author: PITTMAN, Judge. MOORE, Judge, dissenting.

text:
    Melissa BLOSE, as personal representative of the estate of Dorothy Lois Purser, deceased v. Arnold Glenn BALENTINE
    2160443
    Court of Civil Appeals of Alabama.
    November 17, 2017
    Daniel E. Boone, Florence, for appellant.
    James R. Engelthaler of Thigpen, Thigpen, Engelthaler & Scott, Inc., Florence, for appellee.
   PITTMAN, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.; Adams v. Boan, 559 So.2d 1084, 1088 (Ala. 1990) ; Rickard v. Trousdale, 508 So.2d 260, 261 (Ala. 1987) ; Piel v. Brown, 361 So.2d 90, 93-95 (Ala. 1978) ; and Dunning v. Mayhew, 240 So. 3d 616 (Ala. Civ. App. 2017).

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

Moore, J., dissents, with writing.

MOORE, Judge, dissenting.

On April 21, 2015, Melissa Blose filed a petition in the Lauderdale Probate Court ("the probate court"), seeking her appointment as the administrator ad litem of the estate of Dorothy Lois Purser ("Dorothy"), deceased; she asserted in the petition and in her accompanying affidavit, among other things, that Dorothy was her aunt and that "persons who are not family members or heirs of the estate of" Dorothy were occupying real property located in Florence that had belonged to Dorothy. The trial court granted Blose's petition and appointed her as administrator ad litem of Dorothy's estate. Blose filed a motion seeking the assistance of law-enforcement officials to gain entrance to Dorothy's real property; that motion was granted by the probate court. On April 29, 2015, Arnold Glenn Balentine ("Glenn") filed in the probate court an answer and an opposition to Blose's petition for appointment as administrator ad litem; he asserted, among other things, that he was Dorothy's surviving spouse and requested that the probate court vacate its order appointing Blose as administrator ad litem of Dorothy's estate. Blose filed a response to Glenn's answer. She also filed in the probate court a petition for the probate of Dorothy's will and a petition for letters testamentary, among other things. The probate court entered a judgment admitting Dorothy's will to probate and granted letters testamentary to Blose.

On July 7, 2015, Glenn filed a complaint in the Lauderdale Circuit Court ("the circuit court"), seeking to remove the administration of Dorothy's estate from the probate court, and, on July 29, 2015, the administration of the estate was removed to the circuit court. Before the administration of the estate was removed, Glenn filed in the probate court a petition to set aside statutory exemptions and allowances as Dorothy's surviving spouse and a petition for his elective share of Dorothy's estate, and Blose filed an objection to those petitions. Following the removal of the administration of the estate to the circuit court, a trial was conducted on the issue whether Glenn and Dorothy had been married at common law; the circuit court entered an order concluding that they had been husband and wife and set the case for a hearing on Glenn's petition for his elective share and to set aside statutory exemptions. Blose filed her notice of appeal to this court on November 30, 2016; that appeal was docketed as case no. 2160157. This court dismissed that appeal, however, as having been taken from a nonfinal judgment. See Blose v. Balentine, 241 So.3d 692 (Ala. Civ. App. 2017) (table).

On March 10, 2017, before this court issued its certificate of judgment in case no. 2160157 on March 14, 2017, the circuit court entered an order purporting to certify as final, pursuant to Rule 54(b), Ala. R. Civ. P., its judgment concluding that Glenn and Dorothy had been married at common law. Blose again appealed to this court. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction; that court then transferred the appeal to this court, pursuant to Ala. Code 1975, § 12-2-7(6). This court reinvested the circuit court with jurisdiction to reenter its March 10, 2017, order, which the circuit court did on May 10, 2017. See Raybon v. Hall, 17 So.3d 673, 675 (Ala. Civ. App. 2009) (concluding that entry of judgment before this court has issued certificate of judgment regarding a pending appeal in the same case results in entry of a void judgment that will not support an appeal).

In its no-opinion order of affirmance, this court cites Rickard v. Trousdale, 508 So.2d 260 (Ala. 1987), and implicitly determines that, in light of the circuit court's direction of the entry of a final judgment, pursuant to Rule 54(b), as to its determination regarding the existence of a common-law marriage between Glenn and Dorothy, this court has jurisdiction to hear Blose's current appeal. Because I disagree, I respectfully dissent.

Although the supreme court in Rickard, and this court in Melton v. Jenkins, 92 So.3d 105 (Ala. Civ. App. 2012), proceeded to consider the appeals in those cases following Rule 54(b) certifications of orders concluding, like the one in the present case, that a common-law marriage existed, neither court made any express finding of appellate jurisdiction. See Cochran v. Chapman, 21 So.3d 1244, 1246 n.1 (Ala. Civ. App. 2008) (concluding that, although an implied finding of jurisdiction may arise from an earlier case, it does not control the resolution of the question of jurisdiction in the present case). In Cochran, a divorce case, the trial court certified as final an order concluding only that the parties had entered into a common-law marriage. 21 So.3d at 1245. With regard to whether this court had jurisdiction over the appeal, we stated, in pertinent part:

" 'An appeal ordinarily will lie only from a final judgment-i.e., one that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.' Bean v. Craig, 557 So.2d 1249, 1253 (Ala. 1990). Rule 54(b), Ala. R. Civ. P., provides an exception to this rule. It reads, in pertinent part:
" 'When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.'
"Discussing the propriety of a Rule 54(b) certification of finality, this court recently wrote:
" 'In State v. Brantley Land, L.L.C., 976 So.2d 996 (Ala. 2007), our supreme court reviewed an order, purportedly made final pursuant to Rule 54(b), in which the trial court granted the State of Alabama a fee-simple interest in certain real property it had sought to condemn but reserved the question of compensation owed the owners of the property for a trial. On appeal by the State, the supreme court addressed the propriety of the certification of finality under Rule 54(b). It stated:
" ' "In James v. Alabama Coalition for Equity, Inc., 713 So.2d 937 (Ala. 1997), this Court stated:
" ' " 'Not every order has the element of finality necessary to trigger the application of Rule 54(b). Tanner v. Alabama Power Co., 617 So.2d 656, 656 (Ala. 1993) ( Rule 54(b)"confers appellate jurisdiction over an order of judgment only where the trial court 'has completely disposed of one of a number of claims, or one of multiple parties' " (emphasis in Tanner )).'
" ' " 713 So.2d at 941. As the James Court further stated, ' "[o]nly a fully adjudicated whole claim against a party may be certified under Rule 54(b)." ' 713 So.2d at 942 (quoting Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d 81, 84 (5th Cir. 1987) (emphasis in Sidag )). Similarly, in Precision American Corp. v. Leasing Service Corp., 505 So.2d 380, 381 (Ala. 1987), this Court held that the partial summary judgment at issue in that case did not 'completely dispose[ ] of a claim so as to make that judgment final. Rule 54(b) does not authorize the entry of final judgment on part of a single claim.' "
" ' 976 So. 2d at 999 (footnote omitted). The supreme court concluded that the trial court's order vesting the State with title to the real property but failing to award compensation to the landowners from whom the property was taken "[did] not present [it] with a 'fully adjudicated whole claim,' ... and that, therefore, the trial court erred in directing the entry of a final judgment as to that order." Id. at 1001.'
" Martin v. Phillips, 7 So.3d 1012, 1018 (Ala. Civ. App. 2008)."

21 So.3d at 1245-46.

This court determined in Cochran that the question whether the parties had been married at common law did not constitute a discrete "claim" within the case but, rather, was only a constituent part of the claim for a divorce. Id. at 1246. We observed that the trial court's determination that the parties had entered into a common-law marriage did not " 'fully adjudicate a whole claim,' as was necessary to make the order subject to a certification of finality under Rule 54(b)." Id.

In Dunning v. Mayhew, 240 So.3d 616, ---- (Ala. Civ. App. 2017), cited in the no-opinion order of affirmance, Lulu Mayhew filed a claim against the estate of Frederick Roosevelt Dunning, Jr. ("Frederick"), deceased, in which she asserted that she was the surviving spouse of Frederick. Following a hearing, the trial court determined that Frederick had entered into a common-law marriage with Mayhew. The personal representatives of Frederick's estate appealed to this court; this court proceeded to hear the appeal, noting "that our appellate courts have treated a judgment in a probate proceeding determining that a common-law marriage existed as final for purposes of appeal." 240 So.3d at 619 n.3. In that footnote, this court cited Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala. 1992) ; Aaberg v. Aaberg, 512 So.2d 1375, 1376 (Ala. 1987) ; Butler v. Coonrod, 671 So.2d 750, 751 (Ala. Civ. App. 1995) ; and Watkins v. Watkins, 190 So.3d 925, 933 (Ala. Civ. App. 2015). I first note that, in each of those cases, like in Rickard and Melton, neither this court nor our supreme court made any express finding of appellate jurisdiction. This court's footnote in Dunning also does not amount to an express finding of jurisdiction.

