author: PER CURIAM.

text:
    ENT ASSOCIATES OF ALABAMA, P.A., and A. Craig Chapman, M.D. v. Lauryn Diane HOKE. Baptist Ventures, Inc., d/b/a Montgomery Surgical Center, LLP v. Lauryn Diane Hoke.
    1141396, 1141401.
    Supreme Court of Alabama.
    Sept. 2, 2016.
    As Modified on Denial of Rehearing Nov. 18, 2016.

      Fred W. Tyson and Philip A. Sellers II of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant ENT Associates of Alabama, P.A., and A Craig Chapman, M.D.
    James E. Williams and J. Flynn Mozin-go of Melton, Espy & Williams, PC, Montgomery, for appellant Baptist Ventures, Inc., d/b/a Montgomery Surgical Center, LLP.
    Tyrone C. Means of Means & Gillis, LLC, Montgomery; Benjamin E. Pool, Montgomery; and John Loeschen of Loes-chen Law Firm, PLLC, Salem, Virginia.
   PER CURIAM.

ENT Associates of Alabama, P.A. (“ENT 'Associates”), and A. Craig Chapman, M.D. (“Dr.Chapmán”); and Baptist Ventures, Inc., d/b/a Montgomery Surgical Center, LLP (“MSC”), the defendants below, separately appeal, pursuant to Rule 5, Ala. R.App. P,, from the Montgomery Circuit Court’s interlocutory order denying their motions for a summary judgment. We have consolidated the appeals for the purpose of writing one opinion. For the reasons set forth herein, we reverse and remand.

Facts and Procedural History

On April 11, 2011, Lauryn Diane Hoke received medical care from Dr. Chapman, ENT Associates, and MSC (hereinafter referred to collectively as “the defendants”). On April 10, 2013, one day shy of two years after she was provided medical care by the defendants, Hoke filed a medical-malpractice claim against the defendants in the Montgomery Circuit Court. In her complaint, Hoke alleged that the defendants deviated from the acceptable standard of medical care when, despite being aware of the fact that she was allergic to latex, they failed to provide a latex-free environment during both her surgery’ and her recovery and that, as a result, she suffered a severe allergic reaction that caused serious injuries, The ’complaint was signed by John M. Loeschen as “counsel for plaintiff.” On the complaint, an asterisk appears after Loeschen’s signature with a note below his address, which was in Roanoke, Virginia, that states: “motion pro hac vice to follow.” The complaint includes a certificate of service, again signed by Loeschen, that states: “I certify that on the [first] day of April, 2013, I filed the foregoing complaint with the Clerk of this Court.” The name or signature of an attorney licensed to practice law in Alabama does not appear on the complaint. However, it.is undisputed that the complaint was filed electronically by an attorney licensed to practice law in Alabama, Benjamin Pool. The complaint did not include the addresses of the defendants or any instructions to the circuit clerk for service of process.

On June 4, 2013, approximately 55 days after Hoke’s complaint was filed, Loeschen filed a verified application for admission to practice under Rule VII of the Rules Governing Admission to the Alabama State Bar. In his application, Loeschen identified Pool as “local counsel of record associated with applicant.” Also included in his application were the name and current address of each of the defendants.. The application contained Pool’s verification that he “consent[ed], as local counsel of record, to' the association of applicant in this cause pursuant to Rule VII of the Rules Governing Admission to the Alabama State Bar.” Pool signed this verification on June 4, 2013. The record indicates that the defendants were served the complaint on June 18, 2013, approximately 69 days after the complaint was filed.

On June 28, 2013, Dr. Chapman and ENT Associates filed a motion to strike the complaint and a motion to dismiss. On July 10, 2013, MSC also filed a motion to dismiss. The defendants argued that the complaint was signed and filed by an out-of-state attorney who had not been admitted to appear pro hac vice as an attorney in Alabama and that, under Rule VII, the complaint was a nullity and due to be stricken. Furthermore, they argued that because the two-year statute of limitations that applied to Hoke’s medical-malpractice action had expired, see § 6-6-482, Ala. Code 1976, the case was due to be dismissed in its entirety with prejudice. The defendants argued that, because, they said, Hoke did not have a bona fide intent to serve the defendants at the time her complaint was filed, the filing of the complaint did not commence the action for statute-of-limitations purposes.. The defendants argued that Hoke had failed to provide the circuit clerk with the defendants’ addresses within the summons for service of process and had failed to give the clerk any instructions as to how to proceed with service of process. Attached to the motions to dismiss was the summons for each defendant dated April 10, 2013, that showed the address for each defendant as “unknown.”

. On July 22, 2013, Hoke filed a motion to amend her complaint seeking to “include local counsel’s signature line which was inadvertently omitted from [her] original complaint filed on April 10, 2013.” The amended complaint is identical to the original complaint except that only Pool’s name and signature appear on the complaint. The complaint does not mention Loeschen or a pending motion for his admission pro hac vice. Hoke also filed a response to the defendants’ motions to dismiss. Hoke contended that, pursuant to Rule 4(b), Ala. R. Civ. P., she had “120 days to effectuate service of process” upon the defendants. Additionally, Hoke argued that it could not be disputed that her complaint was actually filed, via “AlaFile,” the Alabama judicial system’s electronic-filing system, by Pool, an Alabama attorney, and that the electronic-filing system “ensures compliance with Rule VII” because it “prevents a foreign attorney from filing a complaint because the system will not accept a ‘log in’ from an attorney who is not licensed by the Alabama State Bar and who is not registered for AlaFile.” Hoke attached the summonses generated when she filed her complaint, which listed Pool as her attorney.

The defendants responded to Hoke’s argument and attached a letter from Pool to Dr. Chapman dated June 21, 2013, that stated, in pertinent part:

“Please be advised that, as an Alabama attorney, I have been asked to sponsor an out-of-state attorney whose name is John M. Loeschen, with regard to a lawsuit that was recently filed in Montgomery County, Alabama, in which you, and several entities, are named as defendants. At this time, no decision has been made as to whether I will be participating in these proceedings. Accordingly, you should have your malpractice carrier contact Mr. Loeschen directly.”

The defendants argued that this letter makes clear that Pool was not associated as local counsel for Loeschen in April 2013 when Hoke’s complaint was filed. The defendants also filed an objection to Hoke’s motion to amend her complaint to allow it to reflect Pool as Hoke’s counsel.

During a hearing on July 29, 2013, the circuit court notified the parties that the defendants’ motions to dismiss would be treated as motions for a summary judgment, and the court gave Hoke 10 days to provide evidence to support her position. On July 30, 2013, the circuit court granted, over the objection of the defendants, Loes-chen’s application to be admitted pro hac vice.

Hoke subsequently filed with the circuit court the following additional evidence to support her contention that Pool was always her attorney of record and that she had the intent to serve the defendants immediately at the time the complaint was filed: an affidavit from Loeschen; an affidavit from Pool; the cover sheet generated when the complaint was electronically filed, which includes Pool’s “attorney code” and his electronic signature; a copy of the case-action summary, which lists Pool as Hoke’s attorney in the medical-malpractice action; the summonses generated when the complaint was filed, which list Pool as the attorney who filed the complaint; and a receipt generated by AlaFile and sent to Pool’s registered e-mail address confirming that Hoke’s complaint had been electronically filed.

In his affidavit, Loeschen testified that he “engaged attorney Pool as associate local counsel prior to filing ... Hoke’s complaint”; that he knew that Pool had to file the complaint and that there was “no question” that Pool was going to file the complaint and do so before the statute of limitations ran; that Loeschen’s “signature was on the complaint to illustrate that [he] sought to be admitted pro hac vicé but it was [his] intention and expectation that ... Pool’s signature would be on the complaint as well”; however, “through oversight or inadvertence, the complaint was filed without ... Pool’s signature.” Regarding service of the complaint, Loeschen testified that he told the Montgomery Circuit Court clerk’s office that he was going to use a process server for service of process; that he understood Rule 4(b), Ala. R. Civ. P., as allowing him 120 days to effect service of process on the defendants; that he “viewed it as being appropriate to effectuate service after the verified application [for admission to practice pro hac vice] was filed because of the requirements of Rule VII governing foreign attorneys”; that he initially completed his verified application on May 7, 2013, but, at Pool’s direction, made necessary changes to the application so that it was not completed until June 4, 2013; and that the defendants were served on June 18, 2013.

In his affidavit, Pool testified that Hoke’s complaint was filed through his office, using his log-in name and password for the AlaFile system; that “it was mere oversight or clerical error that [his] electronic signature did not appear on the complaint”; and that- “he was associated by ... Loeschen as local counsel prior to the filing of the complaint.” Regarding the letter he sent to Dr. Chapman on June 21, 2013, Pool stated that, “[although the wording of the letter is not exemplary, ... the clear intent and purpose of the letter was to have the [defendants]’ malpractice carriers contact Mr. Loeschen directly regarding any possible settlement negotiations.” Pool further testified that there was never any intent to “delay or hinder service” of process to the defendants. Although Pool attempted in his affidavit to distinguish the cases on which the defendants relied to demonstrate that there was no bona fide intent to serve the complaint immediately at the time it was filed, he did not attempt to explain why he failed to take any action to serve the defendants in light of the fact that he was associated as local counsel at the time of the filing of the complaint.

On September 9, 2013, Loeschen filed a second affidavit with the circuit court stating that he had associated Pool as local counsel “[a] few months prior to filing the complaint” and that he was unaware, at the time the complaint was filed, that the complaint did not contain Pool’s signature as local counsel for Hoke.

