text:
    EX PARTE N.M.D.
    (In re M.C.S. v. R.D.S. and N.M.D.)
    2160892
    Court of Civil Appeals of Alabama.
    September 22, 2017
    Donald W. Lambert, Huntsville, for petitioner.
    Page A. Banks, Huntsville, for respondent.
   THOMPSON, Presiding Judge.

On February 10, 2016, M.C.S. ("the maternal grandmother") filed in the Madison Juvenile Court ("the juvenile court") a petition that initiated two dependency actions seeking to have her two minor grandchildren declared dependent. In her petition, the maternal grandmother alleged that A.O.A. was the child of R.D.S. ("the mother") and L.O.A., from whom the mother was divorced in 2010, and that N.M.D. was the father of the mother's other child, N.C.D. ("the child"). The maternal grandmother alleged that none of the parents could properly care for the children and that, therefore, the children were dependent. The juvenile court clerk assigned case number JU-16-158.01 to the dependency action pertaining to A.O.A. and case number JU-16-159.01 to the dependency action pertaining to the child. This petition for a writ of mandamus concerns only case number JU-16-159.01 pertaining to the child.

In case number JU-16-159.01 ("the dependency action"), N.M.D. answered and denied that the child was dependent; N.M.D. also counterclaimed, seeking an adjudication of his paternity of the child under the Alabama Uniform Parentage Act ("AUPA"), § 26 - 17 - 101 et seq., Ala. Code 1975, and seeking an award of custody of the child. On June 30, 2017, N.M.D. filed a "motion to intervene, amend, counterclaim, [and] join a party," seeking to add L.O.A. to the dependency action. In that motion, N.M.D. alleged that, during a recent court hearing, it had come to the juvenile court's attention that the child had been born during the marriage of the mother and L.O.A. N.M.D. requested that the juvenile court conduct a hearing to determine whether L.O.A. persisted in the presumption that he is the father of the child.

On July 28, 2017, the juvenile court entered an order denying N.M.D.'s June 30, 2017, motion. N.M.D. timely filed a petition for a writ of mandamus.

The materials submitted to this court indicate that the mother and L.O.A. were divorced in 2010 and that the divorce judgment addressed only the custody of A.O.A. That divorce judgment contained no reference to the child or to the possibility that the mother might be pregnant at the time of the divorce. The juvenile court's July 28, 2017, order states that "the parties came before the court" at a hearing on July 27, 2017, but it contains no indication that any evidence was presented at that hearing, and no party argues before this court that the juvenile court received evidence at the hearing. The materials submitted by the parties also include an August 1, 2017, sworn statement, submitted to the juvenile court by the maternal grandmother and executed by L.O.A., in which L.O.A. asserts that he is the legal father of the child and that he agrees that custody of the child should be transferred to the maternal grandmother. That statement was executed and filed in the juvenile court after the juvenile court entered its July 28, 2017, ruling.

N.M.D. filed a petition for a writ of mandamus in this court, arguing that he should have been afforded an evidentiary hearing on his June 30, 2017, motion. The parties do not dispute that, because the child was born during the marriage of the mother to L.O.A., L.O.A. is the child's presumed father under the AUPA. § 26-17-204(a), Ala. Code 1975 (providing that "A man is presumed to be the father of a child if: (1) he and the mother of the child are married to each other and the child is born during the marriage; (2) he and the mother of the child were married to each other and the child is born within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce...."). The presumption that L.O.A. is the child's father could be rebutted only pursuant to a proceeding under Article 6 of the AUPA (see § 26-17-204(b) ), which provides, among other things, that an "interested party" may seek a paternity adjudication, subject to certain limitations. § 26-17-602(7), Ala. Code 1975. Among the limitations to the ability of an interested party such as N.M.D. to bring an action asserting paternity of a child born during the mother's marriage to another man is the provision that if the presumed father persists in the presumption in favor of his paternity, no action to disprove the presumed father's paternity may be maintained. § 26-17-607(a), Ala. Code 1975. This court has explained:

" Section 26-17-602, Ala. Code 1975, a part of the Alabama Uniform Parentage Act ('the AUPA'), § 26 - 17 - 101 et seq., Ala. Code 1975, provides that any interested party may bring an action to adjudicate parentage. However, § 26-17-602 is limited in application by §§ 26-17-607 and 26-17-609, Ala. Code 1975, which restrict who has standing to seek an adjudication of paternity. When there is a presumed father, the AUPA permits the presumed father to bring an action to disprove his paternity at any time. § 26-17-607(a). However, if the presumed father wishes to persist in his presumption of paternity, no one may bring an action to disprove his paternity or to establish paternity in another man. Id. ('If the presumed father persists in his status as the legal father of a child, neither the mother nor any other individual may maintain an action to disprove paternity.'). The Alabama Comment to § 26-17-607 specifically states that '[s]ubsection (a) follows Ex parte Presse, 554 So.2d 406 (Ala. 1989) [,] and its progeny that favor maintaining the integrity of the family unit and the father-child relationship that was developed therein.' "

Ex parte S.E., 125 So.3d 720, 721 (Ala. Civ. App. 2013).

Thus, N.M.D. could maintain his claim seeking the determination of his paternity of the child only if L.O.A. did not persist in the presumption in favor of his paternity. This court has held that a man claiming to be the father of a child who has a presumed father is entitled to an evidentiary hearing to determine whether the presumed father is persisting in the presumption that he is the father of the child. J.O.J. v. R.M., 205 So.3d 726, 728 (Ala. Civ. App. 2015) (holding that the man claiming paternity "was entitled to a hearing on the issue of whether [the presumed father] persisted in his presumption of paternity"); D.B. v. A.K., 93 So.3d 946, 948-49 (Ala. Civ. App. 2012) (same).

In D.B. v. A.K., supra, D.B. sought to establish his paternity of a child born during the mother's marriage to her husband. In that case, the mother and her husband divorced, and the divorce judgment did not mention the child. D.B. alleged that he was listed as the father on the birth certificate of the child in that case and that he had taken the child into his home and had held the child out as his own. The husband executed an affidavit stating the he was maintaining the presumption in favor of his paternity. Thereafter, the juvenile court in that case entered an order dismissing D.B.'s paternity action on the basis that D.B. lacked standing to bring a paternity action when the child had a presumed father. 93 So.3d at 948. This court reversed, holding that D.B. had presented a factual controversy regarding whether the mother's husband was actually persisting in his presumption of paternity. We held that the juvenile court had erred in failing to conduct an evidentiary hearing on the issue of whether the mother's husband was persisting in the presumption in favor of his paternity, and we ordered the juvenile court to conduct such a hearing on remand. D.B. v. A.K., 93 So.3d at 949.

Similarly, in this case, N.M.D. alleged that DNA testing has established his paternity, that he is listed as the father of the child on the child's birth certificate, and that he has "taken the child into his home and claimed the child as his own." The materials before this court contain no allegation by any of the parties that L.O.A. sought to persist in the presumption in favor of his paternity. No evidence was presented to the juvenile court before it ruled that might tend to indicate that L.O.A. was persisting in the presumption in favor of his paternity.

A writ of mandamus is a drastic and extraordinary remedy and should be issued only where a party demonstrates that the trial court has abused its discretion and that the party has a clear right to relief. Ex parte Moore, 642 So.2d 457, 462 (Ala. 1994). We conclude that N.M.D. has demonstrated that he is entitled to an evidentiary hearing regarding whether L.O.A. is persisting in the presumption in favor of his paternity of the child. D.B. v. A.K., supra ; L.R.B. v. Talladega Cty. Dep't of Human Res., [Ms. 2150042, July 8, 2016] 223 So.3d 923 (Ala. Civ. App. 2016) ("[A] man seeking to establish his paternity of a child with a presumed father must be given the opportunity to present evidence regarding whether the presumed father has given up his presumption by his conduct."); and A.S. v. M.W., 100 So.3d 1112, 1114 (Ala. Civ. App. 2012) ("[A] man claiming the paternity of children born during the marriage of the mother to another man is entitled to an evidentiary hearing to prove that the mother's husband does not persist in his presumption of paternity."). Accordingly, we grant the petition for a writ of mandamus and issue the writ directing the juvenile court to conduct an evidentiary hearing on the issue of whether L.O.A. is persisting in the presumption in favor of his paternity of the child.

PETITION GRANTED; WRIT ISSUED.

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

      Neither the materials submitted to this court nor the allegations of the parties indicate the date of the child's birth.

      As already explained, the sworn statement executed by L.O.A. and submitted by the maternal grandmother was executed after the juvenile court had ruled.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    EX PARTE T.T.T.
    (In re: K.M.G. v. T.T.T.)
    2160777
    Court of Civil Appeals of Alabama.
    September 22, 2017
    T.T.T., Gulf Shores, for petitioner.
    Submitted on mandamus petition only.
   DONALDSON, Judge.

T.T.T. ("the former husband") has petitioned this court for a writ of mandamus directed to the Baldwin Juvenile Court ("the juvenile court") in postdivorce proceedings between him and K.M.G. ("the former wife"). The former husband and the former wife have been involved in litigation for years, and their filings have created a procedural quagmire. In his current lengthy petition to this court, the former husband argues extensively about an exhaustive number of issues arising from numerous cases. Despite the inclusion of an extensive amount of extraneous material, the focus of the current petition is a claim that the juvenile court did not have subject-matter jurisdiction to enter an order in a specific case on June 29, 2017. The former husband seeks the writ of mandamus to compel the juvenile court to vacate that order. The former husband made factual assertions in support of his petition. The former wife did not respond to the former husband's petition; therefore, we are required to "consider the averments of fact in [the] petition as true." Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002). Based on the materials before us, we conclude that the juvenile court lacked jurisdiction to enter the June 29, 2017, order, and, thus, we are required to grant the former husband's petition and issue the writ.

This is the third time the parties have been before this court in relation to their postdivorce proceedings. In T.T. v. K.M.G., 186 So.3d 472 (Ala. Civ. App. 2015) (" T.T. I") , this court summarized the relevant procedural history of the litigation between the parties.

