author: THOMPSON, Presiding Judge.

text:
    Darren Randall COOK v. Sheryl Lindenmuth Cook SIZEMORE.
    2150158.
    Court of Civil Appeals of Alabama.
    June 17, 2016.

      Bryant F. Williams, Jr., Ozark, for appellant.
    Charles N. Reese of Reese & Reese Attorneys, Daleville, for appellee.
   THOMPSON, Presiding Judge.

Darren Randall Cook (“the father”) appeals from a judgment of the Geneva Circuit Court (“the trial court”) denying his petition to modify his child-support obligation and reinstating his obligation to pay the child support, which had been stayed by an order of the trial court effective November 1, 2014.

The father filed a petition seeking a reduction of his child-support obligation on November 1, 2013. The record in this modification action indicates the following. The father and Sheryl Lindenmuth Cook Sizemore (“the mother”) were divorced by a judgment of the trial court entered on July 18, 2001. The parties’ only child was three years old at that time. In the divorce judgment, which incorporated an agreement of the parties, the father was ordered to pay $923 a month in child support. The judgment explicitly stated that the child-support award had been determined pursuant to the guidelines set forth in Rule 32, Ala. R. Jud. Admin. At the time of the parties’ divorce, the father’s gross monthly income was $5,833; the mother’s gross monthly income was $1,213.

When the divorce judgment was entered, the father was employed as the manager for Ready Mix Concrete Company (“RMC”), earning an annual income of approximately $73,000. At the hearing on his petition to modify, the father testified that RMC went out of business and that, thereafter, he began his own trucking business hauling cement for companies. After Hurricane Katrina struck the gulf coast in 2005, however, the trucking business declined, the father said. He testified that he was able to prevent his business from having to declare bankruptcy. The father said that he sold his trucking equipment to another man and then went to work for that man earning $50,000 annually. The father testified that he worked for that business for about .three years; however, the father said, that business had financial trouble and, eventually, ■ he lost that job. The father testified that that occurred approximately seven years before the modification hearing, which would . have been 2008.

The father testified that he had managed up to 40 or 50 people in the concrete business. He also said that he had managed heavy equipment and had been required to do tasks like allocate fuel and other tasks. The father testified that, after he was laid off he “made a few phone calls” to people in the cement-trucking industry in an attempt to obtain a new job. He said that there were not many businesses engaged in the industry and that it did not take him long to exhaust the job possibilities. Because of the economy, the father said, those businesses were not hiring and he was unable to find employment. By that time, the father had remarried, and, he said, his wife and his mother financially supported him for a time.

At the September 28, 2015, modification hearing, the father testified that he was managing a liquor store in Mississippi, where he lived with his wife and them child. The liquor store is owned by a limited-liability company (“the LLC”) of which the father’s wife is the sole member. The father explained that the LLC had borrowed $300,000 from his mother, but, he said, he did not have an ownership interest in the liquor store.

The father testified that he began managing the liquor store before it opened in December 2012. At the time of the hearing, the father supervised the four other employees of the liquor store. Under cross-examination, 'the father acknowledged that, pursuant to Mississippi law, he cannot be a management employee because of his unspecified “tax problems.” Therefore, instead of being a manager, the father said, he was a “retail salesperson supervisor.” The father testified that, as the supervisor, he works 60 to 70 hours each week and that his wages from the liquor store were $21,915 in 2013. He stated that his income from the store had not fluctuated since that time. A pay stub the father had produced during discovery that was discussed during the hearing indicated that the father earned $480.77 each week. The father said that he was paid 52 weeks a year, which would give him an annual income of $25,000.04.

The father, who holds a “four-year college degree” in law enforcement, said that he did not have an income from any other source. He testified that, other than the cement-trucking industry, he did not believe that, in his geographic area, he could find a job earning more money than he did at the liquor store. The father testified that he had no other assets from which to pay child support. He testified that his wife owned the house they lived in and that he was not named on the promissory note for the house, although he was named on the mortgage. The father acknowledged that he had never filed an application with the Mississippi Office of Unemployment or submitted resumes to any person or company. He also stated that, since filing his modification petition, he had not looked for any other employment. In response to a question regarding whether he had looked for any other job, the father replied, “I’m employed. No. I like what I do.”

The parties’ child, who was 17 years old at the time of the modification hearing, testified that he was in his senior year of high school. He said that he was involved in extracurricular activities such as marching band and various clubs that required certain fees and costs for him to participate. He also testified regarding other expenses he has incurred, such as needing money to attend his proms. The child and the mother both testified that the trial court’s allowing the father to stop paying child support during the course of the litigation had created a financial hardship for them.

On October 6, 2015, the trial court entered a judgment denying the father’s petition to modify child support and reinstating, retroactive to November 1, 2014, the father’s obligation to pay child support, which, as mentioned, had been subject to a court-ordered stay during the pendency of this action. The trial court’s judgment contains no findings of fact. The father filed a motion to alter, amend, or vacate the judgment. After a hearing, the trial court denied the father’s motion in an order dated November 9, 2015. The father then filed a timely notice of appeal.

The father contends that he presented evidence indicating that, since the entry of the 2001 divorce judgment, his gross monthly income has been reduced by approximately $4,000. He maintains that such a reduction in income constitutes a material change in circumstances warranting a reduction in his child-support obligation, pursuant to the Rule 32, Ala. R. Jud. Admin., child-support guidelines. The father also argues that the undisputed evidence regarding the reduction in his annual income would result in a more than 10% variation in the amount of child support he would owe under the child-support guidelines; thus, under Rule 32(A)(3)(c), he says, there is a rebuttable presumption that his child-support obligation should be modified. We agree with the father that he presented evidence indicating that he has had a significant decrease in his annual income since the divorce judgment was entered in July 2001. Such an appreciable change in income—from approximately $73,000 annually to approximately $25,000 annually—has been held to be a material change in circumstances for purposes of modifying child support. Kwasigroh v. Kwasigroh, 209 So.3d 520 (Ala.Civ.App. 2016); H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1280 (Ala.Civ.App.2009). “However, the fact that a change in circumstances has occurred does not necessarily end the inquiry and require that the father’s child-support obligation be modified.” H.J.T., 34 So.3d at 1280.

Rule 32(A)(3)(e), Ala. R. Jud. Admin., provides, in pertinent part, that “a trial court has discretion to deny a modification even when the ten percent (10%) variation is present, based on a finding that the application of the guidelines in that case would be manifestly unjust' or inequitable.” Furthermore, if the trial court concludes from the evidence presented that a deviation from the child-support guidelines is warranted, it must enter a written finding stating the reasons for its determination “that application of the guidelines would be manifestly unjust or inequitable.” Rule 32(A)(ii). Therefore, although the father demonstrated that his income had decreased by more than 10% and had demonstrated a corresponding more-than-10% deviation in his child-support obligation under the guidelines, since the trial court initially established his child-support obligation, the trial court was not required to modify the amount of child support the father was obligated to pay. However, because the trial court’s decision not to modify child support constituted a deviation from the guidelines, it was required to make a written finding stating the reasons it had determined “that application of the guidelines would be manifestly unjust or inequitable.” Rule 32(A)(ii).

In response to the father’s argument, the mother contends, as she did at the trial of this action, that the evidence indicates that the father was voluntarily underemployed, which is a factor the trial court can consider when determining whether to modify a parent’s child-support obligation. See, e.g., Kwasigroh, supra; Bittinger v. Byrom, 65 So.3d 927, 933-34 (Ala.Civ.App.2010) (holding that, in a child-support-modifieation case, trial court is afforded discretion to impute income to parent on a determination that the parent is voluntarily underemployed).

“The trial court is afforded the discretion to impute income to a parent for the purpose of determining child support, and the determination that a parent is voluntarily unemployed or underemployed ‘is to be made from the facts presented according to the judicial discretion of the trial court.’ Winfrey v. Winfrey, 602 So.2d 904, 905 (Ala.Civ.App.1992). See also Rule 32(B)(5), Ala. R. Jud. Admin.”

Clements v. Clements, 990 So.2d 383, 394 (Ala.Civ.App.2007).