On August 27, 2015, the circuit court denied the defendants’ motions for a summary judgment. On September 14, 2015, the circuit court, pursuant to Rule 5, certified two controlling questions of law:

“1. Whether this action is barred by the two-year statute of limitations as set forth in Alabama Code 1975, § 6-5-482, on the ground that the Complaint was a nullity because it was filed in violation of Rule VII of the Rules Governing Admission to the Alabama Bar where (a) the complaint was filed by a foreign attorney that had not filed a verified application to appear as counsel pro hac vice and (b) no attorney licensed in Alabama was identified on the complaint as local counsel.
“2. Whether this action is barred by the two-year statute of limitations as set forth in Alabama Code 1975, § 6-5-482, on the ground that the plaintiff did not have a bona fide intent to serve the defendants at the time that the complaint was filed as evidenced by (a) the plaintiff’s failure to provide neither an address for service of process for any party nor any instructions to the clerk for serving the [defendants] and (b) the plaintiffs unexplained delay in excess of two months in serving the defendants with the summons and complaint.”

The defendants timely filed petitions for' permission to appeal pursuant to Rule 5. This Court consolidated the petitions; we subsequently granted the petitions on December 17, 2015.

Discussion

“In conducting our de novo review of the question presented on a permissive appeal, ‘this Court will not expand its review ... beyond the question of law stated by the trial court. Any such expansion would usurp the responsibility entrusted to the trial court by Rule 5(a)[, Ala. R.App. P.].’” State Farm Mut. Auto. Ins. Co. v. Brown, 26 So.3d 1167, 1168 (Ala.2009) (quoting BE&K, Inc. v. Baker, 875 So.2d 1185, 1189 (Ala.2003)).

Because we conclude that the answer to the second certified question is dispositive of the appeals, we pretermit discussion of the first question. The defendants contend that Hoke’s action is barred by the applicable two-year statute of limitations because, at the time the complaint was filed, she lacked the bona fide intent to have the complaint immediately served on the defendants.

“Although Rule 3, Ala. R. Civ. P., states that ‘[a] civil action is commenced by filing a complaint with the court,’ this Court has held that the filing of a complaint is not the sole factor in determining when an action is ‘commenced.’ A major function of Rule 3, Ala. R. Civ. P., is to identify, with certainty, the specific time when a civil action is initiated. The filing of a complaint is, therefore, a significant factor in commencing an action and suspending the operation of the applicable statute of limitations; however, it is not the sole factor. Ward v. Saben Appliance Co., 391 So.2d 1030, 1032 (Ala. 1980).”

Ex parte East Alabama Mental Health-Mental Retardation Bd., Inc., 939 So.2d 1, 3 (Ala.2006).

“The filing of a complaint commences an action for purposes of the Alabama Rules of Civil Procedure but does not ‘commence’ an action for purposes of satisfying the statute of limitations. Pettibone Crane Co. v. Foster, 485 So.2d 712 (Ala.1986). See also Dunnam v. Ovbiagele, 814 So.2d 232 (Ala.2001); Maxwell v. Spring Hill Coll., 628 So.2d 335, 336 (Ala.1993) (“‘This Court has held that the filing of a complaint, standing alone, does not commence ah action for statute of limitations purposes.” ’ (quoting Latham v. Phillips, 590 So.2d 217, 218 (Ala.1991))). For statute-of-limitations purposes, the complaint must be filed and there must also exist ‘a bona fide intent to have it immediately served.’ Dunnam, 814 So.2d at 237-38.”

Precise v. Edwards, 60 So.3d 228, 230-31 (Ala.2010) (some emphasis added). The question whether such a bona fide intent existed at the time the complaint was filed must be determined by an objective standard. Id. at 233.

The question certified to this Court by the circuit court is phrased to ask whether, as a matter of law, Hoke did not possess the required bona fide intent to immediately serve the defendants at the time she filed her complaint in light of the facts (a) that she did not provide the clerk with the defendants’ addresses for service at 'that time or otherwise give the clerk instructions as-to how to serve the defendants and (b) that she did not explain the 69-day delay in serving the defendants with the summons and complaint. In Precise, this Court held that

“ ‘a bona fide intent to have [an action] immediately served’ can be found when the plaintiff, at the time of filing, performs all the tasks required to serve process.... On the other hand, when the plaintiff, at the time of filing, does not perform all the tasks required to effectuate service and delays, a part of the process, a lack of the required bona fide intent to serve the defendant is evidenced.”

60 So.3d at 233.

The defendants argue that Hoke did not perform any of the tasks required to serve process on any of the defendants when she filed her complaint.' It is undisputed that Hoke did not provide the address of any of the defendants to the circuit clerk at the time she filed her complaint; however, it is also undisputed that Loeschen informed the clerk that Hoke was electing to serve the defendants by use of a process server. See Rule 4(i)(l), Ala. R. Civ. P. Hoke was not required to provide the address of each defendant to the circuit clerk at the time she filed her complaint in order to effectuate service by process server. See Precise, 60 So.3d at '233 n. 3 (noting that, because the case involved service by process server, the fact that the plaintiff provided the address of the defendants to the circuit clerk was irrelevant). However, because Hoke elected to use á process server, she “undertook the duty to obtain a process server.” Id. at 233. There is no evidence in the record indicating that Hoke made any effort to obtain a process server at' the time she filed her complaint, or that she “performed all the tasks required to servé process” at the time of filing. Precise, 60 So,3d • at 233. Both Loeschen’s and Pool’s affidavits are silent as to what efforts they made to have the defendants served at the time the complaint was filed.

Hoke contends that, by informing the circuit clerk that the complaint would be served by process server, s.he “did all that was required under the Rules [of Civil Procedure], short of handing the summonses and complaint to the process server to be served, which is sufficient.” Hoke’s brief, at 20. To support this proposition, she cites East Alabama Mental Health, supra. In that case, when the plaintiff filed his complaint in the circuit court, he also filed with the circuit clerk summonses for service upon the defendants, requesting service by certified mail. The circuit clerk issued the summonses and certified-mail cards and gave the documents to plaintiffs counsel so that plaintiffs counsel could mail the summonses and complaints to the defendants. . The defendants received service by certified mail over two and one-half months after the plaintiff filed his complaint. The defendants moved for a summary judgment, arguing that the action was not commenced within the applicable statute of limitations because, although the complaint was timely filed, the plaintiff had made no attempt to serve the summonses and complaint on the defendants until 'more than two and one-half months after the statute of limitations had expired. After the trial court denied the defendants’ motion, they petitioned this Court for a writ of mandamus. .

This Court held that the evidence suggested that, by providing the clerk with the necessary documents or information so that the summonses could be issued by the clerk, the plaintiff intended to serve process upon the defendants and that the plaintiff had done “all that was required by the Rules of Civil Procedure to facilitate service, short of placing the summonses and complaints in the mail.”' East Alabama Mental Health, 939 So.2d at 5. In that regard, however, we noted that because the plaintiff elected to serve the defendants by certified mail pursuant to Rule 4(i)(2)(B), Ala. R. Civ. P., the clerk was responsible for mailing the summonses and complaint to the defendants but that the circuit clerk had shifted that responsibility to plaintiffs counsel. We further concluded that the plaintiffs delay in actually placing the summonses and complaint in the mail “may be some evidence indicating that, at the time he filed the complaint, he lacked the intention to immediately serve the summons and complaint,” but that, “without more, [the plaintiffs delay] does not sufficiently demonstrate that [the defendants] met [the] heavy burden” in a mandamus proceeding to show that they had a clear legal right to relief. Id.

The present case is distinguishable from East Alabama Mental Health. First, this case, by Loeschen’s undisputed testimony, does not involve a request for service by certified mail, which, as discussed above, would have placed a burden on Hoke to provide the defendants’ addresses to the clerk. Instead, it is undisputed that Loes-chen elected to serve the defendants using a process server. However, the record is silent as to any steps taken by Loeschen or Pool to effectuate service on the defendants by means of a process server at the time the complaint was filed. Thus, unlike the circumstances in East Alabama Mental Health, there is no evidence in the record to suggest that Hoke intended to serve process upon the defendants at the time the complaint was filed. Although delay may not be evidence, in and of itself, of a lack of a bona fide intent to immediately serve the complaint at the time it is filed, delay in conjunction with the absence of evidence of any steps taken by the plaintiff to effectuate service at the time of filing the complaint is evidence of a lack of a bona fide intent to immediately serve the complaint. Precise, 60 So.3d at 233. Accordingly, Hoke’s failure to take any step to effectuate service on the defendants as required by the Alabama Rules- of Civil Procedure at the time she filed her complaint evidences a lack of a bona fide intent to immediately serve the defendants.

Additionally, the defendants argue that. Hoke’s explanation for the delay in service evidences a lack of a bona fide intent to immediately serve the defendants at the time the complaint was filed. In his affidavit, Loeschen stated:

“At no time did I advise the clerk of court to hold, wait, or delay service of process. I did not obstruct or in any way engage in any dilatory tactics to delay service upon the [defendants], I had no reason to do so: I was not relying on the clerk’s office for service. To the contrary, during my review of the Rules of Civil Procedure, I understood that Ala. R. Civ. P., 4(b) provides for service of process within 120 days after filing the [c]omplaint. In order to ensure timeliness, I viewed it as being appropriate to effectuate service after the verified application [for admission pro hac vice] was filed because of the requirements of Rule VII governing foreign attorneys, and I anticipated that the filing would occur well within the 120 day time frame in which to complete service, which in fact it did.”

Additionally, both Pool and Loeschen testified that Pool had been associated as local counsel for Loeschen before the complaint was filed. However, as noted above, the record is silent as to why Pool—assuming he was associate local counsel at the time the complaint was filed—made no effort to effectuate service upon the defendants at the time the complaint was filed. Accordingly, the only explanation for the delay in attempting to effectuate service upon the defendants at the time Hoke’s complaint was filed is Loeschen’s testimony that he intentionally delayed any attempt to effectuate service upon the defendants until after he filed his application for admission pro hac vice—a process that took nearly two months to accomplish. Thus, the evidence demonstrates that Hoke, acting through her attorneys, did not have a bona fide intent to immediately serve the complaint at the time it was filed.