"In 1994, T.T. and K.M.G. were divorced by a judgment of a Georgia court ('the Georgia judgment'). At the time the Georgia judgment was entered, the parties had two minor children. At some point thereafter, proceedings involving the parties were commenced in the [juvenile court] involving the Georgia judgment. Those proceedings were assigned case no. CS-95-166. On June 30, 1995, the [juvenile] court entered an order in case no. CS-95-166 directing T.T. to pay child support in the amount of $370 per month beginning on July 1, 1995. In that order, the [juvenile] court also found T.T. to be in arrears on his child-support obligation in the amount of $328. On the same day, the [juvenile] court entered an income-withholding order directing T.T.'s employer to deduct the monthly amount of T.T.'s child-support obligation from T.T.'s income.
"At some undetermined point thereafter, K.M.G. apparently filed a petition for a finding of contempt against T.T. based on his alleged failure to pay child support. The proceedings arising from that petition were docketed as case no. CS-95-166.02. On January 26, 2004, the [juvenile] court entered an order in case no. CS-95-166.02 directing T.T. to pay $3,296.08 to purge himself of contempt of court.
"On April 14, 2004, K.M.G. filed a petition for a finding of contempt against T.T. and for a modification of the Georgia judgment. The proceedings arising from that petition were docketed [as] case no. CS-95-166.03. A notation in the record indicates that case was voluntarily dismissed by K.M.G. on July 20, 2004.
"K.M.G. apparently commenced another contempt action at some later point, which was docketed as case no. CS-95-166.04. On April 18, 2011, the [juvenile] court entered a [default] judgment in case no. CS-95-166.04 stating as follows:
" '....
" '1. Default Judgment is granted in favor of [K.M.G.] and against [T.T.] in the amount of $171,680.62, which includes the following amounts: $170,758.97 (child support arrearage plus interest); $750.00 (reasonable attorney's fees); and $171.65 (costs of court), for which execution shall issue.'
"On April 21, 2014, T.T. filed an independent action in the [juvenile] court seeking relief pursuant to Rule 60(b), Ala. R. Civ. P., from the April 18, 2011, judgment entered in case no. CS-96-166.04, and the [juvenile]-court clerk docketed that action as case no. CS-95-166.05. In his request for relief, T.T. contended that he had been served with the summons and the contempt petition filed by K.M.G. in case no. CS-95-166.04 but that he did not receive notice of the final hearing held on April 8, 2011. As a result of his failure to appear, he contended, the [juvenile] court entered the default judgment in the amount of $171,680.62....
"... On [August 28, 2014, after a] hearing, the [juvenile] court entered an order denying T.T.'s request for relief pursuant to Rule 60(b). T.T. filed a timely notice of appeal to this court on September 9, 2014."

T.T. I, 186 So.3d at 473-75.

On July 17, 2015, this court dismissed the former husband's appeal, noting that the former husband had sought relief under Rule 60(b)(6) and holding that the juvenile court lacked jurisdiction to entertain the former husband's independent Rule 60(b)(6) action, which was untimely commenced three days beyond the 3-year period authorized by the rule, 186 So.3d at 475-77.

In August 2015, the former husband filed an amended Rule 60(b) motion in case no. CS-96-166.05 ("the .05 action"), seeking relief, under Rule 60(b)(4), from the judgments in the previous proceedings between the parties on the basis that the juvenile court lacked subject-matter jurisdiction to enter those judgments and, thus, that those judgments were void. The materials before this court indicate that the former husband also filed, in August 2015, Rule 60(b)(4) motions in case no. CS-96-166.00 ("the original action") and case no. CS-96-166.04 ("the .04 action"), seeking relief from the final judgment in the original action. The procedural history pertinent to the former husband's amended Rule 60(b) motion in the .05 action and his Rule 60(b) motions in the original action and in the .04 action is not clear from the materials before us, but it appears that the juvenile court held a hearing on the former husband's motions on January 26, 2017. On March 9, 2017, before the juvenile court ruled on the former husband's motions, the former husband filed a petition for the writ of mandamus in this court directed to the .04 action, which was docketed as appellate case no. 2160397 ("T.T. II"). In his petition, the former husband asked this court to direct the juvenile court to rule on his Rule 60(b) motion in the .04 action. The filing of the petition for the writ of mandamus did not deprive the juvenile court of jurisdiction in the .04 action. See State v. Webber, 892 So.2d 869, 871 (Ala. 2004) ("The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction [or] stay the case ...."). On March 10, 2017, the juvenile court entered identical orders in the original action, as well as in case no. CS-96-166.01 ("the .01 action"), case no. CS-96-166.02 ("the .02 action"), case no. CS-96-166.03 ("the .03 action"), the .04 action, and the .05 action. In those orders, the juvenile court held, in part:

"This matter having come before the Court on the [former husband's] motion to set aside all orders in cases styled CS-1995-166.00, .01, .02, .03, .04 and .05. ...
"In case CS-1995-166.00, the trial court ruled against the [former husband] and in favor of the [former wife], establishing child support and an arrearage amount. The order appears to establish child support, as a paternity finding was also made, irrespective of a prior child support award by the Georgia court. Copies of the Final Judgment of Divorce and Separation Agreement that was incorporated therein were referenced by the Court in the .00 [action, i.e., the original action,] and were filed numerous times over the years in the various other cases. However, no action was ever commenced nor motion made by the State of Alabama in that initial case filing to have those previous orders domesticated or registered as foreign decrees, and no order was ever made to that effect. The failure to do so results in this court's lack of subject matter jurisdiction, and any orders to modify that initial order or to hold the [former husband] in contempt of that initial order are void. If the court found that the ultimate filing of this action which raised the jurisdiction issue was indeed unseasonable, that would still not preclude the final result in this matter.
"Therefore, the [former husband's] motions to vacate are hereby granted. All orders and Judgments in cases CS-1995-166.00, .01, .02, .03 and .04 are hereby vacated in their entirety.
"Any relief requested not addressed herein is hereby denied.
"Costs are taxed as paid."

On March 31, 2017, the former wife filed in the juvenile court a motion in the .05 action that she described as a motion to alter, amend, or vacate the March 10, 2017, order. On April 10, 2017, the former husband filed in the juvenile court a "motion to dismiss" the former wife's motion to alter, amend, or vacate, in which he argued that the juvenile court lacked subject-matter jurisdiction to take any action in the .05 action.

Meanwhile, on April 11, 2017, this court entered an order requesting that the juvenile court clarify whether, after the entry of the March 10, 2017, order, it intended to dismiss the .04 action because, if the juvenile court decided to dismiss that action, the former husband's pending petition before this court would be moot. On April 11, 2017, the juvenile court entered an order in the .04 action dismissing the action without prejudice. On April 28, 2017, this court issued an order dismissing the former husband's petition in T.T. II as moot.

On April 26, 2017, the juvenile court set the former wife's March 31, 2017, motion in the .05 action for a hearing to be held on June 16, 2017. On May 26, 2017, the former husband filed a motion to strike the former wife's March 31, 2017, motion in the .05 action, in which he asserted, among other things, that the juvenile court lacked subject-matter jurisdiction over the case. Also on May 26, 2017, the former husband filed a "motion to dismiss" in the .05 action, in which he appeared to seek dismissal of the .05 action and all pending motions based, in part, on a lack of subject-matter jurisdiction.

On June 29, 2017, after a hearing, the juvenile court entered the following order in the .05 action:

"This matter having come before the Court on the [former wife's] motion to alter, amend or vacate an order of the Court related to the [former husband's] Rule 60 motion in this cause, and the Court having considered the law and the arguments from both sides, the Court hereby ORDERS, ADJUDGES and DECREES as follows:
"1. The Court grants the [former wife's] motion to alter, amend or vacate and hereby vacates its prior order in this matter of March 10, 2017, wherein the Court found that there was no subject matter jurisdiction in the case due to the Georgia order not being registered properly pursuant to [the Uniform Interstate Family Support Act ('UIFSA') ]. However, the Court finds in favor of the [former husband] on his Rule 60 motion as follows.
"2. First, UIFSA was not adopted until after the initial order in this case was entered. [The Uniform Reciprocal Enforcement of Support Act ('URESA') ] was the law in effect at that time, and URESA did not contain the same strict registration requirements that UIFSA does.
"3. However, the Court finds that this matter was not truly a case that fell under URESA as the initial action in this case did not seek to enforce a Georgia order. In the first petition in 1995, the State of Alabama filed to initiate a child support order based on (1) [Aid to Dependent Children benefits] that had been provided to the children and for which the State sought reimbursement, and (2) because the State claimed that the divorce of the parties was granted in 1994 and the final judgment of divorce did not contain any order of support or an attached settlement agreement of the parties regarding support. Therefore, the State was not attempting to enforce the Georgia order at all, but establish child support in Alabama.
"4. The Court at that time had subject matter jurisdiction based on the fact that Alabama was the home state of the [children], both parents resided here, and the State had provided benefits to the [children]. Further, the State had personal jurisdiction over the [former husband] as he lived and worked in Alabama. Therefore, the initial order of support is a valid and binding order, establishing support effective 7/1/95 in the amount of $370 per month.
"5. Subsequently, Judge Lang Floyd entered several orders following petitions for contempt that were filed, and in February of 2004 all arrears from the Alabama order were deemed paid in full.
"6. In 2011, following a motion for contempt, Judge Carmen Bosch entered an order that purported to calculate an arrearage from the [former husband] from 1992 forward from a Georgia court order entered prior to the divorce in that matter. While the [former husband] alleges that Judge Bosch should be disqualified due to her prosecuting the initial action, this Court does not need to address this issue, as the Court finds the order VOID on other grounds, to-wit: at that time of that proceeding UIFSA was in place and required registration of an out of state order before it could be enforced. No such registration occurred. Because of the foregoing finding, the Court declines to address whether or not the previous orders entered by Judge Floyd would render this order void on the grounds of res judicata.
"7. Under the Alabama order, child support terminated by operation of law on March 5, 2008, when the last minor child reached the age of majority. Giving the [former husband] credit for all payments made pursuant to the Alabama order from February 2004 to the last payment made in 2014, the Court finds that the [former husband] is in arrears in child support in the amount of $3,103.92 with interest of $7,023.95. A judgment is entered in the [former wife's] favor and against the [former husband] for this amount, for which let execution issue.
"8. Any relief requested not addressed herein is hereby denied."