In Ex parte Boddie, 229 So.3d 255, (Ala. Civ. App. 2017), the parties were divorced by a judgment entered by the trial court in that case, and the mother subsequently filed a petition requesting that the father be held in contempt for his alleged failure to make certain payments as ordered in the divorce judgment and that certain provisions of the divorce judgment be modified. The father filed a "Request for Declaratory Judgment and Injunctive Relief," asserting that, following the entry of the divorce judgment, the parties had been married at common law for another five years and that he should not have been required to make certain payments during that period. 229 So.3d at ----. The father sought a judgment declaring the existence of the parties' common-law marriage and declaring that the mother was not entitled to the relief requested in her petition. Id. The trial court entered an order in which it determined that the parties had not been married at common law during the period asserted by the father, and, upon motion of the father, the trial court certified that order as a final judgment, pursuant to Rule 54(b). Id. The father requested permission to appeal the trial court's judgment pursuant to Rule 5, Ala. R. App. P., which allows for permissive appeals to the Alabama Supreme Court from interlocutory orders under limited circumstances, and he filed an alternative petition for a writ of mandamus. 229 So.3d at 257. This court concluded that the case was not appropriate for consideration under Rule 5 and concluded further that, because the judgment had been certified as final, the father had an adequate remedy by appeal such that his petition for a writ of mandamus was due to be denied.

In Boddie, the father had sought a judgment declaring that the parties were married at common law. Thus, the trial court's judgment finding that the parties had not been married at common law adjudicated a pending claim for relief that was before it. In the present case, no such declaratory-judgment claim was filed. Accordingly, Boddie is clearly distinguishable from the circumstances in the present case.

In my opinion, like in Cochran, the question whether Glenn and Dorothy were married at common law did not constitute a discrete "claim" within the case; rather, it was only a constituent part of Glenn's underlying claims. Accordingly, I conclude that the circuit court erred in certifying, pursuant to Rule 54(b), its order determining that Glenn and Dorothy had been married at common law, and I would dismiss the appeal.

      In Lofton, Butler, and Watkins, the trial courts in each of those cases concluded that no common-law marriage had existed. Although this court is not called upon in the present case to determine whether a judgment concluding that no common-law marriage existed may be certified as final pursuant to Rule 54(b), I conclude that, because those judgments could result in the implicit denial of an underlying claim, those cases are distinguishable from the circumstances in the present case.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    EX PARTE Mia Simone CURTIS
    (In re: Barry G. Curtis v. Mia Simone Curtis)
    2170004
    Court of Civil Appeals of Alabama.
    November 17, 2017
    Charles H. Dunn and Joseph P. Callaway of Boyd, Fernambucq & Dunn, P.C., Birmingham, for petitioner.
    Paige P. Yarbrough of Crittenden Partners, P.C., Birmingham, for respondent.
   DONALDSON, Judge.

Mia Simone Curtis ("the wife") has filed a petition for the writ of mandamus seeking to have this court direct the Talladega Circuit Court ("the trial court") to vacate its September 18, 2017, order staying the execution of a judgment entered in a divorce action between the wife and Barry G. Curtis ("the husband") pending the outcome of the appeal of that judgment. Because the husband has not executed a supersedeas bond as required by Rule 8, Ala. R. App. P., the husband is not entitled to a stay, and we therefore grant the wife's petition and issue the writ.

The parties' underlying divorce proceedings were initiated in May 2011. On July 28, 2015, the trial court entered an order that, among other things, divorced the parties and divided their property. In September 2015, the husband appealed to this court. In May 2016, this court dismissed the husband's appeal as having been taken from a nonfinal judgment after determining that a contempt claim remained pending in the trial court. Curtis v. Curtis, 210 So.3d 1120 (Ala. Civ. App. 2016) (" Curtis I").

Based on the materials submitted with the wife's mandamus petition, it appears that the trial court entered a final judgment on January 6, 2017, amending the July 28, 2015, order to expressly deny all other relief requested by the parties that was not specifically addressed in the judgment. As part of the divorce judgment, the wife was awarded, among other things, $500,000 in alimony in gross, payable in monthly installments of $3,000; certain real property; certain proceeds from the sale of the parties' real property; $10,000 in attorney's fees; and a monetary award in the amount of $9,682, representing an amount intercepted by the federal Internal Revenue Service based on the husband's failure to timely and accurately file the parties' joint income-tax return.

On February 13, 2017, the husband filed a notice of appeal to this court, which was docketed as appeal no. 2160315. The husband did not execute a supersedeas bond. The wife filed a cross-appeal, which was docketed as appeal no. 2160327 and which this court, ex mero motu, consolidated with the husband's appeal (the husband's appeal and the wife's cross-appeal are hereinafter referred to collectively as "Curtis II").

In May 2017, after the notices of appeal were filed in Curtis II, the wife apparently served processes of garnishment directed to four nonparty businesses. On June 14, 2017, the husband filed a motion in the trial court seeking to quash the processes of garnishment and to stay any further execution of the final judgment pending the conclusion of the appeals in Curtis II. A copy of the garnishment documents are not contained within the materials submitted to this court, but, according to the husband's motion, the wife sought to collect $70,773.75. In his motion, the husband asserted that the processes of garnishment did not specify the funds to be garnished or identify how the amounts sought were calculated and that, if the garnishments were carried out, he would be "financially crippled." The husband also asserted that he

"contests the valuation of his company in [Curtis II ], among other issues, and therefore, the resulting alimony in gross that he is required to pay to [the wife], posting a supersedeas bond for 125% of the money judgment as specified [in Rule 8, Ala. R. App. P.,] would have been inequitable in this case. As such, a formal stay of the existing Final Judgment of Divorce is necessary and equitable."

On June 20, 2017, the wife filed a response in opposition to the husband's motion in which she asserted, among other things, that the husband was not entitled to a stay absent the execution of a supersedeas bond. On September 18, 2017, after a hearing, the trial court granted the husband's motion to quash the processes of garnishment and stayed any further execution of the final judgment pending the outcome of the appeals in Curtis II.

On October 2, 2017, the wife filed her petition for the writ of mandamus to this court within the presumptively reasonable time. See Rule 21(a)(3), Ala. R. App. P., and Norman v. Norman, 984 So.2d 427, 429 (Ala. Civ. App. 2007) ("The presumptively reasonable time within which to file a petition for a writ of mandamus is the time in which an appeal may be taken.").

" ' "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ' Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) )."

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008). Our supreme court has recognized that "a writ of mandamus is an appropriate means by which to review ... [the] grant of a motion to set aside previous supersedeas bond amount ...." Ex parte U.S. Bank Nat'l Ass'n, 148 So.3d 1060, 1064 (Ala. 2014) (citing Ex parte Mohabbat, 93 So.3d 79 (Ala. 2012) ).

In her mandamus petition, the wife argues that, because the husband did not post a supersedeas bond, this court should direct the trial court to vacate its order granting the stay. The husband responds that mandamus is not an appropriate remedy insofar as the trial court's order quashes the processes of garnishment. The wife, however, has not challenged in her mandamus petition the portion of the trial court's order quashing the processes of garnishment. Therefore, we will determine only whether the wife is entitled to the relief specifically requested in her petition-i.e., whether the trial court's order staying execution of the judgment absent the husband's posting of a supersedeas bond should be vacated.

Rule 8(a), Ala. R. App. P., provides that

"[t]he appellant shall not be entitled to a stay of execution of the judgment pending appeal (except as provided in Rule 62(e), Ala. R. Civ. P.) unless the appellant executes bond with good and sufficient sureties, approved by the clerk of the trial court, payable to the appellee ..., with condition, failing the appeal, to satisfy such judgment as the appellate court may render ...."

