author: PER CURIAM.

text:
    R.D.R. v. C.R.P.
    2141060.
    Court of Civil Appeals of Alabama.
    April 29, 2016.
    Coby McEachern Boswell, Huntsville; and Amber Yerkey James, Huntsville, for appellant.
    Christopher W. Long, Huntsville, for appellee.
   PER CURIAM.

R.D.R. ("the father") and C.R.P. ("the mother") were never married to one another, but they are the parents of two daughters-M.R.S. and J.N.S. ("the children"), born on September 14, 2005, and on July 29, 2006, respectively. The family was living in Texas in 2008 when the father enlisted in the United States Army. The parents subsequently parted on bad terms. The mother and the children moved to Alabama. On November 3, 2009, the Madison Juvenile Court ("the juvenile court") adjudicated the father as the father of the children and, among other things, awarded the parents, per their agreement, joint legal custody of the children. Due in part to the parents' anticipation that the father would be deployed, the custody order provided that the children would live with the mother during the school year, with the possibility of living with the father in the summer and on alternating weekends; the father was also ordered to pay child support. In 2010 the father married A.R. ("the stepmother"), and, that same year, the mother relocated to Georgia with the children. The father was stationed in Kuwait in July 2011 when J.N.S. was diagnosed with cancer, received treatment, and recovered by February 2012. In the father's absence, the stepmother, who was apparently living in Alabama, and the mother cooperated to support J.N.S. during her illness. In 2011 the mother married a man who was not referred to by name in the record. She divorced that man in 2013. In 2014, the father, who was no longer on active military duty, accepted a job in Texas, and the mother married R.P. ("the stepfather"). At some point not disclosed in the record, the father moved back to Alabama.

On December 12, 2014, the mother and the stepfather engaged in an act of domestic violence in the presence of the children ("the incident"). Following the incident, the mother entered into the first of two safety plans initiated by the Georgia Division of Family and Child Services ("GDFCS"). The mother agreed, among other things, that the children would live with the father in Alabama, that the stepfather would have no contact with the children, and that the mother would have supervised visitation with the children. On January 13, 2015, the father filed in the juvenile court a modification petition in which he requested an award of temporary and permanent sole physical custody of the children, an order suspending his child-support obligation, and an order requiring the mother to pay child support.

On January 26, 2015, the juvenile court held a pendente lite hearing at which the mother failed to appear. On March 27, 2015, the juvenile court entered an order, awarding the father pendente lite sole physical custody of the children subject to the mother's right to visitation. The children began living in a three-bedroom residence with the father, the stepmother, their child, and the stepmother's son from another relationship. On April 17, 2015, the mother filed an answer and a counterclaim in which she requested, among other things, a dismissal of the father's modification petition and an award of pendente lite and permanent "full physical and legal custody."

In the meantime, the father had filed a motion seeking an order requesting certain documentation from GDFCS regarding its investigation into the incident, which the juvenile court granted on March 18, 2015. GDFCS responded with a motion to quash or, in the alternative, for a protective order because, it alleged, the requested information was confidential. The juvenile court denied the motion to quash and granted the motion for a protective order; the juvenile court determined that it would review the documents and designate which, if any, documents or portions of documents were relevant to the issues raised. The father also filed a motion seeking an order allowing Jamila Gilcrest, a GDFCS employee, to testify telephonically, which the juvenile court denied.

A three-day modification hearing began on June 24, 2015; however, at the close of testimony on that day, the father requested a continuance during which he intended to secure an affidavit of authenticity regarding the GDFCS documents and to file a subpoena requiring Gilcrest to appear at the modification hearing. The juvenile court granted the continuance and issued the subpoena. The modification hearing resumed on July 30, 2015, and it concluded on July 31, 2015. Gilcrest did not appear.

On August 31, 2015, the juvenile court entered a modification judgment in which it determined in paragraph one that the best interests of the children was served by an award to the mother of "primary" physical custody; however, paragraph two reads:

"2. The parties shall continue to share joint legal custody of the minor children.... The Mother ... shall have sole physical custody of the minor children, subject to the Father's reasonable right of secondary custody as outlined in '150 Mile Custody Schedule' attached hereto as Exhibit 'A.' The pendente lite order awarding custody of the children to the Father is dissolved, and physical custody of the children shall resume with the Mother."

(Emphasis added.)

The juvenile court specifically noted in its judgment that, in making its decision to award the mother sole physical custody, it had not "take[n] further evidence" regarding whether the children were safe in the presence of the stepfather because the mother had stated her intention to seek a divorce from the stepfather, and the juvenile court specifically prohibited all contact between the children and the stepfather.

On September 14, 2015, the father filed a postjudgment motion. The father filed a notice of appeal on September 21, 2015, which was before the postjudgment motion had been ruled upon. As provided by Rule 4(a)(4), Ala. R.App. P., the appeal was held in abeyance until the juvenile court denied the father's postjudgment motion on September 22, 2015. The father seeks our review of whether the juvenile court erred by refusing to award sole physical custody of the children to him, by failing to apply the presumptions provided by § 30-3-131, Ala.Code 1975, and by refusing to allow him to admit or use a certain exhibit.

"On appellate review of custody matters, [the appellate] court is limited when the evidence was presented ore tenus, and, in such circumstances, a trial court's determination will not be disturbed 'absent an abuse of discretion or where it is shown to be plainly and palpably wrong.' Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, [520 So.2d 534 (Ala.Civ.App.1988) ] ). As the Alabama Supreme Court highlighted in [ Ex parte] Patronas, [693 So.2d 473 (Ala.1997) ], ' "[T]he trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody." ' Patronas, 693 So.2d at 474 (quoting Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996) ). Thus, appellate review of a judgment modifying custody when the evidence was presented ore tenus is limited to determining whether there was sufficient evidence to support the trial court's judgment. See Patronas, 693 So.2d at 475.
" 'However, even under the ore tenus rule, "[w]here the conclusion of the trial court is so opposed to the weight of the evidence that the variable factor of witness demeanor could not reasonably substantiate it, then the conclusion is clearly erroneous and must be reversed." ' B.J.N. v. P.D., 742 So.2d 1270, 1274 (Ala.Civ.App.1999) (quoting Jacoby v. Bell, 370 So.2d 278, 280 (Ala.1979) )."

Cheek v. Dyess, 1 So.3d 1025, 1029 (Ala.Civ.App.2007). Moreover, the ore tenus rule does not apply to a trial court's legal conclusions. Ex parte Cater, 772 So.2d 1117, 1119 (Ala.2000). Legal conclusions are subject to de novo review. Shealy v. Golden, 897 So.2d 268, 271 (Ala.2004).

The father, who had lived in Alabama, Texas, and Kuwait, testified that he had never exercised all the visitation to which he was entitled. He said that, instead of exercising visitation on alternating weekends, he had routinely exercised visitation one weekend per month or less. The following exchange took place between the father and the mother's attorney:

"A: [Visitation] was during-I would have them during the summer. I was supposed to have them the whole summer they are out, but technically, if we didn't agree, I was [June] 15 through [July] 15.
"Q: That's it?
"A: And we would swap holidays. Just the regular out-of-state visitation schedule for Madison County.
"Q: So you didn't have all alternating weekends?
"A: No, sir.
"Q: So roughly for the last six years your visitation schedule with the girls has been one month in the summer and alternating holidays; is that right?
"A: No, sir. It has been the whole summer, but technically, if we did not agree, it was June 15 through July 15. The only reason I bring that up is because it has been used against me, but so far I have seen them all summer-other than last summer."

The mother testified that the children had spent most of "last summer" with her so that they could take part in her wedding.

The father testified that he had been arrested while he was living in Texas in 2014 for leading police officers on a high speed chase, which is a felony. He said that he was on probation until he completed community service and paid a $1,200 fine. He also admitted that he had a history of substance abuse. He said that he had sold and abused pain medication when he was between 16 and 18 years old and that he had abused marijuana, opiates, and cocaine in the past. He said that he had attended a drug-detoxification program for "huffing" paint in 2007; however, he said that he had not intentionally inhaled paint fumes and that the whole situation had been "ridiculous." The father testified that his mother-in-law had given him one prescription "pain pill" on one occasion within a year of the modification hearing while he was at her house because he had had either a headache or an earache. He testified that he no longer abused, or even consumed, alcohol or illegal drugs. He and the mother each submitted to a drug test on the first day of the hearing; both tests were negative. The father said that had known the mother since she was 14 years old and that she had never abused substances.

The mother testified that GDFCS became involved with the family on November 16, 2014, when the incident occurred. Testimony indicated that the stepfather had thrown a metal shelf at the mother, had hit her on the leg, had "spanked" M.R.S. after she had thrown a toy at him, and, as the mother was fleeing the residence with the children, had destroyed the mother's cellular telephone and had broken a chair by throwing it at the mother's automobile. The stepfather was arrested and jailed following the incident. The stepfather said that, as a result of the incident, he had pleaded guilty to, among other charges, domestic violence to "get it out of the way"; however, he did not believe that he had abused anyone. Although the stepfather admitted that he had also been arrested for driving under the influence, for a probation violation, and for "bar fights," he testified that the incident was the only time he had committed an act of domestic violence. According to the mother, the incident was not the first physical altercation that the couple had had but that it was the first such occurrence in the presence of the children. The mother admitted that she had violated the first safety plan by allowing the children to be in the presence of the stepfather because, she said, he was not a threat to the children. The stepfather confirmed that they had knowingly violated the safety plan.