(Capitalization in original.)

On July 10, 2017, the former husband filed the current petition for the writ of mandamus to direct the juvenile court to vacate the June 29, 2017, order in the .05 action. As explained above, this court called for an answer, but the former wife has not filed one.

" '[T]he question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus.' Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) (citing Ex parte Johnson, 715 So.2d 783, 785 (Ala. 1998) ).
" ' " 'A writ of mandamus is an extraordinary remedy that requires a showing of: (1) a clear legal right in the petitioner to the order sought; (2)
an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.' " '
" Ex parte Punturo, 928 So.2d 1030, 1033 (Ala. 2002) (quoting Ex parte Bruner, 749 So.2d 437, 439 (Ala. 1999), quoting in turn Ex parte McNaughton, 728 So.2d 592, 594 (Ala. 1998) ). 'Subject-matter jurisdiction cannot be waived, and the lack of subject-matter jurisdiction may be raised at any time by a party or by a court ex mero motu.' 928 So.2d at 1033 (citing Greco v. Thyssen Mining Constr., Inc., 500 So.2d 1143 (Ala. Civ. App. 1986) ). 'A judgment issued by a trial court without jurisdiction is a nullity.' 928 So.2d at 1034 (citing Ex parte Hornsby, 663 So.2d 966 (Ala. 1995) )."

Ex parte Siderius, 144 So.3d 319, 323 (Ala. 2013).

The .05 action is the former husband's independent Rule 60(b) action seeking to vacate orders entered in the previous actions. The March 10, 2017, order specifically and unequivocally held: "[T]he [former husband's] motions to vacate are hereby granted. All orders and Judgments in cases CS-1995-166.00, .01, .02, .03 and .04 are hereby vacated in their entirety." Although the juvenile court still had to take additional action in the .00 through .04 actions to dismiss those cases, there was no other action for the juvenile court to take in the .05 action and the March 10, 2017, order in that action was a final, appealable judgment. See, e.g., Littlefield v. Cupps, 371 So.2d 51, 52 (Ala. Civ. App. 1979) (holding that an order granting relief from a void judgment under Rule 60(b)(4) for want of jurisdiction finally disposed of the case and was immediately appealable); and Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8, 9 (Ala. 1979) (holding that an order granting a Rule 60(b) motion so as to allow a second action to be filed on movant's contract claims was appealable).

Rule 1(B), Ala. R. Juv. P., requires that "[a]ll postjudgment motions ... must be filed within 14 days after entry of order or judgment ...." The former wife did not file a motion to alter, amend, or vacate the March 10, 2017, order in the .05 action until March 31, 2017, which was beyond the requisite 14 days. The juvenile court's jurisdiction over the .05 action terminated 14 days after the entry of its March 10, 2017, order granting the former husband's amended Rule 60(b) motion, and the juvenile court had no jurisdiction to enter its June 29, 2017, order. See D.V.P. v. T.W.P., 905 So.2d 853, 856 (Ala. Civ. App. 2005) (explaining that the juvenile court lacked jurisdiction to consider issue not raised in a timely postjudgment motion filed within 14 days of the entry of the judgment).

Accordingly, the former husband's petition is granted, and the juvenile court is directed to vacate its order entered on June 29, 2017. See Ex parte Sealy, L.L.C., 904 So.2d 1230, 1232 (Ala. 2004) (citing Ex parte Chamblee, 899 So.2d 244, 249 (Ala. 2004) )("Mandamus will lie to direct a trial court to vacate a void judgment or order.").

PETITION GRANTED; WRIT ISSUED.

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

Pittman, J., recuses himself.

      In the previous appellate proceedings, the former husband was identified as "T.T."

      See Cloud v. Cloud, 187 So.3d 725, 725 (Ala. Civ. App. 2015) ("[T]here is no time limitation to file a motion under Rule 60(b)(4), Ala. R. Civ. P., seeking relief from a purportedly void judgment.").

      This court is concerned only with the .05 action, because that is the action regarding which the former husband has filed his mandamus petition. We note, however, that, with regard to the .00 through .04 actions, although the March 10, 2017, orders stated that the juvenile court lacked subject-matter jurisdiction over all the actions and vacated all prior judgments in the .00 through .04 actions, the orders entered in those actions were not final because they did not dismiss those prior actions. See State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1029 (Ala. 1999) (holding that, once a trial court determines that it lacks subject-matter jurisdiction, it has "no alternative but to dismiss the action"); ArvinMeritor, Inc. v. Handley, 12 So.3d 669, 675-76 (Ala. Civ. App. 2007) (citing Garner v. Decatur Utils., 709 So.2d 1309, 1310 (Ala. Civ. App. 1998) )(explaining that "[a] final judgment is a judgment that conclusively determines all the issues before the court and ascertains and declares the rights of all the parties involved"). Accordingly, there was no final judgment in .04 action until the juvenile court entered its April 11, 2017, order dismissing that action.


author: MOORE, Judge.

text:
    Melanie B. PAULK v. Robert A. PAULK
    2160481
    Court of Civil Appeals of Alabama.
    September 29, 2017
    Lynn F. McConnell, Fairhope, for appellant.
    Grady R. Edmondson, Mobile, for appellee.
   MOORE, Judge.

Melanie B. Paulk ("the mother") appeals from an order entered by a judge who had retired from the Mobile Circuit Court ("the trial court") on January 11, 2017, on remand from this court's decision in Paulk v. Paulk, 217 So.3d 899 (Ala. Civ. App. 2016). In Paulk, this court reversed the trial court's July 21, 2015, judgment to the extent that that judgment "found the mother in contempt of court and insofar as it offset the amount the mother owed for the [parties'] children's activity fees, books, and uniforms associated with their attendance at UMS-Wright Preparatory School against the amount the father[, Robert A. Paulk,] owed for child support." 217 So.3d at 903. This court instructed the trial court, on remand, to calculate the amounts the parties owe. Id.

After this court's reversal in Paulk, the mother filed, on November 3, 2016, a motion requesting the trial court to enter an order in accordance with this court's opinion. On November 18, 2016, the mother filed a motion requesting that the case be transferred to Judge Walter Honeycutt due to the retirement of Judge Donald Banks, the judge who had heard the case.

On January 10, 2017, Judge Honeycutt entered an order on remand. On January 11, 2017, that order was set aside as having been entered as the result of a clerical error. That same day, a new order, signed by Retired Judge Banks, was entered. On February 9, 2017, the mother filed a postjudgment motion and an amended postjudgment motion. The mother's postjudgment motion, as amended, was denied by Retired Judge Banks on February 15, 2017. On March 25, 2017, the mother filed her notice of appeal.

On appeal, this court, ex mero motu, raised the jurisdictional issue of the effect of Judge Banks's retirement on the validity of the January 11, 2017, order entered by him and requested that the parties brief that issue. See, e.g., Ex parte K.R., 210 So.3d 1106, 1112 (Ala. 2016) (holding that issue of validity of appointment of judge is jurisdictional and may be raised ex mero motu at any time). Both parties filed letter briefs with this court.

In Ex parte K.R., the probate judge assigned to that case recused himself. The recusing judge ordered that the clerk of the probate court assign the case to " 'one of the temporary judges of probate appointed by the Presiding Judge of the Circuit Court of Mobile County, Alabama.' " 210 So.3d at 1108. The clerk of the probate court assigned the case to J. Michael Druhan, a Mobile attorney, who then entered orders in the case; however, the presiding judge of the Mobile Circuit Court had not appointed Druhan to serve as a temporary probate judge, pursuant to § 12-1-14.1, Ala. Code 1975, and the Chief Justice of the Alabama Supreme Court had not appointed Druhan to serve as a judge, pursuant to § 12-2-37, Ala. Code 1975. Id. K.R. filed a petition for a writ of mandamus with our supreme court. Our supreme court concluded that, in the absence of a valid appointment, Druhan lacked the authority to enter any orders in the case and that the orders entered by Druhan were void. 210 So.3d at 1113.

In the present case, Judge Banks retired effective December 31, 2015. The methods for the appointment of a temporary circuit judge are found in § 12-1-14, Ala. Code 1975, and in § 12-1-14.1, Ala. Code 1975. Section 12-1-14.1(a) provides, in pertinent part: "At the request of the affected judge in a particular circuit, the presiding circuit court judge of the circuit may appoint and commission a special circuit court judge, special district court judge, or special judge of probate for temporary service." Section 12-1-14 provides, in pertinent part: "Should the need for special judges in the circuit court, district court or probate court arise, the Supreme Court may appoint and commission special circuit judges or special district court judges or special probate judges for temporary service."

In the record on appeal, there is no order indicating that Retired Judge Banks was appointed to serve as a temporary judge in accordance with the law, nor has either party contended that there was a valid appointment. Furthermore, neither party has cited this court to any legal basis upon which a retired judge may enter an order without a valid appointment. Therefore, we conclude that Retired Judge Banks lacked authority to enter the January 11, 2017, order, and, therefore, that order is void. K.R., 210 So.3d at 1113. Because a void judgment will not support an appeal, see, e.g., Colburn v. Colburn, 14 So.3d 176, 179 (Ala. Civ. App. 2009), we dismiss this appeal, albeit with instructions for the circuit court to set aside the void order entered by Retired Judge Banks.

We note that, because the order entered by Retired Judge Banks is void, the case remains pending in the trial court for disposition in accordance with our earlier remand instructions. Nothing in this opinion should be construed as preventing or requiring the appointment of Retired Judge Banks as a special temporary judge to dispose of this case.

APPEAL DISMISSED WITH INSTRUCTIONS.

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


text:
    K.R. v. Z.B.
    2160463
    Court of Civil Appeals of Alabama.
    September 29, 2017
    Joshua R. Pipkin of Pipkin Law Firm Enterprise for appellant.
    Rick Hollingsworth, Jr., Enterprise, for appellee.
   MOORE, Judge.