Our supreme court has explained that

"[t]he plain meaning of Rule 8(a)(1) is that one who appeals a judgment against him for money damages only must execute a supersedeas bond in an amount equal to 125% of the amount of the judgment when the judgment exceeds $10,000.00. The language utilized in the rule is mandatory; the trial judge is given no discretion in setting the amount of the supersedeas bond."

Ex parte Spriggs Enters., Inc., 376 So.2d 1088, 1089 (Ala. 1979). "The default rule is that the prevailing party may immediately execute on the judgment. If the appellant desires a stay, it is his responsibility to post the required bond." Scrushy v. Tucker, 955 So.2d 988, 1000 (Ala. 2006). See Ex parte Mohabbat, 93 So.3d 79 (Ala. 2012) (holding that the trial court lacked the authority to reduce a supersedeas bond required by Rule 8 in order to stay execution of monetary judgment pending appeal).

The husband's sole argument in response to the wife's request to have the stay order vacated is that the wife's request is barred based on the law-of-the-case doctrine because, he asserts, the wife did not contest in this court the husband's failure to execute a supersedeas bond when the trial court issued a stay in Curtis I. The law-of-the-case doctrine provides "that on remand the issues decided by an appellate court become the 'law of the case,' and that the trial court must comply with the appellate court's mandate." Gray v. Reynolds, 553 So.2d 79, 81 (Ala. 1989). The doctrine is not applicable when the appellate court made no decision on the issue under review. See Bagley ex rel. Bagley v. Creekside Motors, Inc., 913 So.2d 441, 446 (Ala. 2005) (holding that the law-of-the-case doctrine is inapplicable to an issue that was not "dispositively decide[d]" before remand). This court was not presented with, nor did it decide, any issue regarding the propriety of the trial court's issuance of a stay in Curtis I. Further, the wife is seeking mandamus relief from a new order granting a stay that was entered after Curtis I was decided. Accordingly, the law-of-the-case doctrine does not operate to bar the wife's requested relief.

In support of her mandamus petition, the wife argues that, absent the execution of a supersedeas bond, she has a clear legal right to execute on the judgment, that the trial court had an imperative duty to allow her to execute on the judgment but instead granted the stay, and that she lacks another adequate remedy. We agree.

" '[A]n appeal does not ordinarily supersede the judgment in the absence of a supersedeas bond.' St. Regis Paper Co. v. Kerlin, 476 So.2d 64, 66 (Ala. 1985) (citing Moore v. LeFlore, 288 Ala. 315, 260 So.2d 585 (1972) ).
" 'The purpose of requiring a supersedeas bond is to preserve the status quo pending the appeal. Ex parte Spriggs Enterprises, Inc., 376 So.2d 1088 (Ala. 1979). When one appeals without posting a supersedeas bond, the appellee's right to enforce the judgment is not suspended during the appeal, and, whatever measures are necessary for the execution of the judgment, it is the duty of the trial court to pursue them on application of the party in interest. Ex parte Dekle, 278 Ala. 307, [309,] 178 So.2d 85[, 86] (1965).'
" Baker v. Bennett, 660 So.2d 980, 982 (Ala. 1995)."

Davis v. Davis, 221 So.3d 474, 479-80 (Ala. Civ. App. 2016). The materials before this court indicate that the trial court issued a stay despite the husband's failure to execute a supersedeas bond, in contravention of Rule 8, Ala. R. App. P., thereby preventing the wife from executing on the judgment. The materials also indicate that the order granting the stay, entered after the husband had appealed the final judgment to this court, is an interlocutory order, and, therefore, the wife does not have any remedy other than seeking mandamus relief. See Ex parte U.S. Bank Nat'l Ass'n, 148 So.3d at 1064 (holding that a petition for the writ of mandamus is an appropriate mechanism for reviewing issues regarding the grant of a supersedeas bond). Accordingly, the wife's mandamus petition is due to be granted, and the trial court is directed to vacate its September 18, 2017, order granting the husband's motion to stay execution of the judgment.

PETITION GRANTED; WRIT ISSUED.

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


author: THOMAS, Judge.

text:
    EX PARTE A.A.
    (In re: K.F.W. and J.A.W. v. A.A.)
    2170024
    Court of Civil Appeals of Alabama.
    November 17, 2017
    Nancy M. Kirby, Prattville, for petitioner.
    Kimberly Griffin Kervin, Prattville, for respondents.
   THOMAS, Judge.

K.F.W. and J.A.W. ("the paternal great-grandparents") brought an action in the Autauga Juvenile Court ("the juvenile court") seeking to have A.W. ("the child") declared dependent and seeking an award of custody of the child; that action was assigned case number JU-16-141.01. J.W. ("the paternal grandmother") also filed in the juvenile court a dependency petition and a request for an award of custody of the child; that action was assigned case number JU-16-141.02. A.A. ("the mother") sought and was granted in forma pauperis status in both case number JU-16-141.01 and case number JU-16-141.02. In both of those actions, she was represented by appointed counsel. The paternal grandmother withdrew her petition for custody in case number JU-16-141.02, and the juvenile court awarded custody of the child to the paternal great-grandparents in March 2017 in case number JU-16-141.01.

The paternal great-grandparents then instituted an action seeking to terminate the parental rights of the mother to the child, which action was assigned case number JU-16-141.03 ("the termination-of-parental-rights action"). The mother did not file an affidavit of substantial hardship to seek in forma pauperis status in the termination-of-parental-rights action. Despite this fact, the juvenile court appointed counsel for her at the request of the paternal great-grandparents. The mother was later provided private counsel at the expense of a third party, who also arranged for a court reporter to be present to record the trial held in the termination-of-parental-rights action. After the juvenile court entered a judgment terminating her parental rights, the mother filed a notice of appeal to this court; her appeal was assigned appeal number 2160989.

On August 31, 2017, the mother moved the juvenile court to designate a court reporter to transcribe the trial held in the termination-of-parental-rights action. The mother requested that the court reporter who had been present at the trial, April Sargent, be permitted to transcribe the proceedings. The juvenile court granted the mother's motion on September 5, 2017, and entered an order designating Sargent as the person responsible for transcribing the trial held in the termination-of-parental-rights action.

On September 8, 2017, this court sent the mother a deficiency notice in appeal number 2160989 because the docket fee for the mother's appeal had not been paid. Counsel for the mother informed this court by letter that, although the mother had been provided counsel by a third party, she had been proceeding in forma pauperis in the juvenile court. Because we were not provided any proof that the mother had been granted in forma pauperis status by the juvenile court, we ordered the mother to file in the juvenile court a request to proceed in forma pauperis on appeal as required by Rule 24(a), Ala. R. App. P. The mother filed that request in the juvenile court on September 27, 2017. The juvenile court granted the mother's request to proceed in forma pauperis on appeal on October 5, 2017.

On October 6, 2017, the mother filed in the juvenile court a motion seeking a free transcript based on her indigency. In her motion, the mother specifically relied on In re Ward, 351 So.2d 571, 574 (Ala. Civ. App. 1977), which explains that an indigent parent appealing from a juvenile-court judgment is entitled to a free transcript insofar as the transcript is necessary for effective appellate review. On October 9, 2017, the juvenile court set the mother's motion for a free transcript for a hearing to be held on October 11, 2017. That same day, counsel for the mother sought a continuance of the October 11, 2017, hearing, alleging that she had to be present in court in another county on the morning of October 11, 2017, and that two days' notice was not sufficient for counsel to reach the mother and to arrange transportation to the hearing because the mother, who was indigent, did not have a working telephone or transportation readily available.

The juvenile court denied the motion to continue on October 10, 2017, stating:

"MOTION TO CONTINUE is DENIED as this is a Juvenile court matter. Based upon testimony previously provided, the Mother is fully provided for by the Paternal Grandmother therefore she should have the means to travel several miles to the Courthouse to attend a hearing wherein she is requesting this Court find her indigent. If the Mother is now employed or in drug rehabilitation, Mother's counsel may make this Court aware of this new development for consideration.
"All Orders entered since the Notice of Appeal are set aside pending further hearing including designation of Court Reporter and waiver of fees."

(Capitalization and emphasis in original.)