After the incident occurred, the mother had been diagnosed as suffering from "emotional issues" and "extreme separation anxiety." The mother testified that she did not take the recommended "anxiety medication." She said that she had lived in three different locations since she left the residence she had shared with the stepfather, that she had been evicted from one of those places, and that she, along with the children, had been evicted at least three other times in the past for failure to pay rent. The stepfather testified that the family had been evicted four times in the past two years. The father said that the mother had not made him aware of the evictions or that the children's address had changed multiple times. The mother testified that, at the time of the modification hearing, she had leased an apartment that she could afford.

On the first day of the modification hearing, the mother testified that she wanted to remain married to the stepfather. The stepfather said that they were friends but that he did not intend to "resume" the marriage or to live with the mother; however, he also said that the mother was his best friend and that, if they got "help," they might live together. When asked if she would allow the stepfather to be around the children if their custody was awarded to her, the mother answered: "Yes." The father said that the mother had telephoned the children every two or three days while they were in his custody pendente lite, that the children and the mother had spoken on speakerphone, and that he had heard the stepfather in the background of nearly every telephone call.

On the second day of the modification hearing, the father introduced evidence demonstrating that, in the month between the first and second days of the modification hearing, the mother had filed a motion seeking a temporary protective order against the stepfather in a Georgia court and that the mother had sought and received a dismissal of that motion within a few days of her filing. Julie Luciano, an employee of GDFCS, testified that the mother had "done this before," that the mother had displayed an inability to "make her mind up about whether she wants to stay away from [the stepfather] or not," and that GDFCS "would have to open up a new case in the State of Georgia" if the juvenile court awarded the children's custody to the mother, regardless of whether the mother was married to or divorced from the stepfather.

On the third day of the modification hearing, the mother testified that her marriage to the stepfather was over. She said that she had filed for a protective order only because a court employee had advised her that, if she did so, her fees for filing a divorce action would be waived. The following colloquy occurred between the mother's attorney and the mother:

"Q. Did you feel like you were being required to choose between your husband and your daughters?
"A. Of course.
"Q. Do you consider [the stepfather] to be a threat?
"A. I don't consider him to be a threat, no.
"Q. But you don't deny that he has hurt you?
"A. Oh, I don't deny that that incident happened.
"Q. If this Court decides to give you the girls back, do you intend on violating this Court's orders?
"A. No, sir.
"Q. So if the condition is that [the stepfather] is not to be around at all-you or the girls-that won't be an issue?
"A. No, sir. I have-this has been a huge wake-up call for me."

The testimony regarding the children's medical and insurance needs is confusing. The children appear to have been uninsured at times and, at other times, insured by the father through his employer, the stepfather through his employer, and through Medicaid when the mother was single. The father said that the children were in need of dental and orthodontic care but that the mother had failed to attend to those needs. The father, who had had pendente lite custody of the children for three months, said that he had scheduled dental appointments and that he needed to have the children under his employer's insurance coverage so that he could use the dentist he preferred.

Witnesses also presented testimony regarding initial and follow-up cancer-treatment appointments for J.N.S. The father had accompanied J.N.S. to only two appointments-one in 2011 and one in 2015. The testimony presented regarding the appointment in 2015, though unclear, tends to demonstrate that the mother, the father, and the stepmother accompanied J.N.S. and that, at that appointment, the father learned that J.N.S. had missed some medical appointments in 2012, 2013, and 2014. The mother admitted that she had missed medical appointments when J.N.S. did not have insurance.

The stepmother had attended more medical appointments than had father due only in part to his military deployment. For example, the father said that the stepmother had accompanied J.N.S. to her most recent appointment with an ultrasound technician while he had stayed at home with the other three children. The stepmother testified that she, and not the father, was in the process of "chasing down medical [and dental] records." The father said that the stepmother "worked in the medical field" and that she "figured out" J.N.S.'s appointments. The father said that, because of his deployment, the stepmother "has been very much involved, if not more involved than the mother." Likewise, the mother testified that, at times, the stepfather had accompanied J.N.S. to appointments when the mother was working.

The father said that the mother loves the children and that, despite how it might appear, he and the mother were good friends who communicated easily; however, the father testified that he did not trust the mother's judgment. He testified that he was concerned about the children living with the stepfather based on his history of anger issues and bar fights and that he was concerned about the children living with the mother based on her violation of the safety plan, her history of evictions, and, he alleged, her inability to attend to the children's medical and other needs.

First, we consider the father's argument that the juvenile court erred by declining to award sole physical custody of the children to him. Our supreme court has stated that an appellate court's review of a factual issue in a custody-modification action is limited and that this court may not substitute its judgment for that of the trial court or reweigh the evidence. Ex parte Patronas, 693 So.2d 473, 474-75 (Ala.1997). The presumption in favor of the trial court's judgment in a custody-modification action is based on the advantage that the trial judge has of seeing the parties and witnesses as they testify. Thus,

"[t]his case, like all disputed custody cases, turns on the trial court's perception of the evidence. The trial court is in the better position to evaluate the credibility of the witnesses ... and the trial court is in the better position to consider all of the evidence, as well as the many inferences that may be drawn from that evidence, and to decide the issue of custody."

Ex parte Bryowsky, 676 So.2d 1322, 1326 (Ala.1996).

The juvenile court, "[a]fter careful consideration of the ore tenus testimony, observation of the parties, [and] assessment of the credibility of the witnesses," determined that a custody modification was in the best interests of the children. The juvenile court determined that the children had not "been a priority to the Father for a significant period of time prior to the events that led to the filing of the petition herein" because the father had never exercised all the visitation allowed by the November 3, 2009, joint-custody order. The juvenile court also determined that the father had "delegated the vast majority of the parenting to the step-mother." The juvenile court noted the father's "drug usage" and his being on probation for the felony committed in Texas. Although the father had also presented unfavorable evidence regarding the mother, we conclude that the evidence presented supports the juvenile court's modification judgment. A trial court's determination will not be disturbed "absent an abuse of discretion or where it is shown to be plainly and palpably wrong." Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993) (citing Benton v. Benton, 520 So.2d 534 (Ala.Civ.App.1988) ).

Next, the father argues that the juvenile court erred by failing to specifically address and apply the presumptions provided by § 30-3-131, Ala.Code 1975, which provides, in its entirety:

"In every proceeding where there is at issue a dispute as to the custody of a child, a determination by the court that domestic or family violence has occurred raises a rebuttable presumption by the court that it is detrimental to the child and not in the best interest of the child to be placed in sole custody, joint legal custody, or joint physical custody with the perpetrator of domestic or family violence. Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child."

Contrary to the father's assertion, the juvenile court was not required to include a specific finding regarding domestic violence. Ex parte Fann, 810 So.2d 631, 638 (Ala.2001). The juvenile court did not err by taking into account the father's testimony that "the counselor basically felt like everything was all right, and, you know, unless we started seeing any major issues, we were good to go." Because the father testified that the counselor had detected no detrimental impact, the father has not demonstrated that the juvenile court erred by failing to specifically address or properly apply § 30-3-131.

Finally, the father presents a two-part argument that the juvenile court erred in excluding a report compiled by GDFCS ("the report"). In Bowers v. Wal-Mart Stores, Inc., 827 So.2d 63, 71 (Ala.2001), our supreme court explained:

" '[T]he trial court has great discretion in determining whether evidence, even evidence of minor probative value is relevant and whether it should be admitted or excluded.' Sweeney v. Purvi s, 665 So.2d 926, 930 (Ala.1995). When evidentiary rulings of the trial court are reviewed on appeal, 'rulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion.' Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala.1998), citing Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165 (Ala.1991)."

Neither the report nor the affidavit of authenticity regarding the report is contained in the record on appeal.

"The propriety of the court's ruling in refusing to allow the introduction of these documents is not reviewable when the documents are not set out in the record. Neumiller v. Jenkins, 270 Ala. 231, 117 So.2d 402 [ (1960) ]; Sims v. Struthers, 267 Ala. 80, 100 So.2d 23 [ (1957) ]; Wesson v. Taylor, 240 Ala. 284, 198 So. 848 [ (1940) ]; Pearson v. Howe, 11 Ala. 370 [ (1847) ]."

Forest Inv. Corp. v. Commercial Credit Corp., 271 Ala. 8, 11, 122 So.2d 131, 134 (1960) ; see also Birmingham Slag Div. of Vulcan Materials Co. v. Chandler, 45 Ala.App. 406, 410, 231 So.2d 329, 332 (Civ.App.1970). Thus, we cannot review the father's first subargument that the juvenile court erred by depriving him the "right to introduce, admit, and cross-examine witnesses concerning the [report] produced by [GDFCS] under seal to the Court."