K.R. ("the mother") appeals from a judgment entered by the Coffee Juvenile Court ("the juvenile court") finding N.S. ("the child") dependent and awarding custody of the child to the child's maternal grandmother, Z.B. ("the grandmother"). We reverse the judgment insofar as it awards custody to the grandmother.

Procedural History

On August 24, 2016, the grandmother filed in the juvenile court a petition alleging that the child was dependent and requesting custody of the child. On September 16, 2016, pendente lite custody of the child was awarded to the grandmother. After an adjudicatory hearing, the juvenile court entered a judgment on January 18, 2017, dismissing the petition based on the grandmother's failure to establish the dependency of the child.

On February 1, 2017, the grandmother filed a motion to alter, amend, or vacate the judgment. On February 6, 2017, the juvenile court held a hearing on that motion. On February 10, 2017, the juvenile court entered an order vacating its January 18, 2017, judgment and reinstating the pendente lite custody order. That same day, the juvenile court entered a judgment finding the child dependent and awarding custody of the child to the grandmother.

On February 15, 2017, the mother filed a postjudgment motion challenging the sufficiency of the evidence to support the judgment. On February 24, 2017, the mother filed a second postjudgment motion arguing that the juvenile court had failed to hold a dispositional hearing. The mother's postjudgment motions were denied by operation of law on March 1, 2017, and March 10, 2017, respectively. See Rule 1(B), Ala. R. Juv. P. The mother filed her notice of appeal on March 14, 2017.

Discussion

I.

On appeal, the mother first argues that venue was improper. In W.P. v. Baldwin County Department of Human Resources, 208 So.3d 30 (Ala. Civ. App. 2016), this court held that, when a request for a change of venue was not made to the juvenile court, this court would not consider that argument on appeal. 208 So.3d at 33 (quoting 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.' "). In this case, there is no indication that the mother raised the issue of venue to the juvenile court. Therefore, we cannot consider that issue.

II.

The mother also argues that the juvenile court erred in relying on certain records relating to a criminal case involving the mother. We note, however, that the juvenile court referenced those records at the adjudicatory hearing, and the mother made no objection to its consideration of those records.

"A timely objection is necessary to preserve an issue for appellate review. Rule 103(a)(1), Ala. R. Evid.; Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003) (holding that a timely objection is necessary to put the trial court on notice of any error to be corrected); Henning v. Henning, 26 So.3d 450, 457 (Ala. Civ. App. 2009) (holding that a hearsay objection lodged after the witness answered the question was untimely). A '[t]imely objection is a condition precedent to raising an error on appeal. Where a timely objection to the admission of evidence is not made, the party wishing to exclude the evidence cannot be heard to complain.' Davis v. Southland Corp., 465 So.2d 397, 402 (Ala. 1985)."

S.S. v. Jefferson Cty. Dep't of Human Res., 154 So.3d 1049, 1054 (Ala. Civ. App. 2014).

Because the mother failed to timely object to the juvenile court's consideration of the records complained of on appeal, we will not consider that argument.

III.

The mother argues that the juvenile court erred in allowing Dawn Short, a juvenile-probation officer, to testify despite Rule 615, Ala. R. Evid., having been invoked and Short's having been present in the courtroom during the testimony of other witnesses. "The general rule is that excluding witnesses upon invocation of 'the rule' [i.e., Rule 615 ] is a matter largely left to the trial court's discretion, and its decision on the matter will not be disturbed unless it amounts to an abuse of discretion." Faulkner v. Walters, 661 So.2d 227, 230 (Ala. 1995).

In the present case, during the adjudicatory hearing, the mother was asked to submit to a drug test to be administered by Short. Short was subsequently called as a witness to testify regarding the results of that drug test.

"The purpose of [ Rule 615, Ala. R. Evid., i.e.,] the witness sequestration rule[,] is to prevent any one witness from hearing the testimony of other witnesses and perhaps perceiving the value of his [or her] own testimony to one party or the other." Ex parte Faircloth, 471 So.2d 493, 496 (Ala. 1985). "Alabama appellate courts have time and again refused to hold it an abuse of discretion on the part of a trial court to allow a sheriff, police chief, or similarly situated person who will later testify to remain in the courtroom during trial." Ex parte Lawhorn, 581 So.2d 1179, 1181 (Ala. 1991). Considering the foregoing, we conclude that the juvenile court did not exceed its discretion in allowing Short, a juvenile-probation officer, to testify regarding the results of a drug test that she had administered during the course of the adjudicatory hearing despite her having not been sequestered.

IV.

Finally, the mother argues that the juvenile court erred in entering a judgment awarding custody of the child to the grandmother without holding a dispositional hearing.

" ' " 'It is well settled that "[i]n dealing with such a delicate and difficult question-the welfare of a minor child-due process of law in legal proceedings should be observed," which necessarily includes "a hearing or opportunity to be heard before a court of competent jurisdiction," ' " ' M.G. v. J.T., 90 So.3d 762, 764 (Ala. Civ. App. 2012) (quoting earlier cases), and, concomitantly, ' "an opportunity to present evidence and arguments [and] ... a reasonable opportunity to controvert the opposition's claims," ' R.C. v. L.C., 923 So.2d 1109, 1111-12 (Ala. Civ. App. 2005) (quoting Crews v. Houston Cnty. Dep't of Pensions & Sec., 358 So.2d 451, 455 (Ala. Civ. App. 1978) (emphasis added in R.C. ))."

D.D.P. v. D.M.B., 173 So.3d 1, 4 (Ala. Civ. App. 2015).

"[A] hearing to determine the custody of a dependent child is a disposition hearing." T.B. v. Cullman Cty. Dep't of Human Res., 6 So.3d 1195, 1203 (Ala. Civ. App. 2008). Section 12-15-311, Ala. Code 1975, provides, in pertinent part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that a child is dependent, the juvenile court may proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case.
"(b) In dispositional hearings, all relevant and material evidence helpful in determining the best interests of the child, including verbal and written reports, may be received by the juvenile court even though not admissible in the adjudicatory hearing. The parties or their counsel shall be afforded an opportunity to examine and controvert written reports so received and to cross-examine individuals making reports."

In the present case, the juvenile court held the initial adjudicatory hearing on January 11, 2017. Although " Rule 25(A), Ala. R. Juv. P., specifically allows juvenile courts to simultaneously hear all phases of a case at once," T.B., 6 So.3d at 1203, in this case the juvenile court made it clear that the disposition of the child was not considered at that hearing. After the conclusion of the adjudicatory hearing, the juvenile court dismissed the grandmother's petition based on the grandmother's failure to establish the dependency of the child, thus obviating any need for a dispositional hearing at that point.

However, the grandmother thereafter filed a postjudgment motion, and, on February 6, 2017, the juvenile court held a hearing on that motion at which it received ore tenus testimony concerning the mother's criminal-arrest history and the veracity of her previous testimony on that subject. At the conclusion of that hearing, the juvenile court stated that it was vacating the judgment dismissing the petition, and it entered a written order to that effect. Without holding a dispositional hearing, the juvenile court then entered a judgment finding the child dependent and awarding custody of the child to the grandmother.

Based on the foregoing, we conclude that the juvenile court erred in failing to hold a hearing concerning the issue of the disposition of the custody of the child. Therefore, we reverse the judgment of the juvenile court to the extent that it awarded custody of the child to the grandmother, and we remand the cause for the juvenile court to conduct a hearing in accordance with § 12-15-311, Ala. Code 1975, and to enter a judgment regarding the disposition of the child. We note that the pendente lite custody award to the grandmother remains in effect pending the juvenile court's entry of a dispositional judgment. Moreover, because the mother has not raised an issue regarding the dependency determination, that aspect of the judgment remains intact.

REVERSED AND REMANDED.

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


author: WINDOM, Presiding Judge.

text:
    STATE of Alabama v. Tommy WILLIAMS
    CR-15-1066
    Court of Criminal Appeals of Alabama.
    September 8, 2017
    Luther Strange and Steve Marshall, attys. gen., and John J. Davis, asst. atty. gen., for appellant.
    Linda M. Braye, Montgomery, for appellee.
   WINDOM, Presiding Judge.

The State of Alabama appeals the circuit court's order suppressing evidence of cocaine discovered in Tommy Williams's pocket during a traffic stop. For the reasons that follow, this Court reverses the circuit court's order and remands the cause for further proceedings.

On February 21, 2013, Cpl. A.T. Caffey of the Montgomery Police Department stopped Williams's automobile because Williams failed to signal while turning. During the traffic stop, Cpl. Caffey discovered cocaine in Williams's pocket and arrested him for possession of a controlled substance. On April 8, 2016, a Montgomery County grand jury indicted Williams for unlawful possession of a controlled substance. See § 13A-12-212(a)(1), Ala. Code 1975. On May 10, 2016, Williams filed a motion to suppress the cocaine that formed the basis of his indictment. In his motion, Williams did "not challenge that his traffic stop was properly initiated due to his turning without signaling, and thus d[id] not suggest the Officer's action was not justified at its inception other than the fact that there [was] no ... ticket ... issued to Williams." (C. 30.) "Rather, Williams maintain[ed] that all evidence seized as a result of the ... events, and any and all statements and derivative evidence flowing therefrom, should be suppressed because they are the result of a search and seizure of Williams' person that violated his Fourth Amendment rights." (C. 30.) Specifically, Williams argued that the officer lacked any grounds to order him out of his automobile; therefore, any evidence obtained after he was ordered out of the automobile should be suppressed.

On June 1, 2016, the circuit court held a suppression hearing during which the State presented testimony from one witness, Cpl. Caffey. Cpl. Caffey testified that on February 21, 2013, he witnessed Williams "turning off of the boulevard onto Carmichael Road" without signaling. Cpl. Caffey activated his emergency lights to pull Williams over for turning without signaling. See § 32-5A-133, Ala. Code 1975. When Cpl. Caffey activated his lights, Williams pulled his automobile into the parking lot of a Waffle House restaurant.

Cpl. Caffey and his partner approached Williams's vehicle. As they approached, they saw that "[Williams] was moving sporadically. He wasn't just sitting still. He wasn't moving as if he was going for a wallet. He kept moving to the right side of his body." (R. 5.) When asked the difference between a driver reaching for his wallet and Williams's behavior, Cpl. Caffey testified:

"It's a big difference. Most people, they would just do a single motion to grab a wallet. At the time [Williams] kept reaching down to his right side and then he would sit up. Then he would reach to his right side again while watching me in the mirror approach the vehicle."

