreme court appears to have effectively overruled Austin in Ex parte Morgan, 440 So.2d 1069, 1072 (Ala. 1983), where it held that
      "past due installments of child support ... create a final monied judgment, and that a writ of garnishment is a legally permitted method of collecting that judgment. There is no logical reason for having the judgment of past due installments reduced to a monied judgment. It is already a monied judgment."
      Although it appears likely that, under the holding announced in Ex parte Morgan, past-due and unpaid child-support installments do qualify as judgments for all purposes, including the application of § 6-9-191, we need not definitively decide whether Tanana and Derringer remain good law to resolve this appeal. For purposes of this opinion, we will assume that the child-support installments that the trial court determined had not been paid between December 2002 and December 2005 (see note 3, supra) were each separate monied judgments to which § 6-9-191 applies.

      The father also asserted the presumption of satisfaction under § 6-9-191 in the Rule 59 motion; thus, to the extent it was based on that argument, the Rule 59 motion was, in fact, a Rule 60(b)(5) motion. See Young v. Southeast Alabama Med. Ctr., 148 So.3d 429, 431 (Ala. Civ. App. 2013) (explaining that this court "construe[s] a motion by its 'essence' and not by its nomenclature" and construing a motion to be a Rule 60(b) motion despite the lack of reference to Rule 60(b) in the motion). We will consider the trial court's denial of both the Rule 60(b)(5) motion and the motion to partially satisfy the judgment together.

      We do not overlook the fact that Rule 60(b) authorizes the filing of an independent action seeking relief from a judgment; however, the father filed a motion in the present case.

      The record does not reflect that the father asserted the presumption of satisfaction under § 6-9-191 in the trial court before the entry of the June 2016 judgment.

      We note that we are precluded from reviewing the evidence to determine if it was sufficient to support the trial court's conclusion because the father did not timely appeal from the June 2016 judgment.


author: MOORE, Judge. THOMPSON, Presiding Judge, dissenting.

text:
    C.M.CA., by and through her legal guardians and parents, L.CA. and C.Ca. v. J.L.CR., by and through his legal guardians and parents, M.CR. and B.Cr.
    2160212
    Court of Civil Appeals of Alabama.
    August 18, 2017
    Kathy McCracken, Tuscaloosa; and H.D. "Trey" Woodrow III, Columbiana, for appellant.
    Wendy Allison Reese, Birmingham, for appellee.
   MOORE, Judge.

C.M.Ca. ("the mother"), who is a minor, by and through her legal guardians and parents, L.Ca. and C.Ca., appeals from a judgment entered by the Shelby Circuit Court ("the trial court") to the extent it changed the surname of her child, H.Ca. ("the child"), to the surname of J.L.Cr., the child's father ("the father"). We reverse the trial court's judgment.

Procedural History

On January 19, 2016, the father, who is also a minor, filed, by and through his legal guardians and parents, M.Cr. and B.Cr., a petition requesting that the trial court award him custodial and visitation rights with the child, enter an order of child support, and change the child's surname to his surname. On February 18, 2016, the mother filed an answer. On September 6, 2016, the father filed an amended petition requesting that the mother be ordered to pay his attorney's fees and costs.

The parties reached an agreement on all issues except the issue of the father's request to change the child's surname. The parties agreed that the issue of the father's name-change request would be reserved for a hearing and that each party would file a brief addressing his or her argument on that issue. On October 12, 2016, the mother and the father filed their respective briefs. In support of his brief, the father also filed an affidavit and certain text messages that had been exchanged between him and the mother. The next day, the mother filed a motion requesting the opportunity to present oral arguments and testimony concerning the issue of the name change.

On October 20, 2016, the trial court entered an order resolving all the issues except the issue of the child's surname. On November 7, 2016, the trial court entered an order denying the mother's request for oral arguments. The next day, the trial court entered a final judgment granting the father's request to change the child's surname.