The father continues his argument with his specific contention that he was improperly denied the ability to use statements allegedly contained in the report to impeach the testimony of the stepfather and the mother. The father does not point this court to any particular inconsistent statement. As this court has previously stated: "Let it be pointed out, that the alleged prior inconsistent written statement is not a part of the record and not properly before us. We have only counsel's statement to the court as to an alleged instrument in his custody, and that is far from clear." Birmingham Slag Div., 45 Ala.App. at 409-10, 231 So.2d at 331-32. In his appellate brief, the father generally argues:

"[T]he [mother] and [the stepfather] made conflicting statements to the Court and [GDFCS] concerning the nature of the domestic violence incident and what occurred that night, the occurrence of previous incidents of domestic violence, as well as the [mother]'s recount of her statements to [GDFCS] concerning the nature of the safety plan and her feelings about the [father] as a father."

At the modification hearing, the father provided one offer of proof.

" 'The burden of establishing that an erroneous ruling was prejudicial is on the appellant.' Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165, 167 (Ala.1991). A judgment will not be reversed for erroneous exclusion of evidence unless 'the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.' Rule 103(a)(2), Ala. R. Evid. 'An offer of proof customarily includes calling the court's attention to the expected answer and explaining the relevancy of that answer.' Committee Comments to Rule 103, Ala. R. Evid."

Crusoe v. Davis, 176 So.3d 1200, 1202 (Ala.2015).

After the mother testified that the incident was the only occurrence of domestic violence in the presence of the children, the father again offered the report into evidence, and the mother again objected. The father then sought to offer only one statement from the report, which, the father alleged, was the mother's admission to Gilcrest that more than one act of domestic violence had been committed in the presence of the children. The mother argued that that statement amounted to hearsay within hearsay. The father argued that he was entitled to use extrinsic evidence for the purpose of impeachment, see Rule 613(b), Ala. R. Evid. He noted that the report had been authenticated, see Rule 902(11), Ala. R. Evid.; that the mother was a party, Rule 801(d)(2)(A), Ala. R. Evid.; and that the admission of the report or the alleged statement was necessary because Gilcrest had "refused to appear by subpoena." The juvenile court concluded that the statement was inadmissible because Gilcrest was not available for cross-examination. The following colloquy occurred:

"[The father's attorney]: I would like to make an offer of proof.
"THE COURT: Okay.
"[The father's attorney]: The statement in [the report] states that [the mother] has admitted to multiple incidents of domestic violence in front of the children, and I would like that made as an offer of proof for the record, Your Honor.
"THE COURT: Okay. It is so made, and the objection is sustained."

Rule 613(b), Ala. R. Evid., provides that extrinsic evidence of a prior inconsistent statement by a witness is admissible when the witness has been confronted with the circumstances of the statement, can identify the statement, and is afforded an opportunity to admit or to deny having made it. In this case, the mother denied having made the alleged prior inconsistent statement. "[A] witness may not be impeached with a third party's characterization or interpretation of a prior oral statement unless the witness has subscribed to or otherwise adopted the statement as his [or her] own." United States v. Saget, 991 F.2d 702, 710 (11th Cir.1993). Gilcrest did not appear at the modification hearing, and the record does not demonstrate that the report, which allegedly contained the prior inconsistent statement, was properly authenticated. "Nothing in [ Rule 613 ] abrogates the requirement that if the witness denies having made the statement then any extrinsic evidence of the prior inconsistent statement must be properly authenticated." Advisory Committee's Notes to Rule 613, Ala. R. Evid.

Furthermore, for the failure to admit evidence of a prior inconsistent statement to be reversible error, "the error complained of [must have] probably injuriously affected [the] substantial rights of the parties." Rule 45, Ala. R.App. P.; Wallace v. Phenix City, 268 Ala. 413, 108 So.2d 173 (1959). In this case, the father has not shown probable injury. Therefore, had we determined that the alleged inconsistent statement had been improperly excluded, that error would not have warranted a reversal because, even if the juvenile court had doubted the mother's credibility regarding how many incidents of domestic violence the children had witnessed, the juvenile court had removed the obstacle to a modification of custody by expressly forbidding contact between the stepfather and the children.

In conclusion, the father has failed to demonstrate that the juvenile court erred by refusing to award sole physical custody of the children to him or by failing to apply the presumptions provided by § 30-3-131, Ala.Code 1975. The propriety of the juvenile court's refusal to allow the introduction of the report is not reviewable because the report is not set out in the record. The juvenile court also did not err by refusing to admit evidence regarding the mother's alleged inconsistent statement.

The judgment of the juvenile court is therefore affirmed.

AFFIRMED.

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

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

      The father filed criminal charges against the mother for writing numerous checks from his banking account without his knowledge.

      The second safety plan was necessary because the mother violated the first safety plan by allowing the stepfather to be in the presence of the children.

      "Jamila" is also spelled "Jamela" in the record; "Gilcrest" is also spelled "Gilchrist" in the record.

      The father has not raised the propriety of the denial of his motion as an issue on appeal. "The failure to raise an issue on appeal is the equivalent of waiving the issue." Ex parte Professional Bus. Owners Ass'n Workers' Comp. Fund, 867 So.2d 1099, 1101 (Ala.2003).

      If neither parent has previously been awarded sole physical custody, then "the best interests of the child" standard applies. See Ex parte Couch, 521 So.2d 987, 989 (Ala.1988).

      Section 30-3-151, Ala.Code 1975, does not provide for awards of "primary" or "secondary" custody. In this case the juvenile court awarded the parties joint legal custody as defined by § 30-3-151(2), and it awarded the mother sole physical custody as defined by § 30-3-151(5). It awarded the father visitation, not "secondary custody," based upon the distance between the parties' residences; the father's visitation included two weekends per month and specified holiday and vacation times.

      The father's testimony is particularly difficult to follow. More than once, the juvenile-court judge made comments indicating that she was struggling to understand his testimony. For example, she said: "[The father's] testimony has been kind of confusing all afternoon. I have had a hard time following it."

      The father relies heavily on Nye v. Nye, 785 So.2d 1147, 1151 (Ala.Civ.App.2000). This court relied on Nye in A.S. v. G.T., 794 So.2d 1167, 1169 (Ala.Civ.App.2001), for the proposition that a trial court is required to make an express finding as to whether domestic abuse occurred-a proposition that was overruled by our supreme court in Ex parte Fann. Therefore, the father's reliance on Nye is misplaced.

      On the first day of the modification hearing, the father requested to make an offer of proof regarding the stepfather's allegedly inconsistent statements. The father's attorney said: "He has made these statements to [GDFCS]. He is making comments that he did not make these statements." Although we can discern that "these statements" likely refer to the item that the stepfather threw at the mother during the incident, the father's attorney never offered the substance of the statements allegedly made to GDFCS.

      Rule 901(a) provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." As already mentioned, the affidavit of authenticity is not included in the record on appeal.

      We also note that the credibility of the mother and the stepfather was tested. For example, the mother first testified: "[The stepfather] and I got into a verbal argument that then turned to me being physical." Later she admitted that the stepfather had thrown an object at her and had hit her leg. The mother testified that it was unfair to characterize the stepfather's actions with her cellular telephone as destructive because, she said, he merely stepped on it. The stepfather testified that he had taken the mother's cellular telephone without her permission, that he had broken it, and that he pleaded guilty to criminal trespass as a result.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    EX PARTE Matthew Kyle LOGARIDES
    (In re: Adena Louise Logarides v. Matthew Kyle Logarides)
    2160332
    Court of Civil Appeals of Alabama.
    April 28, 2017
    Thadius W. Morgan, Jr., Enterprise, for petitioner.
    James M. (Jimmy) Parker, Enterprise, for respondent.
   DONALDSON, Judge.

Matthew Kyle Logarides ("the husband") petitions this court for a writ of mandamus directing the Coffee Circuit Court ("the trial court") to vacate its order denying his motion to dismiss a case filed against him by Adena Louise Logarides ("the wife") and its order requiring him to pay temporary child support and one-half of the children's medical expenses and to enter a judgment dismissing the case. The husband argues that the trial court lacks personal jurisdiction over him and that, therefore, it could not order him to pay temporary child support and medical expenses. In response, the wife asserts that the husband has minimum contacts with Alabama and, therefore, the trial court can properly exercise personal jurisdiction over the husband. For the reasons set forth below, we deny the husband's petition.

Facts and Procedural History

The materials before us show that on September 13, 2016, the wife filed a complaint in the trial court against the husband seeking a divorce and custody of the parties' children, M.L. and K.L. ("the children"). Along with her complaint, the wife filed a motion requesting temporary relief with a supporting affidavit. The wife asserted that she and the children had been residents of Alabama for more than six months, that the husband was a resident of Virginia, that the husband had been physically abusive, that she and the children had been estranged from the husband since December 2013, and that, on August 26, 2016, the husband had abducted the children and refused to return them from Virginia.