(R. 5.)

When Cpl. Caffey reached Williams's automobile, he asked Williams for his driver's license, tag receipt, and proof of insurance. Williams provided his driver's license and tag receipt but did not have insurance. Because of Williams's behavior and because he was acting nervously, Cpl. Caffey instructed him to get out of the automobile. Williams, however, refused and "started playing with some paper." (R. 7.) Cpl. Caffey again instructed Williams to get out of the automobile, and Williams again refused and "started putting his hand in and out of his right-front side pocket." (R. 7.) At that point, Cpl. Caffey

"grabbed his left hand and ... instructed him to stop putting his hand in his pocket [and to put his right hand out of the window]. [Cpl. Caffey again] instructed him to step out of the vehicle .... So [Williams] complied after [Cpl. Caffey] grabbed his hand. [Cpl. Caffey] opened the door, and [Williams] stepped out."

(R. 7.) Cpl. Caffey testified:

"Once he stepped out of the vehicle, I conducted a pat-down immediately. I started on the right side of his body since that was where he was grabbing, where he was reaching. Once I started on his pants, I came up to his right-side pocket. I felt a bulge, and the first word out of his mouth was it's cocaine."

(R. 8.) Cpl. Caffey testified that he patted down Williams for weapons because of Williams's erratic movements and persistence in putting his hand in his pocket.

During the hearing, defense counsel explained:

"I just want to note that once he's out of the car is not really the issue. It's-and like you said, whether or not he was able to get him out of the car in the first place is the issue. So all of the stuff about the pat-down is not where we're arguing the Fourth Amendment is violated. Asking him to get out at all is where it lies."

(R. 8-9.) Defense counsel then elicited testimony indicating that Cpl. Caffey did not issue Williams any traffic citations.

At the conclusion of the hearing, the State argued:

"By [defense counsel's] own admission, the only thing they are challenging is whether or not he was able to get out of the car. The case that I provided to you, State v. Taylor, 46 So.3d 504 (Ala. Crim. App. 2010) ], that is actually a case from this courtroom where a suppression motion was granted and was appealed and reversed. It says-and I quote this Court has recognized that a traffic stop is more analogous to the brief investigative detention authorized by Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]. So long as the police officer has properly seized the occupants of the car, being the traffic stop. Judge, the officer may order the driver or a passenger out of the car without violating the Fourth Amendment."

(R. 20.)

Defense counsel then stated that she was also challenging the initial stop as pretextual. Specifically, defense counsel argued that the initial stop was pretextual because the officer did not issue any traffic citations.

After the hearing, Williams filed a supplemental motion to suppress in which he argued that the stop was pretextual, that Cpl. Caffey lacked a basis to order Williams out of the automobile, and that Cpl. Caffey lacked any justification for the pat-down search. The State filed a response refuting Williams's assertions. Thereafter, the circuit court granted Williams's motion to suppress.

On appeal, the State argues that the circuit court erred by granting Williams's motion to suppress. According to the State, Cpl. Caffey's actions complied with the Fourth Amendment and the decisions of the Supreme Court of the United States applying that amendment. Thus, the circuit court's decision must be reversed. This Court agrees.

Initially, this Court notes:

" ' "When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct," Ex parte Perkins, 646 So.2d 46, 47 (Ala. 1994) ; "[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence," Bradley v. State, 494 So.2d 750, 761 (Ala. Crim. App. 1985), aff'd, 494 So.2d 772 (Ala. 1986) ; and we make " 'all the reasonable inferences and credibility choices supportive of the decision of the trial court.' " Kennedy v. State, 640 So.2d 22, 26 (Ala. Crim. App. 1993), quoting Bradley, 494 So.2d at 761. "[A]ny conflicts in the testimony or credibility of witnesses during a suppression hearing is a matter for resolution by the trial court .... Absent a gross abuse of discretion, a trial court's resolution of [such] conflict[s] should not be reversed on appeal." Sheely v. State, 629 So.2d 23, 29 (Ala. Crim. App. 1993) (citations omitted). However, " '[w]here the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the [appellate] Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts.' " State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996), quoting Stiles v. Brown, 380 So.2d 792, 794 (Ala. 1980). " ' "[W]hen the trial court improperly applies the law to the facts, no presumption of correctness exists as to the court's judgment." ' " Ex parte Jackson, 886 So.2d 155, 159 (Ala. 2004), quoting Hill, 690 So.2d at 1203, quoting in turn Ex parte Agee, 669 So.2d 102, 104 (Ala. 1995). A trial court's ultimate legal conclusion on a motion to suppress based on a given set of facts is a question of law that is reviewed de novo on appeal. See State v. Smith, 785 So.2d 1169 (Ala. Crim. App. 2000).' "

C.B.D. v. State, 90 So.3d 227, 237 (Ala. Crim. App. 2011) (quoting State v. Hargett, 935 So.2d 1200, 1203-04 (Ala. Crim. App. 2005) ). "Because only the arresting officer[ ] testified at [Williams's] suppression hearing, and the evidence was ... undisputed, the decision of the trial court should be reviewed de novo." Worthy v. State, 91 So.3d 762, 765 (Ala. Crim. App. 2011) (citing State v. Hill, 690 So.2d 1201, 1203 (Ala. 1996) ).

Further, it is well settled that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the State establishes that the search or seizure falls within a recognized exception. Ex parte Hilley, 484 So.2d 485, 488 (Ala. 1985). Exceptions to the warrant requirement include: 1) objects in plain view; 2) consensual searches; 3) a search incident to a lawful arrest; 4) hot pursuit or emergency situations; 5) probable cause coupled with exigent circumstances; and 6) an investigatory detention and search for weapons pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Ex parte Tucker, 667 So.2d 1339, 1343 (Ala. 1995). Another recognized exception to the warrant requirement is the "automobile exception," which allows law enforcement to search an automobile based on probable cause alone. State v. Black, 987 So.2d 1177, 1180 (Ala. Crim. App. 2006) (citing Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) ).

In State v. Perry, 66 So.3d 291 (Ala. Crim. App. 2010), this Court explained:

"that a traffic stop is ' " 'more analogous' to the brief investigative detention authorized in Terry [v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968) ]" 'than custody traditionally associated with a felony arrest. Sides v. State, 574 So.2d 856, 858 (Ala. Crim. App. 1990), quoting Pittman v. State, 541 So.2d 583, 585 (Ala. Crim. App. 1989), quoting in turn Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed. 2d 317 (1984). In stopping a vehicle for a traffic violation, a police officer has, in Fourth Amendment terms, seized the driver, Cains v. State, 555 So.2d 290, 292 (Ala. Crim. App. 1989), quoting Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed. 2d 660 (1979). 'Under Terry [v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (1968) ], law-enforcement officers may stop a vehicle for investigatory purposes based on a traffic violation. State v. Rodgers, 903 So.2d 176, 178 (Ala. Crim. App. 2004).' J.T.C. v. State, 990 So.2d 444, 447 (Ala. Crim. App. 2008)."

66 So.3d at 294.

" 'As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.' " Brown v. State, 821 So.2d 219, 223 (Ala. Crim. App. 2000) (quoting Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (citations omitted)). Thus, if a law-enforcement officer conducting a traffic stop has probable cause to believe that a traffic violation occurred, " 'the officer's subjective intent in [stopping the vehicle] is irrelevant.' " State v. Jemison, 66 So.3d 832, 839 (Ala. Crim. App. 2010) (quoting Ex parte Scarbrough, 621 So.2d 1006, 1010 (Ala. 1993) ). See Whren, 517 U.S. at 813, 116 S.Ct. 1769 (rejecting the argument that "the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved"); J.D.I. v. State, 77 So.3d 610, 619 (Ala. Crim. App. 2011) (" ' "[T]he rule articulated by the Supreme Court in Whren [v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ] provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justifications for their actions." ' " (quoting United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003), quoting in turn United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) )). Further, "[s]o long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala. Crim. App. 2000) (recognizing Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) ), cert. denied, 814 So.2d 988 (Ala. 2001), out of the car without violating the Fourth Amendment." State v. Taylor, 46 So.3d 504, 508 (Ala. Crim. App. 2010) (citing State v. Abner, 889 So.2d 52, 53-54 (Ala. Crim. App. 2004) ); State v. Bailey, 49 So.3d 1245, 1250 (Ala. Crim. App. 2010) (same); see also Mimms, 434 U.S. at 111, 98 S.Ct. 330 (holding that when law-enforcement officers have legally stopped the driver of a vehicle, they may, consistent with the Fourth Amendment, order a driver out of the car for any reason or for no reason); State v. Moore, 115 So.3d 187, 191 (Ala. Crim. App. 2012) (same).

After a driver has been ordered out of an automobile, " ' "[p]olice may conduct a patdown search without a warrant if, under the totality of the circumstances, the officer has an articulable, reasonable suspicion that a person is involved in criminal activity and that he is armed." ' " B.A.H. v. State, 28 So.3d 29, 32 (Ala. Crim. App. 2009) (quoting State v. Hails, 814 So.2d 980 (Ala. Crim. App. 2000), quoting in turn United States v. Raymond, 152 F.3d 309, 312 (4th Cir. 1998), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ). Thus, " Terry permits a police officer to conduct a patdown search of a suspect's outer clothing to 'discover guns, knives, clubs or other hidden instruments [which may be used] for the assault of the police officer.' " Ex parte James, 797 So.2d 413, 418 (Ala. 2000) (quoting Terry, 392 U.S. at 29, 88 S.Ct. 1868 ). If probable cause to believe a suspect has contraband develops during the Terry pat-down, the officer may search beneath the outer clothing and seize the contraband. See Nix v. State, 136 So.3d 1101, 1104 (Ala. Crim. App. 2013). A suspect's admission to possessing contraband is sufficient to establish probable cause to search. See State v. McClure, 53 So.3d 169, 173 n. 2 (Ala. Crim. App. 2010) ("McClure's admission that there was marijuana in the trunk of the car provided probable cause justifying a search of the car under the automobile exception to the warrant requirement."); Adams v. State, 815 So.2d 578, 580 (Ala. 2001) (considering an admission by a codefendant in holding that probable cause justified the search of a car); United States v. Are, 590 F.3d 499, 507 (7th Cir. 2009) (holding that the defendant's admission that contraband was in his bedroom constituted probable cause for the issuance of a warrant); People v. Brown, 24 A.D.3d 884, 886, 806 N.Y.S.2d 262, 264 (2005) (holding that the "defendant's admission of the presence of a crack pipe in the car provided probable cause for the entry into and search of the car for the pipe under the automobile exception to the warrant requirement").