This court has never required a written finding that a parent is voluntarily unemployed or underemployed. See G.B. v. J.H., 915 So.2d 570, 574 (Ala.Civ.App.2005).

“A trial court may validly impute in-, come to a parent pursuant to Rule 32(B)(5) without expressly finding that the parent is voluntarily unemployed or underemployed. In Berryhill v. Reeves, 705 So.2d 505, 507 (Ala.Civ.App.1997), the trial court imputed income to the father without expressly finding that he was voluntarily unemployed or underemployed. This court stated:
“‘Under Rule 32(B)(5), Ala. R. Jud. Admin., a trial court must impute income to a parent and calculate his or her child support obligation based upon that parent’s potential income if “the court finds that [the] parent is voluntarily unemployed or underemployed.” While the trial court’s judgment sets forth no express findings of fact concerning this issue, it is well settled that where the trial court does not make specific factual findings, this court mil assume that the trial court made such findings as would support its judgment. Transamerica Com. Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992).’
“(Emphasis added.)”

G.B., 915 So.2d at 574. “This court, noting that the language of Rule 32 is mandatory, has held that where a trial court finds a parent to be voluntarily unemployed or underemployed, it is required to impute income to that parent. T.L.D. v. C.G., 849 So.2d 200, 206 (Ala.Civ.App.2002).” Van Houten v. Van Houten, 895 So.2d 982, 986 (Ala.Civ.App.2004).

The competing presumptions in this case place this court in a difficult position. If the trial court imputed income to the father, it was not required to have expressly stated that it was doing so. Instead, following established caselaw, this court would be required to presume that the trial court made the necessary findings to support its decision to impute income to the father, if such findings were supported by the record. However, the trial court also could have denied the father’s petition to modify child support based upon a determination that a deviation from the guidelines was warranted under the facts of this case. In that case, the trial court would have been required to make written findings regarding its decision that “application of the guidelines would be manifestly unjust or inequitable.” Rule 32(A)(ii).

The trial court’s judgment as written provides us with no guidance as to whether it imputed as income to the father the amount of his former income, which would result in the same amount of child support as had been established in the divorce judgment, or whether the trial court determined that, because of certain facts or circumstances included in the record, the application of the guidelines would be manifestly unjust or inequitable in this case. Therefore, we cannot determine whether the trial court erred by failing to make a written finding setting forth its reasons for deviating from the Rule 32 child-support guidelines or whether we should examine the evidence to see if it could support a conclusion that the father was voluntarily underemployed and that his former income should be imputed to him. Accordingly, we reverse the judgment and remand the cause to the trial court for it to enter a judgment making clear whether it intended to impute income to the father or whether it believed the evidence presented warranted a deviation from the child-support guidelines, in which case it must make the written findings required by Rule 32(A)(ii) and Rule 32(A)(3)(e), Ala. R. Jud. Admin.

REVERSED AND REMANDED.

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

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

      . The record indicates that the mother’s attorney spent a lot of time attempting to elicit testimony regarding the earnings of the liquor store each year. Much of that testimony was objected to, and the trial court sustained many of those objections. As discussed later in this opinion, we are able to reach a resolution of this case without parsing the books of the liquor store, or even determining the relevance of such evidence. Therefore, we omit a discussion of the evidence pertaining to that matter.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    DALLAS COUNTY DEPARTMENT OF HUMAN RESOURCES v. A.S. and M.S.
    2150302.
    Court of Civil Appeals of Alabama.
    June 17, 2016.

      Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellant.
    David B. Norton, Selma, for appellees.
   MOORE, Judge.

The Dallas County Department of Human Resources (“DHR”) appeals from a judgment entered by the Dallas Juvenile Court (“the juvenile court”) denying DHR’s petition to terminate the parental rights of A.S. and M.S. (“the parents”) to M.A.S. (“the child”). We affirm the juvenile court’s judgment.

Procedural History

On August 19, 2014, DHR filed a petition to terminate the parents’ parental rights to the child. On December 1, 2015, the juvenile court entered a judgment, stating, in pertinent part:

“1. This is a medically fragile child who has extreme, life threatening health issues involving kidneys that are not functioning and renal failure. This child requires an extraordinary level of care to maintain her health and life. This requires a high level of capability on the part of the caretakers.
“2. This child is receiving excellent care from the present foster parents and the child is flourishing and experiencing the highest quality of life that she could expect given her health condition. Also, the foster parents have done a wonderful and amazing job of keeping the parent/child relationship between the biological parents and the child intact and flourishing.
“3. The biological parents of this child are loving parents who have been very attentive to this child and have traveled 6 hours round trip every other weekend to visit. They have also visited on all holidays, and talk with this child every night." It is clear that these parents love their child very much and would never do anything that would intentionally harm their child.
“4. The Court, however, finds that the parents do not have the ability to properly care for the health of this child and her extreme and life threatening medical condition. They have proven by past behavior that they are not able to: 1) properly administer the prescribed medicines, 2) keep a log of the medical information that is necessary for the child’s health, 3) ... follow the doctor’s orders for nutrition, 4) care for the catheter port, 5) or to generally meet the high level of care necessary for this child’s very survival. The Court gave the parents an opportunity to provide the care for this child with the assistance of family and medical professionals by giving custody back to them on April 15, 2013, but the child almost died as a result of the parents’ inability to take proper care of this child. Also, the Court does not believe that the parents will be able to take care of the medical needs of the child in the foreseeable future.
“5. The Court is satisfied that there are not any family resources available that could or would take the responsibility of custody and care of this extremely medically fragile child.
“6. This is a unique and difficult case because the parents are very loving and attentive, but are not able to care for the child’s extreme medical condition. The Court also believes that the child would probably not survive if the parents had physical custody of the child.
“7. The Court also finds that the child has a very strong and loving bond with her parents and with the foster parents. The child would want to live with her biological parents if she could. The Court believes it would be very traumatic and harmful to this child if her parents’ rights were terminated.
“Accordingly, after carefully considering all of the evidence, the Court denies DHR’s Petition for Termination of Parental Rights....”

On December 15, 2015, DHR filed a post-judgment motion; that motion was denied on December 18, 2015. DHR filed a timely notice of appeal.

Standard of Review

On appeal from a judgment declining to terminate parental rights on a petition filed by DHR, this court will affirm the judgment unless DHR was entitled to judgment as a matter of law. See Montgomery Cty. Dep’t of Human Res. v. A.S.N., 206 So.3d 661, 676 (Ala.Civ.App.2016) (Moore, J., concurring in the rationale in part and concurring in the result) (citing In re A.L.D.H., 373 S.W.3d 187, 192-93 (Tex.Ct.App.2012)). In order to meet that burden, DHR must demonstrate that the law, as applied to the undisputed evidence in the record, requires termination of parental rights. Id. DHR does not satisfy that standard in this appeal.

Discussion

Section 12-15-319(a), Ala.Code 1975, a part of the Alabama Juvenile Justice Act (“the AJJA”), § 12-15-101 et seq., Ala.Code 1975, provides, in pertinent part:

“If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

Section 12-15-319 sets out the statutory grounds for terminating parental rights, but it does not mandate termination if those grounds to terminate are proven. In using the term “may,” § 12-15-319 recognizes that a juvenile court can, in exercising judicial discretion, decline to terminate parental rights. See Talladega Cty. Dep’t of Human Res. v. J.J., 187 So.3d 705, 714 (Ala.Civ.App.2015). Thus, even when clear and convincing evidence proves that a parent cannot discharge his or her parental responsibilities to and for the child, a juvenile court may nevertheless deny a petition to terminate parental rights if some less drastic alternative that better serves the interests of the child can be employed to safeguard the child from parental harm. See Ex parte Beasley, 564 So.2d 950 (Ala.1990).

In many cases, when a juvenile court finds that a child’s natural parents cannot safely or responsibly parent the child, the best interests of the child would be served by severing the rights of the natural parents so that the child may escape parental harm and forge a new beneficial parental relationship, whether de jure or de facto. However, that is not always the case. In some cases, even those involving unfit parents, terminating parental rights would not inure to the overall benefit of the child.