On October 11, 2016, without the aid of counsel, the husband filed an answer to the wife's complaint. To his answer, the husband attached an unsigned, handwritten document in which he asserted that the wife and the children had not lived in Alabama for six months preceding the filing of the complaint and that the complaint should be dismissed for lack of jurisdiction. The husband also asserted that he had filed a custody petition in Virginia on September 8, 2016.

On November 7, 2016, through counsel, the husband filed an amended answer with an attached affidavit in which he asserted, among other things, that the trial court lacked personal jurisdiction over the husband because he is a resident of Virginia and that the trial court lacked personal jurisdiction over the wife and children because they are residents of Georgia. The husband also filed a motion to dismiss based on his assertion that the trial court lacked personal jurisdiction over him. On November 23, 2016, the wife filed a response to the husband's motion to dismiss, with supporting documentation, in which she asserted that the husband has sufficient minimum contacts with Alabama for personal jurisdiction to attach and that she and the children had been residents of Alabama for more than six months preceding the filing of the divorce complaint.

On January 9, 2017, the trial court entered an order in which it denied the husband's motion to dismiss, ordered the husband to respond to the wife's complaint, and ordered the husband to file a form CS-41 child-support affidavit. On February 9, 2017, the trial court entered an order requiring the husband to pay $600 per month in temporary child support and to pay one-half of the children's medical expenses not covered by insurance.

On February 17, 2017, the husband filed a petition for the writ of mandamus with this court. On March 2, 2017, the wife filed with this court a "Verified Suggestion on the Record of ARPC Rule 1.9 Conflict of Interest Between Plaintiff-Respondent and Counsel for Defendant-Petitioner," in which she asserted that she had consulted with the husband's counsel twice before retaining her current counsel. There is no indication that the wife filed a motion to disqualify the husband's counsel in the trial court, and the wife did not ask this court to disqualify the husband's counsel. This court issued an order for the husband's counsel to respond, if counsel desired, to the wife's filing of the suggestion of a conflict within seven days. The husband's counsel did not file a response. On March 8, 2017, the wife filed a verified answer to the mandamus petition in which she argued that the husband's petition should be denied.

Discussion

The primary issue asserted by the husband in support of his petition is that the trial court lacks personal jurisdiction over him and, therefore, could not order him to pay temporary child support or medical expenses. The husband asserts that the "facts demonstrate [his] lack of any contacts with the State of Alabama." Although the husband concedes that the trial court can enter an order divorcing the parties, he asserts that the trial court committed error in denying his motion to dismiss.

"The denial of a motion to dismiss for lack of jurisdiction is reviewable upon a timely filed petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ; Drummond Co. v. Alabama Dep't of Transp., 937 So.2d 56, 57 (Ala. 2006). With regard to an appellate court's consideration of a petition for a writ of mandamus, our supreme court has stated:
" 'This Court has consistently held that the writ of mandamus is an extraordinary and drastic writ and that a party seeking such a writ must meet certain criteria. We will issue the writ of mandamus only when (1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked. Ex parte Mercury Fin. Corp., 715 So.2d 196, 198 (Ala. 1997). Because mandamus is an extraordinary remedy, the standard by which this Court reviews a petition for the writ of mandamus is to determine whether the trial court has clearly abused its discretion. See Ex parte Rudolph, 515 So.2d 704, 706 (Ala. 1987).'

" Ex parte Flint Constr. Co., 775 So.2d at 808."

Ex parte Diefenbach, 64 So.3d 1091, 1093 (Ala. Civ. App. 2010).

The husband argues that the trial court cannot obtain personal jurisdiction over him through Alabama's long-arm rule, Rule 4.2(b), Ala. R. Civ. P., because, he asserts, he does not have sufficient minimum contacts with the State of Alabama. As we have previously explained,

" ' " '[i]n considering a Rule 12(b)(2), Ala. R. Civ. P., motion to dismiss for want of personal jurisdiction, a court must consider as true the allegations of the plaintiff's complaint not controverted by the defendant's affidavits, Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996), and Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829 (11th Cir. 1990), and "where the plaintiff's complaint and the defendant's affidavits conflict, the ... court must construe all reasonable inferences in favor of the plaintiff." Robinson, 74 F.3d at 255 (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) ). "For purposes of this appeal [on the issue of in personam jurisdiction] the facts as alleged by the ... plaintiff will be considered in a light most favorable to him [or her]." Duke v. Young, 496 So.2d 37, 38 (Ala. 1986).'
" ' " Ex parte McInnis, 820 So.2d [795] at 798 [ (Ala. 2001) ]." ' "

Ex parte Diefenbach, 64 So.3d at 1093-94 (quoting Ex parte Barton, 976 So.2d 438, 442-43 (Ala. 2007), quoting in turn Ex parte Puccio, 923 So.2d 1069, 1072 (Ala. 2005) ).

Pursuant to Rule 4.2(b), Ala. R. Civ. P., a trial court can exercise personal jurisdiction over a person "in any action in this state when the person ... has such contacts with this state that the prosecution of the action against the person ... in this state is not inconsistent with the constitution of this state or the Constitution of the United States." The husband submitted an affidavit to the trial court in which he stated that he is a resident of Virginia and that he has no "meaningful contact" with the State of Alabama.

As the plaintiff in the trial court, the wife had the burden of demonstrating that the trial court had personal jurisdiction over the husband. See Ex parte Diefenbach, 64 So.3d at 1098. In response to the husband's motion to dismiss, the wife submitted documentary evidence and an affidavit in which she testified that she and the husband were married in Alabama, that she lived in Alabama following the marriage while the husband was stationed in Germany, and that their children were born in Alabama. The wife submitted copies of the parties' 2012 joint federal tax return that listed the parties' address as being in Enterprise, Alabama. The wife also submitted banking documents that indicate that the husband opened bank accounts with two financial institutions located in Alabama and that he listed his address as being in Enterprise on those documents. Considering the evidence submitted by the wife in a light most favorable to her as the plaintiff, the trial court could have concluded that it had personal jurisdiction over the wife and children.

In his petition, the husband asserts that Burke v. Burke, 816 So.2d 498 (Ala. Civ. App. 2001), is "directly on point" in support of his position. The issue in Burke was whether the trial court had personal jurisdiction over the wife in that case so as to enable it to enter a divorce judgment and divide the parties' marital property; Burke did not involve an order of temporary child support. Id. at 501. The wife in Burke submitted an affidavit in which she stated that she had not transacted business, visited, or lived in Alabama. Id. We held that the trial court could enter a judgment divorcing the parties but could not divide the marital property because it lacked personal jurisdiction over the wife in that case. Id. Here, although the husband asserted that he had "no contacts" with the State of Alabama, the wife introduced undisputed evidence indicating that the parties were married in Alabama, that the wife had lived in Alabama while the parties were married and the husband was stationed overseas, that the children were born in Alabama, and that the husband had opened bank accounts in Alabama. That evidence was sufficient for the trial court to find that it had personal jurisdiction over the husband. See, e.g., Ex parte Alamo Title Co., 128 So.3d 700, 710 (Ala. 2013) ("A defendant is constitutionally amenable to a forum's specific jurisdiction if it possesses sufficient minimum contacts with the forum to satisfy due-process requirements and if the forum's exercise of jurisdiction comports with ' "traditional notions of fair play and substantial justice." ' (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945), quoting in turn Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940) ).

Because the materials before us do not establish that the husband has a clear legal right to relief with regard to his argument that the trial court lacked personal jurisdiction over him, the petition for a writ of mandamus is denied. See Ex parte Diefenbach, 64 So.3d at 1093-94.

PETITION DENIED.

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

Moore, J., concurs in the result, with writing, which Thomas, J., joins.

MOORE, Judge, concurring in the result.

I concur in the result reached by the main opinion based on Butler v. Butler, 641 So.2d 272, 273 (Ala. Civ. App. 1993) ("If one party is a resident of Alabama, then an Alabama court has jurisdiction over the marital res."), and Ala. Code 1975, § 30-3D-201(a)(3), (6), and (7).

Thomas, J., concurs.

      According to the wife's verified answer to the mandamus petition, the Virginia court dismissed the husband's custody petition after determining that Alabama was the children's home state under the Uniform Child Custody Jurisdiction and Enforcement Act.

      Although the wife does not assert that the husband waived his personal-jurisdiction argument by failing to raise it in his first pleading, we note that the husband properly amended his answer without objection. See Ex parte Mundi, 161 So.3d 241, 244 (Ala. Civ. App. 2014) (holding that wife in that case did not waive objection to improper venue because she properly amended her answer pursuant to Rule 15(a), Ala. R. Civ. P.); and Minkoff v. Abrams, 539 So.2d 306 (Ala. Civ. App. 1988). See also Rule 12(h)(1), Ala. R. Civ. P.

      It is not clear whether the wife provided the banking documents to the trial court; however, the husband has not moved this court to strike those documents.


author: MOORE, Judge.

text:
    EX PARTE Stephanie L. CARSON
    (In re Bobby J. Carson v. Stephanie L. Carson)
    2160439
    Court of Civil Appeals of Alabama.
    April 28, 2017
    Shaun L. Quinlan, Anniston, for petitioner.
    David G. Thomas, Alexander City, for respondent.
   MOORE, Judge.