The mother filed this petition for the writ of mandamus on October 10, 2017. She filed with the petition a motion to stay the October 11, 2017, hearing, which this court granted pending resolution of this petition based on the fact that the juvenile court had set a hearing with less than two days' notice to the parties. See Rule 6(d), Ala. R. Civ. P. (indicating generally that a party should be given five days notice of a hearing on a written motion). In her petition, the mother challenges the juvenile court's October 9, 2017, order setting the hearing on the motion for a free transcript with only two days' notice to the mother and the October 10, 2017, order insofar as it set aside the September 5, 2017, order appointing a court reporter and the October 5, 2017, order granting the mother's request to proceed in forma pauperis on appeal. Finally, the mother contends that the juvenile court is required to allow her a free transcript of the termination-of-parental-rights trial.

We begin our review by noting that

"an appellate court will grant a petition for a writ of mandamus only when '(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked.' "

Ex parte A.D.W., 192 So.3d 405, 407 (Ala. Civ. App. 2015) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ).

We first consider the mother's argument that the juvenile court's October 10, 2017, order improperly set aside the October 5, 2017, order granting her leave to proceed in forma pauperis on appeal in appeal number 2160989. Leave to proceed in forma pauperis on appeal is governed by Rule 24, which reads, in pertinent part:

"(a) Leave to Proceed In Forma Pauperis From Trial Court to Appellate Court. A party to an action in a court who desires to proceed on appeal in forma pauperis shall file in the trial court a motion for leave so to proceed, together with an affidavit showing, in the detail prescribed by Form 15 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor, the party's belief that he or she is entitled to redress, and a statement of the issues which the party intends to present on appeal. If the motion is granted, the party may proceed without further application to the appellate court and without prepayment of fees or costs in either court or the giving of security therefor. If the motion is denied, the trial court shall state in writing the reasons for the denial.
"Notwithstanding the provisions of the preceding paragraph, a party who has been permitted to proceed in an action in the court in forma pauperis ... may proceed on appeal in forma pauperis without further authorization unless, before or after the notice of appeal is filed, the trial court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed, in which event the trial court shall state in writing the reasons for such certification or finding."

The mother, as directed by this court, filed her motion to proceed in forma pauperis on appeal in the juvenile court. The juvenile court granted that motion. At that point, the mother was entitled to "proceed without further application to the appellate court and without prepayment of fees or costs in either court or the giving of security therefor." Rule 24(a). The juvenile court has the power to rescind in forma pauperis status granted in the juvenile court if the juvenile court certifies that an appeal is not taken in good faith or finds some reason that the party should no longer be permitted to proceed in forma pauperis. However, the juvenile court is required to make such a certification or finding, together with the reasons therefore, in writing.

In the present case, the juvenile court granted the mother's request to proceed in forma pauperis on appeal based on the mother's motion. No objection to the mother's motion was made, and the juvenile court has not certified that the mother's appeal was not taken in good faith or otherwise stated in writing any reason why the mother should no longer be permitted to proceed in forma pauperis. Thus, the juvenile court's attempt to rescind the October 5, 2017, order granting the mother's request to proceed in forma pauperis on appeal is ineffective, and, insofar as the October 10, 2017, order purports to do so, we direct that aspect of the order be set aside.

The mother next argues that the juvenile court improperly set aside its September 5, 2017, order designating Sargent to transcribe the trial held in the termination-of-parental-rights action. Although the mother is not entitled to have a particular court reporter appointed to transcribe the trial, she is entitled to have the trial transcribed pursuant to Rule 20, Ala. R. Juv. P.:

"(A) A recording of all juvenile court proceedings shall be kept by stenographic reporting, by mechanical or electronic device, or by some combination thereof, for the purpose of the creation of an official record of the proceedings, except that a recording in a child-support proceeding (designated as a 'CS' case) is not required but is permissible by order of the juvenile court. The audio or stenographic recording shall be preserved until the time for taking an appeal has expired and shall not be released except for the following purposes:
"(1) In the event of an appeal.
"(2) Upon written order of the juvenile court judge, which shall include a specific finding that good cause exists for the creation and release of a transcript of the proceedings.
"(B) Transcription of the record of juvenile court proceedings shall be by a person designated by the juvenile court judge. The transcript shall be certified as directed by the juvenile court or as required by the Alabama Rules of Appellate Procedure.
"(C) In the event of an appeal pursuant to Rule 28(A)(1)[, Ala. R. Juv. P.,] in a case in which the juvenile court proceedings have been recorded by mechanical or electronic devices, the juvenile court judge may request the assistance of the presiding circuit court judge in determining the appropriate person to transcribe the record for purposes of providing a certified record on appeal.
"(D) The person designated to transcribe the juvenile court proceedings shall be entitled to be paid the transcript fees provided in Rule 29, Alabama Rules of Judicial Administration."

The juvenile court's basis for setting aside the order designating Sargent to transcribe the trial held in the termination-of-parental-rights action is not clear from the October 10, 2017, order. No party requested such action, and the order does not indicate that Sargent had failed to perform the transcription. From all that appears in the materials before us, the juvenile court set aside its orders granting the mother's request to proceed in forma pauperis on appeal and designating Sargent to transcribe the trial held in the termination-of-parental-rights action because the mother had sought a continuance of the October 11, 2017, hearing the juvenile court had set on October 9, 2017.

The mother has appealed an order terminating her parental rights. By statute, such appeals are given priority. Ala. Code 1975, § 12-15-323. The juvenile court's decision to set aside the order designating Sargent to transcribe the trial held in the termination-of-parental-rights action can serve only to delay the mother's appeal. Accordingly, the juvenile court is ordered to designate a court reporter to transcribe the trial as soon as practicable. The juvenile court is not required to redesignate Sargent, see Ex parte W.Y., 605 So.2d 1175, 1177 (Ala. 1992) ("Through this remedy, a petitioner may compel only the exercise of judicial discretion; he may not compel a particular result."); however, the juvenile court may certainly do so, especially if judicial economy would be served thereby.

We turn now to the mother's argument that she is entitled to a free transcript because of her indigency. Although we agree that In re Ward, 351 So.2d at 574, supports the mother's contention that she is entitled to a free transcript, we cannot grant her petition, insofar as it seeks such relief. The juvenile court has not yet entered a ruling on the mother's motion requesting a free transcript, and nothing in the materials before us indicate that the juvenile court has refused to rule on the mother's motion. See Ex parte R.S.C., 853 So.2d 228, 234 (Ala. Civ. App. 2002) (declining to grant a petition for the writ of mandamus when the trial court had yet to rule on a pending Rule 60(b), Ala. R. Civ. P., motion); cf. Ex parte Gamble, 709 So.2d 67, 70 (Ala. Civ. App. 1998) (granting a petition for the writ of mandamus when the trial court had refused to rule on a pending Rule 60(b) motion). Thus, the mother is unable to demonstrate that the juvenile court has refused to perform an imperative duty, and the mother's petition regarding this issue is denied as premature.

In light of the issuance of the stay and our resolution of the other issues presented by the mother's petition, we need not address the mother's complaint that the juvenile court erred by setting a hearing with only two days' notice because that issue is moot. The mother's petition is granted insofar as it seeks a writ of mandamus compelling the juvenile court to set aside that portion of its October 10, 2017, order setting aside its October 5, 2017, order granting the mother's request to proceed in forma pauperis on appeal. In addition, the mother's petition is granted insofar as it seeks the designation of a court reporter to transcribe the trial held in the termination-of-parental-rights action, and the juvenile court is directed to enter such an order immediately. The petition is denied in all other respects.

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

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


text:
    EX PARTE MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES
    (In re: Madison County Department of Human Resources v. K.O.D., Sr.)
    2160883 2160884
    Court of Civil Appeals of Alabama.
    November 17, 2017
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner.
    Submitted on petitioner's brief only.
   DONALDSON, Judge.

These mandamus proceedings involve the jurisdiction of the Madison Juvenile Court ("the juvenile court") to enter orders granting a new trial in actions after it had granted the petitions of the Madison County Department of Human Resources ("DHR") to terminate the parental rights of K.O.D., Sr. ("the father"). Because we determine that the juvenile court lacked jurisdiction to entertain the father's untimely filed postjudgment motions seeking a new trial, we direct the juvenile court to vacate the orders granting a new trial.