In her brief to this Court, Hoke contends that the delay in service does not evidence a lack of a bona fide intent to immediately serve the defendants at the time the complaint was filed because, pursuant to Rule 4(b), Ala. R. Civ. P., she had 120 days to serve the defendants. Rule 4(b) provides:

“(b) Time Limit for Service. If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative, after at least fourteen (14) days’ notice to the plaintiff, may dismiss the action without prejudice as to the defendant upon whom service was not made or direct that service be effected within a specified time; provided, however, that if the plaintiff shows good cause for the failure to serve the defendant, the court shall extend the time for service for an appropriate period. This subdivision does not apply to fictitious-party practice pursuant to Rule 9(h) or to service in a foreign country.”

Hoke contends that because the defendants were served 69 days after the complaint was filed, well within the 120-day limit for service set forth in Rule 4(b), the delay in service does not evidence a lack of intent to immediately serve the defendants. Hoke relies on State Farm Fire & Casualty Co. v. Smith, 39 So.3d 1172 (Ala.Civ.App.2009), to support her argument.

. In that case, the plaintiffs sued the defendant on December 29, 2008. On February 6, 2009, the defendant filed a motion to dismiss asserting insufficient service of process; specifically, the defendant alleged that the summons and complaint had simply been left outside her home. On March 16, 2009, the trial court dismissed the plaintiffs’ action after concluding that the defendant had not been properly served. On appeal, the plaintiffs argued that “the trial court erred in dismissing their action for insufficient service only 77 days after the filing of the complaint.” Smith, 39 So.3d at 1174. The Court of Civil Appeals discussed authority from federal courts interpreting Rule 4(m), Fed. R. Civ. P., the federal counterpart to Rule 4(b), and noted that “some federal cases have concluded that a motion to dismiss for insufficient service is premature if filed within 120 days of the filing of the complaint.” Id. at 1175 (emphasis added). In light of the analogous federal authority, the Court of Civil Appeals concluded “that Rule 4(b), Ala. R. Civ. P., allows 120 days for .service of process and that an .action may not be dismissed for insufficient service before the expiration of the 120-day period.” Id. (emphasis added). Accordingly, the Court of Civil Appeals reversed the trial court’s judgment dismissing the plaintiffs’ case for failing to perfect service only 77 days after the complaint was filed.

Smith addresses solely whether an. action can be dismissed for insufficient service before the expiration of the 120-day limit for service set forth in Rule 4(b). In the present case, the defendants did not ask the circuit court to dismiss Hoke’s complaint on the basis that service was insufficient or untimely pursuant to Rule 4(b); the defendants sought to dismiss Hoke’s complaint because she failed ■ to timely “commence” the action for statute-of-limitations purposes. Whether Hoke effectuated service within the time limit for service set forth in Rule 4(b) is an entirely separate inquiry from whether Hoke timely commenced her action for statute-of-limitations purposes. Nothing in Smith suggests that, even without a bona fide intent to immediately serve a complaint at the time the complaint is filed, a complaint is timely filed for purposes of the statute of limitations so long as the complaint is timely served pursuant to the terms of Rule 4(b). The fact that the defendants in the present case were served within the time limit for.service set forth in Rule 4(b) has no bearing on the question whether the action was timely commenced for purposes of the statute of limitations.

This Court’s decision in Precise supports this conclusion. In that case, the plaintiffs filed their complaint on September 7, 2008, and indicated that the defendants named in the complaint were to be served by a process server. The addresses of the defendants were included in the complaint. The defendants were served by process server on January 16, 2009, more than four months after the complaint was filed. The defendants filed a motion to dismiss, arguing that the plaintiffs’ action was time-barred, despite the fact that the complaint was filed within the applicable limitations period, because, they argued, the plaintiffs lacked the requisite intent to immediately serve the defendants when they filed the complaint. The plaintiffs attempted to distinguish the cases the defendants relied upon, but they did not explain the 131-day delay in service. The trial court agreed with the defendants, and the plaintiffs appealed.

On appeal, this Court agreed with the trial court that, because the plaintiffs elected to use a process server to effectuate service and, therefore, undertook the duty to obtain a process server,- the plaintiffs’ “unexplained failure to perform tasks required to effectuate service at the time of filing, ‘viewed objectively, evidences a lack of the required bona fide intent to have [the defendants] immediately served.’ ” Precise, 60 So.3d at 233 (quoting Dunnam v. Ovbiagele, 814 So.2d 232, 239 (Ala.2001)). The Court then stated:

“Additionally, the plaintiffs make numerous arguments regarding whether they were entitled to an extension of time to serve their complaint under Rule 4(b), Ala. R. Civ. P. However, the summary judgment is premised on the plaintiffs’ failure to commence the action for statute-of-limitations purposes; Rule 4(b) is immaterial to this analysis.”

Id. at 234 (emphasis added).

As set forth above, the question whether a complaint is timely served pursuant to Rule 4(b) is distinct from the question whether a plaintiff timely commenced his or her action for statute-of-limitations purposes by possessing, at the time the complaint is filed, the bona fide intent to have the complaint immediately served.

In this case, there is no evidence indicating that Pool or Loeschen made any attempt to take the steps required of them to effectuate service, at the time the complaint was filed. There is also no evidence indicating that the defendants’ addresses were unknown to Hoke, Pool, or Loeschen at the time the complaint was filed. The only evidence explaining the delay in service is the admission from Loeschen that he decided to delay serving the complaint until after he had filed his application for admission pro hac vice. Even if that were considered to be a. valid excuse for intentionally delaying service of a complaint, there is no explanation provided in the record as to why Pool, as local counsel,' did not attempt to effectuate service on the defendants. Viewing this evidence objectively, we conclude that Hoke did not possess a bona fide intent to immediately serve the defendants at the time the complaint was filed. ■ Accordingly, the action was not “commenced” for statute-of-limitations purposes before the two-year statute of limitations expired, and, therefore, the action is' time-barred pursuant to § 6-5-482.

Conclusion

The circuit court’s judgment denying the defendants’ motions for a summary judgment is reversed, and- this case is remanded-for further proceedings consistent with this opinion.

1141396—REVERSED AND REMANDED WITH INSTRUCTIONS.

1141401—REVERSED AND REMANDED WITH INSTRUCTIONS.

STUART, BOLIN, PARKER, SHAW, WISE, and BRYAN, JJ., concur.

MAIN, J., recuses himself.

      . Although it is clear that the defendants were eventually served, the record indicates only that it was not until sometime after Loeschen filed his application for admission pro hac ■ vice on June 4, 2013,—55 days after the complaint was filed-—that he delivered the necessary process to a process server. The record indicates that the clerk reissued process on June 17, 2013, and that each defendant was served the following day.

      . We recognize that the question of law certified to this Court asks whether Hoke lacked a bona fide intent to immediately serve the defendants as evidenced by, among other things, her "unexplained delay” in serving the defendants; however, it is undisputed that Hoke offered some explanation for her delay. We do not believe that we are improperly expanding the scope of the question of law certified by the circuit court—whether Hoke lacked a bona fide intent to immediately serve the defendants at the time she filed her complaint— by analyzing the question based on the facts as presented in the record.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Lori H. ELMORE v. Richard Steele KING.
    2150388
    Court of Civil Appeals of Alabama.
    November 10, 2016

      Jonathan E. Lyerly, Birmingham; and Michael Anderson, Pell City, for appellant.
    Paige P. Yarbrough of Crittenden Partners, P.C. Birmingham, for appellee.
   THOMAS, Judge.

Lori H. Elmore (“the mother”) and Richard Steele King (“the father”) were married in 1987 and divorced by a judgment entered in 2004 by the Jefferson Circuit Court. There are three children of the marriage: Harrison, born in 1991; Sarah, born in 1993; and Connor, born in 1996. Harrison, Sarah, and Connor are referred to collectively as “the children”; however, we note that the children are now adults. The circuit court incorporated the parties’ agreement into the divorce judgment, which reads, in pertinent part:

“8. College Education
“[The father] shall pay for each child the following expenses for a college or university undergraduate education: tuition, room, board, books, schools fees, clothing, transportation and a reasonable allowance at a cost equivalent to that at Auburn University in Auburn, Alabama. ... [The fatherj’s obligation shall continue until a child completes his or her undergraduate degree, or reaches the age of twenty-three (23) years whichever event shall first occurj]
“13. Acknowledgment
“[The father] and [the mother] respectfully acknowledge that each has consulted counsel of his or her choosing, understands the facts and undertakings contained in this Agreement, that they are satisfied with the terms thereof, and with such knowledge and understanding this Agreement is executed freely and voluntarily by each of them.”

In 2010 the father filed a petition seeking a modification of the divorce judgment. On May 17, 2010, the circuit court entered an order (“the 2010 consent order”), incorporating another agreement of the parties. The 2010 consent order reads, in pertinent part:

“6. [P]aragraph 8 (College Education) of the parties’ Agreement ratified by the Final judgment of Divorce shall remain in full force and effect. However, the parties shall further abide by the amendment attached hereto as Exhibit 2 (signed by both'parties and notarized), as the Order of this court as if set out fully herein.”

Exhibit 2 contains details regarding how the children’s college expenses would be funded, including noting that Elmer Harris, the children’s maternal grandfather, had “offered to help fund the three children’s college education through his 529 Accounts.” However, the father had agreed to remain responsible for any college costs incurred by the children in addition to those defrayed by funds provided by Harris.