Williams conceded to the circuit court that Cpl. Caffey had probable cause to pull him over for failing to use his turn signal. See § 32-5A-133(a), Ala. Code 1975. As Cpl. Caffey approached Williams's automobile, he saw that Williams was watching him and was moving toward his right side. When Cpl. Caffey reached Williams, he noticed that Williams was nervous. At that point, Cpl. Caffey lawfully ordered Williams to exit the automobile. See Moore, 115 So.3d at 191 (" 'So long as the police officer has properly seized the occupants of the car, the officer may order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), or a passenger, State v. Hails, 814 So.2d 980 (Ala. Crim. App. 2000) (recognizing Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) ), cert. denied, 814 So.2d 988 (Ala. 2001), out of the car without violating the Fourth Amendment.' " (quoting Bailey, 49 So.3d at 1250 ). Williams, however, refused Cpl. Caffey's lawful order and, instead, tried to access his right-front-pants pocket, i.e., he kept "putting his hand in and out of his right-front side pocket." (R. 7.) At that point, Cpl. Caffey,

"[g]rabbed his left hand and ... instructed him to stop putting his hand in his pocket [and to put his right hand out of the window]. [Cpl. Caffey again] instructed him to step out of the vehicle .... So [Williams] complied after [Cpl. Caffey] grabbed his hand. [Cpl. Caffey] opened the door, and [Williams] stepped out."

Williams's nervousness, odd movements, refusal to exit the automobile, and repeated attempts to access his pants pocket provided Cpl. Caffey reasonable suspicion that Williams was involved in criminal activity and was armed. See (R. 8-9) ("I just want to note that once he's out of the car is not really the issue. It's-and like you said, whether or not he was able to get him out of the car in the first place is the issue. So all of the stuff about the pat-down is not where we're arguing the Fourth Amended is violated. Asking him to get out at all is where it lies."). While patting down Williams, Cpl. Caffey felt a bulge in Williams's right front pocket. At that point, Williams stated that the bulge was cocaine. With Williams's admission, Cpl. Caffey had probable cause to seize the cocaine. See McClure, 53 So.3d at 173 n.2.

There is no basis in law or facts in the record that supports the circuit court's decision to suppress the cocaine evidence seized from Williams's pocket. Accordingly, the circuit court's order suppressing the evidence is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

Welch, Kellum, Burke, and Joiner, JJ., concur.

      On appeal, Williams argues that he "did not concede that the stop was valid, either at the hearing o[r] in pleadings, and argues that the facts in the record support a finding that the stop was not lawful." (Williams's brief, at 7-8.) Williams's representation on appeal cannot be reconciled with the record. In his motion to suppress, Williams declared that he "does not challenge that his traffic stop was properly initiated due to his turning without signaling, and thus does not suggest the Officer's action was not justified at its inception." (C. 30.) During the hearing, Williams's counsel explained to the court that he was challenging only whether Cpl. Caffey had the authority to order Williams to exit the automobile. (R. 8-9.) Thereafter, at the conclusion of the hearing, counsel asserted that the stop was pretextual but never argued that Cpl. Caffey lacked the legal authority to stop Williams for failing to use his turn signal. Williams's appellate counsel also argues that Cpl. Caffey lacked probable cause to stop him because no turn signal was required. According to Williams, he was in the turn lane when he turned without signaling. He then argues, without citing any authority, that turn signals are not required when turning from a turn lane; therefore, Cpl. Caffey lacked a valid reason to stop Williams. Contrary to Williams's assertion, "[n]o person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety nor without giving an appropriate signal." § 32-5A-133(a), Ala. Code 1975. Section 32-5A-133(a), Ala. Code 1975, does not provide an exception to signaling when the driver uses a lane designated for turning. See Commentary to § 32-5A-133, Ala. Code 1975, ("Subsection (a) is intended to simplify the previous provision found in former Section 32-5-58(b) and also to apply both at intersections and elsewhere."); See also United States v. One 1993 Ford F150 Pickup, 148 F.Supp.2d 1258, 1262 (M.D. Ala. 2001) (recognizing that § 13A-5A-133, Ala. Code 1975, does not provide "a different standard for vehicles in a 'turn-only' lane").


author: PER CURIAM.

text:
    Omar BLANCO, Appellant, v. STATE of Florida, Appellee.
    No. SC17-330
    Supreme Court of Florida.
    [July 19, 2018]
    Ira W. Still, III, Coral Springs, Florida, for Appellant
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, Florida, for Appellee
   PER CURIAM.

Omar Blanco, a prisoner under sentence of death, appeals the circuit court's orders summarily denying his fifth motion for postconviction relief, which was filed under Florida Rules of Criminal Procedure 3.851 and 3.203. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

In 1982, a jury convicted Blanco of first-degree murder and armed burglary. We affirmed Blanco's convictions and sentence of death on direct appeal. Blanco v. State , 452 So.2d 520 (Fla. 1984). We also upheld the denial of his initial motion for postconviction relief and denied his petition for a writ of habeas corpus. Blanco v. Wainwright , 507 So.2d 1377 (Fla. 1987). A federal court later vacated the death sentence based on ineffective assistance of penalty phase counsel. Blanco v. Dugger , 691 F.Supp. 308 (S.D. Fla. 1988), aff'd sub nom. Blanco v. Singletary , 943 F.2d 1477 (11th Cir. 1991). In 1994, following a new penalty phase on resentencing, the jury recommended a death penalty by a vote of ten to two. We affirmed Blanco's resentence of death. Blanco v. State , 706 So.2d 7 (Fla. 1997). We also upheld the denial of his fourth postconviction motion. Blanco v. State , 963 So.2d 173 (Fla. 2007).

In May 2015, Blanco filed his current fifth postconviction motion under Florida Rules of Criminal Procedure 3.851 and 3.203. Within his motion, Blanco sought relief based on Hall v. Florida , --- U.S. ----, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), and Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Blanco subsequently filed an amended postconviction motion in which he sought additional relief based on Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In January 2017, the circuit court issued an order summarily denying Blanco's intellectual disability claim as time-barred in light of this Court's decision in Rodriguez v. State , No. SC15-1278, 2016 WL 4194776 (Fla. Aug. 9, 2016) (unpublished order). This appeal followed. While Blanco's postconviction case was pending in this Court, the Court directed Blanco to show cause why the circuit court's May 2017 order-entered by the circuit court on relinquishment-should not be affirmed in light of this Court's decision in Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017). This Court also directed further briefing on the intellectual-disability-related issue.

We conclude that Blanco's intellectual disability claim is foreclosed by the reasoning of this Court's decision in Rodriguez . In Rodriguez , this Court applied the time-bar contained within rule 3.203 to a defendant who sought to raise an intellectual disability claim under Atkins for the first time in light of Hall . We also conclude that Blanco's Hurst claim is foreclosed by this Court's decision in Hitchcock . In Hitchcock , this Court applied Asay to mean that Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), is the cutoff for any and all Hurst -related claims. Accordingly, we affirm the circuit court's orders denying Blanco's fifth motion for postconviction relief.

Any rehearing motion containing reargument will be stricken.

It is so ordered.

LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

CANADY, C.J., concurs in result.

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

PARIENTE, J., concurring in result.

I agree with the per curiam opinion's result because this Court's opinions regarding Hurst retroactivity are now final. Hitchcock v. State , 226 So.3d 216 (Fla.), cert. denied , --- U.S. ----, 138 S.Ct. 513, 199 L.Ed.2d 396 (2017) ; Asay v. State (Asay V ), 210 So. 3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017). However, I continue to adhere to the views expressed in my dissenting opinion in Hitchcock that Hurst should apply retroactively to cases like Blanco's. Hitchcock , 226 So.3d at 220-23 (Pariente, J., dissenting). Applying Hurst to Blanco's sentence of death, I would grant a new penalty phase based on the jury's nonunanimous recommendation for death by a vote of ten to two. Majority op. at 536-37.

      Blanco's second postconviction motion was filed during the federal habeas proceedings, but it was dismissed as moot when the federal court ordered resentencing.
      Blanco's third postconviction motion was filed during the pendency of the resentencing proceedings. We affirmed. Blanco v. State , 702 So.2d 1250 (Fla. 1997).

      While Blanco's postconviction case was pending in this Court, the Court temporarily relinquished jurisdiction for the circuit court to enter a written order on the Hurst -related claim contained within Blanco's amended postconviction motion. In May 2017, the circuit court issued an order on relinquishment summarily denying Blanco's Hurst claim in light of this Court's decision in Asay v. State , 210 So.3d 1 (Fla. 2016), cert. denied , --- U.S. ----, 138 S.Ct. 41, 198 L.Ed.2d 769 (2017).


text:
    THE FLORIDA BAR, Complainant, v. Madsen MARCELLUS, Jr., Respondent.
    No. SC16-1773
    Supreme Court of Florida.
    [July 19, 2018]
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, Jennifer R. Falcone, Bar Counsel, Miami, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    Kevin P. Tynan of Richardson & Tynan, P.L.C., Tamarac, Florida, for Respondent
   PER CURIAM.

We have for review a referee's report recommending that Respondent, Madsen Marcellus, Jr., be found guilty of professional misconduct and suspended from the practice of law for one year. We have jurisdiction. See art. V, § 15, Fla. Const. We approve the referee's findings of fact and recommendations as to guilt, but disapprove the referee's recommended sanction, and instead suspend Madsen Marcellus, Jr., from the practice of law for eighteen months, as set forth below.