On June 20, 2017, the juvenile court entered separate judgments terminating the father's parental rights to two children. On July 6, 2017, the father, with the assistance of counsel, filed a motion in each case seeking a new trial in which he asserted the following:

"1) On May 20, 2017, this Honorable Court held a final hearing terminating the Father's parental rights in the above-styled matters.
"2) On June 20, 2017, this Honorable Court entered a final order terminating the Father's rights.
"3) The Father was not transported for the final hearing on May 20, 2017, and counsel for the Father was not aware the final order was entered until July 7, 2017, as she has been out of town since the week of June 17, 2017.[ ]
"4) As the Father was not transported from the Limestone County Correctional Facility for any hearings, he respectfully requests a new termination hearing where he may be present and present testimony in support of his parental rights.
"Wherefore, above premises considered, the Father respectfully requests this Honorable Court set this matter for a new hearing on this the 6th day of July, 2017."

On July 10, 2017, the juvenile court entered an order in each case setting the father's postjudgment motions for a hearing to be held on July 13, 2017. On July 14, 2017, the juvenile court granted the father's motions for a new trial and set the cases for a termination-of-parental-rights trial to be held on July 28, 2017.

On July 18, 2017, DHR filed motions seeking to have the juvenile court set aside its orders granting a new trial. DHR asserted, in part:

"3. On July 14, 2017, this court entered an order granting the father's motion and scheduling a new hearing on July 28, 2017, which was electronically filed with the clerk's office on July 14, 2017.
"4. DHR maintains that this court's order of July 14, 2017, is improper and that the court lacked jurisdiction to enter same in that the court lost jurisdiction to do so after July 5, 2017.
"5. DHR maintains that the father's postjudgment motion was denied by operation of law after July 5, 2017, which was the last day for filing same. The 14 days allowed for filing said postjudgment motion would ordinarily have expired on July 4, 2017, but since that day was an Alabama state holiday and the court was closed to business the father would have been allowed an additional day, July 5, 2017, to file said motion. His failing to file same until July 6, 2017, makes said motion untimely, thus the order granting same is void and due to be set aside."

On July 26, 2017, the juvenile court denied DHR's motions. On July 27, 2017, DHR filed a motion seeking to stay the termination-of-parental-rights trial, which the juvenile court granted. On August 3, 2017, DHR filed a single notice of appeal to this court, referencing both of the underlying cases. This court docketed two separate appeals and then ordered the appeals consolidated. The father has not filed anything with this court.

DHR asserts that its motions seeking to set aside the July 14, 2017, orders that granted the father's motions for a new trial were filed pursuant to Rule 60(b)(4), Ala. R. Civ. P. A party may appeal from the denial of relief under Rule 60(b)(4). See Insurance Mgmt. & Admin., Inc. v. Palomar Ins. Corp., 590 So.2d 209, 212 (Ala. 1991). This court has explained, however, that " '[R]ule 60(b) appl[ies] solely to final judgments' and cannot be used to challenge an interlocutory pendente lite order. Ex parte Seibert, 231 So.3d 1111, 1113 (Ala. Civ. App. 2017)." A.S. v. T.R.B., 246 So.3d 963, (Ala. Civ. App. 2017). The juvenile court's orders granting the father's motions for a new trial and setting the cases for a new termination-of-parental-rights trial were interlocutory orders. See J.A.K. v. R.B., 238 So.3d 675, (Ala. Civ. App. 2017) (explaining that a juvenile court's order granting a new trial was an interlocutory order and not a final judgment).

Although § 12-22-10, Ala. Code 1975, provides for an appeal "from an order granting or refusing a motion for a new trial by the circuit court," this court has held that § 12-22-10 is inapplicable to juvenile-court orders granting a new trial. J.A.K., 238 So.3d at 677. Thus, the proper method of seeking review of an interlocutory order granting a new trial is by filing a petition for the writ of mandamus. See Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008) (citing Ex parte McInnis, 820 So.2d 795 (Ala. 2001) )("A petition for a writ of mandamus is an appropriate remedy for challenging an interlocutory order."). See also Ex parte Limerick, 66 So.3d 755, 756 (Ala. 2011) (" 'A petition for a writ of mandamus is the proper method for obtaining review of a trial court's authority to rule on a posttrial motion beyond the time period set forth in Rule 59.1, Ala. R. Civ. P.' " (quoting Ex parte Jackson Hosp. & Clinic, Inc., 49 So.3d 1210, 1211 (Ala. 2010) ).

An appellate court may treat an appeal that was improperly filed from an interlocutory order as a petition for the writ of mandamus. Meadwestvaco Corp. v. Mitchell, 195 So.3d 290, 294 (Ala. Civ. App. 2015). Accordingly, we have elected to treat DHR's appeals as petitions for the writ of mandamus, and we have restyled these matters. Generally, a mandamus petition must "be filed within a reasonable time." Rule 21(a)(3), Ala. R. App. P. The presumptively reasonable time for filing a petition for the writ of mandamus is the same as the time for taking an appeal, which, in a juvenile action, is within 14 days of the entry of the challenged order. See Rule 21(a)(3), Ala. R. App. P., and Ex parte R.W., 41 So.3d 800, 804 (Ala. Civ. App. 2009).

DHR filed its petitions on August 3, 2017, which was more than 14 days after the entry of the July 14, 2017, orders granting the father's motions for a new trial. Although DHR filed motions seeking to set aside the juvenile court's July 14 orders, this court has explained that, " 'unlike a postjudgment motion following a final judgment, a motion to reconsider an interlocutory order does not toll the presumptively reasonable time period that a party has to petition an appellate court for a writ of mandamus.' " Ex parte C.J.A., 12 So.3d 1214, 1216 (Ala. Civ. App. 2009) (quoting Ex parte Onyx Waste Servs. of Florida, 979 So.2d 833, 834 (Ala. Civ. App. 2007), citing in turn Ex parte Troutman Sanders, LLP, 866 So.2d 547, 549-50 (Ala. 2003) ). Thus, DHR's petitions were not filed within the presumptively reasonable time, and the petitions failed to "include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time." Rule 21(a)(3), Ala. R. App. P.

Our supreme court has held, however, that a petition for the writ of mandamus that challenges the jurisdiction of the trial court to enter the order sought to be vacated need not be filed within the presumptively reasonable period prescribed by Rule 21. See Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016) (holding that, "even though [the] petition [was] untimely filed, we will consider [the] argument ... because it concerns the jurisdiction of the probate court, of which we may take notice ex mero motu"). See also Ex parte J.B., 223 So.3d 251, 254 (Ala. Civ. App. 2016). Therefore, DHR's petitions are properly before us.

" ' "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ' Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003) (quoting Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) )."

Ex parte A.M.P., 997 So.2d at 1014.

Pursuant to Rule 1(B), Ala. R. Juv. P., "[a]ll postjudgment motions [in a juvenile-court proceeding] ... must be filed within 14 days after entry of order or judgment." After 14 days, the juvenile court loses jurisdiction and cannot consider untimely filed motions. See D.V.P. v. T.W.P., 905 So.2d 853, 856 (Ala. Civ. App. 2005). The juvenile court's judgments terminating the father's parental rights were entered on June 20, 2017. The father's motions for a new trial were not filed until July 6, 2017, which was beyond the 14-day jurisdictional time limit. Rule 1(B). The father's postjudgment motions were required to be filed no later than July 5, 2017; although 14 days from June 20 is July 4, because that day is a state holiday, the father had until the next day, July 5, to file his motions. See id.; see also Rule 1(A), Ala. R. Juv. P.; Rule 6(a), Ala. R. Civ. P.

We note that the father has not asserted that his motions were filed pursuant to Rule 60, Ala. R. Civ. P., which provides longer periods for filing motions under that rule than the 14-day period for filing a postjudgment motion in the juvenile court pursuant to Rule 1(B), Ala. R. Juv. P. Even if the father had made that assertion, however, "[t]he substance of a motion and not its style determines what kind of motion it is." Evans v. Waddell, 689 So.2d 23, 26 (Ala. 1997). In his motions, the father sought a new trial and asserted that he should have been permitted to attend the original termination trial. The father did not assert that the judgments were void, or that they were entered in violation of his due-process rights, or otherwise "allege any ground justifying relief under Rule 60(b)." Morrison v. Phillips, 992 So.2d 743, 744 (Ala. Civ. App. 2008) ; see also Simmons v. Simmons, 390 So.2d 622, 624 (Ala. Civ. App. 1980) (holding that a "motion [that] clearly attacks the judgment of the court ... cannot be considered a motion for relief from judgment under Rule 60(a) or (b)").