‘“[I]f, notwithstanding the unfitness of a parent, there remains a significant emotional bond between a child and an unfit parent, and it has been demonstrated that some alternative-placement resource would allow the child to visit periodically with the unfit parent so as to reap the benefit of partially preserving that relationship without incurring the harm of the child being raised on a day-to-day basis by an unfit parent, the court would be required to weigh the advantage of that arrangement against the advantage of termination and placement for adoption with permanent fit parents, and to decide which of these alternatives would be in the child’s best interest.’ ”

C.M. v. Tuscaloosa Cty. Dep’t of Human Res., 81 So.3d 391, 397 (Ala.Civ.App.2011) (quoting D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion)); see also J.R.L. v. M.B., 86 So.3d 398, 404 (Ala.Civ.App.2011) (reversing a judgment terminating a mother’s parental rights after determining that maintaining the status quo was in the best interests of the child because the mother loved the child, the mother “had visited the child at every opportunity,” and the child’s custodians “did not intend to discontinue contact between the mother and the child”).

In the present case, DHR does not challenge the juvenile court’s findings regarding the emotional bond that exists between the child and the parents. DHR also does not dispute that continued foster care would ensure that the medical needs of the child are met while allowing the child continued visitation and contact with the parents. DHR maintains, however, that termination of parental rights would provide the child permanency without depriving the child of her relationship with the parents because the foster parents have agreed that they would allow the parents to continue to visit with and to contact the child if the foster parents adopt the child.

“However, Alabama law provides that a judgment terminating parental rights concludes the parent’s right to any contact or association with the child. See Ex parte M.D.C., 39 So.3d 1117, 1124 (Ala.2009) (quoting M.D.C. v. K.D., 39 So.3d 1105, 1112 (Ala.Civ.App.2008) (Moore, J., dissenting)) (‘ “A judgment terminating parental rights immediately and permanently severs the parent’s right to custody, control, and affiliation with the child.”’). Alabama law does not provide a mechanism, such as a so-called ‘open adoption,’ see [Kristina V.] Foehrkolbt, When the Child’s Best Interest Calls for It: Post-Adoption Contact By Court Order in Maryland, 71 Md. L.Rev. 490,] 509 [(2012)], which would allow for a parent whose parental rights have been severed to maintain a legally enforceable right to continued visitation with his or her child.”

C.S. v. Mobile Cty. Dep’t of Human Res., 166 So.3d 680, 688 (Ala.Civ.App.2014) (Moore, J., concurring in the result in part and dissenting in part).

Based on the loving relationship between the parents and the child, the juvenile court determined that termination of the parents’ parental rights, carrying with it the loss of an enforceable right of visitation, actually would harm the child. On the other hand, the juvenile court, as a proper exercise of its judicial discretion, decided, based on the evidence, that it would be beneficial to the child to maintain the status quo rather than to terminate parental rights. See B.A.M. v. Cullman Cty. Dep’t of Human Res., 150 So.3d 782, 786 (Ala.Civ.App.2014) (“Our supreme court has held that a juvenile court should maintain foster care or another third-party custodial arrangement without terminating parental rights when a child shares a beneficial emotional bond with a parent and the custodial arrangement ameliorates any threat of harm presented by the parent.”). DHR has not demonstrated that the juvenile court committed any legal error in this respect. Instead, it asks this court to reweigh the evidence to reach a different conclusion. That we cannot do. The judgment of the juvenile court is therefore affirmed.

AFFIRMED.

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

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


author: THOMAS, Judge.

text:
    EX PARTE Paul Randall BRITT. (In re Lauren Butler Britt v. Paul Randall Britt).
    2150494.
    Court of Civil Appeals of Alabama.
    June 17, 2016.

      C. Scott Johnson, Homewood, for petitioner.
    Submitted on mandamus petition only.
   THOMAS, Judge.

On August 26, 2015, the Jefferson Circuit Court (“the trial court”) entered a judgment modifying an April 2011 judgment that had divorced Paul Randall Britt (“the father”) and Lauren Butler Britt (“the mother”). The August 2015 modification judgment, among other things, reduced the father’s child-support obligation retroactive to July 2014, calculated the father’s child-support arrearage, and awarded a credit against that arrearage based on the amount of child support the father had overpaid since July 2014. In addition, the judgment awarded the father the right to claim the parties’ children as dependents for tax-exemption purposes. The mother, on September 25, 2015, filed a timely post-judgment motion, in which she argued, among other things, that the trial court had erred in retroactively modifying the father’s child-support obligation beginning in July 2014 when he had not commenced his modification action until October 2014 and that the trial court had erred in awarding the father the dependency exemption for all the parties’ children. The trial court entered an order purporting to grant the mother’s motion in part on February 3, 2016, more than 90 days after the filing of the motion. See Rule 59.1, Ala. R. Civ. P.

On March 15, 2016, the father filed in this court a petition for the writ of mandamus directing the trial court to set aside its February 3, 2016, order. This court called for an answer, after which the trial court entered two orders dated March 23, 2016: the first order set aside the February 3, 2016, order (“the set-aside order”), and the second order awarded the mother the same relief awarded in the February 3, 2016, order, but relied on the trial court’s power under Rule 60(a), Ala. R. Civ. P., to correct clerical errors in its judgment (“the Rule 60(a) order”). The mother then sought a dismissal of the father’s petition but provided this court with a copy of only the set-aside order. The father responded to the mother’s motion to dismiss the petition by providing this court with a copy of the Rule 60(a) order. We permitted the father to amend his petition to include as exhibits both the set-aside order and the Rule 60(a) order and to present argument regarding the propriety of the Rule 60(a) order. The mother did not respond to the father’s amended petition.

“ ‘ “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.2006)).

The father argues that the trial court’s Rule 60(a) order is an improper attempt to amend the August 2015 judgment despite the fact that the trial court lost jurisdiction to do so on December 24, 2015, 90 days after the mother filed her postjudgment motion. He relies on Cornelius v. Green, 521 So.2d 942, 945 (Ala.1988) (“Cornelius II”), in which our supreme court explained that Rule 60(a) cannot be used to enter a different judgment than the one that the trial court intended to enter and does not allow a trial court to correct “a matter of substance” within the judgment.

The fact scenario in Cornelius II is similar to the situation in the present case, but, to fully explain it, we must first discuss Cornelius v. Green, 477 So.2d 1363 (Ala.1985) (“Cornelius I”). The trial court in Cornelius I had entered a judgment awarding the plaintiffs, the Corneliuses, a 30-foot easement in May 1982; the defendants, the Greens and the Tinsleys, filed, in December 1982, a “ ‘petition’ to have the easement width changed from 30 feet to 12 feet,” Cornelius II, 521 So.2d at 944; and the trial court modified the width of the easement to 15 feet in January 1983. Cornelius I, 477 So.2d at 1364. The Corneli-uses filed a Rule 60(b)(4) motion attacking the January 1983 judgment, which the trial court denied. Id. The Corneliuses appealed the denial of their Rule 60(b)(4) motion, and our supreme court concluded that the December 1982 petition had been an untimely filed postjudgment motion, that the trial court had lacked jurisdiction to amend the judgment based on that motion, and, therefore, that the January 1983 judgment was void. Id. at 1364-65.

After the reversal of the denial of the Cornelius’s Rule 60(b) motion, Alvin Green filed in the trial court a motion requesting relief from the judgment under Rule 60(b) and a motion seeking the correction of a clerical error in the width of the easement. Cornelius II, 521 So.2d at 944. The- trial court again reduced the width of the easement, indicating that it was correcting the judgment under Rule 60(a), and the Cor-neliuses again appealed. Id. at 944. Our supreme court reversed the judgment, explaining:

“It is clear from [its] order that the trial court was merely revisiting the motions that this Court held in the prior appeal to have been untimely filed. Although Rule 60(a) states that a court may correct a clerical mistake or an error arising from oversight or omission ‘at any time,’ this does not authorize a second review of a judgment as to which prior post-judgment motions on the same point have been made and held to be untimely.
“Furthermore, the right to amend a judgment to correct a clerical error does not authorize the court to render a different judgment. Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877 (Ala.1979). The committee comments to Rule 60(a) state:
“‘This subdivision deals solely with the correction of clerical errors. Errors of a more substantial nature are to be corrected by a motion under Rules 59(e) or 60(b). Thus the Rule 60(a) motion can only be used to make the judgment or record speak the truth and cannot be used to make it say something other than what was originally pronounced.’ ”

Cornelius II, 521 So.2d at 945.