BACKGROUND

The Florida Bar (the Bar) filed a complaint with the Court alleging that Respondent, Madsen Marcellus, Jr., violated various Rules Regulating the Florida Bar (Bar Rules). The case was referred to a referee, and the referee filed his report with the Court. Both Marcellus and the Bar sought review of the referee's report.

The referee made the following findings of fact in his report. Marcellus was a party to dissolution of marriage proceedings that were initiated in 2009; the final hearing in the case took place in November 2009 and the Final Order on Petition for Dissolution of Marriage and Other Relief (Final Order) was issued on April 23, 2010. As reflected in the Final Order, the family court ordered Marcellus and his ex-wife, Kellie Peterson Gudger, to either refinance the marital home into solely Marcellus's name within thirty days of that hearing or sell the home. Although there was conflicting testimony at the final hearing before the referee, the referee found that Marcellus vacated the marital home sometime during the pendency of the divorce, and that the couple had arranged for sale of the home. Two days prior to the closing, after Gudger vacated the house and completed her portion of the paperwork for the sale of the home, Marcellus moved back into the home and refused to complete his portion of the paperwork; as a result, the sale fell through. Thereafter Marcellus refused to leave the home. After Marcellus reinhabited the home, he made several attempts to refinance the mortgage into his name alone. However, he was unable to do so based on his income.

In March 2010, Marcellus pursued another mortgage modification, this time with the help of a family friend, Curt Francis. Marcellus and Francis testified that while applying for the mortgage modification, Marcellus contacted Gudger and asked her to apply for the modification with him, but she refused. Francis told Marcellus that he would call Gudger and convince her to sign the document. Francis left the room as if to call her, and returned shortly thereafter indicating that Gudger had agreed to allow him to execute the mortgage modification on her behalf. Francis signed the document, purportedly on Gudger's behalf, and notarized the signature which he himself affixed to the document. Marcellus knew that Francis signed the document and notarized his own signature. However, contrary to assertions by Marcellus and Francis, Gudger testified that neither Marcellus nor Francis called her regarding the modification application. She maintained that she never agreed to have Francis sign the modification application on her behalf. As a result of this action, Francis lost his notary commission in Florida. Ultimately, the mortgage modification application with the fraudulent signature was accepted and approved by the lender.

Gudger first learned of Marcellus's modification of the mortgage using the forged signature upon being served a foreclosure complaint filed by the lender on December 8, 2011, after Marcellus failed to make payments on the mortgage following modification thereof. In June 2013, Gudger filed a motion for contempt with the family court as a result of Marcellus's failure to comply with the terms of the Final Order in their divorce case, requiring him to either refinance the home into solely his name within thirty days of the November 2009 final hearing or sell the home. The family court ordered Marcellus to pay Gudger $2,500 in fees charged to prepare and file the contempt motion but ultimately declined to hold him in contempt of court.

Additionally, in May and June 2013, Gudger served Marcellus with various discovery requests regarding his alleged noncompliance with family court orders concerning child support and other matters. At a July 24, 2013, hearing, the family court found that Marcellus had not responded to any of the discovery requests and ordered him to do so within ten days of that hearing. Marcellus did not comply with that order and did not comply with any of the discovery requests for the next year of litigation. Gudger filed several motions to compel discovery. The family court granted Gudger's motions to compel on September 24, 2013, July 1, 2014, and September 11, 2014. The family court sanctioned Marcellus for his failure to comply with its orders and ordered him to pay Gudger's attorneys' fees within thirty days. Additionally, the September 11, 2014, order fined Marcellus $50 per day until he provided proof of compliance with the discovery requests. Subsequently, the family court issued an order directing Marcellus to appear before it on September 15, 2014, to show cause why he failed to comply with the court's prior orders and why he should not be sanctioned. Marcellus failed to appear, and the family court issued a writ of bodily attachment. Ultimately, the family court dissolved the writ after Marcellus's appearance at the next scheduled hearing so that the case could go forward, but expressed disbelief at Marcellus's excuse that his newly hired counsel, who also happened to be his law partner, failed to notify him of the Monday morning show cause hearing until after close of business on the preceding Friday.

The referee found that Marcellus remained in violation of several family court orders as of the date of the final hearing in this case. Specifically, the referee found that Marcellus had failed to pay the attorneys' fees or fines ordered by the family court on September 24, 2013, July 1, 2014, and September 11, 2014. He also found that Marcellus remained in violation of the family court's April 23, 2010, Final Order by remaining in the marital home and failing to refinance it out of Gudger's name. Additionally, the referee found that Marcellus took actions to evade arrest on the writ of attachment, such as exchanging vehicles with his current wife so that he would not be found driving the vehicle described in the writ and avoiding his children's activities for fear of being arrested.

RULE VIOLATIONS

The referee recommended that Marcellus be found to have violated Bar Rules 3-4.3 (Misconduct and Minor Misconduct); 4-3.4(a) (a lawyer must not unlawfully obstruct another party's access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding); 4-3.4(b) (a lawyer must not fabricate evidence); 4-3.4(c) (a lawyer must not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists); 4-3.4(d) (a lawyer must not in pretrial procedure make a frivolous discovery request or intentionally fail to comply with a legally proper discovery request by an opposing party); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 4-8.4(d) (a lawyer shall not engage in conduct in connection with the practice of law that is prejudicial to the administration of justice).

Marcellus challenges several of the referee's findings of fact and argues that the referee's recommendations as to guilt with regard to Bar Rules 4-3.4(a), (c), and (d), and 4-8.4(c) are not sufficiently supported by the referee's findings of fact. Marcellus does not challenge the referee's recommendations that he be found guilty of violating Bar Rules 3-4.3, 4-3.4(b), and 4-8.4(d).

When reviewing a referee's findings of fact, "the Court will not reweigh the evidence and substitute its judgment for that of the referee" if the referee's findings of fact are supported by competent, substantial evidence in the record. Fla. Bar v. Gwynn , 94 So.3d 425, 428 (Fla. 2012). Additionally, it is the referee's responsibility to make credibility determinations and resolve conflicts in the evidence presented at the final hearing. Fla. Bar v. Niles , 644 So.2d 504, 506 (Fla. 1994). Further, the referee's findings of fact must be "sufficient" to support the recommendations as to guilt. See Fla. Bar v. D'Ambrosio , 25 So.3d 1209, 1216 (Fla. 2009) ; Fla. Bar v. Shoureas , 913 So.2d 554, 557-58 (Fla. 2005).

In this case, many of Marcellus's challenges to the referee's factual findings represent no more than credibility arguments. However, it is the respondent's burden to demonstrate that the referee's factual findings lack support, and simply "pointing to contradictory evidence where there also is competent, substantial evidence in the record that supports the referee's findings" will not suffice. Fla. Bar v. Glick , 693 So.2d 550, 552 (Fla. 1997). Accordingly, those findings of fact are hereby approved without further discussion.

Marcellus does present several more substantive challenges to factual findings by the referee. Marcellus contends that he did not violate the family court's April 23, 2010, Final Order on Petition for Dissolution of Marriage and Other Relief by obtaining a mortgage modification using Gudger's name because the Final Order was not issued until after the modification had occurred. However, the referee's finding that Marcellus violated the family court's order by his conduct is well supported by evidence, including the family court's order itself, which directed Marcellus to "within thirty (30) days of the date of this hearing , determine whether or not the house can be retained. If the house can be retained, [Marcellus] will refinance the mortgage out of [Gudger's] name within that thirty (30) day period." Marcellus v. Marcellus , No. 09-0511-37, at ¶ 25 (Fla. 17th Cir. Ct. Apr. 23, 2010) (emphasis added). If the house could not be refinanced, the family court directed Marcellus to "put the house up for sale as soon as possible." Id.

Similarly, although Marcellus challenges as unsupported the referee's finding that he refused to comply with various family court orders compelling him to respond to Gudger's discovery requests and to appear before it, the referee's finding is amply supported by evidence produced at the final hearing in this disciplinary matter. Marcellus offers as an explanation that he was represented by counsel for much of the time that Gudger's discovery requests went unanswered, and thus he is not personally liable. However, the record indicates that he proceeded pro se for over two months, during which time he refused to respond to pending discovery requests. Even after he was represented by counsel, he was ordered by the family court on September 24, 2013, July 1, 2014, and September 11, 2014, to respond to various discovery requests; however, Marcellus refused to respond to the discovery requests for the next year of litigation.

Moreover, Marcellus's argument that his failure to appear before the family court for consideration of sanctions against him, despite having been ordered to do so, did not violate any Bar Rules because he was attending to matters on behalf of a client holds no water. Despite the fact that Marcellus knew about the order directing him to appear before the family court, the evidence before the referee indicates he made no attempt whatsoever to notify the family court that he would not be present as a result of his alleged obligation to appear on behalf of a client in another matter. Marcellus's excuse that he was not notified that his presence was required before the family court until after close of business on Friday preceding the Monday morning hearing is no excuse for his failure to have notified the family court that he would not be present, or to find another attorney to cover his prior obligations to clients.

Accordingly, because the referee's findings of fact are supported by competent, substantial evidence in the record, we hereby approve the referee's findings of fact. Because Marcellus's challenges to the referee's recommendations that he be found to have violated Bar Rules 4-3.4(a) and (d), and 4-8.4(c), rest solely on his challenges to the referee's factual findings underpinning those recommendations, we hereby approve the referee's recommendations that Marcellus be found to have violated those rules without further comment.

Marcellus further challenges the referee's recommendation that he be found to have violated Bar Rule 4-3.4(c)"because this rule has an element of scienter and the Respondent certainly did not intend to mislead anyone." Respondent's Answer Brief and Initial Brief on Cross Appeal at 19. Bar Rule 4-3.4(c) provides that a lawyer must not "knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists." However, failing to respond to discovery requests in the face of orders compelling responses is grounds for a violation of Bar Rule 4-3.4(c). See, e.g. , Fla. Bar v. Bischoff , 212 So.3d 312 (Fla. 2017) (suspending attorney from the practice of law for failing to respond to discovery requests, filing a false notice of serving discovery responses, and instructing client not to respond to questions during deposition); Fla. Bar v. Whitney , 132 So.3d 1095 (Fla. 2013) (suspending attorney from the practice of law for failing to take action in a case on behalf of client, failing to respond to discovery requests, and misrepresenting material facts to the presiding court).