The father's postjudgment motions were not timely filed. Therefore, the juvenile court did not have jurisdiction to entertain the father's motions, and, consequently, any orders entered after the father's motions were filed are void. DHR's mandamus petitions are granted, and the juvenile court is directed to vacate its July 14, 2017, orders and any other orders entered without jurisdiction.

2160883-PETITION GRANTED; WRIT ISSUED.

2160884-PETITION GRANTED; WRIT ISSUED.

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

      We note that the father's motions were filed on July 6, a day before the date counsel claims to have first become aware of the final termination judgments.

      The materials before this court contain a pretrial order denying the father's request to be transported from prison to attend the original termination trial. The father did not challenge that order, nor did he request to present testimony by deposition. This court has explained that "an opportunity to present evidence by deposition satisfies due-process minima if a party cannot attend a trial because of his or her incarceration." S.J. v. Limestone Cty. Dep't of Human Res., 61 So.3d 303, 306 (Ala. Civ. App. 2010).


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

text:
    Kennon W. WHALEY v. Rhonda West WHALEY
    2160267
    Court of Civil Appeals of Alabama.
    November 17, 2017
    Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham, for appellant.
    J. Allen Schreiber and Lauren E. Miles of Burke Harvey, LLC, Birmingham, for appellee.
   MOORE, Judge.

Kennon W. Whaley ("the husband") appeals from a judgment entered by the Lee Circuit Court ("the trial court") divorcing him and Rhonda West Whaley ("the wife"). We reverse the trial court's judgment.

Procedural History

This is the second time these parties have been before the court. See Whaley v. Whaley, 218 So.3d 360 (Ala. Civ. App. 2016). This court set forth the pertinent procedural history in Whaley as follows:

"On April 3, 2013, [the wife] filed a complaint seeking a divorce from the husband. On May 10, 2013, the husband answered the complaint and counterclaimed for a divorce. On June 7, 2013, the wife filed a reply to the counterclaim.
"After a trial, the trial court entered an order, on September 29, 2014, divorcing the parties; awarding the parties joint custody of the parties' children and specifically setting the husband's custodial periods as every other Friday night through the following Wednesday morning, on holidays in alternating years, and on certain other special occasions; and reserving the issues of child support, alimony, and property division. After a second trial on the remaining issues, the trial court entered a judgment on November 27, 2015, that, in pertinent part, imputed monthly income of $8,500 to the husband and $1,732 to the wife; ordered the husband to pay $1,127 per month in child support; ordered the husband to pay the wife periodic alimony in the amount of $3,673 per month; ordered the husband to pay $35,000 to the wife as a property settlement; awarded the marital home to the husband; awarded the wife her preexisting 50% share of J & S Investments, LLC; ordered the husband to pay the debts associated with the businesses owned by the parties; ordered the husband to pay 80% of the parties' joint debts; awarded the wife 20% of 'KRIP, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights'; awarded the wife 20% of B & W Holdings, LLC; and awarded the wife 40% of the following businesses: 'K2 Enterprises, LLC, including its intellectual property, proprietary information, patents, patent applications, processes, licenses, and other property rights,' Dixieland Metals of Alabama, LLC, Whaley Holdings, LLC, Southeastern Stud, LLC, Southeastern Stud and Components, Inc., K4 Assets, LLC, Dixieland Metals of Mississippi, LLC, and Mid-South Steel, LLC. The trial court further ordered:
" 'Until such time as [the] Husband's ... stock or membership interests are more formally transferred to [the] Wife as set out above, [the] Wife shall receive an amount of money equal to 67% of all direct or indirect distributions, payments, or other income, from such companies to [the husband]. Such payments to the Wife shall be made within 24 hours of such payments being made to [the husband].'
"Finally, the trial court ordered:
" 'From almost the beginning of this case, the Husband has been ordered to provide the Wife as much for legal expenses as he spent on himself. Thus far he has managed not to pay his attorneys since that time, but acknowledges owing them at least $150,000 for their extensive services in this case. Therefore the Court awards the same amount to [the] Wife. The HUSBAND shall pay to the WIFE, as an allotment for attorney fees and legal expenses, the sum of $150,000 ..., for which amount judgment is entered in favor of [the] WIFE against the HUSBAND, for which execution may issue as allowed by law.'
"(Capitalization in original.) On December 29, 2015, the husband filed a postjudgment motion. On January 8, 2016, the husband filed his notice of appeal. The notice of appeal was held in abeyance until February 9, 2016, when the postjudgment motion was denied. See Rule 4(a)(5), Ala. R. App. P."

218 So.3d at 362-63.

On appeal, the husband challenged, among other things, the trial court's division of property, the award of alimony to the wife, and the award of attorney's fees to the wife. The husband specifically argued that that portion of "the trial court's judgment awarding the wife 20% of KRIP, LLC ('KRIP'), was in error because, he said, that corporation is governed by an operating agreement that prevents the transfer of any membership interest without the consent of the other members." 218 So.3d at 365. This court agreed, and we reversed the trial court's judgment and remanded the cause for reconsideration of the entire division of property and the award of alimony in light of our opinion. 218 So.3d at 365-66. We pretermitted discussion of the remaining issues.

On remand, the trial court entered an amended judgment on September 29, 2016. On October 28, 2016, the husband filed a postjudgment motion. On November 29, 2016, the wife responded to the postjudgment motion and moved the trial court to hold the husband in contempt. On December 14, 2016, the trial court entered a judgment vacating the September 29, 2016, amended judgment and entering a new amended judgment. With regard to the division of property and the award of alimony, the December 14, 2016, amended judgment awarded the wife $610,000 in alimony in gross "payable immediately"; "her pre-existing 50% [interest in] J & S Investments, LLC"; and 40% of Whaley Holdings, LLC, Southeastern Stud, LLC, Southeastern Stud and Components, Inc., K4 Assets, LLC, Dixieland Metals of Mississippi, LLC, and Mid-South Steel, LLC. The amended judgment also awarded the wife "l00% of K2 Enterprises LLC, including its real property, equipment, contractual rights, intellectual property, proprietary information, patents, patent applications, processes, licenses, leases and all other property rights," and "51% of Dixieland Metals of Alabama, LLC, including its real property, equipment, contractual rights, intellectual property, proprietary information, patents, patent applications, processes, licenses, leases and all other property rights." The trial court did not award the wife any percentage of KRIP, LLC ("KRIP"), or B & W Holdings, LLC. All other provisions in the November 27, 2015, judgment, including the imputation of $8,500 in monthly income to the husband, the attorney-fee award of $150,000, and the periodic-alimony award of $3,673 per month, were left unchanged.

On January 23, 2017, the husband filed his notice of appeal.

Facts

At the trial, the husband testified that the only asset he owns an interest in that has positive equity is a limited-liability company with the name "Eco-Green." He testified that K2 Enterprises, LLC ("K2"), owns half of Eco-Green and that K2's portion of Eco-Green is valued at $222,500. According to the husband's evidence, Dixieland Metals of Alabama, LLC ("Dixieland Metals-Alabama"), has assets in the amount of $1,601,490 and liabilities in the amount of $2,006,984, for a negative equity of $405,494. He testified that Dixieland Metals-Alabama's bank account had a balance of $74,000.

According to the husband, Southeastern Stud and Components, Inc., has no income, has no bank account, and is in bankruptcy. He also testified that J & S Investments, LLC, and B & W Holdings, LLC, have no bank accounts and no income and that their only assets are in the process of foreclosure. The husband's evidence indicated that KRIP; Whaley Holdings, LLC; Southeastern Stud, LLC; K4 Assets, LLC; and Mid-South Steel, LLC, have no income, no assets, and no bank accounts. He also testified that K2 has no income, no bank account, and no assets other than its 50% ownership of Eco-Green. Finally, he testified that Dixieland Metals of Mississippi, LLC, has no bank account, no income, and no assets, and that it owes $300,000 to the State of Mississippi.

The husband testified that the marital home had been foreclosed upon, and there is a lawsuit pending against the parties regarding the second mortgage balance of $450,000. The husband testified that he has a life-insurance policy with a cash value of $25,256.89, and he has a bank account with a balance of between $8,000 and $9,000.