On September 25, 2012, the mother filed, in case no. DR-03-2840.02, a contempt petition against the father alleging certain violations of the 2010 consent order. The father filed an answer to the mother’s petition, and, on December 20, 2012, the father filed, in case no. DR-03-2840.03, a contempt petition against the mother alleging certain violations of the 2010 consent order. That same day, the father filed a petition to modify the 2010 consent order in case no. DR-03-2840.04, seeking the inclusion of certain phrases that would clarify that his support obligation had been limited to the months that the children were “actually enrolled as full-time student[s] at a college or university” and that support was not required to be paid to the mother but that he could, instead, deposit required funds into the children’s banking accounts. On February 1, 2013, the circuit court entered an order consolidating case no. DR-03-2840.02, case no. DR-03-2840.03, and case no. DR-03-2840.04.

After a hearing on February 10 and 12, 2015, the circuit court entered,a judgment on September. 10, 2015. In pertinent part, the circuit court determined that the parties had each refused to pay expenses for which he or she .had been obligated; therefore, it found' both parents in civil contempt and ordered each party to reimburse the other party for specific expenses. The circuit court also required each party to pay his or her own attorney fees and included the following language in the judgment.

“The Court hereby orders ... the [2010] Consent Order and Final Judgment of Divoree to be modified to state that both parties’ obligation to support their children while in college shall terminate upon a child’s failure to maintain a minimum of a ’C’ average. Under applicable law, as well as the facts and circumstances of the present case, the Court deems such relief to be equitable and appropriate.”

On September 25, 2015, the mother filed a postjudgment motion. After a post-judgment hearing, the circuit court entered an order on December 15, 2015, denying the relief requested by the mother. On. January 12, 2016, the mother filed a timely notice of appeal to this court seeking our review of whether the circuit court had erred by modifying the 2010 consent order; by, she says, failing to enforce the 2010 consent order; and by declining to order the father to pay her attorney fees.

First, the mother argues that the circuit court erred by modifying the 2010 consent order to add the “C” average support limitation because, she says, the parties did not request the addition of the “C” average support limitation in their pleadings, or in a Rule 15, Ala. Rule Civ. P., amendment to the pleadings, and, she says, the issue of a “C” average support limitation was not tried by the express or implied consent of the parties. Our determination of whether the circuit court erred by modifying the consent order to' add the “C” average support limitation is a mixed question of law and fact. '

“Appellate courts properly apply a presumption of correctness to factual determinations of trial courts, even in the context of mixed questions of law and fact (see Pate [v. Rasco], 656 So.2d [855,] 857 [(Ala. Civ. App. 1995)], although determinations on questions of law are properly given no such presumption. See Alabama Farm Bureau Mut. Cas. Ins. Co. v. Cain, 387 So.2d 195, 197 (Ala. 1980) (in order to reverse judgment on issue involving mixed question of law and fact, reviewing court need only conclude ‘that [it] differ[s] with the trial court, not on the facts, but on its application of the law to those facts’).”

Roberts v. University of Alabama Hosp., 27 So.3d 512, 515 (Ala. Civ. App. 2008).

The mother testified that Harrison had not “do[ne] well [at Auburn University] and had to come home for two semesters.” At the time of the hearing, Harrison was a student at Samford University, and Sarah and Connor were students at Auburn University. It was undisputed that both Harrison and Conner had earned poor grades at Auburn University. However, the mother objected to specific questions regarding grades, and the following colloquy occurred:

“THE COURT: Because—and I will need the attorneys to help me on this. Is there anywhere in the final judgment, the [2010] consent order, that says the children have to maintain any specific— “[The father’s attorney]: No, ma’am. “[The mother’s attorney]:. Not that I’m aware of.; .
“[The father’s attorney]: They are not required by either of these documents to maintain any certain grade point average.
“[The mother’s attorney]: That’s correct.
“THE COURT: Then the objection is sustained.”

The circuit court heard arguments of counsel at-the postjudgment hearing. The mother’s attorney requested that the circuit court amend the judgment to exclude the “C” average support limitation. The father’s attorney conceded that the issue of the “C” average support limitation had not been raised in the parties,’ pleadings; however, the father’s attorney contended that the issue had been tried by the- consent of the parties because, the father’s attorney incorrectly asserted, the mother had failed raise an objection.

“The dispositive issue is whether the trial court erred in modifying the amount of monthly child support and arrearage payments where no petition for modification was filed and there was no oral request for modification. This court has held that, where modification was not sought by written or oral petition or request and the issue was not tried expressly or impliedly with the consent of the parties, fair play and due process dictate a reversal. Parnell v. Parnell, 500 So.2d 1137 (Ala. Civ. App. 1986); Price v. Price, 442 So.2d 121 (Ala. Civ. App. 1983).”

Roberson v. Roberson, 558 So.2d 946, 947 (Ala. Civ. App. 1990). Our review of the record reveals that there had been no written or oral requests for modification of the 2010 consent order to include a “C” average support limitation and that the “C” average support limitation was not tried by the express or implied consent of the parties because the mother successfully objected to questions regarding the children’s grades. Thus, the circuit court abused its discretion by modifying, sua sponte, the 2010 consent order to include the “C” average support limitation,

Next we consider the mother’s argument that the circuit court erred by failing to enforce the 2010 consent order by finding the father in contempt but failing to require him to pay her $58,822.89, which, she contends, represented his portion of the children’s expenses.pursuant to the 2010 consent order. The circuit court held the father in civil contempt and ordered him to reimburse the mother $600 for Connor’s textbooks and $998.08 for half of the children’s uncovered medical expenses (excluding the costs associated with certain counseling sessions because the mother had failed to consult the father regarding the medical decision to enroll them in counseling, as required by the 2010 consent order),

“We review the trial court’s finding of civil contempt under the -following well settled standard of review.
“ ‘The issue whether to hold a party in contempt is solely within the discretion of the trial court, and a trial court’s contempt determination will not be reversed on appeal absent a showing that the trial court acted outside its discretion or that its judgment is not supported by. the evidence. Brown v. Brown, 960 So.2d 712, 716 (Ala. Civ. App. 2006) (affirming a trial court’s decision not to hold a parent in contempt for failure to pay child support when the parent testified that he had deducted from his monthly child-support payment the amount he had expended to buy clothes for the children).’
“Poh v. Poh, 64 So.3d 49, 61 (Ala. Civ. App. 2010).
“ ‘Rule 70A, Ala. R. Civ. P., has governed contempt proceedings in civil actions since July 11, 1994. Rule 70A(a)(2)(D) defines “civil contempt” as a “willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its ■ nature is still capable of being complied with.” ’
“Stamm v. Stamm, 922 So.2d 920, 924 (Ala. Civ. App. 2004). Moreover, in order to hold a party in contempt under Rule 70A(a)(2)(D), the trial court must find that the party willfully failed or refused to comply with a court order. See T.L.D. v. C.G., 849 So.2d 200, 205 (Ala. Civ. App. 2002).”

Kreitzberg v. Kreitzberg, 131 So.3d 612, 627-28 (Ala. Civ. App. 2018).

The testimony presented revealed that the mother had routinely provided the father with monthly “invoices” detailing expenses that she had determined that he owed based upon her interpretation of the 2010 consent order. The father had neither communicated with the mother nor provided the invoiced amounts to her. The mother had routinely applied the alleged unpaid balances to the next month’s alleged monthly expenses to generate the next monthly “invoice.” The father testified that the mother’s “invoices” had been inaccurate, that he had paid bills and provided funds to the children of which the mother had been unaware, .and that, the mother had failed to gain his consent for certain expenses of more than $100 as required by the 2010 consent order. For example, the father testified that the mother had inaccurately “billed” him for Harrison’s room, board, and automobile expenses at a time when Harrison was an adult and not enrolled in college and that, when Harrison had been a student at Samford University, the mother had “billed” the father for costs that were not equivalent to the costs associated with attending Auburn University.

In their appellate briefs, the parties concede that the testimony presented regarding the payment of the children’s expenses was disputed; however, the mother asserts that her testimony and documentary evidence was more credible than that of the father. The mother argues:

“The [mother’s] Exhibit 4 is specific and consists of monthly invoices to the [father], for charges incurred for the benefit of the children. ... As to his evidence of what he has paid that is included on [the mother’s Exhibit 4, his evidence is thin and vague. He testified generally about what he paid but did not specify amounts.”

In Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala. Civ. App. 1999), we explained:

“Where a trial court receives conflicting ore tenus evidence, its judgment based on that evidence is presumed correct, and this court will not reverse such a judgment absent a finding of a plain and palpable abuse of discretion. Brannon v. Brannon, 477 So.2d 445 (Ala. Civ. App. 1985). The presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor. Hall v. Mazzone, 486 So.2d 408 (Ala. 1986).”

The circuit court did not plainly and palpably abuse its discretion by refusing to require the father to pay the sum requested by the mother.

Finally, we consider whether the circuit court erred by declining to order the father to pay the mother’s attorney fees.

“Whether to award an attorney fee in a domestic relations case is within the sound discretion of the trial court and, absent an abuse of that discretion, its ruling on that question will not be reversed. Thompson v. Thompson, 650 So.2d 928 (Ala. Civ. App. 1994). ‘Factors to be considered by the trial court when awarding such fees include the financial circumstances of the parties, the parties’ conduct, the results of the litigation, and, where appropriate, the trial court’s knowledge and experience as to the value of the services performed by the attorney.’ Figures v. Figures, 624 So.2d 188, 191 (Ala. Civ. App. 1993). Additionally, a trial court is presumed to have knowledge from which it may set a reasonable attorney fee even when there is no evidence as to the reasonableness of the attorney fee. Taylor v. Taylor, 486 So.2d 1294 (Ala. Civ. App. 1986).”

Glover v. Glover, 678 So.2d 174, 176 (Ala. Civ. App. 1996). The circuit court found the mother to be in civil contempt; thus, the circuit court did not abuse its discretion by declining to order the father to pay her attorney fees.

In conclusion, the judgment is reversed insofar as it modified the 2010 consent order to include the “C” average support limitation, and the cause is remanded with instructions for the circuit court remove the language terminating the parties’ obligations to support the children while in college upon a child’s failure to maintain a minimum of a “C” average. In all other respects, the judgment of the circuit court is affirmed.