Stephanie L. Carson ("the wife") petitions this court for a writ of mandamus directing the Randolph Circuit Court to vacate its order denying the wife's motion to dismiss a complaint for a divorce filed by Bobby J. Carson ("the husband") based on improper venue and to enter a judgment dismissing the complaint or transferring the action to the Calhoun Circuit Court. We deny the petition.

On January 13, 2017, the husband filed a complaint for a divorce against the wife in the Randolph Circuit Court. The husband asserted in his complaint, among other things, that the parties had been married in 2014 in Calhoun County and that they separated from each other on or about December 26, 2016, while living in Randolph County. On January 19, 2017, the wife filed a motion to dismiss the husband's complaint for a divorce. She asserted, among other things, that she is a resident of Calhoun County and had been for the six months preceding the filing of the complaint and that the parties had been residing as husband and wife in Calhoun County during the marriage. The wife argued that Randolph County was an improper venue.

On March 7, 2017, the wife filed a "verified supplemental motion to dismiss for improper venue," in which she sought a dismissal of the husband's complaint or, in the alternative, a transfer of the divorce action to the Calhoun Circuit Court. The wife attached a number of exhibits to her supplemental motion, which indicate that the parties had been married in, had conducted business in, and had resided in Calhoun County. Specifically, the wife attached to her motion the parties' marriage certificate, which was filed on September 24, 2016, in the Calhoun Probate Court and lists the husband's address in Calhoun County; the Articles of Organization and a certificate of formation of a limited-liability company ("LLC") created by the parties, which lists a principal address of the LLC and an address of the parties in Calhoun County; bank statements for the LLC, which include a mailing address in Calhoun County; business licenses issued to the husband for the LLC, which include the LLC's address in Calhoun County; a copy of a blank check from the LLC indicating its address as being in Calhoun County; and other documents related to the LLC listing its address in Calhoun County. The wife also submitted as an exhibit a copy of the enrollment in Weaver High School, which is in Calhoun County, for her daughter from a previous marriage during the 2016-2017 school year. The wife asserted that she has sole physical custody of her daughter. The wife admitted that the husband maintains a piece of real property in Randolph County; she stated, however, that that property was used by the parties for holidays and weekend visits and that it was not considered the residence of either party. The wife asserted that she had been registered to vote in Calhoun County since 2010 and that her driver's license reflects a Calhoun County address. Finally, the wife submitted the affidavit of Lori Pettus, who stated, among other things, that the parties had lived in a house in Calhoun County adjacent to Pettus's home since they were married in 2014. The wife stated in her verified motion that the parties were in Randolph County at a piece of real property owned by the husband for the 2016 Christmas holiday when the parties separated, but, she asserted, neither party resided at that address in Randolph County.

The husband filed an affidavit in opposition to the wife's supplemental motion to dismiss on March 10, 2017. In his affidavit, the husband stated, among other things, that he lived at an address in Randolph County; that he and the wife had had marital problems during the last several years leading up to the filing of the complaint for a divorce and had separated a few times; that, during the marriage, they had lived in both Calhoun County and Randolph County; that the clothes and personal belongings of both parties were located in Randolph County, where, he asserted, the parties had been living in December 2016; and that he considered Randolph County to be his county of residence. The husband also stated in his affidavit that he is in the bail-bonding business, that most of his bonding work is in Calhoun County, and that he had used the parties' Calhoun County address "for convenience purposes."

On March 14, 2017, the trial court entered an order denying the wife's motion, noting that counsel for the parties had presented oral arguments and had made other submissions at a hearing on the motion, which had been conducted on March 13, 2017.

" ' "A writ of mandamus is an extraordinary remedy that is available when a trial court has exceeded its discretion. Ex parte Fidelity Bank, 893 So.2d 1116, 1119 (Ala. 2004). A writ of mandamus is 'appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001)." ' "

Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005) ). "A petition for the writ of mandamus is an appropriate means by which to challenge a trial court's order refusing to transfer a case based on improper venue." Ex parte Addiction & Mental Health Servs., Inc., 948 So.2d 533, 534 (Ala. 2006).

Section 30-2-4, Ala. Code 1975, provides:

"Complaints for divorce may be filed in the circuit court of the county in which the defendant resides, or in the circuit court of the county in which the parties resided when the separation occurred, or if the defendant is a nonresident, then in the circuit court of the county in which the other party to the marriage resides."

The wife cites Ex parte Watkins, 555 So.2d 1098, 1099 (Ala. Civ. App. 1989), for the proposition that "[v]enue, in a divorce action, lies in the county where the parties resided at the time of the separation, not in the county where the separation occurred." This court also observed in Watkins that "[t]he question of whether to transfer a case because of venue addresses itself to the sound discretion of the trial court, and any abuse of that discretion may be controlled by the writ of mandamus." Id. The wife cites Norton v. Norton, 48 Ala.App. 663, 267 So.2d 457 (Civ. App. 1972), in support of her assertion that this court has observed that conducting business in a particular county is a strong indicator of residence. In Norton, this court considered, among other evidence, that the former husband in that case had a post office box in the county in which the former wife had alleged the former husband was living at the time of the separation. 48 Ala.App. at 666, 267 So.2d at 459. This court observed that there was evidence before the trial court that, at the time of their separation, the parties to the proceeding were residing in the county asserted by the former wife and that there was no evidence before the court indicating that the parties did not intend to make that county, where the parties had moved shortly before the divorce action was initiated, their permanent residence. Id.

Unlike in Norton, there is evidence in the present case indicating that both parties resided in Randolph County at the time the parties separated. Although conflicting evidence was presented by the parties, because evidence was submitted that supports the trial court's judgment, we cannot conclude that the trial court abused its discretion in denying the wife's motion to change venue or to dismiss the case for improper venue. Moreover, we note that the trial court indicated in its order denying the wife's motion that it had considered "other submissions" that had been made at the hearing on the wife's motion, in addition to oral argument by the parties' attorneys. The wife has failed to include a transcript of the hearing or to identify what "other submissions" were available to the trial court at that hearing. Thus, the wife has failed to establish a clear legal right to the relief sought in her petition. See, e.g., Ex parte Lowengart, 59 So.3d 673, 679 (Ala. 2010) (indicating that, when a transcript of the hearing on the motion to dismiss and other discovery and motions were not before this court, the petitioner had not made a showing that he had a clear legal right to the relief sought in his petition for a writ of mandamus).

Because the wife has failed to show a clear legal right to the relief sought, we deny her petition for a writ of mandamus.

PETITION DENIED.

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


author: THOMPSON, Presiding Judge.

text:
    Nancy Ann DAVIS v. John H. DAVIS
    2150657
    Court of Civil Appeals of Alabama.
    May 5, 2017
    B. Diane Paris of Dauphin Paris LLC, Vestavia Hills, for appellant.
    Submitted on appellant's brief only.
   THOMPSON, Presiding Judge.

Nancy Ann Davis ("the wife") appeals from the judgment of the Wilcox Circuit Court ("the trial court") divorcing her from John H. Davis ("the husband"). In the judgment, the trial court divided the parties' marital property and stated that it "expressly resolve[d] the periodic alimony issue by the division of property" it made.

The testimony in the record is often confusing and difficult to follow. The testimony was interrupted on numerous occasions as the attorneys for the parties quarreled and had to be admonished by the trial court. The trial transcript shows that the behavior of the attorneys, especially the husband's attorney, unnecessarily prolonged the trial to the point that the wife had very little time in which to present her case.

That being said, the record indicates the following facts relevant to the issues on appeal. The husband and the wife were married in 1958. At the time of the marriage, the husband, a college graduate who was teaching school, was 39 years old. The wife was 14 years old and was pregnant with the husband's child. The wife did not finish school; however, she earned a General Education Diploma, often called a GED. During the course of the marriage, the record indicates, the wife had at least six children. At the time of the trial, the husband and the wife were 97 and 71 years of age, respectively. The husband was in poor health and was undergoing treatment for cancer at the time of the trial. He could not see well and might even have been blind. The husband was living with one of the parties' daughters, who had taken him in to live with her after he was released from the hospital. The daughter's house was closer to where the husband was to receive cancer treatment than was the marital residence. The wife acknowledged that she did not attend the treatment sessions with the husband, but, she said, she was not made aware of them in time to attend.

The husband testified that he filed the divorce complaint while he was living away from the wife. He added that she had wanted a divorce for 40 years or since 1980. He also said that the wife and he had slept in separate bedrooms for approximately 30 years and that she had locked him out of her room.

The husband represented to the court that the wife had tried to shoot him but had failed to release the safety on the gun. A pastor who testified that he was present during the incident corroborated the husband's testimony. The wife denied having tried to kill the husband. She testified that he had been controlling throughout the marriage.

The husband testified that he would not "allow" the wife to work during the first 15 to 20 years of the marriage. The wife confirmed that the husband would not allow her to work. However, she said, in 1976 she began working as a school-bus driver for a private school. In 1978, the wife was hired by the Wilcox County school system to drive a school bus, and she held that job until her retirement in May 2006. Evidence showed that, at the time of the trial, the wife received $781.30 each month from her state retirement account and $620.90 in Social Security income, for a total monthly income of $1,402.20. From that amount, however, $104.90 was deducted for Medicare premiums, leaving the wife with a monthly income of $1,297.30.