On November 14, 2016, the mother filed a postjudgment motion to vacate the parties' agreement and the trial court's final judgment. The mother asserted that the father had been arrested on charges of being a minor in possession of alcohol and for possession of drug paraphernalia and that his arrest had occurred during a weekend in which he had the child for visitation. She also asserted that the father had been taken to the hospital for treatment of issues regarding his mental health. On November 15, 2016, the trial court entered an order denying the mother's motion. On November 28, 2016, the mother filed a second motion to vacate the judgment, which was based on the father's having been arrested for possession of alcohol and drug paraphernalia. That same day, the mother also filed a separate motion to vacate the judgment to the extent that it had granted the father's request to change the child's surname, arguing that the trial court had violated her rights to due process by denying her an evidentiary hearing on that issue. On December 14, 2016, the trial court denied the mother's second motion to vacate the judgment, which was based on the father's arrest, as well as her separate motion seeking to vacate the judgment based on the alleged deprivation of her due-process rights. On December 22, 2016, the mother filed her notice of appeal to this court.

Discussion

On appeal, the mother argues that the trial court erred in changing the surname of the child without "good cause" as required by Ala. Code 1975, § 26-17-636(e). She also argues that the trial court violated her due-process rights by denying her an evidentiary hearing on the father's request to change the surname of the child. We find the due-process issue dispositive.

According to § 26-17-636(e), a court adjudicating the paternity of a child may change the name of the child only "[o]n request of a party and for good cause shown." No Alabama case has directly addressed the manner in which a party must present "good cause" in order for a court to change the name of a child. However, Rule 39(b), Ala. R. Civ. P., generally provides, in pertinent part: "Issues not demanded for trial by jury as provided in Rule 38[, Ala. R. Civ. P.,] shall be tried by the court." (Emphasis added.)

Other jurisdictions have held that "[w]hen one parent petitions the court to remove the other parent's surname from the parties' minor child, each parent has a protectible interest in receiving notice and being heard on the petition." Stradford v. Wilson, 378 S.C. 300, 303, 662 S.E.2d 491, 492 (S.C. Ct. App. 2008). Consequently, parents have the right to a full evidentiary hearing on the issue of changing the surname of a child. See, e.g., Matter of Kobra (Hossain), 46 Misc.3d 54, 56, 2 N.Y.S.3d 313, 314 (N.Y. App. Term 2014) (holding that trial court had erred in denying petition for name change "without a full hearing on the record"); and Emma v. Evans, 424 N.J.Super. 36, 47, 35 A.3d 684, 690 (N.J. Super. Ct. App. Div. 2012) ("Regardless of whether a name change is sought by motion in an existing family action or by a new and separate action ..., the trial court remains obligated to ensure that the parties have a full and fair opportunity to present evidence and arguments regarding the application's merits.").

As explained in J.M.V. v. J.K.H., 149 So.3d 1100, 1104 (Ala. Civ. App. 2014), Alabama, as a common-law state, recognizes the rule that a child born out of wedlock shall bear the surname of the mother. Thus, the mother had an interest in preserving the surname of the child, which interest was entitled to protection. Section 26-17-636(e) authorized the trial court to change the surname of the child, but not in a manner that deprived the mother of her interest in maintaining the surname of the child without due process. A statute should not be construed or applied in an unconstitutional manner if that construction or application can be avoided. See Ex parte Huguley Water Sys., 282 Ala. 633, 639, 213 So.2d 799, 805 (1968). To construe § 26-17-636(e) to allow a trial court to change a child's surname over the objection of a mother without affording the mother a full evidentiary hearing would render that statute in violation of the due-process rights of the mother. We therefore conclude that a full evidentiary hearing is required whenever a request to change the surname of a child is made under § 26-17-636(e).

In the present case, the mother specifically requested an opportunity to present evidence at a hearing, and the trial court denied that request. In line with the aforementioned authority, we conclude that the trial court erred in denying the mother's request. Therefore, we reverse the trial court's judgment to the extent it granted the father's request to change the surname of the child, and we remand this cause to the trial court for it to hold an evidentiary hearing as requested by the mother. In light of our disposition on the mother's due-process issue, we pretermit discussion of the mother's remaining arguments concerning the merits of the judgment changing the surname of the child.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thomas, J., concurs.

Donaldson, J., concurs specially.

Thompson, P.J., dissents, with writing, which Pittman, J., joins.

DONALDSON, Judge, concurring specially.

I concur with the main opinion. In addition, I believe these proceedings in the Shelby Circuit Court were subject to Rule 43(a), Ala. R. Civ. P., which provides:

"In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided in these rules. ... However, nothing contained in this paragraph shall prevent the parties from taking testimony by agreement in a manner different from herein provided unless the court limits or prohibits such agreed manner."

I find that, although the mother agreed to a briefing schedule, she did not agree to submit the issue of the name change to the court through briefs and affidavits.