Based on Cornelius II, the father asserts that the trial court in the present case is attempting to “revisit” the mother’s postjudgment motion despite the fact that the trial court lost jurisdiction to rule on her motion in December 2015. Put another way, the father is arguing that the trial court cannot now reconsider the August 2015 modification judgment under the guise of Rule 60(a) as a method of escaping the operation of Rule 59.1 on the mother’s postjudgment motion. Insofar as the trial court amended that portion of the August 2015 modification judgment awarding the father the right to claim the parties’ children, both minor and adult, as dependents on his tax return, we agree with the father that the trial court conducted “a second review of [the] judgment as to which [its order on the mother’s] post-judgment motion[ ] on the same point [was] untimely.” Cornelius II, 521 So.2d at 945.

The trial court stated in the Rule 60(a) order that it had concluded that it “lacked subject matter jurisdiction over the adult children” and that, therefore, the provision awarding the father the tax-dependency exemption for those children was void. Such a determination is not “‘“a mistake mechanical in nature which does not involve a legal decision or judgment.” ’ ” Ex parte Brown, 963 So.2d at 607 (quoting Higgins v. Higgins, 952 So.2d 1144, 1147 (Ala.Civ.App.2006), quoting in turn Ex parte Continental Oil Co., 370 So.2d 953, 955 (Ala.1979)) (Torbert, C.J., concurring specially). It is instead a reconsideration of the trial court’s power to enter the original judgment, and, thus, it does not amount to “a correction of the original judgment to reflect the original intention of the trial court.” Bergen-Patterson, Inc. v. Naylor, 701 So.2d 826, 829 (Ala.Civ.App.1997). “[I]f the mistake involves an exercise of judicial discretion or judgment, any correction is beyond the purview of rule 60(a).... ” Michael v. Michael, 454 So.2d 1035, 1037 (Ala.Civ.App.1984). The trial court’s Rule 60(a) order, insofar as it modified the August 2015 modification judgment to delete the award of the dependency exemption for the parties’ adult children to the father, was entered outside its authority to correct clerical errors under Rule 60(a) and, thus, can have no effect.

However, we are not convinced that the trial court improperly reviewed the August 2015 modification judgment for a second time insofar as the Rule 60(a) order corrected the date on which the father’s child support was retroactively modified. The Rule 60(a) order states that the August 2015 modification judgment is “incorrect due to clerical oversight,” and it corrects both the date on which the father’s child-support obligation is deemed to have been modified from July 2014 to October 2014 and the calculation of the amount of child support the father had overpaid as a result of the retroactive modification of his child-support obligation. We have permitted changes to child-support obligations under Rule 60(a), see Michael, 454 So.2d at 1037, and it is beyond question that “[a]n error in calculation is a clerical mistake as contemplated by Rule 60(a), Ala. R. Civ. P.” Bergeiu-Patterson, Inc., 701 So.2d at 828. Furthermore, “[w]hen the correction of such errors through Rule 60(a) is based upon the recollection of the court, it is not subject to contest.” Antepenko v. Antepenko, 584 So.2d 886, 838 (Ala.Civ.App.1991). The trial court stated that the error in the date contained in the August 2015 modification judgment was a clerical error, and we have nothing in the materials before us that would support a conclusion otherwise. Thus, we conclude that the portion of the Rule 60(a) order correcting the month in which the father’s child-support obligation was retroactively modified and correcting the resulting calculations was a proper exercise of the trial court’s discretion under Rule 60(a).

Accordingly, we grant the father’s petition in part, and we order the trial court to set aside the Rule 60(a) order insofar as it altered the award to the father of the dependency exemption for all the children and to reinstate that aspect the August 2015 modification judgment. However, insofar as the father challenges the trial court’s correction of the month in which the father’s child-support obligation was retroactively modified and the resulting calculations, we deny his petition.

PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.

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

      . We note that, in her postjudgment motion, the mother indicated that the parties’ adult children were of college age and that she was entitled to claim those children on her tax return; thus, we assume that, in fact, the adult children of the parties may still be claimed as dependents. See 26 U.S.C. § 152(c)(3)(a)(ii) (indicating that a student under the age of 24 may be claimed as a dependent). We held in Sosebee v. Sosebee, 896 So.2d 557, 563 (Ala.Civ.App.2004), that "the right to claim a child as a tax exemption would continue to be modifiable as long as the right to claim the exemption existed,” Thus, the trial court did not lack subject-matter jurisdiction over the award of the exemption relating to the adult children of the parties.


author: WELCH, Judge.

text:
    Thaddeus Raynard HOLLEY, Sr. v. STATE of Alabama.
    CR-12-2023.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 2014.

      Spencer A. Phillips, Mobile, for appellant.
    Luther Strange, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   On Return to Remand

WELCH, Judge.

This Court remanded this case by order on February 3, 2014, for the Mobile Circuit Court to make a finding setting forth the date the offense underlying the criminal conviction of Thaddeus Raynard Holley, Sr., was committed. The circuit court submitted a return to this Court on February 27, 2014, informing this Court that the offense was committed on December 17, 2005.

Holley was indicted for having committed, on December 17, 2005, the crime of first-degree sexual abuse of a child under the age of 12, a violation of § 13A-6-66(a)(3), Ala.Code 1975. On August 4, 2006, Holley pleaded guilty and was sentenced to 10 years’ imprisonment. The 10-year sentence was split pursuant to the Split Sentence Act, § 15-18-8, Ala.Code 1975, to be served as 3 years’ incarceration followed by 5 years’ probation. While Holley was serving the probationary portion of his sentence, his probation officer filed a delinquency report alleging that Holley had violated the terms and conditions of his probation by violating the Alabama Sex Offender Registration and Community Notification Act, § 15-20A-1 et seq., Ala. Code 1975, by failing to pay supervision fees and other court-ordered moneys. On August 22, 2013, the circuit court held a revocation hearing, after which it revoked Holley’s probation. Holley appealed from the revocation order.

On appeal, Holley argues that the circuit court improperly revoked his probation based on hearsay testimony. Holley also contends that the revocation was improper because, he says, he was indigent and could not pay court-ordered moneys and fees.

We need not address either of Holley’s claims because our review of the record reveals that Holley’s sentence was illegal. Despite the fact that Holley did not raise this issue in the circuit court or on appeal, “[m]atters concerning unauthorized sentences are jurisdictional.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Therefore, this Court may take notice of an illegal sentence at any time.

Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App.1999).

“A defendant’s sentence is determined by the law in effect at the time of the commission of the offense.” Davis v. State, 571 So.2d 1287, 1289 (Ala.Crim.App.1990). Holley pleaded guilty to sexual abuse of a child under the age of 12 and was sentenced pursuant to the Split Sentence Act—§ 15-18-8, Ala.Code 1975. The Split Sentence Act was amended before December 17, 2005, the date the crime took place, to prohibit splitting a sentence based upon a conviction for a criminal sex offense involving a child. Effective October 1, 2005, § 15-18-8(a) was amended to specifically prohibit splitting the sentence of an offender who is 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 a “criminal sex offense involving a child” as “a conviction for any criminal sex offense in which the victim was a child under the age of 12 and any offense involving child pornography.” Additionally, § 15-18-8(b), Ala. Code 1975, specifically precludes a trial 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.”

In Enfinger v. State, 123 So.3d 535 (Ala.Crim.App.2012), this Court recently held that a trial court has no authority to revoke probation that was imposed as part of an illegal sentence.

“[W]e 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).”