The husband worked as a public-school teacher in St. Clair County for at least 40 years. He testified that he became a pastor after he retired from teaching, and he also farmed. The husband's retirement income included his teacher's pension of $921.03 each month and Social Security income of $1,149.50 each month, for a total monthly income of $2,070.53. From that amount, the husband also had a deduction of $104.90 for Medicare premiums, as well as expenses in the amount of $48 for an additional health-insurance premium and $9.34 for Alabama Education Association dues, leaving the husband with a monthly income of $1,908.29.

During the marriage, the parties purchased two parcels of property in Marengo County. According to the husband's attorney, one of those parcels is the site of an "old fallen-down" funeral home. The trial court expressed a concern that, because of the chemicals used at the site when the funeral home was operational, "it may be more of a liability than what it is worth." The other property in Marengo County is a four-acre parcel that has two "trailers" on it. The wife testified that she did not wish to be awarded either of the parcels of real property in Marengo County. Evidence indicated that the combined value of those two parcels of real property according to 2012 tax assessments was $3,200.

During the marriage, the parties also acquired the marital residence in Camden, located in Wilcox County. The wife testified that the house was in disrepair to the point that she could not obtain insurance on the structure. One of the parties' children also testified that the home was in poor repair and required a lot of work. There is no indebtedness on the house, but neither party provided evidence as to the value of the house.

The property that is the primary subject of the appeal in this case is a 40-acre tract of property ("the farm") that is now timberland. The husband testified that he and his mother purchased the farm in 1940 and put it in his brother Eugene's name. The husband said that, years later, Eugene failed to pay the taxes on the farm and lost that land. It is unclear from the record exactly when Eugene lost the farm. However, the husband said that "years later"-in the 1970s-he purchased the farm "through a contract." The deed to the farm was in the husband's name only. The 2012 tax assessment for the farm appraised it at $40,400.

The husband testified that, initially, he grew okra and corn, among other things, and said that he raised animals on the farm until about 1954. However, he also testified that he raised animals on the farm during the marriage. We note that the wife and the husband did not marry until 1958. The husband also said that the wife never helped him farm the land, adding that he "didn't allow her to work." Again, the testimony is confusing, because the husband also said that he did not farm the land while he was married to the wife. One of the parties' children, John Netta Ngirailab, testified that she helped raise crops on the farm and that the crops were sold and the money was given to the husband. Ngirailab said that that money "was my father's [i.e., the husband's] income."

The husband said that, during the marriage, he "had turned [the farm] over to tree planting." At the time of the trial, the husband said, he used the farm as timberland and leased it for hunting. He said that he had cut about $50,000 worth of timber from the farm and gave the money to his siblings. The last time he cut timber, he said, was about six or seven years before the trial, when he harvested about $6,000 worth of timber. From that harvest, he said, he gave $2,000 each to his two surviving siblings. None of the husband's siblings was living at the time of the trial. The husband testified that he wanted to keep the farm in the family. He said that, in his mind, he had already given the farm to the parties' children.

The wife also sold about $6,000 worth of timber after the husband had left the marital residence, without the permission of the husband. She testified that she had given the money to the parties' children. The husband testified that it was "fine with [him]" that the wife had cut the timber and given the money to the children, but that he wanted someone "to go right, come and tell Daddy." Ngirailab testified that, after the husband was released from the hospital, the parties' children had begun to renovate the marital residence to enable the husband to use a wheelchair in it, but the husband did not return to the marital residence. She said that the money the wife gave the children was to reimburse them for the money they had spent on the renovations.

After the trial, the trial court entered a judgment divorcing the parties and dividing the marital property. The wife was awarded the marital residence and the two parcels of real property valued at a total of $3,200. The husband was awarded the farm. Each party received his or her own retirement account or pension, the personal property in his or her respective possession, and any financial accounts held in his or her own name. The husband was also awarded a savings account. As mentioned, the trial court stated in the judgment that it "expressly resolve[d] the periodic alimony issue by the division of property."

The wife filed a motion to alter, amend, or vacate the judgment, arguing, among other things, that the division of marital property was inequitable. The trial court held a hearing on the motion, which was just as contentious between the attorneys as was the trial. At the hearing, the wife argued that the only property that had "any real value" was the farm that had the standing timber.

The primary issue at the hearing on the postjudgment motion revolved around what evidence from the trial demonstrated that the farm was a marital asset subject to division. The trial court asked what testimony had been presented indicating that the wife had worked on the farm, adding: "[W]hat I recall was all of this was some part of some family property that [the husband] had from his side of the family, and I don't recall that being used as a marital asset." The wife's attorney pointed out that the farm had "previously [been] family property that was purchased by the parties during the course of the marriage." The trial court agreed with that statement. The trial judge also stated that he recalled "giving [the wife] all of the property that the parties used together as marital property" and stated that he "thought [he] was giving her income-producing property." However, the trial court made clear that it would look at whether the parties used the farm as some kind of marital asset. The trial court also expressed concern that the husband have sufficient money to obtain his cancer treatment. At the hearing, the trial judge stated that the husband's

"condition is such that he just didn't have anything left over after he takes care of his medical expenses. And, so, I can't allow the man to die. ... That's the way I saw it, now, and that's the way I'm calling it, and I'm not going to change that. But I don't mind trying to be sure the wife is compensated right, so she could move on based on that long-term marriage."

The wife's postjudgment motion was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The wife filed a timely notice of appeal. The husband did not favor this court with an appellate brief.

On appeal, the wife contends that the trial court abused its discretion in dividing the marital property. She asserts that, by awarding the husband the only income-producing property, the division of marital assets was inequitable. Our standard of review as to this issue is well settled.

" ' " 'A trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993). Moreover, issues of alimony and property division must be considered together, and the trial court's judgment will not be disturbed absent a finding that it is unsupported by the evidence so as to amount to an abuse of discretion. Id.'
" ' " Morgan v. Morgan, 686 So.2d 308, 310 (Ala. Civ. App. 1996)....
" ' " 'The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties' property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala. Civ. App. 1989). Its judgment is presumed correct and will not be reversed unless it is so unsupported by the evidence ... as to be unjust and palpably wrong. Grimsley, 545 So.2d at 76. However, that judgment is subject to review and revision. Moody v. Moody, 641 So.2d 818, 820 (Ala. Civ. App. 1994). This Court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala. Civ. App. 1996), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala. Civ. App. 1993).'
" ' " Bushnell v. Bushnell, 713 So.2d 962, 964-65 (Ala. Civ. App. 1997)." '
" Ex parte Foley, 864 So.2d 1094, 1097 (Ala. 2003) (quoting Ex parte Drummond, 785 So.2d 358, 360-61 (Ala. 2000) )."

Ex parte Moore, 873 So.2d 1161, 1165-66 (Ala. 2003).

"When determining a party's need for alimony and dividing marital property, the trial court should consider factors such as ' "the length of the marriage, the age and health of the parties, the future employment prospects of the parties, the source, value, and type of property owned, and the standard of living to which the parties have become accustomed during the marriage." ' Ex parte Elliott, 782 So.2d 308, 311 (Ala. 2000) (quoting Nowell v. Nowell, 474 So.2d 1128, 1129 (Ala. Civ. App. 1985) ) (footnote omitted). Furthermore, ' "[e]ven where the parties are divorced on the grounds of incompatibility, the conduct of the parties and fault with regard to the breakdown of the marriage are factors for the trial court to consider in fashioning its property division." ' Ex parte Drummond, 785 So.2d 358, 363 (Ala. 2000) (quoting Myrick v. Myrick, 714 So.2d 311, 315 (Ala. Civ. App. 1998) )."

Culver v. Culver, 199 So.3d 772, 777 (Ala. Civ. App. 2016).

In this case, the evidence indicated that, from their respective retirement accounts and Social Security benefits, the wife had a monthly income of $1,297.30 after deductions and the husband had a monthly income of $1,908.29 after deductions. The record demonstrates that the wife was awarded cash assets of approximately $150. The husband was awarded financial accounts worth approximately $13,180 at the time of the trial. Aside from their own retirement accounts, personal accounts, and personal property-the value of which we cannot discern from the record on appeal-the parties' undisputed assets included the marital residence, which was awarded to the wife, and the two smaller parcels of property worth a combined $3,200, which were also awarded to the wife. The evidence indicated that the marital residence was in poor condition. The trial court noted that the parcel that was the site of an old funeral home might be more of a liability than it is worth because of the presence of chemicals, but there was no evidence presented to that effect. Therefore, we do not consider the prior use of that parcel when reviewing the equity of the division of marital property.

Based on the comments made during the hearing on the wife's motion to alter, amend, or vacate, and the trial court's decision not to grant that motion, it appears that the trial court determined that the farm was part of the husband's separate estate and not a marital asset. The farm has a value of $40,400, and it is able to produce income periodically from the harvest and sale of timber. Thus, if the farm is marital property, it would be the parties' most valuable marital asset.