We therefore approve the referee's findings of fact and recommendations that Marcellus be found to have violated Bar Rules 3-4.3, 4-3.4(a), (b), (c), and (d), and 4-8.4(c) and (d). These findings are amply supported by the record before the referee.

FINDINGS IN AGGRAVATION AND SANCTION

The referee found that several aggravating and mitigating factors were present in this case. After considering the facts of the case, his findings in aggravation and mitigation, the applicable case law, and the applicable Florida Standards for Imposing Lawyer Sanctions (Standards), the referee recommended that Marcellus be suspended from the practice of law for one year and ordered to pay the Bar's costs. Marcellus challenges several of the referee's findings in aggravation as unsupported as well as the referee's recommended sanction; the Bar also challenges the referee's recommended sanction. For the reasons discussed below, we hereby approve the referee's findings in aggravation, but disapprove the referee's recommended sanction and instead suspend Marcellus from the practice of law for eighteen months.

In his report, the referee found the existence of seven aggravating factors: Standards 9.22(b) (dishonest or selfish motive); 9.22(c) (a pattern of misconduct); 9.22(d) (multiple offenses); 9.22(f) (submission of false evidence, false statements, or other deceptive practices during the disciplinary process); 9.22(h) (vulnerability of victim); 9.22(i) (substantial experience in the practice of law); and 9.22(j) (indifference to making restitution). "[A] referee's findings of mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record." Fla. Bar v. Germain , 957 So.2d 613, 621 (Fla. 2007). The burden of demonstrating that the findings in aggravation or mitigation are clearly erroneous lies with the party challenging the findings. See Fla. Bar v. Glick , 693 So.2d 550, 552 (Fla. 1997) (holding that the burden of disproving a referee's findings of fact or recommendations as to guilt is upon the party challenging those findings).

Here, Marcellus concedes that the referee's findings as to Standards 9.22(c), (d), and (i), are supported by evidence; he challenges the remaining findings in aggravation, oftentimes without providing any specific reference to authority supporting his position or demonstrating that the findings are without support in the record. Marcellus argues that the referee's finding that Gudger was a vulnerable victim was erroneous because she is "a practicing attorney and a litigator." Respondent's Answer Brief and Initial Brief on Cross Appeal at 24. However, this argument is clearly without merit. See Fla. Bar v. Arcia , 848 So.2d 296, 298-99 (Fla. 2003) (finding a law firm to be a vulnerable victim in a case where one of its lawyers diverted fees from the law firm to his own personal accounts). Because Marcellus makes only general challenges to the remaining findings in aggravation, he has failed to meet his burden and we hereby approve the remaining findings in aggravation without further comment. See R. Regulating Fla. Bar 3-7.7(c)(5).

With regard to the sanction, we disapprove the referee's recommendation that Marcellus be suspended from the practice of law for one year, and instead suspend him for eighteen months. This Court's scope of review in imposing discipline is broader than that afforded to the referee's factual findings because, ultimately, it is the Court's responsibility to order the appropriate sanction. Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989) ; see also art. V, § 15, Fla. Const. The Court will generally not second-guess the referee's recommended sanction as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions, see Florida Bar v. Temmer , 753 So.2d 555, 558 (Fla. 1999), although recently the Court has "moved toward imposing stronger sanctions for unethical and unprofessional conduct." Fla. Bar v. Rosenberg , 169 So.3d 1155, 1162 (Fla. 2015).

The Florida Standards for Imposing Lawyer Sanctions dictate that a suspension is appropriate in this case. Specifically, Standards 6.12 ("Suspension is appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action.") and 6.22 ("Suspension is appropriate when a lawyer knowingly violates a court order or rule, and causes injury or potential injury to a client or a party, or causes interference or potential interference with a legal proceeding.") are instructive in this case and provide that suspension is the appropriate sanction for Marcellus's actions. However, the length of the suspension imposed is guided by case law and the Court's discretion.

Due to the seriousness of Marcellus's misconduct in this case, we find that the referee's recommended sanction of a one-year suspension is too lenient. In reaching this conclusion, we found the following cases particularly instructive, although the conduct in each of these cases was less egregious than Marcellus's conduct in this case. First, we look to Florida Bar v. Bischoff , 212 So.3d 312, 319 (Fla. 2017), in which the Court approved a referee's findings of fact demonstrating "that Bischoff knowingly and recklessly pursued frivolous claims, he repeatedly engaged in discovery-related misconduct, and he failed to comply with court orders and rules," and suspended Bischoff from the practice of law for one year. Bischoff failed to respond to discovery requests on behalf of his clients for over two years, despite the trial court's entry of several orders compelling him to do so; refused to produce his client for a deposition until after a court order directing him to do so, then advised his client to refuse to answer any questions during the deposition; filed a "Notice of Serving Responses to Discovery Requests" with a court despite having not served any such responses; and refused for some time to pay any of the attorneys' fees or sanctions ordered by the trial court. Id. at 314-16. Notably, the referee in Bischoff found that he had eventually paid the fees and sanctions ordered by the trial court. Id. at 320.

We next look to Florida Bar v. Rosenberg , 169 So.3d 1155 (Fla. 2015), for direction. Rosenberg was disciplined for having failed to respond to discovery requests on behalf of his clients for over a year, despite the circuit court's six orders compelling discovery in the case. Id. at 1156-57. He failed to provide complete discovery responses in the form dictated by the Florida Rules of Civil Procedure and refused to provide various information based on objections that had previously been overruled. Id. at 1157-58. The circuit court ordered Rosenberg to pay attorneys' fees as a result of his misconduct and for having acted in bad faith; the referee found that he never paid those sanctions. Id. at 1158. As a result of his misconduct, the Court suspended Rosenberg from the practice of law for one year. Id. at 1161-62.

We last turn to Florida Bar v. Whitney , 132 So.3d 1095 (Fla. 2013), for guidance.

The Court suspended Whitney from the practice of law for one year following his failure to take action in a case on behalf of his clients, as well as various discovery violations and misrepresentations to the court that he made in the context of another case in which he was the defendant. Id. at 1098. Whitney took over $60,000 in fees as well as the cost of travel to and from Brazil twice to handle the client's fiancée's immigration from Brazil. Despite receiving the fees, Whitney took virtually no action with regard to the immigration and ultimately withdrew from representing that client without returning any fees. Id. at 1099-1100. In a subsequent lawsuit initiated by the client in connection with Whitney's deficient representation and failure to return fees, Whitney failed to appear for depositions, testified falsely at depositions when he finally appeared, waited six months to respond to any discovery requests, and then served incomplete responses. Id. at 1100-01. The referee found that although Whitney ultimately paid the judgment that was entered against him by the circuit court, he had not paid the almost $25,000 in attorneys' fees also ordered by the circuit court. Id. at 1101.

The lawyers in Bischoff , Rosenberg , and Whitney were each suspended from the practice of law for one year. Although Marcellus's conduct is similar to that in each of those cases, it is more severe and accordingly deserving of a more severe sanction. For instance, although Marcellus engaged in the same type of conduct as that at issue in Bischoff , he failed to pay any of the fees or sanctions ordered by the family court and remained in violation of the family court's 2010 Final Order on Petition for Dissolution of Marriage and Other Relief because he remained in the marital home and did not finance it out of Gudger's name. Not only did Marcellus refuse to comply with orders of the family court directing him to provide discovery responses for over a year, and refuse to pay the penalties associated therewith, but he also remained in violation of some of those orders as of May 30, 2017. He also refused to appear before the family court for consideration of sanctions, and as a result the family court issued a writ of bodily attachment in order to compel his appearance. It is clear that, at least in the context of Marcellus's divorce case, he engaged in a pattern of deliberately disobeying and disregarding orders of the family court. "This Court has long held that 'cumulative misconduct of a similar nature warrants an even more severe discipline than might dissimilar conduct.' " Fla. Bar v. Picon , 205 So.3d 759, 766 (Fla. 2016) (quoting Fla. Bar v. Walkden , 950 So.2d 407, 410 (Fla. 2007) ).

Moreover, unlike in Bischoff , Rosenberg , or Whitney , Marcellus submitted a mortgage modification application with a forged signature, despite having personally witnessed the forgery. Gudger discovered that her signature had been forged only after Marcellus failed to pay his mortgage and the bank filed suit to foreclose on the home; otherwise she would have never discovered Marcellus's conduct. Gudger remained a defendant in the pending foreclosure action solely as a result of Marcellus's misconduct. His conduct was entirely unbecoming of a lawyer, who is held within a position of trust and respect in our society, and cannot be tolerated. Although Marcellus committed this misconduct as a party to his own divorce, lawyers "do not cast aside the oath they take as an attorney or their professional responsibilities" just because they are litigants in personal matters. Fla. Bar v. Cibula , 725 So.2d 360, 365 (Fla. 1998) ; see Fla. Bar v. Baker , 810 So.2d 876, 882 (Fla. 2002) ("We impose this discipline because we expect members of The Florida Bar to conduct their personal business affairs with honesty and in accordance with the law.").

Accordingly, Madsen Marcellus, Jr., is hereby suspended from the practice of law for eighteen months. The suspension is effective, nunc pro tunc , June 16, 2018, the date on which this Court ordered that Marcellus's suspension shall be effective. See Fla. Bar v. Marcellus , No. SC16-1773 (Fla. order issued May 15, 2018) (granting Marcellus's motion to extend the commencement date of the suspension imposed by order dated April 25, 2018, and extending the effective date of Marcellus's suspension until June 16, 2018). Marcellus shall fully comply with Rule Regulating the Florida Bar 3-5.1(h). Further, Marcellus shall accept no new business from the date this opinion is filed until he is reinstated.

Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Madsen Marcellus, Jr., in the amount of $3,048.94, for which sum let execution issue.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      Following instigation of the foreclosure proceedings, Gudger quitclaimed her interest in the home. However, the lender refused to dismiss its claims against her, and she remains a defendant in the pending foreclosure proceedings.