The husband testified that Mill Steel, a creditor of Southeastern Stud and Components, Inc., had forced Southeastern Stud and Components, Inc., into involuntary bankruptcy and had tried to exercise membership rights to the following limited-liability companies that had signed as obligors on an agreement involving Southeastern Stud and Components, Inc.: KRIP, Dixieland Metals-Alabama, K2, J & S Investments, LLC, Mid-South Steel, LLC, and Southeastern Stud, LLC. He testified that Mill Steel had not yet been successful in exercising membership rights to K2.

According to the husband, KRIP owns the rights to certain patents, and, he said, if KRIP receives a $25,000,000 investment, KRIP could obtain royalties off the patent up to $2,000,000 per year. He testified, however, that he had been unable to find an investor.

The husband testified that his gross income consists of $9,821.89 per month that he receives from Eco-Green through the 50% interest that K2 owns in Eco-Green; he testified that his net income is $7,300 per month. According to the husband, the parties' personal and business debts total $4,682,011.03.

The wife, on the other hand, testified that, during the marriage, the husband had deposited approximately $19,000 into their bank account every month. She also testified that the husband had told her in December 2014 that he had never received less than $10,000 per month from K2's interest in Eco-Green and that he had usually received between $10,000 and $15,000 a month from that source. She testified that, during the marriage, the parties had purchased jewelry worth at least $60,000. She also testified that she has approximately $10,000 in personal property and that the husband has personal property valued at between $60,000 and $100,000.

The wife testified that she "wouldn't have any idea where to put a number on [the parties'] marital estate." She testified that she believes that K2 is worth $500,000 and that J & S Investments, LLC, is worth approximately $1,400,000. According to the wife, financial statements that had been completed concerning the parties' assets during the marriage had indicated that they had assets worth $4,000,000. She admitted, however, that, since those financial statements were completed, the husband was no longer receiving a salary, or distributions, from Southeastern Stud and Components, Inc., although he had been receiving between $150,000 and $250,000 per year when those statements had been completed.

Standard of Review

" ' " '[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.' Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). ' "The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment." ' Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985) )."
" ' Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005).' "

Sullivan v. Sullivan, 211 So.3d 836, 839 (Ala. Civ. App. 2016) (quoting Weeks v. Weeks, 27 So.3d 526, 529 (Ala. Civ. App. 2008) ). "Where the question on appeal is purely a question of law, the ore tenus rule does not apply and appellate review is de novo." Keevan v. Keevan, 796 So.2d 379, 381 (Ala. Civ. App. 2001).

Discussion

On appeal, the husband challenges the trial court's division of property, its award of alimony, and its award of attorney's fees.

I. Division of Property and Award of Periodic Alimony

" 'Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drummond, 785 So.2d 358 (Ala. 2000) ; Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993) ; and Montgomery v. Montgomery, 519 So.2d 525 (Ala. Civ. App. 1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala. Civ. App. 1996).
" 'In dividing property and awarding alimony, a trial court should consider "the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties'] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce." Russell v. Russell, 777 So.2d 731, 733 (Ala. Civ. App. 2000). Also, a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996) ; and Brewer v. Brewer, 695 So.2d 1 (Ala. Civ. App. 1996). "A property division that favors one party over another does not necessarily indicate an abuse of discretion." Fell v. Fell, 869 So.2d 486, 496 (Ala. Civ. App. 2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala. Civ. App. 1988) ).'
" Turnbo v. Turnbo, 938 So.2d 425, 429-30 (Ala. Civ. App. 2006)."

Walker v. Walker, 216 So.3d 1262, 1270-71 (Ala. Civ. App. 2016).

With regard to the periodic-alimony award, the husband argues that he lacks the ability to pay $3,673 per month to the wife.

"Once the financial need of the petitioning spouse is established, the trial court should consider the ability of the responding spouse to meet that need. Shewbart [v. Shewbart ], 64 So.3d [1080,] 1088 [ (Ala. Civ. App. 2010) ]. 'For purposes of determining a spouse's ability to pay, and for purposes of calculating an appropriate amount of periodic alimony, the trial court should ordinarily use the spouse's net income as the starting point for these evaluations.' Rieger v. Rieger, 147 So.3d 421, 431 (Ala. Civ. App. 2013)."

McCarron v. McCarron, 168 So.3d 68, 79 (Ala. Civ. App. 2014).

The husband testified that his gross income is approximately $9,800 per month, which, he said, he receives from Eco-Green through the 50% interest that K2 owns in Eco-Green; he testified that his net income is $7,300 per month. The trial court specifically imputed $8,500 in income to the husband. We note, however, that, in the trial court's amended judgment, it awarded the wife 100% of K2. Therefore, the wife now owns K2's 50% interest in Eco-Green and will receive all income therefrom. We presume that, in imputing income to the husband of $8,500 per month, the trial court considered the actual net income of $7,300 per month the husband was receiving from K2. Under the terms of the amended judgment, the husband will no longer receive that income, leaving him unable to pay his periodic-alimony obligation or to meet his own living expenses. We, therefore, conclude that the trial court's periodic-alimony award exceeded the trial court's discretion. Walker, 216 So.3d at 1270-71 ; McCarron, 168 So.3d at 76.

The husband also argues that the award of alimony in gross is not supported by the evidence of the value of the marital estate. "Alimony in gross is considered 'compensation for the [recipient spouse's] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple's jointly owned assets is not practicable.' " TenEyck v. TenEyck, 885 So.2d 146, 151 (Ala. Civ. App. 2003) (quoting Hager v. Hager, 293 Ala. 47, 54, 299 So.2d 743, 749 (1974) ). Alimony in gross is a property settlement and must "be payable out of the present estate of the paying spouse as it exists at the time of the divorce." Id. at 151-52. An award of alimony in gross that exceeds the value of the payor's estate exceeds the trial court's discretion. Redden v. Redden, 44 So.3d 508, 513 (Ala. Civ. App. 2009). "The burden of proving the value of marital property rests with both parties." Beck v. Beck, 142 So.3d 685, 695 (Ala. Civ. App. 2013).

The husband testified that K2's portion of Eco-Green is valued at $222,500, that he has a life-insurance policy with a cash value of $25,256.89, and that he has a bank account with a balance of between $8,000 and $9,000. He testified that all the other assets have either been foreclosed upon, have no value, or have a negative value. The wife, on the other hand, testified that the parties' financial statements during the marriage had indicated that they had assets worth $4,000,000. She also testified, however, that she "wouldn't have any idea where to put a number on [the parties'] marital estate." Furthermore, the only specific assets to which she assigned a value were (1) the husband's personal property, which she testified was valued at between $60,000 and $100,000; (2) her personal property, which she testified was valued at approximately $10,000; (3) K2, which she was awarded and which she valued at $500,000; and (4) J & S Investments, LLC, of which each party was awarded 50%, which she valued at approximately $1,400,000. Therefore, even deeming the wife's testimony accurate, we can glean from her testimony only that the husband was awarded assets valued at no more than $800,000 (one-half the value of J & S Investments, LLC, plus the value of his personal property).

The trial court ordered the husband to pay all the debts associated with the businesses and 80% of the parties' joint debts. Based on evidence in the record, that provision substantially reduces the present value of the husband's estate by $4,121,304.79.

Considering the husband's testimony that the marital estate had a negative value, that the wife failed to present evidence sufficient to establish the value of the marital assets, and that the trial court ordered the husband to pay $4,121,304.79 to satisfy the debts of the marriage, we conclude that the evidence shows that the award to the wife of alimony in gross in the amount of $610,000 exceeds the value of the husband's present estate. Therefore, we conclude that the trial court exceeded its discretion on this point. See, e.g., Redden, 44 So.3d at 513.

The husband further argues that there are insufficient liquid assets from which he can pay the alimony-in-gross award "immediately." Because we are reversing the alimony-in-gross award, we pretermit discussion of this point.

The husband also argues that the trial court's awards of K2 and DixieLand Metals-Alabama are too broad. We note, however, that the husband raised this issue to the trial court only as to K2. Therefore, as to DixieLand Metals-Alabama, that argument is waived. Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) ("This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court.").

With regard to K2, the husband points to § 10A-5A-5.01, Ala. Code 1975, a part of the Alabama Limited Liability Company Law of 2014, § 10A-5A-1.01 et seq., Ala. Code 1975, which provides: "The only interest of a member that is transferable is the member's transferable interest." "Transferable interest" is defined as "a member's right to receive distributions from a limited liability company or a series thereof." Ala. Code 1975, § 10A-5A-1.02(s) ; see also Ala. Code 1975, § 10A-5A-5.02(b).