THOMPSON, Presiding Judge, dissenting.

I do not believe that the argument that C.M.Ca. ("the mother") made in her appellate brief regarding her contention that she was denied her right to due process was sufficient for this court to hold the trial court in error. In her brief to the trial court in opposition to the child's name change, the mother stated that the parties agreed to submit to the trial court written briefs on the issue of the name change. The briefs were submitted on the same day, October 12, 2016. In his brief in support of the name change, J.L.Cr. ("the father") attached an affidavit that he and his parents had signed.

On October 13, 2016, the day after the parties submitted their briefs on the issue of the name change, the mother filed in the trial court a motion for oral arguments, asking that she be allowed to present testimony. On November 8, 2016, the trial court entered an order directing that the child's name be changed from H.L.Ca. to H.L.Cr. In the order, the trial court stated that its decision was based on the briefs the parties had submitted.

In support of her assertion that the trial court violated her right to due process when it denied her request for a hearing on the name-change issue, the mother cites authority for the proposition that, in custody determinations, a parent cannot be deprived of custody of his or her child without a hearing for which the parent has been properly served and an opportunity to be heard. She argues that, because parents or guardians are entitled to an evidentiary hearing in custody cases in which the trial court must determine the best interests of the child, an evidentiary hearing must be held before a minor child's name can be changed because that decision, too, involves the child's best interests. I do not find the mother's argument persuasive.

As the main opinion points out, "[n]o Alabama case has directly addressed the manner in which a party must present 'good cause' in order for a court to change the name of a child." 245 So.3d at 625. The law does not require an evidentiary hearing for the resolution of every dispute. Rule 43(e), Ala. R. Civ. P., provides that "[w]hen a motion is based on facts not appearing of record the court unless a jury is required may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." (Emphasis added.)

In her appellate brief, the mother states that "[d]ue process requires that the party be afforded an opportunity to be heard before the entry of an order. Ex parte Russell, 911 So.2d 719, 725 (Ala. Civ. App. 2005)." The mother was provided with an opportunity to be heard. The parties agreed to submit the name-change issue to the trial court through their respective briefs, and the mother submitted a brief to the trial court on that issue, just as the father did. Nothing in the record suggests that the trial court prevented the mother from making her own evidentiary submission in opposing the father's request for a name change, either with her initial brief on the issue or in a subsequent filing. I do not believe that the mother's argument on appeal provides this court with a basis for determining that the trial court erred in deciding the name-change issue based on the parties' respective briefs rather than holding an evidentiary hearing.

Because, pursuant to Rule 43(e), the trial court had the authority to decide the issue on briefs and because the mother failed to present a legal argument to this court demonstrating error on the trial court's part, I would affirm the judgment. Therefore, I dissent from the main opinion.

Pittman, J., concurs.

      The trial court stated, and the father argues in his brief to this court, that, because the trial court had already denied the mother's first motion to vacate the judgment based on assertions regarding the father's alleged arrest and mental-health issues, the second motion to vacate the judgment on the basis of the father's arrest, as well as the separate motion to vacate the judgment based on the mother's assertion of the deprivation of her due-process rights, were without legal effect. We note, however, that, because the motion to vacate the judgment asserting the deprivation of the mother's due-process rights raised different grounds than the initial motion to vacate and was filed within 30 days of the entry of the trial court's final judgment, that motion was properly before the trial court. See, e.g., Roden v. Roden, 937 So.2d 83, 85 (Ala. Civ. App. 2006) ("Rule 59.1[, Ala. Code 1975,] has been held to apply separately to each distinct timely filed postjudgment motion so as to afford the trial court a full 90-day period to rule on each separate motion."); compare Curry v. Curry, 962 So.2d 261, 264 (Ala. Civ. App. 2007) ("[I]f a party files a postjudgment motion that neither (1) requests relief on grounds different from or additional to the grounds asserted in a previous postjudgment motion so as to amount to a proper amendment to the earlier motion, nor (2) seeks different postjudgment relief so as to be a separate postjudgment motion, the second-filed motion is not due to be treated as a separate motion but as a mere repetitive filing.").


author: THOMPSON, Presiding Judge.

text:
    Michael Gregory WICKER v. Jennifer Lynn Wicker HALLMAN
    2160229
    Court of Civil Appeals of Alabama.
    August 25, 2017
    Jason T. Fleishman of Fleishman Law Firm, Tuscaloosa, for appellant.
    Mark Sterling Gober, Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

Michael Gregory Wicker ("the father") appeals from a judgment that the Tuscaloosa Circuit Court ("the trial court") entered denying his petition for a modification of his child-support obligation and for the termination of an income-withholding order ("IWO"). The petition was based on his assertion that he had paid his child-support obligation in full.