Enfinger v. State, 123 So.3d at 537. Because Holley committed the crime of first-degree sexual abuse of a child under the age of 12 on December 17, 2005, the sentence imposed was an illegal sentence because it violated the Split Sentence Act that had become the law on October 1, 2005. Moreover, pursuant to Enfinger, a subsequent probation-revocation order in such a case has no effect. Enfinger v. State, 123 So.3d at 538 (“Because the circuit court had no authority to split En-finger’s sentence or to impose a term of probation, it likewise had no authority to conduct a probation-revocation hearing and revoke Enfinger’s probation....”); see also Mewborn v. State, 170 So.3d 709 (Ala.Crim.App.2014).

This case must be remanded for the circuit court to conduct a sentencing hearing and to resentence Holley. To avoid a violation of Holley’s rights under the Equal Protection Clause of the 14th Amendment to the United States Constitution, however, the circuit court may not impose a sentence greater than the original sentence of 10 years’ imprisonment. Mewborn v. State, 170 So.3d at 712 n. 1 (“We note that in resentencing Mewbom the circuit court may not impose a sentence greater than [the original sentence] because doing so ‘would be a violation of [Mewborn’s] rights under the Equal Protection Clause of the 14th Amendment to the Constitution of the United States.’ Ex parte Tice, 475 So.2d 590, 592 (Ala.1984) (citing Rice v. Simpson, 274 F.Supp. 116 (M.D.Ala.1967))).”

The record does not indicate whether Holley’s guilty plea or sentence was the result of a plea bargain. “Therefore, it is impossible for this Court to determine whether resentencing [Holley] will affect the voluntariness of his plea.” Austin v. State, 864 So.2d 1115, 1119 (Ala.Crim.App.2003). “ Tf the [suspended] sentence was a term of [Holley’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 [v. State ], 123 So.3d [535,] 539 [ (Ala.Crim.App.2012) ].” Mewborn, 170 So.3d at 712.

Accordingly, we reverse the judgment sentencing Holley to 10 years in prison and purporting to split that sentence, and we reverse the revocation of probation. We remand the cause to the circuit court for proceedings consistent with this opinion. In addition to resentencing Holley, the circuit court may address any resulting issues regarding the voluntariness of Holley’s plea.

The circuit court shall take all necessary action to ensure due return to this Court at the earliest possible time, but no later than 42 days after the release of this opinion. The return to remand shall include a detailed order and a transcript of the proceedings conducted on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

KELLUM, BURKE, and JOINER, JJ., concur.

WINDOM, P.J., dissents, without opinion.

       Note from the reporter of decisions: On February 3, 2014, the Court of Criminal Appeals issued an order remanding this case to the trial court, with instructions. On February 27, 2014, the trial court filed a return to the Court of Criminal Appeals' remand order. This opinion followed.

      . Section 13A-6-66, Ala.Code 1975, was amended effective July 1, 2006, to delete subsection (a)(3); prior to the amendment, the offense described in subsection (a)(3) was categorized as a Class C felony. Also effective July 1, 2006, the provisions of § 13A-6-66(a)(3) were reenacted as § 13A-6-69.1, and the offense was categorized as a Class B felony. See Act No. 2006-575, Ala. Acts 2006.

      . See note 1, supra.

       Note form the reporter of decisions: On April 8, 2015, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


text:
    Cedric TAYLOR v. STATE of Alabama.
    CR-13-1090.
    Court of Criminal Appeals of Alabama.
    Oct. 3, 2014.

      Shannon Matthew Moore, Huntsville, for appellant.
    Luther Strange, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   WELCH, Judge.

On May 5, 2004, Cedric Taylor pleaded guilty to possession of cocaine, a violation of § 13A-12-212, Ala.Code 1975. He was sentenced to 18 years in prison, but he was placed on probation for 10 years. On September 1, 2012, Taylor was arrested for possession of drug paraphernalia. He was convicted of that charge in the Huntsville Municipal Court on March 18, 2013. Taylor’s probation officer filed a delinquency report alleging that Taylor had been convicted of a new offense, that he had failed to report, and that he had failed to pay supervision fees and other court-ordered moneys. The Madison Circuit Court held a revocation hearing and subsequently revoked Taylor’s probation. Taylor appeals from that revocation order. He argues that the circuit court failed to conduct an adequate colloquy in compliance with Rule 27.6(c), Ala. R.Crim. P., before it accepted his admissions of some of the alleged probation violations and that, therefore, the revocation order is insufficient.

We need not address either of Taylor’s claims because our review of the case reveals that Taylor’s original sentence was illegal. Despite the fact that Taylor did not raise this issue in the circuit court or on appeal, “[m]atters concerning unauthorized sentences are jurisdictional.” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994). Therefore, this Court may take notice of an illegal sentence at any time. Pender v. State, 740 So.2d 482, 484 (Ala.Crim.App.1999).

Taylor was sentenced to 18 years’ imprisonment and was placed on probation. Section 15-22-50, Ala.Code 1975, states, in pertinent part:

“Circuit courts ... may suspend execution of sentence and place on probation any person convicted of a crime in any court exercising criminal jurisdiction. The court shall have no power to suspend the execution of sentence imposed upon any person who has been found guilty and whose punishment is fixed at death or imprisonment in the penitentiary for more than 15 years.”

(Emphasis added.)

Therefore, the circuit court had no jurisdiction to impose the probationary part of Taylor’s sentence. See Little v. State, 129 So.3d 312, 313 (Ala.Crim.App.2012)(applying § 15-22-50, Ala.Code 1975, in similar circumstances and remanding the case to the trial court for resentencing).

This Court recently held that when a trial court imposes an illegal sentence involving probation and then purports to revoke a defendant’s probation, the court actually has no authority to revoke probation and its revocation order, therefore, has no effect. See Mewborn v. State, 129 So.3d 312 (Ala.Crim.App.2014), and cases cited therein.

This case must therefore be remanded to the circuit court for it to conduct a sentencing hearing and to resentence Taylor. To avoid a violation of Taylor’s rights under the Equal Protection Clause of the 14th Amendment to the United States Constitution, however, the circuit court may not impose a sentence greater than the original sentence of 18 years’ imprisonment. Mewborn, 170 So.3d at 712 at n. 1.

The record does not indicate whether Taylor’s guilty plea or sentence was the result of a plea bargain. “Therefore, it is impossible for this Court to determine whether resentencing [Taylor] will affect the voluntariness of his plea.” Austin v. State, 864 So.2d 1115, 1119 (Ala.Crim.App.2003). “ ‘If the [suspended] sentence was a term of [Taylor’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 [v. State ], 123 So.3d [535,] 539 [ (Ala.Crim.App.2012) ].” Mewborn, 170 So.3d at 712.

Accordingly, we reverse the purported revocation of Taylor’s probation, and we reverse the judgment of the trial court sentencing Taylor to 18 years in prison and purporting to suspend that sentence. We remand the cause to the circuit court for proceedings consistent with this opinion. In addition to resentencing Taylor, the circuit court may address any resulting issues regarding the voluntariness of Taylor’s plea.

■ The circuit court shall take all necessary action to ensure due return to this Court at the earliest possible time, but no later than 42 days after the release of this opinion. The return to remand shall include a detailed order and a transcript of the proceedings conducted on remand.

REVERSED AND REMANDED WITH INSTRUCTIONS.

KELLUM, BURKE, and JOINER, JJ., concur.

WINDOM, P.J., dissents, without opinion.

       Note form the reporter of decisions: On April 8, 2015, on return to remand, the Court of Criminal Appeals dismissed the appeal, without opinion.


author: CANADY, J. PARIENTE, J.,

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. ORTHOPEDIC SPECIALISTS, etc., Respondents.
    No. SC15-2298
    Supreme Court of Florida.
    [January 26, 2017]

      Suzanne Youraans Labrit and Douglas Gerard Brehm of Shutts & Bowen LLP, Tampa, Florida; Peter J. Valeta of Cozen O’Connor, Chicago, Illinois; and Richard C. Godfrey of Kirkland & Ellis, LLP, Chicago, Illinois, for Petitioner
    Gary M. Farmer and Gary Michael Farmer, Jr. of Farmer Jaffe Weissing Edwards Fistos & Lehrman P.L., Fort Laud-erdale, Florida; David Michael Caldevilla of De La Parte & Gilbert, P.A., Tampa, Florida; and Stephen Douglas Deitsch and Lindsay Capri Porak of Deitsch & Wright, P.A., Lake Worth, Florida, for Respondents
    Edward Herbert Zebersky of Zebersky Payne, LLP, Fort Lauderdale, Florida; and Lawrence Mark Kopelman of Lawrence M. Kopelman, P.A., Fort Lauder-dale, Florida, for Amicus Curiae Florida Medical Association
   CANADY, J.