The wife argues that the farm is a marital asset and that, in denying her any portion of the farm, the trial court crafted an inequitable division of property, considering the length of the marriage, the parties' respective ages, and the likelihood that neither party will be able to earn an income from future employment. The wife recognizes the need for the husband to be able to purchase medicine, and she does not challenge any aspect of the property division other than the disposition of the farm.

"A party's ' "separate estate" is that property over which [he or] she exercises exclusive control and from which the [spouse] ... derives no benefit by reason of the marital relationship.' Gartman v. Gartman, 376 So.2d 711, 713 (Ala. Civ. App. 1978). The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage. § 30-2-51(a), Ala. Code 1975. Although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during their marriage. See § 30-2-51(a), Ala. Code 1975."

Nichols v. Nichols, 824 So.2d 797, 802 (Ala. Civ. App. 2001). See also Meek v. Meek, 83 So.3d 541, 555 (Ala. Civ. App. 2011) (same). In Kaufman v. Kaufman, 934 So.2d 1073, 1080 (Ala. Civ. App. 2005), this court held that assets that were accumulated during the marriage, and that were not received by gift or by inheritance, were marital assets subject to property division. Similarly, in Durbin v. Durbin, 818 So.2d 396, 401 (Ala. Civ. App. 2000), overruled on other grounds, Ex parte Durbin, 818 So.2d 404 (Ala. 2001), this court held that even though income from certain stock was not used for the common benefit of the marriage, the stock itself was acquired during the marriage and was, therefore, marital property.

Although at trial the husband appeared to argue that the farm was part of his separate estate because the farm had once been the property of his family before the marriage, the evidence is undisputed that the family lost the farm because the taxes had not been paid on it. The evidence is also undisputed that, when the husband bought the farm "through a contract" in the 1970s, he was married to the wife. He did not receive the farm by means of an inheritance or as a gift. Additionally, evidence indicates that, during the marriage the husband had income from both the sale of crops and the sale of timber that had been harvested from the farm. One of the parties' daughters, who was born during the marriage, testified that the money earned from the sale of crops was at least part of the husband's income. Furthermore, even though the husband gave some of the timber proceeds to his siblings, he also appears to have retained a share of the proceeds. Although there is no evidence in the record to show whether those proceeds were used for the benefit of the marriage, there is no question that the farm was acquired during the marriage. Thus, the farm was a marital asset subject to division. Kaufman, supra, and Durbin, supra.

Based on the record before us, we conclude that the trial court's apparent conclusion that the farm was part of the husband's separate estate is not supported by the evidence. Accordingly, the judgment dividing the marital property is due to be reversed.

In reversing the judgment, we are not determining whether the trial court must award the farm or any portion of the farm to the wife. Instead, the trial court is directed to reconsider its division of marital assets in light of our holding that the farm is marital property.

Because we are reversing the judgment of the trial court, we pretermit discussion of the wife's other issue on appeal-that is, whether the trial court committed reversible error in having what she said was an ex parte communication with the husband's attorney before entering the judgment in this case.

For the reasons set forth above, the judgment is reversed and the cause is remanded to the trial court for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      The divorce complaint was filed on October 18, 2013. The wife filed a counterclaim for a divorce on June 5, 2014.


author: BURKE, Judge.

text:
    David Lee SANDERS v. STATE of Alabama
    CR-15-1046
    Court of Criminal Appeals of Alabama.
    December 16, 2016
    Barbara Agricola McCormick, Opelika, for appellant.
    Luther Strange, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   BURKE, Judge.

David Lee Sanders appeals the revocation of his probation imposed pursuant to his 2011 guilty-plea conviction for first-degree rape and his sentence of 20 years, which was split, and Sanders was ordered to serve 5 years followed by 5 years' supervised probation. A probation-violation report was filed, alleging that Sanders had violated the terms of his probation by failing to report a change of address, and failing to pay supervision fees.

Although Sanders challenges on appeal the revocation of his probation, the record reveals that Sanders may have been illegally sentenced. The State's response to Sanders's motion to reconsider the probation revocation indicates that Sanders was indicted for first-degree rape and first-degree sodomy of C.J.S., "a six-year-old relative." (C. 34.) This response states that, pursuant to a plea bargain, Sanders pleaded guilty to the first-degree-rape charge and was sentenced to 20 years; that sentence was split, and he was ordered to serve 5 years followed by 5 years' probation. Neither the plea bargain nor any further information concerning Sanders's conviction is included in the record. Moreover, Sanders apparently did not appeal his guilty-plea conviction.

In Enfinger v. State, 123 So.3d 535, 537 (Ala. Crim. App. 2012), this Court stated:

"Initially, we note that, although the legality of Enfinger's sentence was not first argued in the circuit court, we have held that when the circuit court does not have the authority to split a sentence under the Split-Sentence Act, § 15-18-8, Ala. Code 1975, 'the manner in which the [circuit] court split the sentence is illegal[,]' Austin v. State, 864 So.2d 1115, 1118 (Ala. Crim. App. 2003), and that '[m]atters concerning unauthorized sentences are jurisdictional.' Hunt v. State, 659 So.2d 998, 999 (Ala. Crim. App. 1994). Thus, this Court may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala. Crim. App. 1999).
"....
" Section 15-18-8(a), Ala. Code 1975, specifically exempts from the Split-Sentence Act those offenders who have been convicted of 'a criminal sex offense involving a child as defined in Section 15-20-21(5).' Section 15-20-21(5), Ala. Code 1975, defines 'criminal sex offense involving a child' as '[a] conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.' Additionally, § 15-18-8(b), Ala. Code 1975, specifically precludes the circuit court from imposing a term of probation for offenders convicted of 'a criminal sex offense involving a child as defined in Section 15-20-21(5), which constitutes a Class A or B felony.' Thus, the circuit court did not have the authority to either impose a split sentence or to impose a term of probation. See § 15-18-8(a) and (b), Ala. Code 1975. Therefore, the 'execution of [Enfinger's] sentence is illegal.' Simmons v. State, 879 So.2d 1218, 1222 (Ala. Crim. App. 2003)."

123 So.3d at 537. The Enfinger Court addressed a factual situation "where the circuit court impose[d] a split sentence and a term of probation under the Split-Sentence Act when it had no authority to do so and later conduct[ed] a probation-revocation hearing at which it revoke[d] a defendant's probationary term and order[d] that the defendant serve the remainder of his underlying sentence in prison." 123 So.3d at 538. This Court reversed the circuit court's judgment, finding that the revocation was void, and remanding the case to the circuit court to resentence Enfinger accordingly.

Pursuant to Enfinger, because the nature of Sanders's guilty-plea conviction may exempt him from application of the Split-Sentence Act, the circuit court may have had no authority to apply the Split-Sentence Act to him and no authority to impose a term of probation on Sanders. See § 15-18-8(a) and (b), Ala. Code 1975. If Sanders was convicted of the rape of a child under 12 years of age, the court further had no authority to conduct a probation-revocation hearing and revoke Sanders's probation under § 15-18-8(c), Ala. Code 1975. If the circuit court had no authority to impose a term of probation or to revoke that probation, the circuit court's order revoking Sanders's probation would be void. See also Hicks v. State, 138 So.3d 338, 342 (Ala. Crim. App. 2013) ("Because the circuit court did not have the authority to sentence Hicks to the split sentences or to impose terms of probation, the circuit court did not have authority to revoke Hicks's probation; thus, its order revoking Hicks's probation is void.").

This case is therefore due to be remanded for the circuit court to determine if Sanders was convicted of the rape of a child under the age of 12. If so, Sanders is due to be resentenced. Because his 20-year sentence was valid, the circuit court may not change it. Enfinger, 123 So.3d at 538. Thus, if the court determines that Sanders was convicted of the rape of a child under the age of 12, the circuit court must conduct another sentencing hearing and vacate that portion of its judgment splitting Sanders's sentence.

Additionally, we note that the record indicates that Sanders was convicted as the result of a plea bargain; however, the record is unclear as to whether the sentence was part of the plea bargain. "Thus, 'it is impossible for this Court to determine whether resentencing [Sanders] will affect the voluntariness of his plea.' Austin [v. State], 864 So.2d [1115] at 1119 [ (Ala. Crim. App. 2003) ]. If [Sanders is due to be resentenced and] the split sentence was a term of [Sanders's] 'plea bargain,' and, if he moves to withdraw his guilty plea, the circuit court should conduct a hearing to determine whether withdrawal of the plea is necessary to correct a manifest injustice. See Rule 14.4(e), Ala. R. Crim. P." Enfinger, 123 So.3d at 539. See also Hicks v. State, 138 So.3d at 342 ("[T]he record is unclear whether Hicks's sentences were the result of a plea agreement. Thus, this Court is unable to determine whether resentencing Hicks will affect the voluntariness of his pleas. If the split sentences were the result of any plea agreements and, if Hicks moves to withdraw his guilty pleas, the circuit court should conduct a hearing to determine whether withdrawal of the pleas is necessary to correct a manifest injustice.").

