author: THOMAS, Judge.

text:
    Jarrod Joel WHITE v. Kimberly Henderson WHITE
    2161061
    Court of Civil Appeals of Alabama.
    May 18, 2018
    Patrick H. Sims of Cabaniss, Johnston, Gardner, Dumas & O'Neal LLP, Mobile, for appellant.
    Randall W. Nichols of Massey, Stotser & Nichols, PC, Birmingham; and David P. Broome, Mobile, for appellee.
   THOMAS, Judge.

Jarrod Joel White ("the father") and Kimberly Henderson White ("the mother") were married in 2010. There are two children of the marriage ("the children")-a son ("the son"), born in June 2011, and a daughter ("the daughter"), born in July 2012. The mother also has an older son ("the mother's older son") from a previous relationship. In 2012 the parties separated, and, in November 2012, the father filed a complaint in the Mobile Circuit Court seeking, in pertinent part, a divorce from the mother, an award of custody of the children, and an award of child support.

He also filed a motion in which he alleged that the mother had endangered, or had threatened to endanger, the children and requested an award of pendente lite custody of the children subject to the mother's visitation, exclusive possession of the marital residence while the action was pending, and an award of pendente lite child support. The circuit court held a hearing on the motion and awarded the father the relief he sought, except that it did not order the mother to pay pendente lite child support. Thereafter, the mother filed an answer to the father's complaint and a counterclaim seeking, in pertinent part, a divorce from the father, an award of "primary" physical custody of the children, and an award of child support.

A prolonged period of contentious discovery commenced, during which the father maintained pendente lite custody of the children. Numerous continuances were requested and granted, and the circuit court required the parties to participate in mediation. In May 2016 the circuit court entered an order informing the parties that it would grant no further continuances and setting an August 30, 2016, trial date; however, it later entered an order granting another continuance, setting a November 15, 2016, trial date, and informing the parties that there would be "absolutely no resets."

When the three-day divorce trial began, the son was five years old and the daughter was four years old. The divorce trial began on November 15, 2016, and continued on December 2, 2016. At the close of testimony on December 2, 2016, the circuit-court judge orally acknowledged that the divorce trial had not reached completion and said: "I'm doing away with the [father's pendente lite custody award]. I'm giving [the parents] joint legal custody of their children. It's going to be joint custody. One week with one parent. One week with the other parent." The divorce trial ended on April 18, 2017.

On April 26, 2017, the circuit court entered a final judgment that, in pertinent part, divorced the parties, awarded them joint custody of the children, and ordered them to exchange physical custody of the children on an alternating weekly basis. The circuit court ordered the father to pay the children's health-insurance costs and

"the amount of $1,372.80 each month as child support effective May 1, 2017. (Child support is in compliance with the Guidelines of Rule 32, [Ala. R. Jud. Admin.,] with the split custody.)"

The father filed a timely postjudgment motion. The circuit court held a hearing on the motion and entered an order modifying certain provisions of the judgment that are not relevant to this appeal, and the father filed a timely notice of appeal. He seeks our review of whether the evidence presented supports an award of joint custody of the children, whether the circuit court miscalculated his child-support obligation, and whether the judgment contains an ambiguity that the circuit court refused to clarify.

First, we consider whether the evidence presented supports an award of joint custody of the children. Our legislature has indicated that joint-custody arrangements are favored, § 30-3-150, Ala. Code 1975, and should be considered in every child-custody case, § 30-3-152(a), Ala. Code 1975.

"In original divorce actions, the parties stand on an equal footing with no presumption of entitlement to custody inuring to either parent. See Ex parte Couch, 521 So.2d 987, 989 (Ala. 1988) ; see also Smith v. Smith, 727 So.2d 113, 114 (Ala. Civ. App. 1998). The primary concern in making an initial determination of child custody incident to a divorce action is the best interests of the children. See Couch, 521 So.2d at 989 ; see also C.B.B. v. J.S.D., 831 So.2d 620, 621 (Ala. Civ. App. 2002). To that end, the trial court is given wide discretion in awarding custody and establishing visitation, and its determination of such matters will not be reversed absent a showing of a clear abuse of discretion. See Kovakas v. Kovakas, 12 So.3d 693, 697 (Ala. Civ. App. 2008) ; see also Kent v. Green, 701 So.2d 4, 5 (Ala. Civ. App. 1996).
"The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and witnesses and to assess their demeanor and credibility. See Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001) ; see also Kent, 701 So.2d at 5. Additionally, ' "[i]n child custody cases especially, the perception of an attentive trial judge is of great importance." ' Fann, 810 So.2d at 633 (quoting Williams v. Williams, 402 So.2d 1029, 1032 (Ala. Civ. App. 1981) ). Factors to be considered in making a child-custody award include the age and sex of the children; their emotional, social, moral, material, and educational needs; and the characteristics of those seeking custody, including their age, character, stability, mental and physical health, and their respective home environments. See Ex parte Devine, 398 So.2d 686, 696-97 (Ala. 1981)."

Lowery v. Lowery, 72 So.3d 701, 704-05 (Ala. Civ. App. 2011).

The father testified that he had been unhappy in the marriage because the mother emotionally and verbally abused him, damaged the marital residence by throwing and breaking things in anger, and spoke negatively about him and his family to the children. He also criticized the mother for not attending church or graduating from college and for abusing alcohol, prescription medication, and cocaine.

The mother testified that she had been unhappy in the marriage because the marital residence was unimproved and unsafe and unsanitary for the children. She said that "vagrants" lived in an outbuilding in the backyard, which was cluttered with lumber, nails, paint cans, boats, trailers, and rotting vehicles. She criticized the father for going to bars after work, for not cleaning up after his cats, and for leaving her for four or five days when he was angry with her. She insisted that she had used cocaine only one time.

The father testified that he had decided to seek pendente lite custody of the children after two incidents occurred in 2012. The father said that, while he had been walking their dog, the mother had left the then infant daughter alone in the marital residence, and, he said, the mother had pushed the then less-than-two-year-old son outside on a cold morning to force the father to take him to preschool. The mother testified that those incidents had occurred, but, according to her, she had not known that the father was walking the dog when she left the daughter alone in the marital residence and the son had followed the father outside.

According to the parties, after they first separated they regularly communicated regarding the children's schedules, but the mother added that, although she was in daily contact with the father regarding the children, she had to "beg and plead" with the father to see them. At a certain point during the separation, the parties followed a general pattern whereby the father took the children to day care and the mother picked them up and cared for them until she took them to the father at 6:00 p.m. However, both sets of grandparents and the mother's housekeeper also frequently cared for the children as needed by the parties. According to the father, when the son started kindergarten, his poor behavior had indicated to the father that the son needed a stable routine, so the father, as the pendente lite custodian, decided to change to his having weekly custody of the children and allowing the mother to have weekend visitation every other weekend. The father complained that the mother frequently declined to exercise visitation with the children but also admitted that he had deprived the mother of visitation at times.

The mother said that she wanted an award of "equal access" to the children. According to the mother, the circuit court's mid-trial modification of pendente lite custody had been "wonderful." She testified that she had become involved in the son's school and that, with a few minor exceptions, she had communicated well with the father regarding the children. Kaye Henderson Barr, the mother's mother, testified that, after the mid-trial modification of pendente lite custody, the mother and the children had been "very good, very happy" and the mother's older son had been a positive influence on the son.

The father requested an award of "primary" physical custody of the children. He said that he wanted them to be healthy, safe, well-educated, active in church, and successful. He said that he and the mother each love the children but that she had prioritized work and entertainment over time with them and had endangered them.

The father testified that the mother put the children's emotional health at risk by displaying anger toward him in their presence and by allowing them to spend the night with her and her "boyfriend," Gregory Bass. The mother testified that she had been involved in an extramarital relationship with Bass for four years; that, despite the fact that she was married, she was engaged to marry Bass; and that she did not currently live with Bass but that they had lived together for three months in the past. She said that, during those three months, the children usually slept at her parents' house during her custodial periods, with the exception of "two, possibly three times" and when she and Bass took the children on vacations. She admitted that the children had slept with them in the same bed. Tyler Robertson, a private investigator, testified on behalf of the father. Robertson said that he had observed the mother for two days in 2014 and that, on one of the days, she had left the children alone in her automobile for one minute when she went into a store and for three minutes when she went into a bank.

Dr. Jack Carney testified regarding the father's and the mother's psychological evaluations. Not all of Dr. Carney's observations regarding the mother are favorable. In fact, in addition to other more minor concerns, Dr. Carney indicated that the mother, unlike the father, could not take care of the children without significant support from her family. Dr. Carney agreed that the father was more capable than the mother of taking care of the children and that, if he had to choose one or the other, he would choose the father over the mother as a physical custodian. However, Dr. Carney testified that the mother's family had been unfailingly supportive during the parties' 4-year separation, that they had been supportive of the mother's older son for more than 10 years, and that her situation was "more than adequate."

Dr. Carney recommended an award joint physical custody of the children and testified that the children love both parents. He admitted that he was not aware that the mother had used cocaine on one occasion, that she was planning to marry Bass, and that she might not continue to live near her family. Regardless, Dr. Carney confirmed his opinion that the children enjoyed and benefited from time with both parents, that the parents were healthy, and that the mother's older son was a particularly good influence on the son. Dr. Carney said that the mother's energy matched the son's energy and that the father and both sets of grandparents provided stability.

Factual determinations based on conflicting evidence are within the sound discretion of the trial court. See C.B.B. v. J.S.D., 831 So.2d 620, 622 (Ala. Civ. App 2002). "Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court in a custody hearing." Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996). This court is not permitted to reweigh the evidence on appeal or to substitute its judgment for that of the trial court. See Ex parte Patronas, 693 So.2d 473, 475 (Ala. 1997). Besides the testimony of the parents, the circuit court had before it evidence demonstrating that the parties had successfully maintained a joint-custody arrangement pendente lite; neither parent testified that the children had been adversely impacted by the mid-trial custody modification. The evidence presented supports an award of joint custody of the children.

We next consider whether the circuit court miscalculated the father's child-support obligation. The circuit court ordered the father to pay $1,372.80 per month in child support and indicated that the "[c]hild support is in compliance with the Guidelines of Rule 32[, Ala. R. Jud. Admin.]." It is well settled that "matters of child support are within the sound discretion of the trial court and will not be disturbed absent evidence of an abuse of discretion or evidence that the judgment is plainly or palpably wrong." Spencer v. Spencer, 812 So.2d 1284, 1286 (Ala. Civ. App. 2001). The father admits, and we agree, that the CS-41 child-support-obligation income statement/affidavit forms submitted by the parties display a lack of precision. The record also contains three CS-42 child-support-guidelines worksheets; however, we have determined that the worksheet submitted by the mother's attorney ("the CS-42 form") is the worksheet that the circuit court relied upon. Our review of the CS-42 form reveals that it suffers from more than one inaccuracy.

However, we conclude that the record contains the requisite forms, and we can determine from the language of the judgment that a calculation in compliance with Rule 32 was attempted. We are not persuaded by the mother's argument in her appellate brief that any alleged error in the child-support calculation was harmless, but we agree with her that the father has waived certain arguments by failing to raise them in his appellate brief. See Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala. Civ. App. 1996). We review the issue as framed by the father.

The father admits that the mother's attorney prepared and submitted the CS-42 form to the circuit court and that he failed to review the CS-42 form; however, he complains that figures used to calculate the child-support obligation are unsupported by the evidence. He points our attention to line 1-his monthly gross income and the mother's monthly gross income-and to line 6-the health-insurance costs. The CS-42 form indicates that the father earns a monthly gross income of $18,180.83, that the mother earns a monthly gross income of $2,916, and that the father pays $600 in health-insurance costs for the children.

The father argued at the postjudgment hearing and argues on appeal that using $18,180.83 as his monthly gross income is unsupported by the evidence. The father testified that his annual gross income varied, but was "in the ballpark of $200,000," which amounts to a monthly gross income of approximately $16,667. On his CS-41 form, the father indicated that his monthly gross income was $15,000. In his deposition, he testified that he earned "[p]robably $220[,000] or so," which amounts to a monthly gross income of approximately $18,334. At the postjudgment hearing, his attorney's argument, in its entirety, was:

"The problem with [the child-support calculation] is that you calculated [the father] at more than his income. The testimony was that he's making at maximum $200,000 a year and the $18,000 [included in the CS-42 from] used is higher than the 18-than the 18,000 that was-I'm sorry-than all of the evidence that was testified to."

On appeal, the father's entire argument is that the circuit court did not use the "correct amount" and that $15,000 "should have been used." Our review of the record reveals that the father's responses to questions regarding his monthly gross income were, at best, vague and that any figure between $15,000 and $18,334 is supported by the evidence presented. Therefore, the father's argument regarding his monthly gross income is unpersuasive.

The father argued at the postjudgment hearing and argues on appeal that using $2,917 as the mother's monthly gross income is unsupported by the evidence. On her CS-41 form, the mother indicated that her monthly gross income was $2,916.67, and she testified that she worked part-time earning $20 per hour in her family's business. She said that she worked 18 to 20 hours per week on weeks that she had custody of the children and 30 hours per week on weeks that the father had custody of the children; thus, by our calculations, the mother testified that she earned an average monthly gross income of approximately $2,123. She said that her employer owned the house in which she lived and that she did not pay rent, that her employer paid her monthly cellular-telephone bill, and that she did not know who paid her utility bills. She testified that her automobile was paid for and that the father paid for her automobile insurance. She said: "I

pay for groceries, gas, clothing, [and] extracurricular activities for my children." The father testified that the mother "is living in a house rent-free, getting free utilities, [and] bills are being paid for by other people."

In his postjudgment motion, the father pointed the circuit court to Rule 32(B)(2)(a), which defines "gross income" as "income from any source, and includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment-insurance benefits, disability-insurance benefits, gifts, prizes, and preexisting periodic alimony." The father argued that the circuit court should add "at least $2,000" per month to the mother's income to reflect that her family gave her gifts; however, the circuit court did not recalculate the child-support award. On appeal, the father points this court to Rule 32(B)(4), which defines "other income" and provides that "in-kind payments received by a parent in the course of employment ... shall be counted as income if they are significant and reduce personal-living expenses." The father urges us to reverse the judgment and remand the cause with instructions to the circuit court to recalculate the child-support award by adding $2,000 to the mother's monthly gross income as in-kind payments.

The father cannot point this court to any testimony or documentary evidence demonstrating that the value of the alleged gifts or in-kind payments provided by the mother's family or her employer were any specific amount, and certainly not exactly $2,000 per month. Therefore, we conclude that the father failed to meet his burden of proving that the mother's monthly gross income should be increased by $2,000.

Therefore, the father's arguments regarding his monthly gross income and the mother's monthly gross income are unpersuasive. The circuit court's findings regarding the parties' respective incomes results in a combined adjusted gross income is $21,098, which exceeds the uppermost limits of the child-support schedule. As a result, the circuit court should not have applied Rule 32 to calculate child support in the present case. See Comment to Rule 32, Ala. R. Jud. Admin. (as amended to conform to the amendments effective October 4, 1993). We have explained:

" 'When the parties' combined income exceeds the uppermost limit of the child-support schedule, the determination of a child-support obligation is within the trial court's discretion. Floyd v. Abercrombie, 816 So.2d 1051, 1057 (Ala. Civ. App. 2001) ; Dyas v. Dyas, 683 So.2d 971 (Ala. Civ. App. 1995). "[A] trial court's discretion is not unbridled and ... the amount of child support awarded must relate to the reasonable and necessary needs of the children as well as to the ability of the obligor to pay for those needs." Dyas v. Dyas, 683 So.2d at 973.' "

Wright v. Wright, 19 So.3d 901, 906 (Ala. Civ. App. 2009) (quoting McGowin v. McGowin, 991 So.2d 735, 741 (Ala. Civ. App. 2008) ).

On appeal, the father has not advanced any argument that the circuit court abused its discretion by setting child support at $1,372.80 per month or that the evidence does not support the conclusion that that amount is an inappropriate child-support obligation based upon the reasonable and necessary needs of the children and the father's ability to pay for those needs. Thus, those arguments are waived, Asam, 686 So.2d at 1224, and we conclude that the circuit court's award of child support is due to be affirmed. In light of our conclusion, we pretermit consideration of the father's argument regarding the children's health-insurance costs. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005) (stating that this court would pretermit discussion of further issues in light of dispositive nature of another issue).

Last, we consider the father's assertion that the circuit court refused to clarify the provision in the judgment regarding the "right of first refusal." That provision reads, in pertinent part: "Each parent is always the first choice as a care-giver for any time in excess of four hours. The Court does not consider time spent with the children's grandparents as 'babysitting.' " The father's argument regarding this issue is unsupported by any authority, and this court could affirm on that basis alone. See Smith v. Smith, 196 So.3d 1191, 1198 (Ala. Civ. App. 2015) (citing Allsopp v. Bolding, 86 So.3d 952, 960 (Ala. 2011) ). Regardless, the provision of which the father complains is quite clear that neither parent violates the terms of the divorce judgment if he or she allows the children to spend more than four hours with grandparents during a custodial period. The father does not present a legal argument by asserting that, during the mother's custodial periods, he "should have physical custody before maternal grandparents or other relatives" or that the children should spend any night with him that they are not spending with mother in her home. The father's assertion that the circuit court refused to clarify its judgment is unsupported and unpersuasive.

For the foregoing reasons, the circuit court's judgment is affirmed. We also grant the mother's request for an award of attorney fees in the amount of $3,000.

AFFIRMED.

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

      The circuit court also appointed a guardian ad litem for the children.

      To the extent that our recitation of the parties' testimony might seem inconsistent, we note that the father testified before the mid-trial modification of pendente lite custody and that the mother testified after the mid-trial modification of pendente lite custody.

      The father testified that the son's behavior improved within one month of his allowing the mother to have biweekly weekend visitation; however, other testimony indicated that the son might require specialized educational services if the son's aggressive, impulsive, and sexualized behaviors continue.

      Although the circuit court ordered the father to pay $1,372.80, Rule 32(C)(3), Ala. R. Jud. Admin., provides, in pertinent part: "All dollar amounts used in child-support calculations under this rule, including the recommended child-support order, shall be rounded to the nearest dollar ...."

      The second and third CS-42 child-support-guidelines worksheets were created by the father's attorney and were presented to the circuit court as attachments to the father's postjudgment motion. Both indicate that the father earns a monthly gross income of $15,000 and that he pays $800 in insurance costs. One indicates that the mother earns a monthly gross income of $2,916.57, and the other indicates that the mother's monthly gross income is $3,800.

      Earning $20 per hour for an average of 19 hours for 26 weeks equals $9,880; earning $20 per hour for an average of 30 hours for 26 weeks equals $15,600. ($9,880 + $15,600 = $25,480.) $25,480 divided by 12 equals $2,123.


source: Caselaw Access Project

author: DONALDSON, Judge.

license: Public Domain

text:
    Nathian HOSSLEY v. Sarah HOSSLEY
    2160979
    Court of Civil Appeals of Alabama.
    May 18, 2018
    Scott W. Hunter, Daphne, for appellant.
    Submitted on appellant's brief only.
   DONALDSON, Judge.

Nathian Hossley ("the former husband") appeals from a judgment of the Baldwin Circuit Court ("the trial court") entered in postdivorce proceedings between himself and Sarah Hossley ("the former wife"). The judgment was entered in one of two consolidated cases. For the reasons discussed herein, we dismiss the appeal as having been taken from a nonfinal judgment.

Facts and Procedural History

On November 16, 2015, the parties entered into a written agreement settling their divorce proceedings; that agreement was incorporated into a judgment of the trial court in case no. DR-15-900431.01 ("the divorce judgment"). Among other things, the former husband was ordered to pay $2,000 per month in child support for one of the parties' minor children, to be responsible for the children's current (and future) college-education expenses, and to pay $4,500 per month in periodic alimony to the former wife.

On June 10, 2016, the former husband filed a petition in the trial court seeking, among other things, to modify his alimony and child-support obligations in the divorce judgment. The former husband's petition to modify was docketed as case no. DR-15-900431.02 ("the .02 action").

The former wife filed a single pleading that encompassed an answer denying the former husband's allegations in his petition and a counterpetition for contempt. The former wife's pleading was docketed by the trial-court clerk as case no. DR-15-900431.03 ("the .03 action"). In her pleading, the former wife asserted that the former husband had, among other things, refused to pay alimony, child support, and college expenses for the oldest child since the entry of the divorce judgment and asked that the former husband be incarcerated until he posted a $20,000 cash bond payable to the former wife.

On September 9, 2016, the former wife filed a motion seeking to consolidate the .02 action and the .03 action for trial; that motion was granted by the entry of the following order of the trial court: "MOTION FOR CONSOLIDATION filed by [the former wife] is hereby GRANTED. Case reset to January 6, 2017 ...." The order of consolidation did not direct the dismissal of either the .02 action or the .03 action, and the record indicates that both the .02 action and the .03 action remained pending after the order of consolidation.

On April 10, 2017, the trial court held a trial on the former husband's and the former wife's petitions. The former husband failed to appear at the trial, but he was represented by counsel who was present. Counsel for the former wife asked the trial court to dismiss the former husband's petition, based on his failure to appear and prosecute his case. The trial court orally indicated that it would grant that motion, without objection from the former husband's counsel. Counsel for the former wife proceeded to take testimony from the former wife on her petition for contempt.

The former wife testified that she and the former husband had entered into a settlement agreement in November 2015 in which the former husband had agreed, among other things, that he would pay $4,500 per month in alimony, $2,000 per month in child support, and college-tuition expenses for both children, only one of whom was enrolled in college at the time the parties entered into the agreement. The former husband had also agreed to direct that $700 of his monthly military-retirement funds be made payable to the former wife and to pay all debts associated with a construction business owned by the parties. The former husband agreed to quitclaim his interest in a condominium shared by the parties and to bring the mortgage on that property current by December 1, 2015. The former husband also agreed to waive any right to the former wife's $150,000 equity that was being held in escrow from the sale of a Baton Rouge home.

The former wife testified that, although the former husband had paid her a total of $29,000 since the entry of the divorce judgment, he had refused to comply with all of the provisions of the settlement agreement outlined above and had not paid the required amount of child support. The former wife also testified that the former husband had forged her name to certain documents that allowed the $150,000 escrow funds to be used to satisfy his financial obligations in a criminal case.

The former wife testified that the former husband had also received $130,000 from a Louisiana land trust that should have been paid to her, that he had received an insurance-proceeds check for $3,000, and that he had received $2,000 from their real-estate agent's escrow account. The former wife testified that the former husband had also received $50,000 in proceeds in settlement of claims related to an oil spill in the Gulf of Mexico.

The former wife testified that the former husband was currently driving a 2015 Range Rover automobile and that he had purchased a Porsche automobile in March 2017-the month before the trial. According to the former wife, the former husband had "literally lived inside the casinos" in Gulfport, Mississippi, since 2014. The former wife testified that the former husband had received (or had wrongfully taken) approximately $490,000 since the entry of the divorce judgment but had paid her only $29,000. The former wife testified:

"[Counsel for the former wife]: Are you seeking-are you asking the court to enter an order establishing an amount of child support that your husband should have paid you thus far?
"[The former wife]: Yes.
"[Counsel for the former wife]: And are you asking the court to enter an order establishing the amount of money that your husband has not paid to you as ordered for child support?
"[The former wife]: Correct.
"[Counsel for the former wife]: Are you asking that the court compute interest at the maximum amount of law and add that to the amounts of money or the principal that your husband currently owes to you?
"THE COURT: You mean that somebody else compute that and give the number to me to enter an order, right?
"[Counsel for the former wife]: An officer of the court can certainly do that.
"THE COURT: ... Go ahead."

At the conclusion of the trial, the trial court stated, without objection or comment from the former husband's counsel:

"Okay. I'll grant the relief, but I don't know how much good it will do with regard to the jailing him with a cash bond. I mean, I understand it's for monies already due or already past due. I will do it, but I just-I don't know how much success you can hope to see."

On April 18, 2017, before the entry of a judgment, the former husband filed an unverified motion entitled "Motion to Set Aside Default Judgment." In his motion, the former husband asserted that he had believed that the trial was scheduled for April 11, rather than April 10, and that he wanted "the opportunity to be present, defend against the [former wife's] accusations and to present testimony in his defense."

On May 30, 2017, before the entry of a judgment, the trial court held a hearing on the former husband's motion, at which the former husband testified that he had not been aware of the trial date.

On May 30, 2017, after the hearing, the trial court entered an order denying the former husband's motion. That same day, the trial court entered the following judgment in the .02 action that was entitled "Proposed Order":

"The matter having come before the Court on April 1[0], 2017, [the former wife] having appeared with counsel, [the former husband] having failed to appear, and this matter having been set for final hearing on [the former husband's] Petition to Modify and on [the former wife's] Petition for [contempt], and following testimony of the [former wife] in open Court, the following is ordered:
"1. [The former husband's] Petition to Modify is denied;
"2. [The former wife's] Petition for [contempt] is granted;
"3. [The former husband] is ordered to be JAILED IMMEDIATELY, and held until a cash bond of $20,000.00 shall post;
"4. [The former husband] is ordered to pay [the former] wife's attorney's fees in the amount of $5,000.00, and said order shall convert to a judgment."

(Capitalization in original.)

There is no indication in the record that the trial court was presented with a calculation of the amounts owed by the former husband for child support. On June 29, 2017, the former husband filed a motion in the .02 action seeking a new trial or to alter, amend, or vacate the judgment or, alternatively, to set aside the default judgment. On July 24, 2017, after a hearing, the trial court entered an order in the .02 action denying the former husband's motion. On September 1, 2017, the former husband filed a notice of appeal to this court in the .02 action.

Discussion

On appeal, the former husband argues that he was not in default, that the trial court should not have entered a default judgment against him, that the trial court should have granted his motion to set aside the default judgment, and that the award of attorney's fees to the former wife was excessive.

At the outset, we must determine from what action the former husband has actually appealed and whether he has appealed from a final judgment. " 'Generally, an appeal will lie only from a final judgment, and if there is not a final judgment then this court is without jurisdiction to hear the appeal.' " Moore v. Strickland, 54 So.3d 906, 908 (Ala. Civ. App. 2010) (quoting Sexton v. Sexton, 42 So.3d 1280, 1282 (Ala. Civ. App. 2010) ). The record contains documents from only the .02 action, the former husband's docketing statement references only the .02 action, the former husband states on his notice of appeal that he appeals from the order denying his motion to set aside the default judgment, and his appellate brief references only the .02 action. An appellant's designation of a judgment or order on his notice of appeal does not limit the scope of appellate review, see Rule 3(a)(c), Ala. R. App. P., and this court may treat a notice of appeal that is filed in one consolidated case as being effective as to the other consolidated case when the intention to appeal the judgments in both cases is clear, see R.J.G. v. S.S.W., 42 So.3d 747, 751 n. 2 (Ala. Civ. App. 2009). Although the .02 action and the .03 action were consolidated, neither action was dismissed and "each action retains its separate identity so as to require the entry of separate judgments." Casey v. Casey, 109 So.3d 199, 204 (Ala. Civ. App. 2012).

It is apparent that there has not been an adjudication of the claims of the former wife against the former husband related to his unpaid child-support and alimony obligations. We asked the parties to submit letter briefs addressing whether the former husband has appealed from the judgment in the .03 action and, if so, whether the judgment is final. The former wife, without the assistance of counsel, filed a letter brief in which she asserted, among other things, that the former husband has appealed from a final judgment, but she did not provide any analysis to support that conclusion. In his letter brief, the former husband asserted that the .03 action was consolidated with the .02 action, and that no further pleadings or orders were entered in the .03 action. The former husband attached the case-action summary from the .03 action, which appears to contain an entry by the clerk on September 12, 2016, stating: "Disposed by (Other) on 09/09/2016." We note that the consolidation order was entered by the trial court on September 9, 2016, but the order did not direct the disposition of the .03 action, and there is no indication that the May 30, 2017, judgment was entered in the .03 action. Each consolidated " ' "action retains its separate identity and thus requires the entry of a separate judgment." League v. McDonald, 355 So.2d 695, 697 (Ala. 1978).' " R.J.G. v. S.S.W., 42 So.3d 747, 753 (Ala. Civ. App. 2009) (quoting H.J.T. v. State ex rel. M.S.M., 34 So.3d 1276, 1278 (Ala. Civ. App. 2009) )(emphasis omitted).

In Hanner v. Metro Bank & Protective Life Insurance Co., 952 So.2d 1056, 1061 (Ala. 2006), the supreme court held that "a trial court must certify a judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., before a judgment on fewer than all the claims in consolidated actions can be appealed." In this case, rather than dismissing the appeal, we remanded the cause to the trial court to determine whether to certify the judgment in the .02 action as final pursuant to Rule 54(b), Ala. R. Civ. P. On remand, the trial court chose not to certify the judgment in the .02 action as final, but it entered what purports to be a final judgment in the .03 action granting the former wife's contempt petition and ordering the former husband to pay the former wife's attorney's fees. That order, however, does not resolve all of the former wife's claims in her petition for contempt; specifically, the order does not address the former wife's claims seeking the determination of, and an order requiring the payment of, the former husband's alimony arrearage and child-support arrearage, plus interest, or her claim for contempt. Because the order in the .03 action does not address all of the former wife's claims, the order is not final and will not support an appeal. See Clay v. Clay, 255 So. 3d 238 (Ala. Civ. App. 2017) (holding that an order that failed to calculate a child-support arrearage and interest owed was nonfinal). See also McCarron v. McCarron, 213 So.3d 591, 593 (Ala. Civ. App. 2016) (holding that an order that failed to conclusively determine the husband's alimony arrearage was nonfinal); and Palughi v. Dow, 659 So.2d 112, 113 (Ala. 1995) ("An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties.").

We cannot waive the jurisdictional deficiency in this appeal. Therefore, because the order in the .03 action is not final, and because the .02 action and the .03 action were consolidated, we are required to dismiss the appeal as having been taken from a nonfinal judgment. See Hanner, 952 So.2d at 1061.

APPEAL DISMISSED.

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

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

      Although the parties had two minor children, one of those children was already attending college at the time the parties entered into their settlement agreement. As a result, the parties agreed that the former husband would not pay child support related to that child.