In this case we consider whether a personal injury protection (“PIP”) insurance policy provides legally sufficient notice of the insurer’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2., Florida Statutes (2009), to limit reimbursements for medical expenses. The case is before the Court for review of the decision of the Fourth District Court of Appeal in Orthopedic Specialists v. Allstate Insurance Co., 177 So.3d 19 (Fla. 4th DCA 2015), which held that the policy language is not legally sufficient to authorize Allstate to apply the Medicare fee schedules. The Fourth District certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Allstate Fire & Casualty Insurance v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1, 3 (Fla. 1st DCA 2015), which held that identical policy language “g[ave] sufficient notice of [the insurer’s] election to limit reimbursements by use of the fee schedules.” We have jurisdiction. See art. Y, § 3(b)(4), Fla. Const. For the reasons that follow, we hold that Allstate’s insurance policy provides legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements. We therefore quash the decision of the Fourth District in Orthopedic Specialists and approve the decision of the First District in Stand-Up MRI on the conflict issue.

I. BACKGROUND

In the case on review, Orthopedic Specialists and various medical services providers (“the Providers”) challenged the reimbursements made by Allstate Insurance Company (“Allstate”) under PIP no-fault insurance policies issued to Allstate’s insureds. Orthopedic Specialists, 177 So.3d at 20. The Providers argued that Allstate’s policy is ambiguous as to whether Allstate has elected to reimburse the Providers in accordance with the Medicare fee schedules provided for in section 627.736(5)(a)2. or merely reserved its right to elect to do so. Id, at 20-21. Specifically, the Providers argued that the “shall be subject to” provision, contained within an endorsement to the Allstate policy, is ambiguous. Id. at 21.

The policy at issue provides that Allstate will make payments as follows:

Allstate will pay to or on behalf of the injured person the following benefits:
1. Medical Expenses
Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.

Id. An endorsement to the policy provides:

Limits of Liability
Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.

Id. (emphasis and alterations omitted).

On appeal, the Fourth District examined this Court’s decision in Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013), and concluded that “Virtual Imaging’s central holding is clear: To elect a payment limitation option, the PIP policy must do so ‘clearly and unambiguously.’” Orthopedic Specialists, 177 So.3d at 25. The Fourth District explained that in order to provide legally sufficient notice in accordance with Virtual Imaging, a policy must “plainly and obviously limit[] reimbursement to the Medicare fee schedules exclusively.” Id. at 25-26. The Fourth District further concluded that “[t]he policy must make it inescapably discernable that it will not pay the ‘basic’ statutorily required coverage [mandate of eighty percent of reasonable expenses for medically necessary services] and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement.” Id. at 26.

After examining the endorsement to the Allstate policy, the Fourth District held that the policy language is not legally sufficient to authorize Allstate to apply the Medicare fee schedules because the “shall be subject to” language at issue is “ambiguous,” “inherently unclear,” and “must therefore be construed in favor of the Providers.” Id. at 21, 26. The Fourth District reasoned that it is ambiguous concerning whether Allstate will apply the Medicare fee schedule limitations to limit reimbursements:

Here, providing that any amounts payable would be “subject to” “any and all limitations” authorized by the statute or any amendments thereto, Allstate did nothing more than state the obvious by indicating that there was a possibility (and the statutory’authorization) for Allstate to apply a specific reimbursement limitation. The only reasonable way to read the-language is as a general recital of Allstate’s reservation of its right to apply limitations authorized by law, with the accompanying and corresponding obligation to notify its policy holders of the election.

Id. at 24. The Fourth District rejected Allstate’s argument that the use of the term “shall” removes any possible ambiguity regarding whether the Medicare fee schedule limitations were to be applied;

The word “shall” is meaningless because it simply emphasizes the obvious. Broken down to its most simple form, Allstate’s policy says that “any amounts payable under this coverage shall be subject to any and all limitations” in the PIP statute. The policy text does not say that the limitations “shall be applied”; only that they shall be subject to being applied. The word “shall” does not make it clear whether Allstate will utilize the alternative method or is simply recognizing its entitlement to do so.

Id. at 25.

II. ANALYSIS

“Because the question presented requires this Court to interpret provisions of the Florida Motor Vehicle No-Fault Law—specifically, the PIP statute—as well as to interpret the insurance policy, our standard of review is de novo.” Virtual Imaging, 141 So.3d at 152.

“Where the language in an insurance contract is plain and unambiguous, a court must interpret the policy in accordance with the plain meaning so as to give effect to the policy as written.” Washington Nat. Ins. Corp. v. Ruderman, 117 So.3d 943, 948 (Fla. 2013). “Further, in order for an exclusion or limitation in a policy to be enforceable, the insurer must clearly and unambiguously draft a policy provision to achieve that result.” Virtual Imaging, 141 So.3d at 157. “Policy language is considered to be ambiguous ... if the language ‘is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage.’ ” Travelers Indem. Co. v. PCR Inc., 889 So.2d 779, 785 (Fla. 2004) (quoting Swire Pac. Holdings v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla. 2003)). “[A]mbiguous insurance policy exclusions are construed against the drafter and in favor of the insured.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla. 2000). “To find in favor of the insured on this basis, however, the policy must actually be ambiguous.” Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla. 2010) (emphasis omitted).

“When interpreting insurance contracts, we may consult references commonly relied upon to supply the accepted meanings of words.” Garcia v. Fed. Ins. Co., 969 So.2d 288, 291-92 (Fla. 2007). Moreover, “when analyzing an insurance contract, it is necessary to examine the contract in its context and as a whole, and to avoid simply concentrating on certain limited provisions to the exclusion of the totality of others.” Swire, 845 So.2d at 165. This Court has “consistently held that ‘in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.’ ” Id. at 166 (quoting Auto-Owners, 756 So.2d at 34).

The PIP Statute

“[T]he PIP statute sets forth a basic coverage mandate: • every PIP insurer is required to—that is, the insurer ‘shall’— reimburse eighty percent of reasonable expenses for medically necessary services.” Virtual Imaging, 141 So.3d at 155. This provision—the reasonable medical expenses coverage mandate—is “the heart of the PIP statute’s coverage requirements.” Id. “[T]here are two different methodologies for calculating reimbursements to satisfy the PIP statute’s reasonable medical expenses coverage mandate.” Id. at 156 (emphasis omitted). Compare § 627.736(5)(a)l., Fla. Stat. (2009), with § 627.736(5)(a)2., Fla. Stat. (2009). Under the first payment methodology contained within section 627,736(5)(a)l., “reasonableness is a fact-dependent inquiry determined by consideration of various factors.” Virtual Imaging, 141 So.3d at 155-56. Under the alternative, permissive payment methodology contained within section 627.736(5)(a)2., “insurers ‘may limit reimbursement’ to eighty percent of a schedule of maximum charges set forth in the PIP statute.” Id at 154 (quoting § 627.736(5)(a)2., Fla. Stat.). Reimbursements made under section 627.736(5)(a)2. satisfy the PIP statute’s reasonable medical expenses coverage mandate. See id. at 150,156-57.

In Virtual Imaging, this Court “h[eld] that under the 2008 amendments to the PIP statute, a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy.” Id at 160. This Court concluded that

notice to the insured, -through an election in the policy, is necessary because the PIP statute, section 627.736, requires the insurer to pay for “reasonable expenses ... for medically necessary ... services,” § 627.736(l)(a), Fla. Stat., but merely permits the insurer-to use the Medicare fee schedules as a basis for limiting reimbursements, see § 627.736(5)(a)2., Fla. Stat.