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

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

      . We note that the parties had agreed to provide a number of postminority expenses for the benefit of the children; thus, correctly, neither the circuit court nor the parties have referenced Ex parte Bayliss, 550 So.2d 986 (Ala. 1989), overruled by Ex parte Christopher, 145 So.3d 60 (Ala. 2013).

      . Before the hearing on these matters, the circuit court entered an order on the father’s petition to modify in case no. DR-03-2840.04 in which it concluded that the 2010 consent order was unambiguous and that, therefore, no modification was necessary.


author: DONALDSON, Judge.

text:
    Daniel E. HORNBUCKLE v. Lynette HORNBUCKLE.
    2150596.
    Court of Civil Appeals of Alabama.
    Aug. 26, 2016.
    Certiorari Denied Nov. 10, 2016 Alabama Supreme Court 1151253.

      Daniel H. Chambers, Birmingham, for appellant.
    Candice J. Shockley, Pelham, for appel-lee.
   DONALDSON, Judge.

This, appeal involves a challenge to the jurisdiction of a circuit court in a divorce proceeding to enter an order regarding the custody of a child not born of the marriage but who is in the legal custody of the parties pursuant to a judgment of a juvenile court. Daniel E. Hornbuckle (“the husband”) appeals from an order of the Jefferson Circuit Court, Bessemer Division (“the circuit court”), denying his motion for relief pursuant to Rule 60(b), Aa. R. Civ. P., from a judgment divorcing him from Lynette Hornbuckle (“the wife”). We affirm the order.

On March 8, 2011, the wife filed a complaint in the circuit court seeking a divorce from the husband. The wife stated in the complaint that the only child born of the marriage was an adult at the time the complaint was filed. The wife further stated in the complaint that the parties had been granted custody of A.J. (“the child”), the wife’s great-niece, by a 2007 judgment of the Jefferson Juvenile Court, Bessemer Division (“the juvenile court”), in which the child had been found to be dependent (“the juvenile-court judgment”). The wife did not specifically request custody of the child in the complaint, but she requested that the husband be ordered to pay child support. The husband filed an answer and a counterclaim for a divorce on April 8, 2011, in which he requested custody of the child, among other things.

The circuit court entered a judgment of divorce on June 25, 2013 (“the divorce judgment”). In the divorce judgment, the circuit court, among other things, granted sole legal custody and sole physical custody of the child to the wife, granted the husband visitation rights with the child, and ordered the husband to pay child support to the wife in the amount of $511 per month for the benefit of the child.

On December 22, 2015, the husband filed a motion pursuant to Rule 60(b)(4), Aa. R. Civ. P. (“the Rule 60 motion”), seeking to set aside certain aspects of the divorce judgment on the basis that the circuit court had lacked subject-matter jurisdiction to enter a judgment in the divorce case addressing issues pertaining to custody, visitation, and support of the child. The husband contended that the divorce judgment had improperly modified the juvenile-court judgment, because, he said, the juvenile court had had exclusive continuing jurisdiction to enforce and modify the juvenile-court judgment. The husband argued that the circuit court did not share concurrent jurisdiction with the juvenile court to make decisions regarding the custody of the child because the child was not born of the parties’ marriage and because the child’s biological parents, who maintain visitation rights with the child,. “have a right to be notified and participate in any custodial changes of the child.” The wife filed a response to the Rule 60 motion on February 24, 2016, and, on that same day, the circuit court held a hearing on the Rule 60 motion. On March 3, 2016, the circuit court entered an order denying the Rule 60 motion. The husband filed a timely notice of appeal to this court on March 24, 2016. See Banks v. Estate of Woodall, 129 So.3d 294, 297 n. 4 (Ala.Civ.App.2013)(“[T]he denial of a Rule 60(b) motion is a separately appealable judgment.”).

On appeal, the husband contends that the provisions of the divorce judgment pertaining to custody, visitation, and support of the child are void because, he says, the circuit court lacked subject-matter jurisdiction to rule on issues relating to custody of the child. The husband contends that, under the Alabama Juvenile Justice Act, Act No. 2008-277, Ala. Acts 2008, codified at. § 12-15-101 et seq., Ala.Code 1975, (“the AJJA”), the juvenile court had continuing exclusive jurisdiction to modify the custody provisions of the juvenile-court judgment and that, therefore, the circuit court did not have concurrent jurisdiction to make determinations relating to custody of the child.

The issue of subject-matter jurisdiction cannot be waived and may be raised at any time. Ex parte Punturo, 928 So.2d 1030, 1033 (Ala.2002). “As a nullity, a void judgment has no effect and is subject to attack at any time.” Ex parte Full Circle Distribution, L.L.C., 883 So.2d 638, 643 (Ala.2003).

“The standard of review on appeal from an order granting [or denying] relief under Rule 60(b)(4), Ala. R. Civ. P. (‘the judgment is void’), is not whether the trial court has exceeded its discretion. When the decision to grant or to deny relief turns on the validity of the judgment, discretion has no field of operation. Cassioppi v. Damico, 536 So.2d 938, 940 (Ala.1988). ‘If the judgment is void, it is to be set aside; if it is valid, it must stand.... A judgment is void only if the court which rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process.’ Seventh Wonder v. Southbound Records, Inc., 364 So.2d 1173, 1174 (Ala.1978) (emphasis added).”

Id. at 641.

We first examine the pertinent provisions of the Alabama Code that authorize the circuit courts and the juvenile courts to exercise jurisdiction over matters involving child custody. A circuit court hearing a divorce case has authority to enter a judg-

ment pertaining to the custody of children of the marriage. Section 30-3-1, Ala.Code 1975, provides:

“Upon granting a divorce, the court may give the custody and education of the children of the marriage to either father or mother, as may seem right and proper, having regard to the moral character and prudence of the parents and the age and sex of the children; ’and pending the action; may make such orders in respect to the custody of the children as their safety and well-being may require. But in cases of abandonment of the husband by the wife, he shall have the custody of the children after they are seven years of age, if he is a suitable person to have such charge.”

Under § 12-15-114(a), Ala.Code 1975, a part of the AJJA, “[a], juvenile court shall exercise exclusive original jurisdiction of juvenile court proceedings in which a child is alleged ... to be dependent.In dependency cases, a juvenile court has jurisdiction to determine issues of custody and child support. See § 12-15-314(a) and (e), Ala.Code 1975. Section 12—15— 102(15), Ala.Code. 1975, provides that a person granted custody of a child in a dependency case becomes the “legal custodian” of the child. That section specifically defines the term “legal custodian” as “[a] parent, person, agency, or department to whom legal custody of a child under the jurisdiction of the juvenile court pursuant to this chapter has been awarded by order of the juvenile court or other court of competent jurisdiction.” Section 12-15-102(16) defines the term “legal custody” as

“[a] legal status created by order of the juvenile court which vests in a legal custodian the .right to have physical- custody of .a child under the jurisdiction of the juvenile court pursuant to this chapter and the right and duty to protect, train, and discipline the child and to provide the child with food, shelter, clothing, education-, and medical care, all subject to the powers, rights, duties, and responsibilities of the legal guardian of the person of the child and subject to any residual parental rights and responsibilities. A parent, person, agency, or department granted legal custody shall exercise the rights and responsibilities personally, unless otherwise restricted by the juvenile court.”

Pursuant to § 12-15-117, Ala.Code 1975, also a part of the AJJA, a juvenile court exercises continuing jurisdiction over cases in which a child has been adjudicated dependent. Section 12-15-117, in pertinent part, provides:

“(a) Once a child has been adjudicated dependent, delinquent, or in need of supervision, jurisdiction of the juvenile court shall terminate when the child becomes 21 years of age unless, prior thereto, the judge of the juvenile court terminates its jurisdiction by explicitly stating in a written order that it is terminating jurisdiction over the case involving the child. Nothing in this section is intended to affect the initial and continuing jurisdiction of juvenile courts over cases other than delinquency, dependency, or in need of supervision cases as provided in Sections 12-15-114, 12-15-115, 12-15-116, or any other statute by which jurisdiction was initially lawfully invoked.
“(c) In any case over which the juvenile court has jurisdiction, the juvenile court shall retain jurisdiction over an individual óf any age to enforce or modify any prior orders of the juvenile court unless otherwise provided by law and also shall retain jurisdiction for the enforcement or modification of any prior orders of the juvenile court requiring the payment of fines, court costs, restitution, or other money ordered by the juvenile court until paid in full.”

In the present case; pursuant to § 12-15-114, the juvenile court entered the juvenile-court judgment in 2007 finding the child to be dependent and granting custody of the child to the husband and the wife. Pursuant to § 12-15-117, the juvenile court maintained continuing jurisdiction to enforce or modify the juvenile-court judgment. In the pleadings in the divorce case, which were filed in 2011, however, both parties asked the circuit court to decide the custody of the child and both parties invoked the jurisdiction of the circuit court under § 30-3-1 to make determinations pertaining to the custody of the child. The issue this court must resolve is •whether the circuit court shared concurrent jurisdiction with the juvenile court to address issues of custody, visitation, and child support relating to the child or whether those issues were within the exclusive continuing jurisdiction of the juvenile court to enforce and modify the juvenile-court judgment pursuant to § 12—16— 117.