In the amended divorce judgment, the trial court specified that the following were included in the award to the wife of K2: "its real property, equipment, contractual rights, intellectual property, proprietary information, patents, patent applications, processes, licenses, leases and other property rights." Because the trial court's judgment went beyond awarding the wife the husband's "transferable interest," i.e., his right to receive distributions, we conclude that the trial court's judgment on this point was in error. See, e.g., Whittaker v. Whittaker, 228 W.Va. 84, 88, 717 S.E.2d 868, 872 (2011) (recognizing that the "family court does not have jurisdiction to order a limited liability company to transfer its assets").

The husband further argues that the portion of the judgment providing that the wife "shall be allowed to see a ledger of the most recent financial transactions of any of the [business interests that the wife was awarded] upon request, and shall be provided an Income Statement, a Cash Flow Statement, and a Statement of Financial Position on a quarterly basis" violates § 10A-5A-5.02(a)(4), Ala. Code 1975. We note, however, that the husband failed to raise this argument to the trial court. Therefore, we will not hold the trial court in error on this point. See, e.g., Andrews v. Merritt Oil Co., 612 So.2d at 410.

The husband also argues that the litigation with Mill Steel prevents him from transferring any assets. We note, however, that the trial court's judgment specifically states that all awards are subject to any security interests. Therefore, we conclude that the plain language of the judgment gives the husband protection from potential double liability. See, e.g., Hallman v. Hallman, 802 So.2d 1095, 1098 (Ala. Civ. App. 2001) ("The words of a judgment are to be given their plain and ordinary meanings, and the intentions of the parties are derived from them ....").

II. Attorney's Fees

The husband argues the trial court erred in awarding the wife attorney's fees because, he says, the wife did not request those fees in her complaint, the issue was not tried by consent, there was no evidence of the reasonableness of the services provided, and he lacks the ability to pay those fees.

Although the wife did not specifically request in her complaint that the husband be required to pay her attorney's fees, she did request "other, further, general, and special relief." Furthermore, on July 28, 2014, the trial court entered a pendente lite order requiring the husband to pay the wife's attorney's fees in the same amount as he paid his own attorney. The wife subsequently filed motions seeking to enforce that order. At the trial, evidence was adduced as to the amount the husband had paid his attorneys in this action. The husband does not point this court to any objection to the consideration of the attorney-fee issue during or before the trial. Based on the foregoing, we conclude that the issue of attorney's fees was litigated with the implied consent of the husband. See, e.g., Tidwell v. Tidwell, 379 So.2d 614, 615 (Ala. Civ. App. 1980).

With regard to the amount of the fees, we note:

" ' " 'The determination of whether an attorney fee is reasonable is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.' Ex parte Edwards, 601 So.2d 82, 85 (Ala. 1992). Our deference to the trial court in attorney-fee cases is based upon our recognition that the trial court, which has presided over the entire litigation, has a superior understanding of the factual questions that must be resolved in fee determinations. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)...." ' "

Tanner v. Tanner, 241 So.3d 28, 32 (Ala. Civ. App. 2017) (quoting Rabb v. Estate of Harris, 953 So.2d 401, 405-06 (Ala. 2006), quoting in turn City of Birmingham v. Horn, 810 So.2d 667, 681-82 (Ala. 2001) ).

" 'Applicants for an attorney fee bear the burden of proving their entitlement to an award and documenting their appropriately expended hours. [ Ex parte] Edwards, 601 So.2d [82] at 85 [ (Ala. 1992) ] ; see also Hensley [v. Eckerhart ], 461 U.S. [424] at 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 [ (1983) ] (citing the importance of documenting in fee applications the hours expended).' "

Tanner, 241 So.3d at 32 (quoting Rabb, 953 So.2d at 407-08, quoting in turn City of Birmingham v. Horn, 810 So.2d at 682 ).

In the present case, it appears that the trial court did not consider evidence regarding the value of the legal services provided by the wife's attorney, including the number of hours expended on the case. Instead, the trial court stated that it was ordering the husband to pay the wife's attorney the same amount that the husband had paid his attorney. We conclude that that method falls short of the legal requirements set forth by our supreme court of " 'proving [the attorney's] entitlement to an award [of attorney's fees] and documenting [the attorney's] appropriately expended hours.' " Rabb, 953 So.2d at 407 (quoting City of Birmingham v. Horn, 810 So.2d at 682 ). Therefore, we conclude that the trial court erred in entering its award of attorney's fees.

Conclusion

Based on the foregoing, we reverse the trial court's judgment to the extent that it divided the parties' property, awarded the wife alimony in gross and periodic alimony, and awarded the wife attorney's fees. We remand this cause for the trial court to reconsider the division of property, the awards of alimony in gross and periodic alimony, and the award of attorney's fees in light of this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

Thompson, P.J., dissents, with writing.

THOMPSON, Presiding Judge, dissenting.

This is a very complex and complicated divorce action. The record on appeal comprises 16 volumes plus a 157-page volume created on remand from our previous decision See Whaley v. Whaley, 218 So.3d 360 (Ala. Civ. App. 2016). At issue in the division of marital property between Kennon W. Whaley ("the husband") and Rhonda West Whaley ("the wife") were multiple companies and businesses. The trial court noted that, at the time of the trial, there were many "unknowns" regarding the status and value of a number of those businesses. The record reveals that the ownership interests of some of the businesses were being litigated in other courts while this divorce action was pending. At least one other company, which the record shows had generated a high income for the parties, was the subject of bankruptcy proceedings. The operating agreements governing many of the businesses were not identical, and who had a membership interest in certain companies and businesses appears to have been in flux.

At the hearing on remand, the trial court noted that some of the difficulty involved in dividing the marital property was attributable to the fact that "basically nobody could testify as to what the actual value of most of these companies were." At the original trial, the parties disagreed as to whether certain businesses were earning income or had accrued equity that was subject to division under the operating agreements. On remand, the suggestion that a forensic accountant be hired to determine the value of the companies was rejected because the parties said that neither could afford the cost of hiring an accountant to perform such an undertaking. Accordingly, the trial court stated that it opted to divide certain of the parties' interests by awarding each party a percentage of those interests rather than awarding each party a specific monetary amount.

Further complicating matters, the evidence presented at the trial showed that the husband was under investigation by the Federal Bureau of Investigation while the divorce proceedings were underway. Ultimately, a federal grand jury indicted him for bankruptcy fraud. A copy of the indictment is included in the record. It appears from the record that many pertinent documents relating to the parties' business interests were seized during that investigation. At the hearing on remand, the trial court noted that, at that time, the husband was "incarcerated and, it looks like, will be for a period of time." The record indicates that the husband's conduct contributed to the decline in the parties' standard of living, including foreclosure on the marital residence. At the time of the foreclosure, more than $1 million was owed on the marital residence, and the parties' home-equity line of credit had a balance of $450,000.

Based on my review of the record and after considering the equitable considerations involved and the complexity of this matter, I believe that the trial court's judgment dividing the marital property and awarding the wife periodic alimony is supported by the evidence. Accordingly, I would affirm the judgment, including the award to the wife of an attorney fee, which the trial court found to be reasonable in light of the complexity of this case. Thus, I respectfully dissent from the main opinion.

      The wife's motion for contempt was denied.

      ChemCoaters, LLC, an Indiana company not owned by the parties, owns the other half of Eco-Green.

      The wife has argued that the prior limited-liability-company law that was enacted by Ala. Acts 2009, Act No. 2009-513, which was effective January 1, 2011 ("the prior LLC law"), is applicable here. We note, however, that this court applied the Alabama Limited Liability Company Law of 2014, which was enacted by Ala. Acts 2014, Act No. 2014-144, in the previous appeal. The wife did not file a brief in the previous appeal, nor did she file an application for a rehearing. Therefore, the application of the Alabama Limited Liability Company Law of 2014 became the law of the case. See, e.g., United Fire Ins. Co. v. Purma, 792 So.2d 1092, 1994 (Ala. 2001). In any case, we note that the prior LLC law, similarly to the current law, provided that "[a]n assignment [of a member's interest] only entitles the assignee to the financial rights of the assignor to the extent assigned." Ala. Code 1975, § 10A-5-6.02(a)(3) (repealed by Ala. Acts 2014, Act No. 2014-144, p. 265, § 3, effective January 1, 2017).