Id. at 150 (alterations in original). Accordingly, this Court reasoned that

[bjecause the fee schedule provision of section 627.736(5)(a)2.f. is permissive and not mandatory, and because the Medicare fee schedules are not the only mechanism for calculating reimbursements, ... the insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy.

Id. at 158-59. As this Court explained, “when the plain language of the PIP statute affords insurers two different mechanisms for calculating reimbursements, the insurer must clearly and unambiguously elect the permissive payment methodology in order to rely on it.” Id at 158 (citing Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67-68 (Fla. 4th DCA 2011)).

The Instant Case

Allstate’s PIP policy provides legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements. The endorsement to Allstate’s policy clearly and unambiguously states that “[a]ny amounts payable” for medical expense reimbursements “shall be subject to any and all limitations, authorized by section 627.736, ... including ... all fee schedules.” When read in its context and as a whole with Allstate’s policy, the plain and obvious meaning of the endorsement is that reimbursements will be made in accordance with all of the fee schedule limitations contained within section 627.736(5)(a)2. See, e.g„ Stand-Up MRI, 188 So.3d at 3 (“Virtual Imaging requires no other magic words from Allstate’s policy and its simple notice requirement is satisfied by Allstate’s [unambiguous] language limiting ‘[a]ny amounts payable’ to the fee schedule-based limitations found in the statute.” (second alteration in original)); Fla. Wellness & Rehab. v. Allstate Fire & Cas. Ins. Co., 201 So.3d 169, 173 (Fla. 3d DCA 2016) (“The use of the phrase ‘subject to’ in the policy places the insured on notice of the limitations elected by Allstate; indeed, we cannot discern any other alternative meaning to this language.”); Allstate Indem. Co. v. Markley Chiropractic & Acupuncture, LLC, 41 Fla. L. Weekly D793, — So.3d -, -, 2016 WL 1238533, at *4 (Fla. 2d DCA Mar. 30, 2016) (explaining that “Virtual Imaging did not dictate a form of notice” or require insurers to specifically state the word “Medicare”). Allstate’s policy thus places both providers and insured on notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements.

Respondents argue that Allstate’s policy is ambiguous under Virtual Imaging because it fails to state that Allstate: (1) will not actually pay eighty percent of reasonable charges and (2) will instead calculate benefits only under the permissive Medicare fee schedules contained within section 627.736(5)(a)2. But Respondents’ argument misconstrues Virtual Imaging. A PIP policy cannot contain a statement that the insurer will not pay eighty percent of reasonable charges because no insurer can disclaim the PIP statute’s reasonable medical expenses coverage mandate. See Virtual Imaging, 141 So.3d at 155. Furthermore, a PIP policy cannot state that the insurer will calculate benefits solely under the Medicare fee schedules contained within section 627.736(5)(a)2. because the Medicare fee schedules are not the only applicable mechanism for calculating reimbursements under the permissive.payment methodology. See id. at 159 (explaining that “the Medicare fee schedules are not the only mechanism for calculating reina-burseraents”). Compare § 627.736(5)(a)2.a., Fla. Stat. (referring to the Medicare fee schedules), with § 627.736(5)(a)2.b,-c., Fla. Stat. (referring to the non-Medicare fee schedules).

Respondents argue that Allstate’s policy is ambiguous because the term “shall” can reasonably be construed as “must” or “may.” This argument unreasonably suggests that we ignore the context in which “shall” appears. Respondents correctly note that the term “shall” can be construed as “must” or “may.” See, e.g., Black’s Law Dictionary (10th ed. 2014) (defining “shall” in relevant part as “will” or “may”). But it is frequently unambiguously the case that “[t]he word ‘shall’ is mandatory in nature.” Sanders v. City Of Orlando, 997 So.2d 1089, 1095 (Fla. 2008); see Virtual Imaging, 141 So.3d at 155 (interpreting the word “shall” contained within section 627.736(1) as mandatory). This Court has recognized that “[although there is no fixed construction of the word ‘shall,’ it is normally meant to be mandatory in nature” and “[i]ts interpretation depends upon the context in which it is found.” S.R. v. State, 346 So.2d 1018, 1019 (Fla. 1977) (citation omitted). Nothing within Allstate’s policy indicates that this Court should construe the word “shall” contrary to its normal usage. Given the context of the policy provision, the only reasonable interpretation of the term “shall” is as “must” or “will.”

Respondents argue that even if the term “shall” is interpreted as mandatory, Allstate’s policy is ambiguous because the phrase “subject to” can reasonably be construed as a mandatory- command or a permissive instruction. Again, this argument suggests that we should ignore the context. Respondents correctly note that the phrase “subject to” can be construed as a permissive instruction. See, e.g., Oxford American Dictionary & Thesaurus 1301-02 (2nd ed. 2009) (defining “subject to” in relevant part as “dependent or conditional on” or “under someone’s or something’s control or authority”); St. Augustine Pools, Inc. v. James M. Barker, Inc., 687 So.2d 957, 958 (Fla. 5th DCA 1997) (“The term ‘subject to’ means ‘liable, subordinate, subservient, inferior, obedient to; governed or affected by; provided that; provided; answerable.’” (quoting Black’s Law Dictionary 1425 (6th ed. 1990))). Because insurance contracts must be read as a whole and not in isolated parts, the appropriate inquiry in this case is whether the phrase “shall be subject to” is ambiguous within the full context of Allstate’s PIP policy.

Although there is no fixed construction of the phrase “shall be subject to,” it is normally meant to be mandatory in nature and its interpretation depends upon the context in which it is found. See, e.g., Certain Interested Underwriters at Lloyd’s London v. Pitu, Inc., 95 So.3d 290, 293 (Fla. 3d DCA 2012) (holding that an endorsement to a homeowner’s insurance policy stating “loss(es) paid arising out of, or caused by, water damage shall be subject to a maximum amount of $25,000 during the policy term” clearly and unambiguously limited reimbursement of losses for water damage to $25,000 (alteration in original) (emphasis added)); cf. S.R. v. State, 346 So.2d at 1019 (reasoning that the word “shall” is normally meant to be mandatory in nature and its interpretation depends upon the context in which it is found). This Court has interpreted the phrase “shall be subject to” as a mandatory command and a permissive instruction in different contexts. Compare Robertson v. State, 143 So.3d 907, 908-09 (Fla. 2014) (explaining that because the Legislature has mandated in section 921.141(4), Florida Statutes (2013), that “[t]he judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida,” Florida law “requires that this Court shall automatically review every judgment of conviction and sentence of death” (alteration in original) (emphasis added)), and St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 972 (Fla. 2000) (“Arbitration is not voluntary according to section 766.207(7)(k) because ‘a claimant who rejects a defendant’s offer to arbitrate shall be subject to the provisions of section 766.209(4),’ which limits the non-economic damages to be awardable at trial to $350,000.” (emphasis added)), with Fallis v. City of N. Miami, 127 So.2d 883, 884 (Fla. 1961) (holding that the phrase “shall be subject to referendum” contained within the charter of the City of North Miami was “not mandatory” because it was “obviously intended to permit a referendum on a bond ordinance when such is demanded in accordance with other provisions of the municipal charter”).

Here, in the context of Allstate’s PIP policy, the only reasonable interpretation of the phrase “shall be subject to” is as a mandatory command. By stating that “[a]ny amounts payable” for medical expense reimbursements “shall be subject to any and all limitations, authorized by section 627.736, ... including ... all fee schedules,” Allstate’s policy endorsement states in mandatory language that benefit payments must or will be made in accordance with such limitations. The use of the word “shall”—which is mandatory in nature—supports this conclusion, and nothing within Allstate’s policy indicates that this Court should construe the phrase “shall be subject to” as a permissive instruction. To interpret the provision as argued by the Respondents would effectively make the provision meaningless. Under that interpretation, the provision amounts to nothing more than a nugatory recitation of the statutory authorization.