The record indicates the following. The parties have two children ("the children"). According to the parties' divorce judgment entered in March 2005, the parties were awarded joint custody of the children, and no child support was ordered at that time. On November 26, 2008, the trial court entered a judgment ("the 2008 modification judgment") modifying the custody arrangement and awarding Jennifer Wicker Hallman ("the mother") sole physical custody of the children, subject to the father's visitation. The trial court also ordered the father to pay child support of $900 each month. On January 8, 2009, the mother filed an affidavit of arrearage, claiming that, between December 3, 2008, and January 4, 2009, the father had not paid his entire child-support obligation and that an arrearage of $1,430.76 was due. Also on January 8, 2009, an IWO was issued pursuant to which a total of $1,100 was collected from the father each month-$900 for his child-support obligation and $200 to pay toward his arrearage. It is undisputed that the mother received the full $1,100 each month.

The record shows that the full $1,100 was still being withheld from the father's income in 2016. In March 2016, the father requested that the IWO be terminated. However, he withdrew that request, and on April 27, 2016, he filed a petition to modify child support. On June 27, 2016, the IWO was suspended pending the final hearing in this matter.

In an affidavit dated October 6, 2016, which the father submitted to the trial court, the father testified that he had not received notice of the mother's affidavit of arrearage and had not seen the IWO issued on January 8, 2009. He also said that he did not notice that too much was being deducted from his paycheck for his child-support obligation until his attorney notified him of that fact at the end of 2015. On November 9, 2016, the father filed a motion for a summary judgment. The father claimed that he had never been in arrears, and he sought the termination of the IWO and the modification of child support. He calculated that he had overpaid his child-support obligation by at least $16,800 from January 2009 to March 2016. The mother opposed the father's motion for a summary judgment, asserting that, each month, the father had voluntarily paid more than the amount of child support he was required to pay.

On November 21, 2016, the trial court heard arguments on the father's motion for a summary judgment. At the hearing, the father argued that, if he had known of the mother's contention that he was in arrears, he would have opposed it. He then went on to argue that he was entitled to a credit for the amount of child support he had overpaid. The trial court never ruled on the motion for a summary judgment and scheduled a hearing on the merits.

On December 19, 2016, a final hearing at which the trial court received evidence ore tenus was held on the father's motion to modify child support. At that hearing, the father testified that, in March 2016, after one of the children had reached the age of majority, he consulted his attorney to have his child-support obligation modified. He said that during that consultation was when he first became aware that he was paying more child support than the court had ordered in the 2008 modification judgment. The father said that he had not paid the additional $200 a month willingly. Under cross-examination, the father testified that he was aware that $1,100 was being withheld from his paycheck each month from January 2009 through the date he filed his petition for child-support modification. However, the father said, he did not know he was overpaying his child-support obligation. However, still under cross-examination, the father testified that he knew that, in the 2008 modification judgment, the trial court had ordered him to pay $900 a month in child support. He also reiterated that, since January 2009, he knew that $1,100 was being collected from his paycheck each month and that that was $200 a month more than he had been ordered to pay. Still, the father said, he did not know it was an overpayment. He said that he "thought the State was taking out what it was supposed to take out."

On December 27, 2016, the trial court entered a judgment modifying the father's child-support obligation to $836 each month. The child support was for the one child who was still a minor. The trial court also denied the father's request for a credit against his current child-support obligation for the amount he had overpaid from 2009 through April 2016, when the modification petition was filed. The trial court also ordered the father to pay the arrearage that had accrued since the IWO was suspended in June 2016. That arrearage totaled $3,871.33 as of the date the judgment was entered. The father timely appealed from the trial court's judgment.

The standard of review applicable for this appeal is well established.

" 'When a trial court hears ore tenus evidence, its judgment based on facts found from that evidence will not be disturbed on appeal unless the judgment is not supported by the evidence and is plainly and palpably wrong. Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala. Civ. App. 1990). Further, matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly and palpably wrong. Id.'
" Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala. Civ. App. 2001). However, the trial court's application of law to facts is reviewed de novo. See Ladden v. Ladden, 49 So.3d 702, 712 (Ala. Civ. App. 2010)."