This case is remanded to the circuit court for proceedings consistent with this opinion. Due return, including findings of fact and, if Sanders is resentenced, a transcript of the proceedings conducted on remand, shall be made to this Court within 42 days of the date of this opinion.

REMANDED WITH INSTRUCTIONS.

Windom, P.J., and Welch and Joiner, JJ., concur. Kellum, J., not sitting.

      See also Simons v. State, 217 So.3d 16, 22 (Ala. Crim. App. 2016) (" ' "[A]n allegedly illegal sentence may be challenged at any time, because if the sentence is illegal, the sentence exceeds the jurisdiction of the trial court and is void." ' Mosley v. State, 986 So.2d 476, 477 (Ala. Crim. App. 2007) (quoting Rogers v. State, 728 So.2d 690, 691 (Ala. Crim. App. 1998) ).").

      First-degree rape is defined by § 13A-6-61(a)(3), Ala. Code 1975, as follows: "A person commits the crime of rape in the first degree if [h]e or she, being 16 years or older, engages in sexual intercourse with a member of the opposite sex who is less than 12 years old." Rape in the first degree is a Class A felony.

      Note from the reporter of decisions: On April 20, 2017, on return to remand, the Court of Criminal Appeals remanded the case by order. On June 28, 2017, on return to second remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


text:
    Daniel Jon PETERKA, Appellant, v. STATE of Florida, Appellee.
    Daniel Jon Peterka, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC17-593 No. SC17-1003
    Supreme Court of Florida.
    [January 22, 2018]
    Linda McDermott of McClain and McDermott, Estero, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee/Respondent
   PER CURIAM.

Daniel Jon Peterka appeals the circuit court's order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

Peterka seeks relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Peterka's appeal and consideration of his habeas petition pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Peterka responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in both cases.

After reviewing Peterka's response to the order to show cause, as well as the State's arguments in reply, we conclude that Peterka is not entitled to relief. Peterka was sentenced to death following a jury's recommendation for death by a vote of eight to four. Peterka v. State, 640 So.2d 59, 65 (Fla. 1994). Peterka's sentence of death became final in 1995. Peterka v. Florida, 513 U.S. 1129, 115 S.Ct. 940, 130 L.Ed.2d 884 (1995). Thus, Hurst does not apply retroactively to Peterka's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Peterka's motion and deny his petition for a writ of habeas corpus.

The Court having carefully considered all arguments raised by Peterka, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    James D. FORD, Appellant, v. STATE of Florida, Appellee.
    James D. Ford, Petitioner, v. Julie L. Jones, etc., Respondent.
    No. SC17-859 No. SC16-706
    Supreme Court of Florida.
    [January 23, 2018]
    Martin J. McClain of McClain & McDermott, Florida, for Appellant/Petitioner
    Pamela Jo Bondi, Attorney General, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee/Respondent
   PER CURIAM.

James D. Ford appeals the circuit court's order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.851 and petitions this Court for a writ of habeas corpus. We have jurisdiction. See art. V, § 3(b)(1), (9), Fla. Const.

Ford seeks relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Ford's appeal and consideration of his habeas petition pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Ford responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in both cases.

After reviewing Ford's response to the order to show cause, as well as the State's arguments in reply, we conclude that Ford is not entitled to relief. Ford's jury found him guilty of two counts of first-degree murder and recommended a sentence of death for both murders by a vote of eleven to one. Ford v. State, 802 So.2d 1121, 1126 (Fla. 2001). Following the jury's recommendations, the trial court sentenced Ford to death on both counts. Id. Ford's sentences of death became final on May 28, 2002. Ford v. Florida, 535 U.S. 1103, 122 S.Ct. 2308, 152 L.Ed.2d 1063 (2002). Thus, Hurst does not apply retroactively to Ford's sentences of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Ford's motion and deny his petition for a writ of habeas corpus.

The Court having carefully considered all arguments raised by Ford, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Etheria Verdell JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. SC17-703
    Supreme Court of Florida.
    [January 24, 2018]
    James Viggiano, Jr., Capital Collateral Regional Counsel, Maria E. DeLiberato, Julissa Fontán, and Chelsea Ray Shirley, Assistant Capital Collateral Regional Counsel, Middle Region, Temple Terrace, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Etheria Verdell Jackson's appeal of the circuit court's order denying Jackson's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Jackson's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Jackson's appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Jackson responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Jackson's response to the order to show cause, as well as the State's arguments in reply, we conclude that Jackson is not entitled to relief. Jackson was sentenced to death following a jury's recommendation for death by a vote of seven to five. Jackson v. State, 530 So.2d 269, 271 (Fla. 1988). His sentence of death became final in 1989. Jackson v. Florida, 488 U.S. 1050, 109 S.Ct. 882, 102 L.Ed.2d 1005 (1989). Thus, Hurst does not apply retroactively to Jackson's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Jackson's motion.

The Court having carefully considered all arguments raised by Jackson, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Gregory Alan KOKAL, Appellant, v. STATE of Florida, Appellee.
    No. SC17-807
    Supreme Court of Florida.
    [January 24, 2018]
    Linda McDermott of McClain and McDermott, Wilton Manners, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Jennifer Ann Donahue, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Gregory Alan Kokal's appeal of the circuit court's order denying Kokal's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Kokal's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Kokal's appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Kokal responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Kokal's response to the order to show cause, as well as the State's arguments in reply, we conclude that Kokal is not entitled to relief. Kokal was sentenced to death following a jury's unanimous recommendation for death, and his sentence of death became final in 1986. Kokal v. State, 492 So.2d 1317, 1319 (Fla. 1986). Thus, Hurst does not apply retroactively to Kokal's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Kokal's motion.

The Court having carefully considered all arguments raised by Kokal, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Kenneth HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. SC17-899
    Supreme Court of Florida.
    [January 26, 2018]
    Linda McDermott of McClain and McDermott, Estero, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, and Lisa Hopkins, Assistant Attorney General, Tallahassee, Florida, for Appellee
   PER CURIAM.

We have for review Kenneth Hartley's appeal of the circuit court's order denying Hartley's motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Hartley's motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Hartley's appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Hartley responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Hartley's response to the order to show cause, as well as the State's arguments in reply, we conclude that Hartley is not entitled to relief. Hartley was sentenced to death following a jury's recommendation for death by a vote of nine to three. Hartley v. State, 686 So.2d 1316, 1319 (Fla. 1996). Hartley's sentence of death became final in 1997. Hartley v. Florida, 522 U.S. 825, 118 S.Ct. 86, 139 L.Ed.2d 43 (1997). Thus, Hurst does not apply retroactively to Hartley's sentence of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Hartley's motion.

The Court having carefully considered all arguments raised by Hartley, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.


text:
    Brandy Bain JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. SC17-938
    Supreme Court of Florida.
    [January 29, 2018]
    Neal Dupree, Capital Collateral Regional Counsel, Bri Lacy, Staff Attorney, and Paul Kalil, Assistant Capital Collateral Regional Counsel, Southern Region, Ft. Lauderdale, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Christina Z. Pacheco, Assistant Attorney General, Tampa, Florida, for Appellee
   PER CURIAM.

We have for review Brandy Bain Jennings' appeal of the circuit court's order denying Jennings' motion filed pursuant to Florida Rule of Criminal Procedure 3.851. This Court has jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Jennings' motion sought relief pursuant to the United States Supreme Court's decision in Hurst v. Florida, --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), and our decision on remand in Hurst v. State (Hurst ), 202 So.3d 40 (Fla. 2016), cert. denied, --- U.S. ----, 137 S.Ct. 2161, 198 L.Ed.2d 246 (2017). This Court stayed Jennings' appeal pending the disposition of Hitchcock v. State, 226 So.3d 216 (Fla. 2017), --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). After this Court decided Hitchcock, Jennings responded to this Court's order to show cause arguing why Hitchcock should not be dispositive in this case.

After reviewing Jennings' response to the order to show cause, as well as the State's arguments in reply, we conclude that Jennings is not entitled to relief. A jury convicted Jennings of three counts of first-degree murder and recommended a death sentence for each murder by a vote of ten to two. Jennings v. State, 718 So.2d 144, 147 (Fla. 1998). Following the jury's recommendations, the trial court sentenced Jennings to death on all three counts of murder. Id. Jennings' sentences of death became final in 1999. Jennings v. Florida, 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999). Thus, Hurst does not apply retroactively to Jennings' sentences of death. See Hitchcock, 226 So.3d at 217. Accordingly, we affirm the denial of Jennings' motion.

The Court having carefully considered all arguments raised by Jennings, we caution that any rehearing motion containing reargument will be stricken. It is so ordered.

LABARGA, C.J., and QUINCE, POLSTON, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result with an opinion.

LEWIS and CANADY, JJ., concur in result.

PARIENTE, J., concurring in result.

I concur in result because I recognize that this Court's opinion in Hitchcock v. State, 226 So.3d 216 (Fla. 2017), cert. denied, --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017), is now final. However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock.