source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    K.J. v. PIKE COUNTY DEPARTMENT OF HUMAN RESOURCES
    2170409 2170410 2170411 2170412
    Court of Civil Appeals of Alabama.
    September 21, 2018 Rehearing Applications Denied November 2, 2018
    January Blair Ellis (withdrew 07/03/2018), Troy, for appellant.
    Casimir Christian Lukjan, Troy, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   PER CURIAM.

On June 14, 2017, the Pike County Department of Human Resources ("DHR") filed four petitions in the Pike Juvenile Court ("the juvenile court") seeking to terminate the parental rights of K.J. ("the mother") to her four minor children. In those petitions, DHR also sought to terminate the parental rights of J.A.C., the father of two of the minor children, and to terminate the parental rights of the unknown father or fathers of the mother's other two minor children. The juvenile court conducted an ore tenus hearing over the course of two days--December 7 and December 14, 2017.

On January 3, 2018, the juvenile court entered four nearly identical judgments in which it made detailed findings of fact and ordered that the parents' parental rights be terminated. The mother timely appealed. This court has consolidated the appeals.

The record indicates that the mother has four children, who, at the time of the December 14, 2017, hearing on DHR's petitions to terminate parental rights, were 18, 17, 13, and 11 years old. The children were taken into protective custody after DHR social workers were called to a local emergency room on September 7, 2015, to investigate possible physical abuse committed by the mother against two of her four children. DHR alleged that the mother had physically abused those children when she bit the younger child and the oldest child intervened to protect her sibling. The juvenile court entered a shelter-care order on September 8, 2015, and all four children have remained in foster care since that time.

The mother was charged with felony child abuse with regard to the incident that resulted in the two children being treated in the emergency room. She pleaded guilty to a misdemeanor charge of child abuse and received a sentence of four years' probation, and she remained on probation at the time of the termination hearing.

The mother denied any other, earlier instances of abuse of the children, and she denied that DHR had filed any petitions seeking custody of the children before the 2015 incident. While being questioned by the juvenile court, the mother insisted that this was the first time that DHR had been involved with the family with regard to allegations that she had abused the children. However, the 2015 incident was not the first allegation of child abuse leveled at the mother. The record indicates that the two older children were placed in foster care when they were younger because of an incident in which the oldest child's collarbone was broken; the mother denied that she had injured the child, but she later admitted that those two children had been in foster care for several months. In another incident, DHR investigated allegations that the mother had poured boiling water on the oldest child and had hit her with a broomstick; the mother denied those allegations and stated that she had accidentally spilled boiling water on the child. In response to questions about her disciplinary methods, the mother denied abusing the children, and she testified that she had only disciplined the two boys by hitting them with belts. The mother stated that the children had not suffered any major injuries from anything she had done to them.

When the four children were first placed in foster care in 2015, DHR offered the mother services, including parenting classes, a psychological evaluation and counseling, a drug-assessment and drug screening, domestic-violence classes, and anger-management classes. The mother completed the parenting classes in February 2016. The mother also participated in the psychological evaluation and the drug assessment. She did not complete the recommended outpatient drug classes, and, during the two years the children remained in foster care before the termination hearing, the mother submitted to drug screens only intermittently.

Ashley Parker, a DHR social worker assigned to the children's cases, testified that, before the termination-of-parental-rights actions were filed, DHR had requested that the mother submit to a total of 28 drug screens and that the mother had failed 13 of those screens and had failed to test 10 times; a failure to test is equivalent to a positive drug-screen result. Thus, the mother tested negative for the use of illegal drugs only five times before the termination-of-parental-rights actions were filed.

As a result of her child-abuse conviction, the mother agreed to attend "drug court." Roxanne Taylor, a monitoring specialist for the drug court, testified regarding the mother's drug screens for that program. Taylor stated that, between April 2016 and the termination hearing, the mother tested for the drug court and had 12 negative tests, 9 positive tests, and 5 "no shows." Taylor testified that the mother last tested positive for the use of marijuana on June 29, 2017, which was approximately two weeks after DHR filed its termination-of-parental-rights petitions. After DHR filed its June 2017 termination petitions, the mother submitted to seven more drug screens for DHR, and the results of each of those drug screens was negative for the use of illegal drugs.

The mother started the domestic-violence and anger-management classes in January 2016, and she was to attend those classes until the providers believed that she had made sufficient progress. The providers went to the mother's home to provide services, but, on several occasions, the mother was not at home and missed those appointments. Parker testified that the providers reported that the mother was often uncooperative and made it clear that she did not want to participate in those services. Parker testified that, despite being encouraged to participate in those services, the mother did not progress in the anger-management classes to a point at which the providers or DHR thought that she no longer needed those classes.

According to Parker, the mother began counseling sessions in January 2017, but she often did not attend those sessions. Parker also stated that she encouraged the mother to resume her participation in the anger-management and counseling sessions. Parker testified that the mother began participating more actively in counseling in June 2017, immediately after DHR filed its petitions seeking to terminate her parental rights.

Jessica Thomas, the mother's counselor, testified that the mother had progressed well in her counseling sessions. Thomas testified that the mother had consistently attended their monthly counseling sessions and that the only months that the mother did not attend counseling occurred when DHR failed to renew the referral for the mother to attend those counseling sessions. Thomas testified that the mother had made significant progress toward the goals Thomas had established for the counseling sessions; those goals included anger management and having plans for addressing difficult or stressful situations. Thomas stated that the mother regretted her actions (presumably the abuse of the children), that the mother was working to improve her impulse control, and that she believed that the mother could appropriately parent the children with the assistance of her extended family as a support system. We note that DHR questioned whether the mother had an appropriate family-support system. Thomas also stated that the mother had reported to her only one positive drug screen during the time she had counseled the mother, i.e., between January 2017 and the December 14, 2017, termination hearing. The juvenile court questioned Thomas regarding whether she would be surprised that the mother had had more than one positive drug screen and had failed to appear for other drug screens during that time, and Thomas indicated that she was unaware of those positive drug-screen results.

The mother disputed much of DHR's evidence indicating that she had failed to participate in services. The mother stated that the services provider who came to her house to address anger-management issues told her that she had done well and had completed those classes. The mother also testified that she had tried to participate in outpatient drug-treatment classes but that she had been removed from the program after she missed two classes due to illness. The mother testified that she informed her social worker of that circumstance but that the social worker never followed up with her to re-enroll her in those classes.

The mother claimed that she had missed many of her drug screens because of her work schedule. The mother admitted that she had continued to smoke marijuana until June 2017, when DHR filed its termination-of-parental-rights petitions. When asked why she had continued to use illegal drugs while her children were in foster care, the mother blamed the people with whom she was associating.

The children were placed together in a foster home located in another county. The mother was offered regular visitation with the children, but she claimed that a lack of a vehicle and other transportation issues prevented her from visiting the children regularly. The mother admitted that DHR had transported her to some of the initial visitations and that, in 2016, DHR had offered her gas vouchers to assist with the cost of traveling to visit the children. At the time of the termination hearing, the mother had not traveled to visit the children since May 2017, although she had visited with them at three court hearings conducted between May 2017 and the December 7, 2017, termination hearing. The mother testified, however, that she speaks to the children on the telephone frequently.

Four months before the termination hearing, the mother moved from her three-bedroom mobile home to a two-bedroom mobile home, which she acknowledged was not large enough if the children were returned to her home. The mother testified that she had not qualified for public housing because, she said, DHR refused to sign a statement saying that the children would return to her home. The mother testified that she moved because, she said, there had been break-ins in the neighborhood and the "the neighborhood in particular was just not my style of neighborhood to live in." However, she stated that the smaller mobile home was located across the street from the former one.

The mother became employed after the children were placed in foster care, and she had maintained consistent employment since that time. At the time of the December 14, 2017, termination hearing, the mother had been working full time at a fast-food restaurant for eight months. She stated that she also earned approximately $80 per week cleaning houses. Parker testified that DHR had filed a claim seeking child support from the mother but that a problem with the paperwork had prevented DHR from receiving that child support. It is not clear whether that problem with the paperwork occurred before or after a child-support order could have been entered, although DHR's brief submitted to this court indicates that no child-support order was entered.

In each of its termination judgments, the juvenile court made certain findings of fact and concluded, in pertinent part:

"Testimony was heard ore tenus regarding the petition, and the Court determined that the child was dependent and that the child's mother was unable or unwilling to discharge her responsibilities to and for the child.
"There was evidence that the child's mother had abandoned the child by withholding from the child, without good cause or excuse her protection, maintenance or the opportunity for the display of filial affection.
"....
"The mother has abused and cruelly beaten or otherwise maltreated the child and the child is in clear and present danger of being thus abused, cruelly beaten, or otherwise maltreated as evidenced by the treatment of a sibling. There is a long history of physical and emotional abuse by the mother against this child and [his or] her siblings.
"....
"The reasonable efforts of [DHR] leading toward rehabilitation of the mother, including referrals for anger management, parenting skills training, drug assessment, random drug screens, relative resource investigation, psychological evaluation, counseling, and case management services, have failed.
"....
"The mother has failed to provide for the material needs of the child or to pay a reasonable portion of the child's support when she was able to do so.
"The mother has failed to maintain regular visits with the child in accordance with a plan devised by [DHR] and agreed to by the parent.
"....
"There has been a lack of effort by the mother to adjust her circumstances to meet the needs of the child in accordance with agreements reached with [DHR]. While the mother has attended parenting classes and anger management counseling, the mother continues to minimize her abuse of the child and [his or] her siblings which has been going on for years. Her limited acceptance of responsibility is qualified by excuses and denials and appears to be focused on the return of her children to her custody and not on effecting real change in her thinking and behavior. She seems to have learned to say 'the right things' in order to satisfy the counselor. The evidence clearly and convincingly established that the return of this child to the custody of [his or] her parents would be contrary to [his or] her welfare and not in her best interests."

The attorney who represented the mother in the proceedings below was also appointed to represent the mother on appeal; that attorney is hereinafter referred to as "the previous attorney." The previous attorney submitted to this court a "no merit" brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to withdraw. In Anders, 386 U.S. at 744, 87 S.Ct. 1396, the United States Supreme Court held that if, after conscientiously reviewing the record, appointed appellate counsel in a criminal case found an appeal to be "wholly frivolous," the attorney could file a no-merit brief and a motion to withdraw from representation. In J.K. v. Lee County Department of Human Resources, 668 So.2d 813, 815 (Ala. Civ. App. 1995), this court held that court-appointed counsel in appeals in civil actions could follow the procedure set forth in Anders if he or she believed that an appeal of the civil judgment would be "wholly frivolous."

The previous attorney's brief filed on behalf of the mother in these appeals is illustrative of a number of problems in Anders briefs recently filed in this court. We take this opportunity to reiterate to the bar the requirements of Anders and J.K., supra, and to discuss when the filing of a brief pursuant to those authorities is appropriate.

In discussing the requirements of a no-merit brief, the United States Supreme Court explained:

"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal."

Anders, 386 U.S. at 744, 87 S.Ct. 1396.

The United States Supreme Court has held that there is no right under the requirements of due process to appointed counsel in a termination-of-parental-rights action. Lassiter v. Department of Soc. Servs. of Durham, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). However, that court has recognized "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). Alabama has created a right to counsel in actions seeking to terminate parental rights and in other cases in which a parent's child is alleged to be dependent. § 12-15-305(b), Ala. Code 1975; J.K. v. Lee Cty. Dep't of Human Res., supra ; and J.A.H. v. Calhoun Cty. Dep't of Human Res., 846 So. 2d 1093, 1095 (Ala. Civ. App. 2002) ("An indigent parent facing the termination of his parental rights is entitled to the appointment of counsel."). In doing so, Alabama has recognized that state action, such as the consideration of whether to terminate a parent's parental rights, is "in derogation of fundamental constitutional rights." In re Ward, 351 So. 2d 571, 573 (Ala. Civ. App. 1977). This court has explained:

"The legislature has thus by statute recognized that an action brought by the state which involves the termination of parental rights is of such importance that a parent must be informed of the right to counsel, and if indigent, must be furnished counsel. Such legislative and statutory recognition is in line with statements of the United States Supreme Court as to the fundamental nature of parental rights."

In re Ward, 351 So.2d at 573. See also K.P.B. v. D.C.A., 685 So.2d 750, 751 (Ala. Civ. App. 1996) (extending the right to appointed counsel in actions in which a child is alleged to be dependent to actions initiated by a parent seeking to terminate the rights of the other parent).

In J.K. v. Lee County Department of Human Resources, supra, after concluding that Anders should be applied to briefs filed by appointed counsel in civil cases, this court also addressed the requirements of a no-merit brief. This court noted that the appointed appellate counsel in that case had "filed a brief stating that after thoroughly reviewing the record he could find no reversible error and that he wished to withdraw" and that, "[i]n compliance with Anders, his brief raised issues that might give rise to a reversal." 668 So.2d at 816. Also, after counsel had complied with this court's order directing that the Anders brief be served on J.K., J.K. raised the issue of ineffective assistance of counsel, and counsel supplemented the original no-merit brief in order to address that issue. The appointed appellate counsel in that case determined that there was no error with regard to an alleged ineffective assistance of counsel. This court reviewed the record on appeal and agreed with the appointed appellate counsel's contention that there was no merit to the appeal. J.K., 668 So.2d at 816-17. Accordingly, this court affirmed the juvenile court's judgment in that case.

In her no-merit brief on behalf of the mother, the previous attorney included a one-sentence statement of the facts, stating: "Mother's parental rights were terminated on January 3, 2018, and Mother appealed the judge's rulings." The argument portion of the brief states: "After a conscientious examination of Mother's case, including a thorough reading and examination of the record, Appellate Counsel finds Mother's appeal to be without merit"; the brief then contains a short discussion of the requirements of Anders. In the no-merit brief, the previous attorney did not discuss any facts pertaining the cases for which she was appointed, and the "argument" portion of the brief she filed contained no references to any facts or issues, much less to "anything in the record that might arguably support the appeal." Anders, 386 U.S. at 744, 87 S.Ct. 1396. Thus, the brief the previous attorney served on the mother and submitted to this court is similar to the filing discussed in Anders, supra : it "affords neither the client nor the court any aid. The former must shift entirely for [her]self while the court has only the cold record which it must review without the help of an advocate." Anders, 386 U.S. at 745, 87 S.Ct. 1396.

The previous attorney served her motion to withdraw and the no-merit brief on the mother pursuant to the procedure set forth in Anders, supra, and J.K. v. Lee County Department of Human Resources, supra. On June 12, 2018, the previous attorney notified this court that she had received no response from the mother. Thereafter, this court reviewed the record on appeal and determined that, given the facts, the appeal was not "wholly frivolous." Accordingly, this court granted the previous attorney's motion to withdraw and ordered the juvenile court to appoint new appellate counsel to represent the mother on appeal. See Anders, 386 U.S. at 744, 87 S.Ct. 1396 ; Ex parte Pettibone, 891 So.2d 278, 280 n. 1 (Ala. 2003) ("When further appellate proceedings are required, then Anders mandates that new counsel must be appointed for an indigent defendant to argue the appeal for him."); and Graves v. State, 540 So.2d 97 (Ala. Crim. App. 1988) (when the appellant's original counsel failed to comply with the requirements of Anders, supra, the appellate court remanded for the appointment of new counsel).

An action involving a claim seeking to terminate parental rights affects both the fundamental rights of a parent and the well-being of the child at issue. The nature of a termination action involves allegations that a parent's inability to parent his or her child, that parent's failure to timely adjust his or her circumstances, and the lack of viable alternatives to termination, warrant the termination of the parent's fundamental right to parent his or her child. It is the duty of counsel to proceed as best he or she can to advocate on behalf of his or her client, even given a generally less-than-ideal fact situation.

In these cases, the previous attorney did not set forth a statement of facts or attempt to identify any arguable issue; her brief cannot be said to have complied with Anders or to have fulfilled her duty to her client, the mother. See Richardson v. State, 456 So.2d 1152, 1153 (Ala. Crim. App. 1984) (concluding that, by filing a one-sentence no-merit brief, the appointed counsel " 'did not fulfill his duty to be an active advocate on appeal' " (quoting Anders, 386 U.S. at 744, 87 S.Ct. 1396 ) ); see also Hill v. State, 51 Ala. App. 515, 518, 286 So.2d 924, 927 (1973) (commending appointed counsel for identifying possible issues and then conceding there was no merit to those arguments). The previous attorney's appellate brief made no attempt to assist this court in reviewing the record for possible error. The previous attorney's failure to comply with the requirements of Anders left the mother in the position of representing herself pro se. In addition, the previous attorney's appellate brief made no attempt to review the record for possible error, and, therefore, it deprived this court of the assistance of an advocate for the mother. See Anders, 386 U.S. at 745, 87 S.Ct. 1396. The United States Supreme Court stated that the requirements of Anders did

"not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel."

Anders, 386 U.S. at 745, 87 S.Ct. 1396.

As indicated, in compliance with the order from this court, the juvenile court appointed new appellate counsel to represent the mother. This court directed newly appointed counsel to address the issue whether there were viable alternatives to termination, but we also specified that counsel was not limited to raising only that issue on appeal if he or she identified other issues that had possible merit. Newly appointed counsel has submitted a brief on behalf of the mother to this court.

"In order to terminate an individual's parental rights, the trial court must find by clear and convincing evidence that the child is dependent and that an alternative less drastic than the termination of parental rights is not available. § 12-15-319, Ala. Code 1975; Ex parte Beasley, 564 So. 2d 950, 952 (Ala. 1990). 'The trial court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.' Ex parte State Dep't of Human Res., 624 So. 2d 589, 593 (Ala. 1993). 'This presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility.' Ex parte Fann, 810 So. 2d 631, 633 (Ala. 2001). The party seeking to terminate parental rights, however, has the burden of presenting clear and convincing evidence showing that the parent whose rights are at stake is not capable of discharging, or is unwilling to discharge, his or her parental responsibilities and that no viable alternatives to terminating his or her parental rights exist. Ex parte Ogle, 516 So. 2d 243, 247 (Ala. 1987) ; see also K.W. v. J.G., 856 So. 2d 859, 874 (Ala. Civ. App. 2003) (holding that the party seeking to terminate a parent's rights bears the burden of proving that the termination of those rights is the appropriate remedy)."

Ex parte A.S., 73 So.3d 1223, 1228 (Ala. 2011).

On appeal, in the brief prepared by newly appointed counsel, the mother intermingles an argument that the juvenile court erred in determining that there were no viable alternatives to the termination of her parental rights with an argument that clear and convincing evidence did not support the decision to terminate her parental rights. The mother points out that she had regularly attended all of the counseling sessions for which DHR had paid, that she had maintained employment, and that she had stopped using illegal drugs when DHR filed its termination-of-parental-rights petitions. However, the record demonstrates that the mother began attempting to stop using illegal drugs in June 2017, only after DHR had filed its petitions; at that point, the children had been out of the mother's custody and in foster care for almost two years. Also, the evidence supports a conclusion that the mother had not made efforts to cooperate with the provider of anger-management classes and that those classes were needed to address the abusive conduct that had resulted in the children being placed in foster care.

In her appellate brief, the mother focuses on her recent abstinence from the use of illegal drugs to support her argument that the record does not support a determination that she could not properly parent the children in the foreseeable future. However, the language of the juvenile court's judgments, quoted above, indicates that the juvenile court found that the mother's efforts toward reunification were in the nature of last-minute efforts to prevent the termination of her parental rights, rather than an actual improvement in her circumstances. See A.M.F. v. Tuscaloosa Cty. Dep't of Human Res., 75 So.3d 1206, 1213 (Ala. Civ. App. 2011) ("[T]he juvenile court could have determined that, to the extent the mother may have allegedly improved her condition, those efforts were merely last-minute efforts undertaken in anticipation of the impending termination-of-parental-rights trial."). Although the mother testified that she could properly parent the children, there were several aspects of the mother's testimony that were contradictory and other aspects that could reasonably have led the juvenile court to question her credibility.

" 'The trial court's decision in proceedings to terminate parental rights is presumed to be correct when the decision is based upon ore tenus evidence, and such a decision based upon such evidence will be set aside only if the record shows it to be plainly and palpably wrong.' Ex parte State Dep't of Human Res., 624 So.2d 589, 593 (Ala. 1993). That 'presumption is based on the trial court's unique position to directly observe the witnesses and to assess their demeanor and credibility.' Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001)."

A.K. v. Henry Cty. Dep't of Human Res., 84 So.3d 68, 69 (Ala. Civ. App. 2011). See also J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1185 (Ala. Civ. App. 2007) ("Because appellate courts do not weigh evidence, particularly when 'the assessment of the credibility of witnesses is involved,' ... we defer to the trial court's factual findings." (quoting Knight v. Beverly Health Care Bay Manor Health Care Ctr., 820 So.2d 92, 102 (Ala. 2001) ) ).

The mother has failed to demonstrate that the juvenile court erred in determining that grounds existed warranting the termination of her parental rights. In reaching that determination, we note that the mother did not challenge the juvenile court's finding that she had abandoned the children, and, therefore, this court may not address that issue. Normally, when a juvenile court determines that a parent has abandoned his or her children, the courts are not required to determine whether viable alternatives to termination existed. D.M. v. Jefferson Cty. Dep't of Human Res., 232 So.3d 237, 242 (Ala. Civ. App. 2017). However, given the posture of these appeals and this court's Anders order, we elect to address the issues as framed by the mother's newly appointed counsel.

It is well settled that " ' "DHR must present 'evidence of recent attempts to locate viable alternatives in order to establish that termination of parental rights is the least drastic alternative.' " ' " J.F.S. v. Mobile Cty. Dep't of Human Res., 38 So.3d 75, 78 (Ala. Civ. App. 2009) (quoting C.T. v. Calhoun Cty. Dep't of Human Res., 8 So.3d 984, 987 (Ala. Civ. App. 2008), quoting in turn V.M. v. State Dep't of Human Res., 710 So.2d 915, 921 (Ala. Civ. App. 1998), quoting in turn Bowman v. State Dep't of Human Res., 534 So.2d 304, 306 (Ala. Civ. App. 1988) ) (emphasis omitted). In asserting that the juvenile court erred in determining that there were no viable alternatives to termination, the mother first contends that DHR did not demonstrate that it had made reasonable efforts to locate the father of two of the children or relatives that the mother identified as being possible placements for the children. The mother appears to have provided DHR only with the names, but little to no contact information, of a number of her relatives. Parker testified regarding efforts she had made to locate relatives for whom the mother provided no contact information. Parker testified that those relatives whom she was able to locate were unable or unwilling to serve as a placement for the children.

In addition, the mother told DHR social workers that she was not certain of the name of the father of two of the children but that she thought it might be "M.S." "M.S." is a common name. Parker testified that she sent letters to 30 men with that name, and the few men with that name who responded were not the man for whom DHR was searching as the possible father of two of the mother's children.

The mother also alleges in her brief on appeal that, in attempting to locate relative resources, "DHR uses 18th century technology of pen and paper with a private database." To the extent that the mother appears to be arguing that DHR does not use a computerized state-wide database, the record refutes that allegation, as does the mother's own argument in her brief submitted to this court. The mother contends that rather than using its electronic database, known as "Accurint," DHR should have investigated the whereabouts of the relatives she named, but for whom she provided no contact information, using the electronic database utilized by the State's Department of Motor Vehicles or by a law-enforcement agency. The mother presented no evidence, however, indicating that the Accurint database is not the same database used by those entities or that any other database could provide more accurate information than the one used by DHR. We cannot say that the mother has demonstrated error with regard to her argument that DHR's efforts to locate "M.S." or her relatives to inquire as to their willingness or appropriateness to serve as a placement for the children were insufficient.

The mother also contends that a viable alternative to termination was to maintain the status quo, i.e., to allow the children to remain in foster care for some indefinite period in the hope that she would improve her circumstances sufficiently to reunite with them. In Ex parte A.S., 73 So.3d at 1228, our supreme court held that a viable alternative to termination of a mother's parental rights was to maintain the status quo. In that case, the child's grandmother had sole custody of the child and the mother visited with the child at the grandmother's discretion. The grandmother petitioned to terminate the mother's parental rights, and the juvenile court granted that petition. The mother argued that leaving the child in the custody of the grandmother was a viable alternative to the termination of her parental rights. In that case, the mother was in prison, but she had maintained contact with the child, was seeking treatment for the kleptomania that had led to her incarceration, and had earned "good-time credit" toward her release date. Our supreme court concluded that, given the facts of that case,

"[t]he grandmother's maintaining custody of the child and having the ability to determine and supervise the mother's visitation with the child is a viable alternative to termination of the mother's parental rights while the mother is making progress towards rehabilitation. Thus, the juvenile court's decision to terminate her parental rights appears to be premature."

Ex parte A.S., 73 So.3d at 1229-30.

In her brief in these appeals, the mother relies on A.H. v. Houston County Department of Human Resources, 122 So.3d 846 (Ala. Civ. App. 2013), which cites Ex parte A.S., supra. In A.H., supra, the mother had passed all of her drug screens except for one she could not take because she was on house arrest. In addition, she had obtained stable housing and had regularly visited the children. This court reversed a judgment terminating the mother's parental rights, concluding that, "[b]ased on the evidence in the record before this court regarding the mother's current conditions, we cannot agree that termination of the mother's parental rights is warranted at this time because maintaining the status quo is a viable alternative to termination under the specific facts presented in this case." A.H. v. Houston Cty. Dep't of Human Res., 122 So.3d at 852.

In these cases, however, between the time DHR filed its petitions and the date of the hearing on the merits, the mother moved to a smaller, two-bedroom residence. Also, the mother did not complete drug-treatment classes, and she consistently had positive drug screens or failed to appear for drug screens. The mother last tested positive for illegal drugs on June 27, 2017, shortly after DHR filed its termination petitions. In the almost two years the children had been in foster care before the termination-of-parental-rights petitions were filed, the mother made little progress toward the reunification goals in order to regain custody of the children. Accordingly, given the findings of fact in the juvenile court's judgments, and with the applicable presumption of correctness afforded judgments based on ore tenus evidence, we cannot say that the juvenile court erred in rejecting as a viable alternative to termination leaving the children in foster care for an indeterminate amount of time until the mother might make sufficient progress toward reunification. The mother has not demonstrated that the juvenile court erred in determining that there were no viable alternatives to the termination of her parental rights.

Accordingly, for the reasons stated in this opinion, the juvenile court's judgments terminating the mother's parental rights to the children are affirmed.

2170409-AFFIRMED.

2170410-AFFIRMED.

2170411-AFFIRMED.

2170412-AFFIRMED.

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

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

      The age of majority in Alabama is 19 years. § 26-1-1, Ala. Code 1975. The fact that the oldest child (A.C.) reached the age of majority during the pendency of these appeals does not moot the issue of the correctness of the juvenile court's judgment terminating the mother's parental rights to that child. This court has held that we need not address the correctness of a custody judgment when the child at issue reaches the age of majority during the pendency of the appeal of the custody judgment. Hadley v. Hadley, 202 So.3d 699, 703 (Ala. Civ. App. 2016) ; Faust v. Knowles, 96 So.3d 829, 832 (Ala. Civ. App. 2012). However, because the termination of parental rights affects other issues, such as rights of inheritance, we address the arguments the mother has asserted on appeal as they pertain to all four of the children at issue.


author: MOORE, Judge.

text:
    EX PARTE Tyler Blake PRUITT
    (In re: Tyler Blake Pruitt v. Ashley Parkins Pruitt)
    2180096
    Court of Civil Appeals of Alabama.
    November 14, 2018
    H. Stanton "Bill" Burns III of Burns Legal & Political Affairs, Oneonta, for petitioner.
    Bradley A. Green of King Green & Dobson, Oneonta, for respondent Ashley Parkins Pruitt and William Parkins and Donna Parkins (intervenors below).
    Steve Marshall, atty. gen., and Sharon E. Ficquette, gen. counsel, and Joshua J. Lane, asst. atty. gen., Department of Human Resources, for respondent Alabama Department of Human Resources.
   MOORE, Judge.

Tyler Blake Pruitt ("the father") petitions this court for a writ of mandamus directing the Blount Circuit Court ("the trial court") to vacate its pendente lite order awarding William Parkins and Donna Parkins ("the maternal grandparents") visitation with S.B.P. ("the child"), his child with Ashley Parkins Pruitt ("the mother"). We deny the father's petition.

Procedural History

On March 16, 2015, the father filed a complaint for a divorce from the mother. On March 25, 2015, the trial court entered a temporary order in the divorce action, setting a temporary schedule for custody and visitation for the mother and the father in accordance with an agreement that had been reached between the mother and the father. Thereafter, on May 11, 2015, the trial court entered a pendente lite order memorializing an agreement of the father and the mother that, among other things, awarded them pendente lite joint physical custody of the child. The mother filed, on September 9, 2015, a motion to continue the trial of the divorce action that was scheduled for September 29, 2015, asserting, among other things, that there were criminal charges pending against her that would not be resolved before the scheduled trial date and that she anticipated the father's seeking to introduce at the trial of the divorce action evidence related to the pending criminal charges. The mother invoked her constitutional right against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution and requested a stay of the divorce proceedings. The trial court granted the mother's motion to continue, noting that the case would be reset on the motion of either party.

On August 15, 2016, the trial court entered an order awarding pendente lite physical custody of the child to the father, subject to the mother's visitation as specified in the order. In accordance with a plea agreement, the mother pleaded guilty and was sentenced on the criminal charges. The mother was subsequently ordered to turn herself in at the Blount County Jail on July 2, 2018, to begin serving her sentence. On July 3, 2018, the father filed in the divorce action a motion to immediately dissolve the stay and to set the matter for a trial. The trial court reset the divorce action for a trial on November 29, 2018.

On September 11, 2018, the maternal grandparents filed a motion to intervene in the divorce action and a petition seeking grandparent visitation with the child, pursuant to Alabama's Grandparent Visitation Act ("the GVA"), § 30-3-4.2, Ala. Code 1975. On that same date, the maternal grandparents filed a motion for an expedited hearing on their request for pendente lite grandparent visitation. On October 16, 2018, the same day the trial court held a hearing on the maternal grandparents' request for pendente lite visitation, the father filed a response to the maternal grandparents' motion to intervene and their petition for grandparent visitation, in which he argued, among other things, that the GVA is unconstitutional, both on its face and as applied in this particular case. The certificate of service on the father's response listed counsel for the maternal grandparents, the guardian ad litem, and the attorney general.

On October 24, 2018, the trial court entered an order awarding the maternal grandparents pendente lite visitation with the child on two separate occasions between the entry of the order and the final hearing -- on October 26 through October 28 and on November 16 through November 18. The father filed, on that same date, a motion to vacate or, in the alternative, to stay the trial court's order until such time as the constitutionality of the GVA could be addressed by the trial court or this court. By entry on the case-action-summary sheet, the trial court denied the father's motion on October 25, 2018. On October 26, 2018, the father timely filed his mandamus petition with this court. That same day, he filed a request for an emergency stay of the trial court's October 24, 2018 order; on October 26, this court granted a stay, pending further order by this court.

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

Ex parte Brown, 963 So.2d 604, 606-07 (Ala. 2007) (quoting Ex parte Rawls, 953 So.2d 374, 377 (Ala. 2006), quoting in turn Ex parte Antonucci, 917 So.2d 825, 830 (Ala. 2005) ).

Analysis

The father argues that the trial court's award of pendente lite visitation to the maternal grandparents is due to be vacated because, he says, the GVA is unconstitutional on its face and as applied in the present case and because the trial court failed to comply with § 30-3-4.2(o ), Ala. Code 1975, a part of the GVA, in entering the pendente lite visitation award. We address the father's arguments out of turn.

Section 30-3-4.2(o ) provides, in pertinent part, that, following a hearing, if the court determines from the evidence that certain circumstances exist and has given special weight to the fundamental right of a fit parent to decide which associations are in the best interest of his or her child, the court may enter a pendente lite order awarding visitation rights to a grandparent, pending the entry of a final judgment. The father argues in his mandamus petition that his due-process rights were violated by the failure of the trial court to hold an evidentiary hearing, as required by § 30-3-4.2(o ), before awarding pendente lite visitation to the maternal grandparents. We note, however, that the father failed to argue before the trial court in his motion to vacate that his due-process rights had been violated or that the trial court had failed to comply with § 30-3-4.2(o ). Accordingly, this court may not consider that argument by the father in our review of this mandamus petition, and the petition is due to be denied as to that argument. See Ex parte McCrory & Williams, Inc., 155 So.3d 1018, 1022 (Ala. Civ. App. 2014) (concluding that this court could not consider an argument on mandamus review that had not been raised before the trial court).

With regard to the father's assertion that his petition is due to be granted based on his facial challenge to the constitutionality of the GVA, we note that the attorney general filed with this court a motion to dismiss the father's mandamus petition as untimely filed. Specifically, the attorney general argues that it received a copy of the document the father filed in the trial court on October 16, 2018, challenging the constitutionality of the GVA; that the father filed his petition for the writ of mandamus with this court on October 26, 2018; that the attorney general was unaware of the filing of the father's petition with this court; and that, on October 31, 2018, the attorney general filed in the trial court a response to the father's constitutional challenge to the GVA. Section 6-6-227, Ala. Code 1975, provides, in pertinent part, that, in any proceeding where a statute is alleged to be unconstitutional, "the Attorney General of the state shall ... be served with a copy of the proceeding and be entitled to be heard." In the present case, the father admits that the trial court has not ruled on the father's claim that the GVA is unconstitutional on its face. In his motion to vacate, the father requested a stay of the trial court's pendente lite visitation order until the constitutionality of the GVA has been determined "by the Courts of this state, or this court itself." (Emphasis added.) Thus, the father concedes that the trial court has not yet ruled on the constitutional question presented. In his answer to the father's mandamus petition, the attorney general asserts that he is not arguing that the father's notice to the attorney general was ineffective but, rather, that that "notice is meaningless if it is not accompanied by a reasonable opportunity to be heard."

In Cole v. Sylacauga Hospital Board, 269 Ala. 405, 409, 113 So.2d 200, 204 (1959), our supreme court stated, in interpreting the predecessor to § 6-6-227, that, when "the unconstitutionality of a statute is alleged, the record must show service on the Attorney General before the lower court has jurisdiction to proceed to a declaration of rights." (Emphasis added.) Likewise, in Ex parte Gentry, 238 So.3d 66, 74 (Ala. Civ. App. 2017), this court, in considering whether it had jurisdiction to decide a facial constitutional challenge to the GVA, stated:

"Under Rule 4(i)(2)[, Ala. R. Civ. P.], denoting in a certificate of service that a copy of a complaint (or, in this case, a counterclaim) has been sent by certified mail to a defendant does not accomplish service by certified mail. The materials before this court contain neither a notation on the docket sheet by the circuit clerk nor an 'Affidavit of Certified Mailing of Process and Complaint' to indicate that service by certified mail was properly accomplished. Based on the materials before this court, and in light of the attorney general's statement that he did not receive proper service of the father's facial constitutional challenge to § 30-3-4.2(o )[, Ala. Code 1975 ], we must conclude that the father has not demonstrated that he properly served the attorney general by certified mail. Because the attorney general was not properly served, the trial court lacked, and this court lacks, jurisdiction to decide the father's facial constitutional challenge to the GVA or, more specifically, to § 30-3-4.2(o )."

The attorney general submitted in his answer to the father's petition before this court a copy of a brief filed in the trial court by the attorney general on October 31, 2018, speaking to the constitutionality of the GVA. Thus, unlike in Gentry, the attorney general concedes that he has received service of the father's constitutional challenge. The trial court's pendente lite visitation order, however, was entered before the attorney general had the opportunity to be heard on the facial constitutionality of the GVA. Thus, § 6-6-227 was not complied with insofar as it requires that the attorney general be entitled to be heard on that issue. Accordingly, the issue of the facial constitutionality of the GVA was not properly before the trial court at the time its pendente lite visitation order was entered. The trial court did not address that issue in its order, and, accordingly, this court may not consider the issue, which is presented for the first time in the father's petition before this court. See Ex parte McCrory, supra.

With regard to the father's argument that the GVA is unconstitutional as it was applied to him, we note that the trial court did not expressly address that argument in its pendente lite visitation order. In Ex parte J.W.B., 230 So.3d 783, 790 (Ala. 2016), our supreme court observed that, "[i]f a party makes a constitutional argument to the trial court before a decision in the case is rendered, the constitutional issue is preserved for appellate review." In the present case, although the father's facial constitutional challenge to the GVA was not properly presented to and was not before the trial court at the time it entered its pendente lite visitation order, the father was not required to serve the attorney general before asserting his "as applied" challenge to the GVA. See Ex parte Gentry, 238 So.3d at 75 ("A party need not serve the attorney general to assert an 'as applied' challenge to a statute."). The father raised his "as applied" challenge to the GVA in a document filed the same day as the hearing on the maternal grandparents' request for pendente lite visitation; however, the trial court's order awarding pendente lite grandparent visitation was not entered until several days later. Accordingly, that issue was preserved for this court's review, pursuant to J.W.B., supra.

In Ex parte Gentry, supra, this court considered the evidence presented in support of the pendente lite grandparent-visitation award at issue in that case and determined that the award unconstitutionally infringed on Michael Gentry's fundamental right to control the associations of his children. 238 So.3d at 77-83. In the present case, the father argues in his mandamus petition that the GVA is unconstitutional as applied to him because, he says, he had offered the maternal grandparents visitation with the child subject to certain conditions that the maternal grandparents refused to comply with, which, he says, prompted them to file for court-ordered visitation pursuant to the GVA. According to the father, the trial court substituted its own judgment regarding the child's best interest for the father's judgment, in contravention of a parent's fundamental right to rear his or her children. See, e.g., Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

The father asserted in his response to the maternal grandparents' motion to intervene and their petition for grandparent visitation that he had offered conditional visitation to the maternal grandparents, that they had refused that conditional visitation, and that the GVA does not allow a court to substitute its judgment for that of a fit parent without just cause. The father asserts in his mandamus petition that no evidence was presented at the hearing on the maternal grandparents' request for pendente lite visitation. The materials presented to this court do not include a transcript of that hearing; therefore, we can not determine what was argued by the parties' attorneys or whether the opportunity to present evidence at that hearing was presented. Rather, the trial court's order indicates only that the award of pendente lite visitation was entered over the father's attorney's objection. Because a transcript of the hearing is not included in the materials before this court, we have no way of knowing what transpired during that hearing. See Ex parte Guaranty Pest Control, Inc., 21 So.3d 1222, 1228 (Ala. 2009) ("When this Court considers a petition for a writ of mandamus, the only materials before it are the petition and the answer and any attachments to those documents."). Further, the materials attached to the father's mandamus petition do not indicate that the father requested to present evidence at the hearing or that he was denied that opportunity. See, e.g., Ex parte A.J., 108 So.3d 1040, 1045 (Ala. Civ. App. 2012) (noting that issuing a writ of mandamus directing the trial court to vacate an order for failure to first conduct an evidentiary hearing without evidence that such a hearing was requested leaves open the possibility that this court would hold the trial court in error for failing to grant relief that was never requested).

In Ex parte Dumas, 259 So. 3d 669 (Ala. Civ. App. 2018), this court considered a petition for the writ of mandamus filed by Paul W. Dumas, seeking to vacate an award of custody of Dumas's children to their maternal grandmother. Specifically, Dumas argued, among other things, that the award of custody to the maternal grandmother had been entered without notice to him. This court noted, however, that the trial court had entered an order indicating that a hearing had been held on a motion to set aside the custody order and that the father and his attorney had been present at that hearing. This court observed, in pertinent part:

"No transcript of that hearing is before this court, so we cannot determine whether the father made a general appearance or a special appearance, whether the parties were given an opportunity to present evidence and declined, or otherwise what took place at that hearing. 'An appellate court does not presume error; the [petitioner] has the affirmative duty of showing error.' Greer v. Greer, 624 So.2d 1076, 1077 (Ala. Civ. App. 1993). Without a transcript indicating that the father made a special appearance, that the parties were denied the opportunity to present evidence, or other error, we must presume that the trial court's hearing on November 2, 2017, cured any deficiency in notice that previously existed. Chisolm v. Crook, 272 Ala. 192, 194, 130 So.2d 191, 193 (1961)."

259 So. 3d at 672. Likewise, in the present case, although we agree with the father that § 30-3-4.2(o ) contemplates an evidentiary hearing before the entry of an order awarding grandparent visitation, there is no indication in the materials before this court that, among other things, the parties were denied the opportunity to present evidence at the hearing or that the parties did not otherwise agree to rely on documentary evidence that had already been submitted before the trial court. Because the father has failed to show a clear legal right to the vacation of the pendente lite order with regard to his "as applied" constitutional challenge to the GVA, his petition is due to be denied as to that issue.

Mandamus is an extraordinary remedy, and the burden of demonstrating the clear legal right to relief was on the father. As outlined above, the father has not demonstrated a clear legal right to relief; accordingly, his petition is denied. The stay issued by this court on October 26, 2018, is dissolved.

PETITION DENIED; STAY DISSOLVED.

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

Thompson, P.J., dissents, without writing.


author: THOMAS, Judge.

text:
    EX PARTE CITY OF MONTGOMERY
    (In re: Mellissa Smith v. City of Montgomery Police Department)
    2180025
    Court of Civil Appeals of Alabama.
    November 16, 2018
    Stacy Lott Reed, City of Montgomery Attorney's Office, Montgomery, for petitioner.
    William H. Turner, Montgomery, for respondent.
   THOMAS, Judge.

The City of Montgomery ("the City") petitions this court for the writ of mandamus directing the Montgomery Circuit Court to grant the City's summary-judgment motion, in which the City argued that the circuit court lacked subject-matter jurisdiction over the action at issue. We deny the City's petition.

Background

On December 17, 2017, a vehicle ("the vehicle") in the possession of Richard Smith was seized after Richard was arrested for an offense regarding illegal drugs. On January 23, 2018, Richard's wife, Mellissa Smith, filed a petition in the circuit court seeking a return of the vehicle. In relevant part, Mellissa alleged that the vehicle was in the City's possession.

On March 19, 2018, the City filed a motion for a summary judgment, asserting that the vehicle had been seized by the federal Drug Enforcement Agency ("DEA") and was currently in the possession of the United States Marshals Service. The City further asserted that federal forfeiture proceedings regarding the vehicle had been initiated and that Richard and Mellissa had received notice of those proceedings on January 25, 2018; the City asserted that Mellissa had filed a "claim" with the DEA seeking a return of the vehicle. The City asked the circuit court for a

"judgment as a matter of law, or in the alternative, to dismiss this cause of action because the federal district court has original jurisdiction over the forfeiture action related to this vehicle and because [Mellissa] has been placed on notice and filed a claim with the federal government seeking return of the vehicle."

In support of its factual assertions, the City attached to its motion an affidavit of P.A. Hill, an employee of the Montgomery Police Department who, during the relevant times, had been "assigned to the Montgomery DEA HIDTA Task Force."

Mellissa filed a response in opposition to the City's motion, in which she also requested a summary judgment in her favor. In relevant part, Mellissa asserted that the vehicle had been seized by the Montgomery Police Department and that she had not received notice that it was in the federal government's possession until January 25, 2018, i.e., six weeks after it had been seized. She argued that, because the Montgomery Police Department had seized the vehicle, the City "should be responsible for returning [it]." Mellissa later supplemented many of the factual assertions set out in her response with an affidavit that she had executed and an affidavit executed by Richard.

On September 10, 2018, the circuit court entered an order denying the City's summary-judgment motion. On October 5, 2018, the City filed in this court a petition for the writ of mandamus directing the circuit court to grant its summary-judgment motion, arguing that the circuit court lacks subject-matter jurisdiction over Mellissa's action. Mellissa answered the petition, noting that portions of the City's petition indicate that its position is based on immunity grounds and that the City did not assert immunity as a basis for relief in its summary-judgment motion. She argues that we should not issue the writ of mandamus because the circuit court must have denied the City's summary-judgment motion because it determined that a genuine issue of material fact existed.

Analysis

Although the essence of the argument set out in the City's petition is that the circuit court lacks subject-matter jurisdiction over Mellissa's action, it initially frames its position as one based on immunity in an effort to explain why this court can review the circuit court's denial of the City's summary-judgment motion at this stage in the proceedings; the City cites as support Ex parte Kennedy, 992 So.2d 1276, 1280 (Ala. 2008). However, in addition to questions of immunity, a challenge to the trial court's subject-matter jurisdiction is also an exception to the general rule prohibiting mandamus review of the denial of a summary-judgment motion. As our supreme court stated in Ex parte Hampton, 189 So.3d 14, 16 (Ala. 2015) :

" ' "Subject to certain narrow exceptions ..., we have held that, because an 'adequate remedy' exists by way of an appeal, the denial of a motion to dismiss or a motion for a summary judgment is not reviewable by petition for writ of mandamus." Ex parte Liberty Nat'l Life Ins. Co., 825 So.2d 758, 761-62 (Ala. 2002).'
" Ex parte Kohlberg Kravis Roberts & Co., 78 So.3d 959, 965-66 (Ala. 2011). The narrow exceptions when mandamus review is available include when the petitioner challenges the subject-matter jurisdiction of the trial court, Ex parte HealthSouth Corp., 974 So.2d 288, 292 (Ala. 2007), or when the petitioner asserts immunity. Ex parte Alabama Peace Officers' Standards & Training Comm'n, 34 So.3d 1248 (Ala. 2009)."

This court can therefore consider the City's petition.

" 'A writ of mandamus is an extraordinary remedy, and it will be "issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus will issue only to compel the exercise of a trial court's discretion; it will not issue to control or to review a court's exercise of its discretion unless an abuse of discretion is shown. Ex parte Auto-Owners Ins. Co., 548 So.2d 1029 (Ala. 1989).'
" Ex parte Breman Lake View Resort, L.P., 729 So.2d 849, 851 (Ala. 1999)."

Ex parte Dozier, 170 So.3d 673, 675 (Ala. Civ. App. 2014).

In Green v. City of Montgomery, 55 So.3d 256, 259 (Ala. Civ. App. 2009), this court noted that actions regarding property seized by the federal government pursuant to 21 U.S.C. § 881 or by the state government pursuant to § 20-2-93, Ala. Code 1975, are in rem proceedings and that "two courts cannot have concurrent in rem jurisdiction[;] ... the first court to acquire in rem jurisdiction does so to the exclusion of all other courts."

" 'In rem jurisdiction' refers to the 'court's power to adjudicate the rights to a given piece of property, including the power to seize and hold it.' Black's Law Dictionary 982 (10th ed. 2014). A court obtains in rem jurisdiction when it validly seizes property so that it is brought within the control of the court. Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 85, 113 S.Ct. 554, 121 L.Ed.2d 474 (1992). Judicial control of the res may be either actual or constructive. Id. at 87, 113 S.Ct. 554. '[T]hat court which first acquires [in rem ] jurisdiction draws to itself the exclusive authority to control and dispose of the res.' Ex parte Consolidated Graphite Corp., 221 Ala. 394, 397-98, 129 So. 262, 265 (1930)."

Little v. Gaston, 232 So.3d 231, 234 (Ala. Civ. App. 2017).

Green involved an action to recover money seized during a traffic stop. 55 So.3d at 257. We explained:

"The Montgomery Circuit Court obtained jurisdiction through the claimants' in rem action only if federal jurisdiction was not obtained first. Determining when federal jurisdiction attached will resolve who first acquired in rem jurisdiction. Although Alabama law requires a two-step process of possession and then the filing of an in rem court action, federal forfeiture is administrative and the second step is not required to obtain federal jurisdiction. So long as the state court has not exercised in rem jurisdiction, federal jurisdiction begins the moment the res is controlled by federal agents. See United States v. $506,231 in United States Currency, 125 F.3d 442 (7th Cir. 1997)."

Id. at 263.

In this case, it appears undisputed that the DEA took possession of the vehicle and that the vehicle is currently in the custody of the United States Marshals Service. However, there is a dispute regarding when the DEA took possession of the vehicle. The City contends that the DEA seized the vehicle at the time of Richard's arrest, which is supported by Hill's affidavit. Mellissa contends that the vehicle was seized by the Montgomery Police Department, which is supported by the portion of Richard's affidavit averring: "I was stopped and arrested by Officer Joseph Scott Dunn of the Montgomery Alabama Police Department (MPD). During my detainment, the only other officer on the scene was ... a male K9 officer of MPD to search the vehicle." Mellissa does not appear to contest the City's assertion that the DEA possessed the vehicle when she received notice on January 25, 2018, that federal forfeiture proceedings had been initiated. By that time, however, Mellissa had already filed her petition in the circuit court.

Thus, if the Montgomery Police Department possessed the vehicle at the time Mellissa initiated her action in the circuit court, the circuit court has jurisdiction over the action to the exclusion of the relevant federal court. Green, 55 So.3d at 259. If the DEA or some other federal agency seized the vehicle at the time of Richard's arrest or took possession of the vehicle before Mellissa initiated her action on January 23, 2018, the relevant federal court has jurisdiction over the action to the exclusion of the circuit court because federal jurisdiction attaches at the moment of possession. Id. at 263. The materials before this court demonstrate a dispute regarding which narrative is accurate.

We recognize that the answers to the foregoing questions may be affected by the capacity in which the officer or officers responsible for seizing the vehicle acted, i.e., as agents of the City or as agents of the federal government. See, e.g., Little, 232 So.3d at 235. This court, however, is in no position to make that factual determination. Because genuine issues of material fact remain, the resolution of which will impact whether the circuit court has subject-matter jurisdiction over Mellissa's action, the City has not demonstrated that it has a clear legal right to a summary judgment at this time. See Ex parte Dozier, 170 So.3d at 675. The City's petition is therefore denied.

PETITION DENIED.

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


text:
    Leonard Irving COTTOM, Jr. v. Kasey Leann COTTOM
    2170042
    Court of Civil Appeals of Alabama.
    November 30, 2018
    Kenneth R. Rains and W. Lee Webb of Rains Law Firm, Fairhope, for appellant.
    Floyd C. Enfinger, Jr., and Margaret Enfinger Pace of Law Office of Floyd C. Enfinger, Jr., P.C., Montrose, for appellee.
   PER CURIAM.

Leonard Irving Cottom, Jr. ("the husband"), appeals from the judgment of the Baldwin Circuit Court ("the trial court") that, among other things, divorced him from Kasey Leann Cottom ("the wife"). The husband challenges the aspects of the judgment that granted the wife alimony, divided the parties' property, ordered the husband to pay an arrearage amount of unpaid pendente lite periodic alimony, and granted the wife attorney fees. The record does not support the division of property or the calculation of the husband's arrearage as expressed in the judgment. Accordingly, we reverse the judgment and remand the cause.

Facts and Procedural History

The husband and the wife were married on February 25, 1995, in North Carolina. No children were born from the marriage. The husband has the primary ownership interest in several businesses in North Carolina ("the businesses").

On October 21, 2011, the wife filed a complaint in the trial court seeking a divorce from the husband. The husband filed a motion to dismiss, contesting the trial court's subject-matter jurisdiction and personal jurisdiction over him and asserting that the wife's domicile was not in Alabama. The trial court conducted a hearing on the husband's motion. At the hearing, the wife testified that, in 2009, she and the husband left North Carolina, traveled in a recreational vehicle, later emptied their house in North Carolina of personal possessions, and ended up living in Alabama near her parents' house. On January 6, 2012, the trial court entered an order denying the husband's motion to dismiss. The parties have not raised, and we do not discern, the trial court's jurisdiction as an issue on appeal.

On November 20, 2013, the wife filed a motion seeking to hold the husband in contempt. In her motion, the wife asserted that, after mediation, the parties had reached an agreement in the summer of 2012. She asserted that the husband had agreed to pay her $8,000 a month and $25,000 in September each year pending the outcome of the divorce proceedings. According to the wife, the actual source of the husband's payments to her had been mostly from income generated from the wife's interests in the businesses. The wife asserted that the payments stopped in the spring of 2013 and that, when the husband resumed the payments, the payments were less than the agreed-upon amounts. The wife also asserted that, under the agreement, the husband was to make payments for the mortgage on the house in North Carolina. The husband filed a motion seeking sanctions for the wife's alleged noncompliance with a discovery request.

On January 9, 2014, the trial court conducted a hearing during which the parties announced that they had reached an agreement as to the issues raised in the pending motions. On October 28, 2015, the trial court entered an order, stating, in relevant part:

"The parties advised the Court that they had reached an agreement with regard to their competing motions.
"The payments to the [wife] from the [husband] for the dates of August 1, 2013, through the end of February, 2014, in the nature of temporary spousal support payments [were] made on the morning of January 9, 2014, whereby the [husband] wrote a check to the [wife's] counsel's trust account in the sum of $47,690.00 for temporary support, which is meant to cover support from August 1, 2013 through the end of February, 2014, and giving him credit for $12,000.00 he paid to the [wife] in October, 2013.
"Further, there were four payments of $1230 due on the parties' home in Seven Devils, North Carolina. The [husband] paid one (1) payment of $1,230.00 via U.S. mail sent on or before the date of [the hearing] and the other three remain outstanding.
"The [husband] maintains a claim for a set-off, which is preserved and may be presented at final trial.
"The parties have advised the Court that they have reached an agreement as to a resolution of that matter by way of the [wife] providing certain additional discovery to the [husband].
"Henceforth, the [husband] shall pay the [wife] the sum of $8,000.00 per month, as well as the sum of $25,000.00 in September of each year."

On December 14, 2015, the wife filed a motion seeking to hold the husband in contempt, asserting, in part, that the husband had failed to make the payments of $25,000 in 2014 and in 2015 as required by their agreements and, she asserted, the October 28, 2015, order. On March 16, 2017, the wife filed another motion seeking to hold the husband in contempt, asserting that the husband had failed to make the $25,000 payments in 2014, 2015, and 2016.

The trial court conducted hearings on all pending issues on January 6, 2012, May 17, 2013, June 24, 2013, January 9, 2014, and March 17, 2017. The wife testified that she has multiple sclerosis, that she requires assistance and medical treatments because of her physical condition, that she has been unable to maintain employment since 2001, and that, besides alimony payments from the husband, her only source of income has been Social Security disability payments. The wife testified that the husband has not made the annual payments that she claimed were due, under their agreements, in September of 2014, 2015, and 2016.

The wife testified that she owned the house in North Carolina in which the parties had previously resided and that she owned shares of stock in the businesses. The wife testified that she and the husband lived in Alabama from December 2009 to the summer of 2011 and that, after the parties' separation, the husband had moved back into the parties' former residence in North Carolina. The husband claimed a marital interest in the North Carolina house.

Documentation submitted as exhibits indicate that the parties collectively owned 163.34 acres of land. The parties referred to some of that land as the "Snow Cloud lots." The wife and the husband both testified that title to 4 Snow Cloud lots are in the wife's name and that the husband had owned a total of 13 Snow Cloud lots. According to the husband's testimony, three Snow Cloud lots were acquired in the wife's name in September 1992 for around $48,000 and, in 1997, those lots were swapped for four lots previously owned by the town in which the lots are located. The husband testified that he purchased eight Snow Cloud lots in 1994 for $500 per lot and that he purchased another five Snow Cloud lots for $500 per lot later in the same year. The husband testified that, in 2006, after giving a discount of $20,000 for the buyer to build a road, he sold eight of the Snow Cloud lots titled in his name for $480,000, or $60,000 per lot. A personal financial statement of the parties dated March 31, 2007, indicates that eight Snow Cloud lots were worth $480,000. According to his testimony, the husband valued eight Snow Cloud lots at a total of $240,000 in his personal financial statement dated August 31, 2011. The husband later testified that the current fair-market value of the five Snow Cloud lots in his name was $10,000 total and that the four lots in the wife's name were worth a total of $8,000.

On June 30, 2017, the trial court entered a judgment divorcing the parties and ordering, in relevant part:

"3. The [wife] is awarded permanent periodic alimony from the [husband] in the amount of $10,000.00 per month, which said payment is due on or before the first day of each month.
"4. In that the [husband] failed to abide by this Court's Temporary Order with reference to an annual temporary spousal support payment of $25,000.00 each year to the [wife] during the pendency of the divorce, and the [husband] failed and refused to make said Court ordered payment in the years 2014, 2015, and 2016, a judgment [is] due to be, and is hereby entered in favor of the [wife] in the sum of $75,000.00, as well as accrued interest of $8,522.00 through April 5, 2017, and $15.41 per day for each day beginning on April 6, 2017, and thereafter, for which execution may issue.
"....
"6. The [husband] is awarded all interest in all businesses of the parties; and shall pay the [wife] a lump sum payment of $755,650.00 for her interest in said businesses. Said monies are due and payable from the [husband] to the [wife] on or before one hundred eighty (180) days from the date of the Decree of Divorce.
"7. All parcels of real property known as the 'Snow-Cloud lots' shall be awarded to the [husband], and the [wife's] interest in the same shall be transferred to the [husband] upon payment to the [wife] in the sum of one million dollars ($1,000,000.00) for the [wife's] interest in the same. Said monies shall be paid in full to the [wife] prior to her executing any documents necessary to transfer her interest therein to the [husband]. Said monies are due and payable from the [husband] to the [wife] on or before one hundred eighty (180) days from the date of the Decree of Divorce.
"8. The home in Seven Devils, North Carolina, is awarded to the [husband] upon the following conditions: The [husband] shall pay the mortgage payments in the amount of $1,230.00 per month to the [wife] until such time as the [husband] completes the transaction to sell the home. The [husband] shall be responsible for all maintenance and payment of utilities, insurance, upkeep, and the like hereafter. On or before fourteen (14) days from the date of the Decree, the parties shall agree on an appraiser, and, if they cannot agree, each shall select an appraiser (and pay for the same), and the two appraisers shall submit independent appraisals, and said appraisals shall thereafter be averaged. The [husband] shall thereafter purchase the home for said appraised amount, with payments made as follows:
"a. paying off the existing mortgage in the sum of approximately $90,000.00;
"b. paying to the [wife] the sum of $31,980.00 for house payments made by the [wife] whilst the [husband] resided exclusively in the home during the pendency of this divorce; and
"c. paying the [wife] fifty percent (50%) of the equity (i.e., the sum left over after payment of the outstanding mortgage amount and payment of $31,980.00 set forth in 7(c) above [ (sic) ].
"d. The transaction contemplated in this said paragraph shall be fully completed on or before one hundred eighty (180) days from the date of this decree.
"9. Attorney's fees in the amount of $100,000 are hereby awarded to the [wife] and ordered paid by the [husband], offset by the $80,000.00 the wife removed from various sources at the outset of the divorce filing. Thus, the net of $20,000.00 to be paid by the [husband] to the [wife]. Said monies are due and payable from the [husband] to the [wife] on or before one hundred eighty (180) days from the date of the Decree of Divorce.
"....
"12. Each request for relief not specifically addressed herein is due to be, and is hereby DENIED."

On July 28, 2017, the husband filed a motion to alter, amend, or vacate the judgment. The husband also filed a motion for a new trial. In both motions, the husband argued that the trial court had exceeded its discretion in granting the wife $10,000 a month in periodic alimony, in establishing an arrearage based on a finding that the husband had failed to abide by the October 28, 2015, order, in granting the wife a sum for her interest in the businesses, in ordering the husband to make payments on the mortgage and to the wife concerning the house in North Carolina, and in awarding the wife $100,000 in attorney fees. On August 29, 2017, after conducting a hearing, the trial court entered separate orders denying the motion to alter, amend, or vacate the judgment and the motion for a new trial.

On October 10, 2017, the husband filed a notice of appeal to this court. We have jurisdiction over this appeal pursuant to § 12-3-10, Ala. Code 1975. On appeal, the husband filed a motion to strike a portion of the record.

Standard of Review

"In reviewing a trial court's judgment in a divorce case where the trial court has made findings of fact based on oral testimony, we are governed by the ore tenus rule. Under this rule, the trial court's judgment based on those findings will be presumed correct and will not be disturbed on appeal unless it is plainly and palpably wrong. Hartzell v. Hartzell, 623 So.2d 323 (Ala. Civ. App. 1993). Matters of alimony and property division are interrelated, and the entire judgment must be considered in determining whether the trial court abused its discretion as to either of those issues. Willing v. Willing, 655 So.2d 1064 (Ala. Civ. App. 1995). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996). In addition, the trial court can consider the conduct of the parties with regard to the breakdown of the marriage, even where the parties are divorced on the basis of incompatibility. Ex parte Drummond, 785 So.2d 358 (Ala. 2000). Moreover, in Kluever v. Kluever, 656 So.2d 887 (Ala. Civ. App. 1995), this court stated, '[a]lthough this court is not permitted to substitute its judgment for that of the trial court, this court is permitted to review and revise the trial court's judgment upon an abuse of discretion.' Id. at 889."

Langley v. Langley, 895 So.2d 971, 973 (Ala. Civ. App. 2003). "Trial judges enjoy broad discretion in divorce cases, and their decisions are to be overturned on appeal only when they are 'unsupported by the evidence or [are] otherwise palpably wrong.' " Ex parte Bland, 796 So.2d 340, 344 (Ala. 2000) (quoting Ex parte Jackson, 567 So.2d 867, 868 (Ala. 1990) ).

Discussion

We first consider the husband's contentions regarding the trial court's division of the parties' property. The husband argues that the evidence in the record is contrary to the trial court's determination of $1,000,000 as the value of the wife's interest in the Snow Cloud lots. In the judgment, the trial court stated:

"All parcels of real property known as the 'Snow-Cloud lots' shall be awarded to the [husband], and the [wife's] interest in the same shall be transferred to the [husband] upon payment to the [wife] in the sum of one million dollars ($1,000,000.00) for the [wife's] interest in the same. Said monies shall be paid in full to the [wife] prior to her executing any documents necessary to transfer her interest therein to the [husband]. Said monies are due and payable from the [husband] to the [wife] on or before one hundred eighty (180) days from the date of the Decree of Divorce."

Although the judgment awards the wife $1,000,000 in exchange for the transfer of her interest in the Snow Cloud lots, we cannot find support in the record for the award. The evidence consistently indicates that the wife did not have more than four Snow Cloud lots titled in her name. Although the evidence regarding the value of the lots widely varied, there is no evidence indicating that the value of four of the lots together could have reasonably amounted to $1,000,000.

The wife argues that this portion of the judgment was equitable because, she asserts, the trial court could have reasonably determined the value of all the Snow Cloud lots to be $1,360,000. The wife appears to arrive at that total by asserting that the husband had 13 Snow Cloud lots and that she had 4 lots, for a total of 17 lots, at the time of the trial and that the lots were valued at $80,000 a lot. The record indicates, however, that the husband had sold eight of the lots that had been titled in his name. If the parties owned nine lots valued at $80,000 a lot, the total value of the Snow Cloud lots would be $720,000, or significantly less than the award to the wife. We note that we are not directed to evidence in the record that would support valuing the lots at $80,000 a lot. The wife alternatively calculates the total value of 17 lots to be $1,020,000, at $60,000 a lot, but the wife does not explain why she would receive almost the total value of the Snow Cloud lots as her interest. Thus, there does not appear to be any basis in the record for such a division of those properties as asserted by the wife.

The wife further asserts that the trial court could have been attempting to compensate the wife for her portion of the 163.34 acres of land the parties collectively owned. The provision in the judgment, however, refers to the Snow Cloud lots, does not mention any other land, and does not indicate that the award regarding the Snow Cloud lots was in compensation for interest in other property awarded to the husband. Because the record does not support a reasonable valuation of the wife's interest in the Snow Cloud lots to be $1,000,000, we reverse that portion of the judgment.

In addition to the valuation of the Snow Cloud lots, the husband also challenges the portions of the judgment granting the wife $10,000 a month in periodic alimony, ordering him to pay the wife for her interest in the businesses, and ordering him to pay off the mortgage on the parties' house in North Carolina and to pay the wife 50% of the equity in the house as well as certain mortgage payments. "Matters of alimony and property division are interrelated ...." Langley, 895 So.2d at 973. Because we are reversing the award of $1,000,000 for the wife's interest in the Snow Cloud lots, we also reverse the other aspects of the trial court's division of the parties' property and the award of alimony as well. We pretermit discussion of the issues raised by the husband regarding those portions of the judgment.

The husband further challenges the trial court's determination that $75,000 was the amount of the arrearage the husband owed the wife for missed pendente lite alimony payments. In the judgment, the trial court stated:

"In that the [husband] failed to abide by this Court's Temporary Order with reference to an annual temporary spousal support payment of $25,000.00 each year to the [wife] during the pendency of the divorce, and the [husband] failed and refused to make said Court ordered payment in the years 2014, 2015, and 2016, a judgment [is] due to be, and is hereby entered in favor of the [wife] in the sum of $75,000.00, as well as accrued interest of $8,522.00 through April 5, 2017, and $15.41 per day for each day beginning on April 6, 2017, and thereafter, for which execution may issue."

The husband asserts that the trial court's October 28, 2015, order, referred to as the "Court's Temporary Order" in the divorce judgment, did not require him to make annual payments of $25,000 for 2014 and 2015. In the October 28, 2015, order, the trial court stated, in relevant part: "Henceforth, the [husband] shall pay the [wife] the sum of $8,000.00 per month, as well as the sum of $25,000.00 in September of each year." (Emphasis added.) Because the order was entered on October 28, 2015, the order did not require the husband to make any annual payments in September 2014 or in September 2015.

The wife asserts that the parties had reached a pendente lite agreement regarding spousal support on January 9, 2014, and that the husband did not make the annual payments for 2014 and 2015 pursuant to that agreement. Regarding pendente lite alimony, " 'though an agreement may be binding upon the parties in a divorce case, it is not binding upon the court. In rendering judgment, the court may accept or reject such an agreement, in whole or in part.' " Johnson v. Johnson, 191 So.3d 164, 172 (Ala. Civ. App. 2015) (quoting Porter v. Porter, 441 So.2d 921, 924 (Ala. Civ. App. 1983) ). The divorce judgment refers to the husband's failure to make "court ordered payments" in 2014 and 2015, but we are not directed to any order of the trial court requiring the payments to be made. The language of the October 28, 2015, order did not require the husband to make a payment of $25,000 in September 2014 or in September 2015. Therefore, the calculation of the arrearage in the judgment representing unpaid court-ordered obligations overstates the total amount by including those amounts. As a result, we reverse the portion of the judgment determining the husband's arrearage, and we remand the cause for the trial court to reconsider the issue.

The husband also argues that the trial court exceeded its discretion in awarding the wife $100,000 in attorney fees. Because we have reversed the trial court's property division and alimony award and remanded the cause for further proceedings, " '[t]he financial circumstances of the parties as well as the results of the litigation are undetermined.' " Whaley v. Whaley, 218 So.3d 360, 367 (Ala. Civ. App. 2016) (quoting Frazier v. Curry, 104 So.3d 220, 228 (Ala. Civ. App. 2012) (plurality opinion) ). Accordingly, we pretermit discussion of the husband's contentions regarding attorney fees and remand the cause to the trial court for further consideration of the attorney-fee issue.

Conclusion

For the forgoing reasons, we reverse the judgment of the trial court, and we remand the cause for proceedings consistent with this opinion. The wife's request for an award of attorney fees on appeal is denied. The husband's motion to strike is denied as moot.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

Donaldson, J., concurs specially, with writing.

DONALDSON, Judge, concurring specially.

Rule 43, Ala. R. App. P., provides, in relevant part:

"(a) Death of a Party. When the death of a party has been suggested, the proceeding shall not abate, but shall continue or be disposed of as the appellate court may direct.
"....
"(c) Substitution. An order of substitution may be entered at any time, but the omission to enter such order shall not affect the substitution."

The Committee Comments to Rule 43 state, in relevant part:

"This rule provides that no appeal shall fail because of the death ... of any party. It is flexible in its application to permit action to proceed in accordance with the court's direction on a case by case basis. In accordance with the general spirit of the rules, the omission of an order of substitution is not fatal, but can be made at any time under subdivision (c)."

On October 31, 2018, after the briefs were filed and the appeal was submitted to this court, a suggestion of the death of the appellant, Leonard Irving Cottom, Jr., was filed by the appellee, Kasey Leann Cottom. The suggestion stated:

"COMES NOW the Appellee Kasey Leann Cottom, and files this suggestion of death of Appellant Leonard Irving Cottom, Jr. Appellee shows that Appellant Leonard Irving Cottom, Jr. died on or about October 11, 2018.
"Appellee requests this Court to consider whether the appellate proceeding shall continue or be disposed, as directed in Ala. R. App. Proc. Rule 43(a)."

Counsel for the appellant filed a response later on October 31, 2018, which stated:

"1. Counsel for Appellee is correct in that the Appellant recently passed away on or around October 11, 2018 while the present matter is pending on appeal.
"2. However, if a party dies during the pendency of an appeal, the appeal does not abate. Rule 43(a), Ala. R. App. P.; Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (1941) ; Woodruff v. Gazebo E. Apartments, 181 So.3d 1076, 1080 (Ala. Civ. App. 2015) ; and Kaufman v. Kaufman, 22 So.3d 458, 460 (Ala. Civ. App. 2007) (Appellate Court held the appeal should not be abated because a final divorce judgment had been entered between the parties before the husband's death.)
"3. The Final Decree of Divorce in the present matter currently on appeal was entered June 30, 2017. The Appellant passed away in and around October of 2018.
"4. Due to a final judgment of divorce being entered and appeal being taken before the Appellant's death, the appeal should not be abated and should continue forward."

Although Rule 43 provides that the death of a party on appeal does not automatically abate the proceedings, it recognizes that the death may affect the disposition of the appeal and the appellate proceedings in some manner. This court chose not to request supplemental briefs from the parties as to the effect of the appellant's death on the issues raised in this appeal before the appellant's death or on any issues to be addressed by the Baldwin Circuit Court in the event of a remand. It appears to me that, if there are issues to be addressed on remand, some of the caselaw that could be applicable may pre-date the adoption of Rule 43. Nevertheless, we are not asked to address those questions or other issues that might be presented by the death of the appellant. Accordingly, I concur with this court's decision to proceed with issuing the opinion.

      On October 31, 2018, after the submission of the appeal, the wife filed a suggestion of death of the husband in this court. The husband's counsel filed a response confirming that the husband died on or around October 11, 2018, during the pendency of this appeal. Nevertheless, we "proceed to resolve the issues raised in this appeal." Slamen v. Slamen, 254 So.3d 188, 191 n.1 (Ala. 2017) ; see Rule 43(a), Ala. R. App. P. ("When the death of a party has been suggested, the proceeding shall not abate, but shall continue or be disposed of as the appellate court may direct."); Cox v. Dodd, 242 Ala. 37, 39, 4 So.2d 736, 737 (1941) ; and Woodruff v. Gazebo East Apartments, 181 So.3d 1076, 1080 (Ala. Civ. App. 2015).

      The record does not contain an order of the trial court adopting that agreement.

      The husband initially testified that the eight Snow Cloud lots were sold in 2008, but he later testified that the sales were reported as capital gains on the parties' 2006 joint federal tax return.

      It is unclear from the record why those financial statements reflected eight Snow Cloud lots. The record reflects that, at the time those statements were prepared, the husband owned five Snow Cloud lots and the wife owned four.

      We note that the husband testified that the current fair-market value of each lot was $2,000 but that he had valued eight of the lots at $480,000, which is $60,000 per lot, in 2007.

      We note that, " '[i]n Alabama, periodic alimony payments cease at the death of either spouse.' " Wheeler v. Wheeler, 831 So.2d 629, 635 (Ala. Civ. App. 2002) (quoting Kelley v. State Dep't of Revenue, 796 So.2d 1114, 1118 (Ala. Civ. App. 2000) ).