Jones v. Jones, 101 So.3d 798, 802 (Ala. Civ. App. 2012). Furthermore, "[t]he ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses." Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). The rule applies to disputed issues of fact, whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence. Born v. Clark, 662 So.2d 669, 672 (Ala. 1995).

In this case, the father contends that the trial court abused its discretion when it refused to give him credit against future child-support payments for the amount of child support he had overpaid. This appears to be a case of first impression in Alabama. In her arguments to the trial court, the mother cited authority from other jurisdictions to support her position that the father had voluntarily overpaid the amount of child support that was due each month and, therefore, that he was not entitled to a credit against future child-support payments.

Our review of decisions from other jurisdictions indicates that the prevailing rule is that a parent who has voluntarily exceeded the amount of payments owed on his or her child-support obligation is not entitled to a credit or setoff against future child-support payments. The Michigan Court of Appeals succinctly set forth the prevailing rule and the rationale behind the rule in Pellar v. Pellar, 178 Mich.App. 29, 443 N.W.2d 427 (1989). In addressing whether overpayments of child support should be applied as a credit against future support obligations, the Pellar court wrote:

"The majority view of other jurisdictions is that the support obligor is not entitled to a credit as a matter of law for voluntary overpayments made prior to those obligations sought to be offset by the overpayments. See Anno: Right to credit on accrued support payments for time child is in father's custody or for other voluntary expenditures, 47 A.L.R.3d 1031, § 15, pp. 1055-1057. The rationale underlying the general rule is aptly stated in Harner v. Harner, 105 Ill.App.3d 430, 433, 61 Ill.Dec. 312, 434 N.E.2d 465 (1982):
" 'The general rule is that payments made for the benefit of children which are voluntary and not pursuant to a divorce decree may not be credited against other amounts due under the decree. This is true even where, as here, the payments are made under the mistaken belief that they are legally required. The policy underlying this rule is to prevent the supporting parent from, in effect, unilaterally modifying the support decree and thereby affecting the expectations of the custodial parent as to support payments.' [Citations omitted.]
"In Haycraft v. Haycraft, 176 Ind.App. 211, 215-216, 375 N.E.2d 252 (1978), the court refused to recognize an overpayment credit, reasoning as follows:
" 'Since [the parties] had no power to modify the terms of the original support order by means of an extrajudicial agreement, any excess payment made under that supposed agreement had to be considered a gratuity or at least a voluntary contribution for the support of the children, and not a prepayment of future support obligations. If noncourt approved prepayments, such as those which Dudley suggests, were to be permitted, it would be possible for a parent, who is obligated to pay support, to build up a substantial credit, then suddenly refuse to make support payments for several weeks, months, or even years, thus thwarting the court's purpose in setting the payments at certain specified intervals, that of providing regular, uninterrupted income for the benefit of that parent's children, who are in the custody of another. The regularity and continuity of court decreed support payments are as important as the overall dollar amount of those payments.'
"We find ourselves in substantial agreement with the foregoing authorities and conclude that the rule against allowing a credit for voluntary overpayments is consistent with the policies underlying child support obligations pursuant to Michigan law. Child support is not imposed for the benefit of the custodial parent, but rather to satisfy the present needs of the child. Haefner [v. Bayman] 165 Mich.App. [437,] 444, 419 N.W.2d 29 [ (1988) ]. The needs of the child are of overriding importance, and the courts strive to protect the child from any adverse effects caused by the obligor parent's unilateral disruption or suspension of periodic support payments, even when the obligor parent is attempting to vindicate some right violated by the other parent having custody of the child. For instance, it has been held that the supporting noncustodial parent's recognized right to exercise visitation may not be sought to be enforced when wrongfully denied by suspending support payments if the result is that the interests of the child would be adversely affected. See Richardson v. Richardson, 122 Mich.App. 531, 533, 332 N.W.2d 524 (1983). It is apparent that the purpose of structuring support in terms of periodic payments for the duration of the child's minority is to ensure that the child's needs are met on an ongoing, continuing basis. We hold that voluntary overpayments, even if made under a mistaken belief as to their legal consequences, do not create a credit against or otherwise serve to diminish the amount of the obligor's subsequent court-ordered obligations. To hold otherwise would create an unacceptable possibility of jeopardizing the child's right to receive support for his or her needs."