Respondents argue that Allstate’s policy is ambiguous because the phrase “all fee schedules” includes both the non-Medicare fee schedules listed in section 627.736(5)(a)l. and the Medicare fee schedules listed in section 627.736(5)(a)2. Not so. In the context of Allstate’s policy, the endorsement unambiguously references “any and all limitations, authorized by section 627.736, ... including ... all fee schedules.” (Emphasis added.) A review of section 627.736 reveals that the only fee schedule limitations applicable to insurer payments contained within that statute are located in section 627.736(5)(a)2. See § 627.736(5)(a)2., Fla. Stat. (“The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges ....” (emphasis added)); § 627.736(5)(a)3.-5., Fla. Stat. (referencing the fee schedule limitations contained within section 627.736(5)(a)2.). The “fee schedules” referred to in subsection (a)l. are not within the category of “limitations” referred to in the policy endorsement. In explaining the factors that are relevant to determining what constitutes a reasonable charge, subsection (a)l. simply provides that “consideration may be given” to various relevant factors, including “various federal and state medical fee schedules applicable to automobile and other insurance coverages.” These fee schedules may be considered in determining the amount of reasonable charges, but they—unlike the fee schedules referred to in subsection (a)2.—do not operate as “limitations” on charges.

Orthopedic Specialists erroneously concluded that Allstate’s policy language is not legally sufficient to authorize Allstate to apply the Medicare fee schedules. Stand-Up MRI correctly concluded that Allstate’s PIP policy provides legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements.

III. CONCLUSION

We approve Stand-Up MRI on the conflict issue and quash Orthopedic Specialists.

It is so ordered.

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

PARIENTE, J., dissents with an opinion, in which LEWIS, J., and PERRY, Senior Justice, concur.

PARIENTE, J.,

dissenting.

I dissent and would adopt the Fourth District’s well-reasoned decision in Orthopedic Specialists v. Allstate Insurance Co„ holding that the policy language in the Allstate personal injury protection (PIP) policy is “inherently unclear” and did not properly provide legally sufficient notice to the insured or medical providers of the insurer’s election to use the permissive Medicare fee schedule. 177 So.3d 19, 20-21 (Fla. 4th DCA 2015). If an insurer elects to use the Medicare fee schedule as the standard for reimbursement, “the insurer must clearly and unambiguously draft a policy provision to achieve that result.” Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So.3d 147, 157 (Fla. 2013). Likewise, I agree with the Fourth District’s analysis that “[a] policy is not sufficient unless it plainly and obviously limits reimbursement to the Medicare fee schedules exclusively.” Orthopedic Specialists, 177 So.3d at 25-26.

As the majority stated, the policy language at issue in this case states:

Allstate will pay to or on behalf of the injured person the following benefits: 1. Medical Expenses
Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.
Limits of Liability
Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle'No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules.

Majority op. at 3.

I agree with the Fourth District’s explanation that the policy language including “all fee schedules” authorized by Florida’s PIP statute does not clearly and unambiguously put providers on notice that Allstate elects the Medicare fee schedule. As the Fourth District also explained regarding the “subject to” language:

The policy cannot leave Allstate’s choice of reimbursement method in limbo under the guise of the words, “subject to” without incorporating specific words to that effect. The policy must make it inescapably discernable that it will not pay the “basic” statutorily required coverage and will instead substitute the Medicare fee schedules as the exclusive form of reimbursement.
Dozens of courts have weighed in on the meaning of the language at issue in this appeal, and there is a sharp divide as to whether the language is legally sufficient to invoke utilization of the Medicare fee schedules and thereby meet its statutory duty to provide clarity and specificity. And to be sure, Allstate owns the burden to avoid latent ambiguity. See [Wash. Nat’l Ins. Co. v.] Ruderman, 117 So.3d [943,] 950 [ (Fla. 2013) ] (recognizing, with regard to ambiguous language, that “£[i]t has long been a tenet of Florida insurance law that an insurer, as the writer of an insurance policy, is bound by the language of the policy, which is to be construed liberally in favor of the insured and strictly against the insurer’ ” (quoting Berkshire Life Ins. Co. v. Adelberg, 698 So.2d 828, 830 (Fla. 1997))). While we recognize that a lack of consensus among the courts does not raise a presumption of ambiguity, it would be disingenuous for us to say that this widespread debate does not make us question Allstate’s suggestion that its policy is, as it argues, “crystal clear.” As Judge Klein said in State Farm Fire & Casualty Insurance Co. v. Deni Associates of Florida, Inc., 678 So.2d 397, 408 (Fla. 4th DCA 1996): “If Judges learned in the law can reach so diametrically conflicting conclusions as to what the language of the policy means, it is hard to see how it can be held as a matter of law that the language was so unambiguous that a layman would be bound by it.”

Orthopedic Specialists, 177 So.3d at 26.

The Amicus Brief of the Florida Medical Association, in support of the medical provider, explains in detail both the history of Florida’s PIP statute and its many amendments and the dilemma posed by this ambiguous policy provision, which allows Allstate to select any method of reimbursement rather than exclusively electing the Medicare fee schedule. As the Amicus states in explaining the importance of clarity in the PIP carrier’s election of a fee schedule:

The election as to which payment methodology is utilized by Allstate is critical to the medical profession and carries with it ramifications that directly affect physician reimbursements and the doctor patient relationship. For example, if an insurer elects the fact dependent method of subsection (5)(a)l to calculate benefits, the physician is still permitted to charge and is in a position to collect what the physician considers a reasonable amount for their services. On the other hand, if an [sic] PIP insurer properly elects the fee schedule method of subsections (5)(a)2 the physician is limited to a payment that may be below the cost of rendering the care or in a worst case scenario to no compensation if the treatment is “not reimbursable under Medicare or workers’ compensation.” See § 627.736(5)(a)2.f. The physician further is prohibited from balance billing their patients. See § 627.736(5)(a)5. In short, the fee schedule amount is a “take it- or leave it” proposition.
Unfortunately, the practice of medicine requires physicians to make some difficult choices. One of those is whether it can continue to treat patients based on certain reimbursement rates. Under traditional health insurance a provider may enter into a managed care network agreement with a health insurance company and agrees to reduce its rates, it does so in exchange for different forms of consideration. There is an opportunity for additional business and the provider has none of the procedural obstacles that face providers who agree to treat automobile accident insureds.
Until the enactment of the permissive fee schedule, medical providers knew that No-Fault insurance was one of the last bastions of first party coverage where reimbursement was based solely on reasonable charges. If a provider felt that its charge was reasonable, it knew that the insurer will have to pay based on that amount or the provider had the right to challenge the insurer’s determination in court. It was this trade-off that made the “red-tape” inherent in complying with the PIP statute—or to engage in first and third party litigation—somewhat economical to the provider. If, however, the reimbursement will be limited, each provider will have to decide whether the meager amounts payable under the fee schedules are sufficient to justify the “red tape”, limitations and requirements inherent in providing services to an injured accident victim. [n'9]
[N.9] Several appellate court decisions have recognized, the disparity between payment under the “fee schedule method” that pays much lower benefits (commensurate with meager Medicare rates) than would be payable under the “fact based payment method.” See Geico Indem. Co. v. Physicians Grp. LLC, 47 So.3d 354, 356 (Fla. 2d DCA 2010) (PIP insurer unlawfully relied on Medicare fee schedules to pay merely $1,122.86 for a $10,800 surgery); Nationwide Mutual Ins. Co. v. AFO Imaging, Inc., 71 So.3d 134, 137 (Fla. 2d DCA 2011) (fee schedule method is “utilized in computing the minimum amount” payable by PIP); [Allstate Fire & Cas. Ins. Co. v.] Stand-Up MRI, [188 So.3d 1, 3 (Fla. 1st DCA 2015) ] (fact dependent reasonable amount method “apparently results in higher reimbursements” than permissive fee schedule method).

Br. of Amicus Curiae Fla. Medical Ass’n (Mar. 11, 2016), at 14-16.

Due to the ramifications a PIP carrier’s fee schedule selection has on physicians, as the Amicus explained, and the resulting importance that policies be “clear and unambiguous,” as our precedent requires, I agree with the Fourth District that “the language at issue is ambiguous and ... must therefore be construed in favor of the Providers.” Orthopedic Specialists, 177 So.3d at 26.

LEWIS, J., and PERRY, Senior Justice, concur.