The husband contends that the juvenile court never terminated its jurisdiction over the dependency case in the juvenile-court judgment as is permitted by § 12-15-117, and that, accordingly, the juvenile court still retains jurisdiction over the matter. The wife contends that the juvenile court terminated its jurisdiction in the juvenile-court judgment by stating that the case was “closed.” The husband has attached a purported copy of the juvenile-court judgment to his appellate brief, but, because that judgment is not in the record, it cannot be considered. See Roberts v. NASCO Equip. Co., 986 So.2d 379, 385 (Ala.2007)(quoting Morrow v. State, 928 So.2d 315, 320 n. 5 (Ala.Crim.App.2004), quoting in turn Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991))(observing that “ ‘ “[attachments to briefs are not considered part of the record and therefore cannot be .considered on appeal” ’ ”). Because the juvenile-court judgment is not in the record, this court is unable ascertain whether the juvenile court terminated its jurisdiction, pursuant to § 12-15-117, in the juvenile-court judgment. Accordingly, the record does not contain sufficient evidence for this court to reverse the circuit court’s order denying the husband’s Rule 60(b) motion based on this issue.

The husband also argues that, because the parties are not parents of the child, § 30-3-1 did not authorize a circuit court to make a custody determination regarding the child because the child is not a “[child] of the marriage.” However, our supreme court has held that the circuit court’s jurisdiction to decide matters relating to child custody in divorce cases can extend to nonparents of a child who have been granted custody of that child. In Ex parte Lipscomb, 660 So.2d 986 (Ala.1994), our supreme court stated:

“Ordinarily, the circuit court in a divorce action may award custody ‘of the children of the marriage to either father or mother, as may seem right and proper,’ § 30-3-1; however, because the well-being of minor children is of paramount interest to the state, the circuit court also has jurisdiction to decide custody matters where nonparents are involved. Ex parte Handley, 460 So.2d 167 (Ala.1984).”

660 So.2d at 989. “[T]his court is bound by the decisions of our supreme court. Ala.Code 1975, § 12-3-16. We are not at liberty to overrule or modify those decisions. [Thompson v. Wasdin, 655 So.2d 1058 (Ala.Civ.App.1995).]” TenEyck v. TenEyck, 885 So.2d 146, 158 (Ala.Civ.App.2003). Thus, adhering to the supreme court’s binding decision in Ex parte Lipscomb, we cannot reverse the order denying the husband’s Rule 60(b) motion on the basis that the child is not a child of a marriage under § 30-3-1.

The husband notes that, before the adoption of the AJJA, former § 12-15-30, Ala.Code 1975, set forth the parameters of the jurisdiction of the juvenile courts over dependency matters. That statute provided, in pertinent part:

“(a) The juvenile court shall exercise exclusive original jurisdiction of proceedings in which a child is alleged to be delinquent, dependent or in need of supervision.
“(b) The court shall also exercise exclusive original jurisdiction of the following proceedings, which shall be governed by the laws relating thereto:
“(1) Proceedings to determine custody ... of a child when the child is otherwise before the court. This provision, however, shall not be construed to deprive other courts of the right to determine the custody ... of children when such custody ... is incidental to the determination of cases pending in those courts.”

(Emphasis added.) Former § 12-15-30 has been superseded by § 12-15-114. The husband contends that there is no provision in the AJJA stating that a circuit court exercises concurrent jurisdiction with a juvenile court over matters relating to child custody. He states that the final sentence in former § 12-15-30(b)(l) relating to the right of other courts to make custody determinations was not incorporated into § 12-15-114 or elsewhere in the AJJA, as adopted and as amended; thus, he contends that under the AJJA a circuit court is restricted from making determinations pertaining to custody of a child in a divorce case when a juvenile court has previously entered a custody judgment arising from a case in which the child was found to be dependent. Since the adoption of the AJJA in 2008, this court and our supreme court have recognized instances where a juvenile court and a circuit court shared concurrent jurisdiction, over matters involving custody of a child. See, e.g., Winford v. Winford, 139 So.3d 179, 182-83 (Ala.Civ.App.2013), and A.G. v. Ka.G., 114 So.3d 24, 26 (Ala.2012).

Furthermore, despite the.removal of the statutory language concerning concurrent jurisdiction of courts to rule on matters pertaining to custody that appeared in former § 12—15—30(b)(1), our supreme court noted in Ex parte Lipscomb, supra, that a circuit court’s equity power provides the circuit court with inherent authority to make determinations regarding custody when a child is before the circuit court. In Ex parte Lipscomb, the parties to a divorce case before a circuit court had been granted temporary custody of their grandchild by a judgment of a juvenile court. In the divorce complaint, the grandfather requested the circuit court to grant custody of the grandchild to the grandmother and to order him to pay child support. The circuit court entered a judgment granting the grandfather’s requests. The grandfather then appealed to this court, arguing that he was a nonparent of the grandchild and that the circuit court had erred in ordering him to pay child support. This court reversed the judgment, holding that the grandfather no longer had a duty to support the grandchild once the divorce was granted. Lipscomb v. Lipscomb, 660 So.2d 984, 986 (Ala.Civ.App.1993) On cer-tiorari review, the supreme court stated that the grandfather , had “a legal duty to support that arises from the legal custody of the child that he sought and obtained in the juvenile court.” Ex parte Lipscomb, 660 So.2d at 988. Citing the language of former § 12—15—30(b)(1), which was still in effect at the time, the supreme court recognized that “the juvenile court and the circuit court may have concurrent jurisdiction over custody matters under certain circumstances.” Id. at 989. The supreme court stated that, in addition to invoking the jurisdiction of the circuit court by asking it to grant custody to the grandmother and to order him to pay support, the grandfather also had a legal duty to support the grandchild because he was the legal custodian of the grandchild. In concluding that the circuit court had jurisdiction to make a determination on matters pertaining to custody of the grandchild, the supreme court stated:

“The circuit court’s jurisdiction to do so is derived from the principles of equity; where a child is physically present within the jurisdiction of a circuit court in this state, the court has inherent authority to act to protect the welfare and best interests of the child. [Ex parte] Handley[, 460 So.2d 167 (Ala.1984)]. A party need not specifically invoke the circuit court’s inherent jurisdiction; rather, any pleading showing on its face that the welfare of a child requires an order with respect to its custody and support is sufficient to invoke the jurisdiction of the circuit court to settle the matter. Handley. Once the circuit court’s jurisdiction is thus invoked, any matter affecting a child may become the subject of its. adjudication. Handley.”

Ex parte Lipscomb, 660 So.2d at 989.

Although the AJJA no longer contains language explicitly stating that a juvenile court’s exclusive original jurisdiction over dependency matters does not “deprive other courts of the. right to determine the custody ... [of a child] when such .custody ... is incidental to the determination of cases pending in those courts,” former § 12—15—30(b)(1), our supreme court recently determined that the omission from the AJJA of other jurisdictional language that had existed in a precursor statute did not indicate that the legislature had intended to alter the traditional boundaries of jurisdiction between the circuit courts and the juvenile courts. See Ex parte L.J., 176 So.3d 186, 192 (Ala.2014)(holding that “[i]t is ... unlikely that the legislature intended to foreclose a parent from filing a termination petition against another parent” in the juvenile court by omitting from the AJJA language that appeared in former § 12—15—30(b)(6), Ala. Code 1975, which granted the juvenile courts exclusive jurisdiction over all termination-of-parental-rights proceedings). Accordingly, we conclude that the omission from the AJJA of the language regarding concurrent jurisdiction previously found in former § 12-15-30(b)(l) does not deprive a circuit court of subject-matter jurisdiction over matters pertaining to custody of a child who has been previously adjudicated dependent by a juvenile court. Instead, when a juvenile court has made a custody determination involving a child in a dependency case, a circuit court can, based on binding supreme court precedent, properly exercise jurisdiction over the custody of a child pursuant to § 30-3-1, in a subsequent divorce case and, pursuant to its equity powers, make a custody determination involving the child.

As legal custodians of the child, the husband and the wife both have “a legal duty to support that arises from the legal custody of the child that [they] sought and obtained.” Ex parte Lipscomb, 660 So.2d at 988. Like the grandfather in Ex parte Lipscomb, the wife and the husband, as legal custodians of the child, invoked the circuit court’s concurrent jurisdiction over the issues of custody, visitation, and support in the divorce case. Neither of the parties objected to the circuit court’s exercising jurisdiction over the issues of custody, visitation, and support before the circuit court entered the divorce judgment. “‘Unless there is objection, even though one court has assumed jurisdiction of a matter, another court with concurrent authority may act in the same matter.’” P.R.G. v. W.P.B., 590 So.2d 913, 914 (Ala.Civ.App.l991)(quoting Sheffield v. Sheffield, 350 So.2d 1056, 1058 (Ala.Civ.App.1977)). Accordingly, the circuit court correctly denied the Rule 60 motion.

AFFIRMED.

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

THOMAS and MOORE, JJ., concur in the result, without writings.


text:
    Jack BLOOD v. Patricia BLOOD.
    2141058.
    Court of Civil Appeals of Alabama.
    Sept. 2, 2016.
    Certiorari Denied Nov. 10, 2016 Alabama Supreme Court 1151290.

      Joan-Marie Sullivan, Huntsville, for appellant.
    James D. Moffatt of Latham Moffatt, P.C., Athens, for appellee.
   On Application for Rehearing

DONALDSON, Judge.

This court’s opinion of July 1, 2016, is withdrawn, and the following is substituted therefor.

Jack Blood (“the former husband”) appeals from a judgment of the Limestone Circuit Court (“the trial court”) modifying his child-support obligation and denying his request to modify his alimony obligation to Patricia Blood (“the former wife”).

The former husband and the former wife were divorced by a judgment entered by the trial court in April 2012. Pursuant to the divorce judgment, the former husband was ordered to pay $1,146 per month in child support for the parties’ minor child. The former husband was ordered to pay periodic alimony to the former wife in the amount of $1,000 per month for 36 months, followed by $1,500 per month for 24 months. The judgment also provided that, if the former husband filed for bankruptcy protection within the 60-month period during which he was obligated to pay alimony, he would pay an additional $1,000 per month beginning with the month following the date the bankruptcy was final and continuing each month for the remainder of the 60-month period.