Pellar, 178 Mich.App. at 33-36, 443 N.W.2d at 429-30 (footnote omitted).

In Mayfield v. Mayfield, 103 So.3d 968 (Fla. Dist. Ct. App. 2012), the former husband voluntarily made additional payments for the benefit of the children. He testified that he made the payments to build up a buffer in case he was not able to always make his court-ordered child-support payments. However, the former husband had not told the former wife that the payments were intended as an advance on his future support. The trial court in that case also found that it would be an "undue hardship" on the children and the former wife to allow the former husband a credit or repayment of the additional support payments because, the trial court stated, " 'the money is [not] sitting anywhere to be spent now' and the children 'cannot presently benefit from the prior overpayment.' " Id. at 971. The Florida appellate court held that, under the circumstances of Mayfield, the trial court had abused its discretion in allowing the former husband a credit for the excess support he had voluntarily paid against his future child-support obligation. Id. See also Reach v. Owens, 260 Ga. 227, 227, 391 S.E.2d 922, 923 (1990) (noting that the general rule in Georgia is that the noncustodial parent has no right to a credit for the voluntary overpayment of child support without the consent of the custodial parent).

Even if a jurisdiction does allow a credit for overpayment of child support, before such a credit can be applied, the court must ensure that the needs of the child are met first. See, e.g., In re Marriage of DiFatta, 306 Ill.App.3d 656, 664, 714 N.E.2d 1092, 1097, 239 Ill.Dec. 795, 801 (1999) ("While the court may, on remand, reduce respondent's child support obligation based on his overpayment of child support, the court must ensure that the reduction does not work a deprivation on the minor child.").

Upon consideration, we agree with the analysis set forth by the Court of Appeals of Michigan in Pellar, supra. Alabama, like Michigan, recognizes that child support is intended to meet the child's ongoing needs such that a parent's child-support obligation cannot be waived.

"A child has a fundamental right under our law to support from that child's parents that the parents themselves cannot waive. State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala. Civ. App. 1995). 'All minor children have a fundamental right to parental support and that right is deemed to be a continuing right until the age of majority.' Ex parte State ex rel. Summerlin, 634 So.2d 539, 541 (Ala. 1993) ; see also Bank Independent v. Coats, 591 So.2d 56, 60 (Ala. 1991) ('[T]he public policy of this state [provides] that parents cannot abrogate their responsibilities to their minor children by mutual agreement between themselves so as to deprive their minor children of the support to which they are legally entitled.')."

Hawkins v. Cantrell, 963 So.2d 103, 105-06 (Ala. Civ. App. 2007). Accordingly, we now adopt the following rationale and holding of the Court of Appeals of Michigan in Pellar:

"[V]oluntary overpayments, even if made under a mistaken belief as to their legal consequences, do not create a credit against or otherwise serve to diminish the amount of the obligor's subsequent court-ordered obligations. To hold otherwise would create an unacceptable possibility of jeopardizing the child's right to receive support for his or her needs."

178 Mich.App. at 36, 443 N.W.2d at 430.

The father in this case contends that he did not voluntarily overpay his child-support obligation. He testified that he believed that, in withholding money from his paycheck pursuant to the IWO

for child support, the state was collecting the proper amount of support. However, he also testified unequivocally that he knew his court-ordered child-support obligation was $900 each month and that $1,100 was being withheld from his pay each month. He allowed the overpayment to continue for seven years. There was no evidence indicating the mother knew that the father had not intended to provide an additional $200 of child support each month. We conclude that the evidence supports the trial court's determination that the father's overpayment was voluntary. Jones, 101 So.3d at 802. Moreover, we have already held in this opinion that voluntary overpayments made under a mistaken belief as to their legal consequences cannot be used as a credit against future child-support payments.

For the reasons set forth above, we conclude that, as a matter of law, the father was not entitled to a credit for his overpayment of child support. As other jurisdictions have noted, to hold otherwise would risk the possibility that a minor child's present and future needs could not be met, thus frustrating the purpose of child support. The judgment of the trial court is affirmed.

AFFIRMED.

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

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

      In the final judgment, the trial court noted that, by agreement of the parties, the transcript of the arguments made during the summary-judgment hearing were incorporated as part of the final hearing.