On October 21, 2013, the former husband filed a complaint in the trial court seeking to modify his child-support obligation. In the complaint, he alleged that there had been a significant change in his financial situation caused by his loss of employment, and he requested a temporary reduction in his child-support obligation pending his obtaining new employment. The former husband attached to his complaint bank statements and a written summary of his financial situation. The former wife filed an answer denying the former husband’s allegations and a counterclaim in which she alleged, among other things, that the former husband owed her a child-support arrearage and an alimony arrearage. The former husband filed an amended complaint seeking to reduce his alimony obligation to the former wife.

On March 11, 2015, the trial court held a trial at which only the former husband testified. The evidence at trial indicated the following. Before the divorce judgment had been entered, the former husband had been ordered by a Florida court to pay $2,000 per month in child support for a daughter conceived with another woman during his marriage to the former wife. At the time of trial, the former husband had an arrearage of $74,000 in unpaid child support owed to the other woman, and $3,755.25 was being withheld from his income each month to be applied to both-his current child-support obligation and the arrearage owed to the other woman. ■ At the time the divorce judgment was entered, the former husband worked for a defense contractor. After the divorce judgment was entered, the former husband was laid off from that employment. He then began working for. another employer, but he lost that job in January 2013. The former husband worked again from May 2013 through October 2013, earning approximately $79,716. The former husband's 2013 income-tax return showed his gross income for 2013 to be $108,778; however, the former husband testified that the income he claimed for 2013 included his severance pay from a former employer and withdrawals from his retirement plan. The former husband remained unemployed from October 2013 until July 2014, when he began his employment in Florida with a company called Textron. The former husband testified that, at the time of trial, he was earning a monthly gross income of $9,167 from his employment. The former husband testified that his total monthly living expenses were $4,096 but that he owed $6,049 per month toward unpaid child-support and alimony obligations.

The former husband testified that, during the time he was unemployed, he had exhausted his savings and had used credit cards to pay his child-support obligation to the former wife. The former husband testified that he had paid all of his child-support'obligations to the former wife that were owed during 2013. He testified that he had paid $3,081.96 in child-support payments for 2014 but that'he had a child-support arrearage owed to the former wife in the amount of $10,674.04 for 2014. The former husband testified that he had paid $1,213.92 in child support for January and February 2015 but that he had a child-support arrearage owed to the former wife in the amount of $1,078.08 for 2015. Thus, he testified, he had a total arrearage of $11,752.12 at the time of the trial.

The former husband testified that his first missed alimony payment to the. former wife was in. March 2013 and that he made partial alimony payments from June through September 2013, in January 2015, and in February 2015. The former husband testified that he had paid a total of $5,500 in alimony in 2013, that he did not pay any alimony in 2014, and that he had paid $300 in alimony in 2015. The former husband testified, that he had an arrearage of $17,500 in unpaid alimony owed to the former wife.,

On April 22, 2015, the trial court entered the following order:

“1. This case was initiated by the pro se filing by the [former husband] to modify child support and alimony, said petition being filed on October 18, 2013. The parties were divorced by order of this Court on April 10, 2012. The Court has considered the testimony and the exhibits. The [former husband] is also ordered to pay child support based on a Final Judgment of Paternity issued by the Circuit Court of the Fifth Judicial Circuit in and for Lake County, Florida, entered on about the 16th day of February, 2012, Said order predates the date of the divorce of the parties. Based upon same the Court finds that a material change of circumstances has occurred .regarding the payment of child support.
“2. The Court directed the attorneys for the parties to calculate current child support to be paid by the.[former husband] to the [former wife] postpetition for the last two months, of 2013, and for the years 2014 and 2015. The Court instructed counsel to calculate the child support arrearage owed by the [former husband]. Based upon such calculation, the Court finds that child support for the two months remaining in 2013, post-petition, to be paid by the Petitioner is $943.00 per month. Beginning in 2014, [former husband] should have paid child support in the amount of $897.00 per month. Beginning January of 2015 and forward until modified by this Court, the [former husband] shall pay the amount of $872.00 per month as current child support.
“3. Based upon the payment history and calculations introduced into evidence by the [former wife], the Court finds that the [former husband] is in arrears of child support through March 31, 2015, in the principal amount of $9,171.16, plus $739.43 interest, for a total owed of $9,910.59, for which judgment shall issue in favor of the [former wife] and against the [former husband], in accordance with Alabama law.
“4. The [former husband] has filed no proceeding in the State of Florida to modify the child support ordered by that State. Further, the [former husband] has received a notice of wage withholding from the State of Florida seeking to garnish from the [former husband’s] pay the sum of $3,755.25 per month in order to collect unpaid child support, in Florida. The Court finds that the [former husband] has failed to exercise due diligence in regard to seeking a modification for relief from child support in Florida, and has instead limited his efforts to reduce his obligations to the [former wife] here in the State of Alabama. The [former husband’s] request to modify alimony is therefore denied.
“5. The Court finds that the [former husband] is in arrears of alimony to the [former wife] in the principal sum of $20,550.00 as of March 31,2015.
“6. The [former husband] shall pay child support in the current amount of $872.00 per month commencing January 2015, and, commencing the month of April 2015, shall begin paying an additional $128.00 per month toward the arrears, for a total monthly sum to be paid toward current and arrears of $1,000.00 per month until such time as all arrears and accumulating interest are paid in full.
“7. The [former wife] shall provide to the [former husband] documents showing the medical expenses of the minor child which have been uncovered by insurance through March 31, 2015. Statements from the [former wife’s] health insurance provider will suffice for this purpose. The [former husband] shall reimburse to the [former wife] ... one-half (½) of the uncovered charges within ninety (90) days of the submission of same by the [former wife]. All future medical bills shall be reimbursed in accordance with provisions contained ■within the original Decree of Divorce.
“8. The [former husband’s] current alimony obligation as established'by the Decree of Divorce is the sum of $1,000.00 per month. The [former husband] shall pay this sum- commencing with the month of March 2015. Pursuant to the Decree the [former husband] shall pay the sum of $1,500.00 per month beginning April 1, 2015. All alimony shall continue being paid until such time as the current obligation- as defined within the Divorce Decree, plus the arrears set out herein, plus an additional sum of $1,000.00 per month to be paid for each month the [former husband] remains in bankruptcy as set out in the Decree of Divorce between the parties, which [former husband] filed bankruptcy on October 31, 2012, has been paid in full. The Court specifically reserves jurisdiction over the issue of alimony.
“9. The [former wife] had counterclaimed in this case to hold [the former husband] in contempt. The Court finds that the [former husband] suffered a decrease in income through no apparent fault of the [former husband]. Therefore, the request to hold the [former husband] in contempt is denied. All other prayers for relief filed or requested by either party not specifically addressed in this order are hereby denied.”

On May 14, 2015, the former husband filed a motion that he described as a motion to alter, amend, or vacate the April 22, 2015, order. On May 28, 2015, the former wife filed a motion to compel the former husband to produce certain documents that had not been produced before trial. The trial court set the pending motions for a hearing on June 11, 2015. On June 11, 2015, by agreement of the parties, the trial court entered an order continuing the hearing on the motions to August 18, 2015, On August 11, 2015, the parties filed a joint motion consenting to extend the time for ruling on the motions to September 11, 2015, which the trial court granted on August 12, 2015.

On September 14, 2015, the trial court entered the following order:

“This matter being set for hearing on the [former husband’s] Motion for Relief Filed Pursuant to the Alabama Rules of Civil Procedure, and the Court having considered the order previously issued in this matter on April 22, 2015, the Court hereby ORDERS as follows:
“1. After hearing the arguments of counsel the Court finds that the Order issued April 22, 2015, is not final as to the issues contained within paragraph # 7 thereof, concerning the [former husband’s] reimbursement to the [former wife] of one-half of the uncovered health expense costs of the child.
“The Court finds that the [former wife] submitted to the [former husband’s] previous counsel, as well as current counsel, the health expense charges as provided through the health insurance provider. Based upon discussions that were held in open Court during the trial of this case, the Court finds that same were sufficient for the purposes of calculating expenses to be reimbursed. Based upon same, the Court finds that the [former husband] owes to the [former wife] the sum of $749.07 which is to be paid within ninety (90) days of the date of this order.
“2. All other provisions of this Court’s order dated April 22, 2015, and, of the original order of this Court in the Decree of Divorce not by necessity modified by the content of the orders issued subsequent thereto shall remain in full force and effect.”

On September 21, 2015, the former husband filed a notice of appeal to this court.

On appeal, both the former husband and the former wife argue that the trial court’s order entered on September 14, 2015, is void for lack of jurisdiction. They contend that the motion filed by the former husband on May 14, 2015, was a postjudgment motion filed pursuant to Rule 59(e), Ala. R. Civ. P., and that it was therefore subject to the 90-day time limitation of Rule 59.1, Ala. R. Civ. P.; that the parties agreed to extend the time for the trial court to rule on the motion pursuant to Rule 59.1 until September 11, 2015; and that the trial court no longer had jurisdiction to enter the September 14, 2015, order adjudicating the former husband’s liability for unpaid health-care expenses after September 11, 2015.

When the trial court entered its order on April 22, 2015, the former wife’s claim against the former husband for unpaid health-care expenses remained pending. The April 22, 2015, order expressly did not adjudicate that claim and ordered the parties to take further action. In its September 14, 2015, order, the trial'court specifically found that its order entered on April 22, 2015, was not final because it did not resolve issues related to the former husband’s reimbursement to the former wife for one-half of the uncovered healthcare expenses of the child. “A trial court has inherent authority to interpret, clarify, and enforce its own ... judgments.” State Pers. Bd. v. Akers, 797 So.2d 422, 424 (Ala.2000). We agree with the trial court that the April 22, 2015, order was not final and that the trial court, therefore, had jurisdiction to enter the September 14, 2015, order. “An order is generally not final unless it disposes of all claims or the 'rights or liabilities of all parties.” Tomlinson v. Tomlinson, 816 So.2d 57, 58 (Ala.Civ.App.2001). The provisions of Rule 59, and the time limitations of Rule 59.1, are applicable only with respect to final judgments from which an appeal may be taken. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala.2003). The trial court’s April 22, 2015, order did not become final until September 14, 2015, when the trial cpurt entered its order amending the April 22, 2015, order to completely resolve all the claims between the parties. No other issue is raised regarding the order entered on September 14, 2015.

The former husband next argues that it is impossible to determine how the trial court calculated the former husband’s modified child-support obligation to the former wife because the child-support-guidelines forms required by Rule 32(E), Ala. R. Jud. Admin., are not in the record. The former wife agrees with the former husband and states in her appellate brief: “The former wife concedes as argued in Argument II of the [former husband] that the record lacks sufficient documentation required by Rule 32 of the Alabama Rules of Judicial Administration to substantiate the Court’s order regarding the calculation of child support and that such issues should be remanded to the trial Court for further proceedings.” In Willis v. Willis, 45 So.3d 347, 349 (Ala.Civ.App.2010), this court held:

“The record contains none of the child-support forms required by Rule 32(E), Ala. R. Jud. Admin., and the trial court’s judgment does not incorporate a child-support form setting forth the manner in which the trial court reached its child-support determination. ‘[T]his court cannot affirm a child-support order if it has to guess at what facts the trial court found in order to enter the support order it entered.... ’ Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999).”

See also Holley v. Holley, 829 So.2d 759, 763 (Ala.Civ.App.2002)(“The failure to incorporate the Child Support Guidéline forms is reversible error.”). Therefore, we reverse the trial court’s judgment insofar as it modifies the former husband’s child-support obligation, and we remand the cause to the trial court to calculate the former husband’s child-support obligation in compliance with the requirements of Rule 32, Ala. R. Jud. Admin., or to state the reasons for any deviation from the child-support guidelines.

The former husband also argues that the trial court should have modified his child-support obligation retroactively to the date his complaint seeking a modification was filed.

“The trial court may exercise its discretion in setting the effective date of a modification, but it is not bound to modify as of the date of the filing of the petition. Clutts v. Clutts, 54 Ala.App. 43, 304 So.2d 599 (1974); see also, Murphy v. Murphy, 491 So.2d 978 (Ala.Civ.App.1986). This matter is within the sound discretion of the trial judge, whose decision will not be disturbed unless it was so unsupported by the evidence as to be palpably wrong, manifestly unjust, or plainly erroneous. Culverhouse v. Culverhouse, 389 So.2d. 937 (Ala.Civ.App.1980)."

Rogers v. Sims, 671 So.2d 714, 716-17 (Ala.Civ.App.1995), The former wife asserts that the trial court intended to retroactively modify child support in paragraph two of its April 22, 2015, order, but, as previously discussed, she also asserts that the record fails to present any evidence supporting the calculation actually made by the trial court. Because we are reversing the judgment insofar as it adjudicates the amount of child support, we likewise reverse the judgment to the extent that it determines the applicable date of the modification and sets the arrearage amount owed by the former husband toward his child-support obligation, and we remand the cause for the trial court to redetermine the date on which any child-support modification is applicable and, accordingly, to recalculate the former husband’s child-support arrearage.

Finally, the former husband argues that the trial court erred in refusing to modify his alimony obligation to the former wife.

“The modification of periodic alimony is a matter within the discretion of the trial .court, arid on appeal its judgment on .that matter is presumed correct. Posey v. Posey, 634 So.2d 571 (Ala.Civ.App.1994). This court will not reverse such a judgment unless it is not supported by the evidence or is otherwise plainly and palpably wrong. Id. The trial court may modify an award of peri-odie alimony if the petitioner proves that a material change .of circumstances has occurred since the last award was made. Boudreaux v. Boudreaux, 550 So.2d 1030 (Ala.Civ.App.1989). The trial court may consider several factors, including the earning capacity of each spouse, the recipient’s needs and the payor’s ability to meet those needs, and tlje estate of each spouse. Posey, supra. Even if a change of circumstances is shown, the trial court is not required to grant the . modification.. Mullins v. Mullins, 475 So.2d 578 (Ala.Civ.App.1985).”

Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala.Civ.App.1995).

At the beginning of the trial, the former wife’s attorney informed the trial court that the parties had agreed to the terms contained in the divorce judgment:

“Your Honor will see, we intend to introduce a copy of the divorce decree, neither attorney was' involved in the writing of that, however it was by agreement. [The former husband] agreed to pay a thousand dollars a month for thirty-six months, fifteen hundred dollars a month for twenty-four months,”

The former wife’s attorney went on to say:

“Also,, in the decree, a provision that I have; .never seen before, but by agree-irient; in place by the parties, drafted on behalf of [the former husband], a provision was add[ed] that in the event that [the former husband] ever declared bankruptcy, his alimony would increase by a thousand dollars a morith."

The former husband’s attorney stood silent. Later,' the following exchange occurred:

“THE COURT: I’ll be honest with you—was this my case?
“[The former husband’s attorney]: It was, Judge.
“THE COURT: I do not remember it.
“[The former wife’s attorney]: It .was by agreement, Judge.
“THE COURT: Oh, okay. That’s the reason I don’t remember it.” ,

The former husband’s attorney again stood silent. The trial court, when questioning the former husband regarding the bankruptcy provision in the divorce judgment, stated: “[A]s soon as you finalize your bankruptcy, you’re just out another thousand dollars a month that you agreed to, because that’s what you agreed to in the order. Do you see what I’m saying?” The former husband responded: “Yes, sir.” The former husband and his attorney, for the third time, failed to contest the trial court’s statements indicating that the terms of the divorce judgment were entered into by agreement. We note that, “[w]hen ... a provision awarding periodic alimony is based upon the agreement of the parties, that provision should not be modified without close scrutiny, see, e.g., Trammell v. Trammell, 589 So.2d 743 (Ala.Civ.App.1991).” Santiago v. Santiago, 122 So.3d 1270, 1279 (Ala.Civ.App.2013). The divorce judgment, however, indicates that it was entered after a trial. Nevertheless, even if the former husband did not agree to pay the amount of alimony to the former wife that was ordered in the divorce, the record does not demonstrate a material change in circumstances sufficient to require a modification of alimony.

In support of his argument that there was a material change in circumstances requiring a modification, the former husband argues that his annual income had declined from the time the divorce judgment was entered to the time he filed his complaint seeking a modification from approximately $150,000 to approximately $110,000; that he had depleted his assets to meet his court-ordered obligations; that he had been forced to seek bankruptcy protection; and that his monthly expenses exceeded his. monthly income.

’The former wife argues that the trial court appropriately declined to modify the former husband’s alimony obligation because the former husband still earned a substantial yearly income of $110,000 and because he had made no effort to modify his $3,755.25 monthly child-support obligation to his child in Florida. During the trial, the trial court asked the former husband about his failure to seek to modify his Florida child-support obligation.

“THE COURT: Let me ask this, while we’re on it. Why have you not sought to modify, if things are so tight? Why are [you] just seeking to modify support here and not in Florida?
“[The former husband]: Initially because that mother was willing to work with me.
“THE COURT: Well, that sounds vindictive to me.. It sounds like you’re playing favorites.
“[The former husband]:- It’s just the economics, Your Honor, of the filing fees and the attorney fees. That’s the brace [ sic ] tacks of it. That’s why I originally filed pro se.
“THE COURT: Well, I’ll tell you this and we’ll go forward. You won’t balance your financial house on the backs [sic] of one child. That’s not going to happen. As we go forward -if' you think you’re going to favor one child and not against the other then it won’t happen with me. So I’ll just say that, going forward. I don’t know where we are.”

In the April 22, 2015, order, the trial court specifically noted:

“The [former husband] has filed no proceeding in the State of Florida to modify the child support ordered by that State. Further, the [former husband] has received a notice of wage withholding from the State of Florida seeking to garnish from the [former husband’s] pay the sum of $3,755.25 per month in order to collect unpaid child support in Florida. The Court finds that the [former husband] has failed to exercise due diligence in regard to seeking a modification for relief from child support in Florida, and has instead limited his efforts to reduce his obligations to the [former wife] here in the State of Alabama. The [former husband’s] request to modify alimony is therefore denied.”

The evidence indicated that, at the time of the trial, the former husband’s income had been reduced but that he was still earning a substantial salary. The former husband was also making charitable contributions of $846 each month, which the trial court found to be inappropriate in view of his failure to pay child support and alimony. If the former husband stopped making that discretionary expenditure, his monthly expenses would be greatly decreased. The trial court also found that the former husband was attempting to reduce his obligations only to the former wife, based on assertions of reduced income, while not attempting to do so for the child he had fathered while married to the former wife. The evidence also showed that the former husband’s child-support obligation in Florida had increased by $1,750 per month because he had failed to comply with a previous child-support order. In view of the wide discretion afforded to the trial court in such matters, we cannot say the decision of the trial court to not reduce the amount of alimony the former husband had agreed to pay the former wife as part of the divorce judgment was unsupported by the evidence or plainly and palpably wrong. Kiefer, supra. See also Mullins v. Mullins, 475 So.2d 578, 579 (Ala.Civ.App.1985)(noting that, “even though there may be changed circumstances, modification of a prior [alimony] judgment remains a matter within the discretion of the trial court”).

Based on the foregoing, the judgment, insofar as it addresses the former husband’s child-support obligation and child-support arrearage, is reversed, and the cause is remanded for the trial court to calculate child support in compliance with Rule 32, Ala. R. Jud. Admin., and to determine the child-support arrearage and the effective date of any child-support modification. As to the issue of alimony, the judgment is affirmed.

APPLICATION GRANTED; OPINION OF JULY 1, 2016, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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