      A transcript of that hearing is not contained in the record.


author: PER CURIAM. THOMAS, Judge, concurring in part and dissenting in part.

text:
    Connie Joe GREEN v. Stephen Kerry GREEN
    2160986
    Court of Civil Appeals of Alabama.
    May 18, 2018
    Jim Pino of Jim Pino & Associates, PC., Pelham, for appellant.
    Submitted on appellant's brief only.
   PER CURIAM.

Connie Joe Green ("the mother") and Stephen Kerry Green ("the father") are the divorced parents of a son ("the child") who was born in September 2007. In the parties' 2009 divorce judgment, the Jefferson Circuit Court, Bessemer Division, incorporated an agreement of the parties and awarded the "care, custody, and control" of the child to the mother. It awarded the father visitation and ordered him to pay certain expenses "in lieu of paying child support." The agreement provided that the parties could not have overnight guests of the opposite sex during custodial periods.

The record contains an October 4, 2016, modification judgment that includes a determination that the father had accrued a $1,000 "child-support arrearage," which apparently resulted from the father's failure to pay certain expenses he had been ordered to pay in lieu of child support, and ordered the father to begin paying the mother $361 per month in child support. The modification judgment did not modify the child's custody and left "all other provisions of the divorce judgment in full force and effect," with the exception of one provision that is not relevant to this appeal.

On November 17, 2016, the father initiated another modification action. The father complained that the mother had notified him that, in violation of the terms of the divorce judgment, she and the child were moving in with a man. The father requested an award of "primary" physical custody of the child. The mother filed an answer in which she asserted, among other things, that she was not violating the terms of the divorce judgment because, she argued, she was in a common-law marriage relationship with the man. The father filed an amended complaint seeking an emergency hearing, in which he asserted that the mother and the child had moved into the man's house, that the mother had enrolled the child in a new school, and that the child did not have his own bedroom. The circuit court entered orders setting a hearing and ordering the mother to bring the child to the hearing.

The circuit court entered a modification judgment on May 12, 2017, finding the mother in contempt based upon its determination that she and the man were living together "under the pretense of a common-law marriage." Regardless, the circuit court concluded that the mother and the father would "continue to share joint custody" of the child and included a detailed custody and visitation schedule, which provides that the child will live with the mother during the school year, subject to the father's right to visitation on odd weekends each month, and that the child will live with the father 8 of 10 weeks during the summer. The circuit court also provided a relatively equal holiday-visitation schedule. The circuit court did not require either party to pay child support and set out in writing that it had intentionally deviated from the Rule 32, Ala. R. Jud. Admin., child-support guidelines because the mother and the father were to "jointly share custody and expenses." The judgment allows each parent to claim the child as a dependent on his or her income-tax return every other year.

The mother filed a timely postjudgment motion, which the circuit court denied. The mother filed a timely notice of appeal, seeking our review of whether the circuit court had erred by not ordering the father to pay child support, by allowing the father to claim the child as a dependent for income-tax purposes every other year, and by limiting the mother to a two-week custodial period in the summers. Notably, the mother expressly waives any issue on appeal regarding the award of joint custody of the child. The mother's appellate brief reads:

"The Order contains a factual error as it incorrectly implies that the parties shared joint custody of [the child] prior to the entry of the Order when, in fact, the Mother had sole custody of [the child]. Be that as it may, the Mother does not appeal the award of joint custody."

A court reporter was not present at the modification hearing, and, thus, there is no transcript of that hearing. Rule 10(d), Ala. R. App. P., states, in pertinent part: "If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." The mother prepared a statement of the evidence. Although the father did not file an objection or any proposed amendments to the mother's statement of the evidence, as permitted by Rule 10(d), the circuit court issued its own statement of the evidence, which is included in the record on appeal. See Rule 10(d) ("The statement, either as approved by the court or as issued by the court ..., shall be filed with the clerk of the trial court, who shall include it in the record on appeal."). The mother filed in this court a motion to strike the circuit court's statement of the evidence, which we denied.

The circuit court's statement of the evidence consists of five brief paragraphs. The first paragraph provides that the mother failed to demonstrate the existence of a common-law marriage, which is not an issue on appeal. The second paragraph reads:

"This Court agrees that neither Party timely submitted [child-support] forms; however, the [father] filed a CS-41 form on April 24, 2017, after trial, which the Court did not consider. This Court agrees [that the father] resides in his parents' home. Evidence was not presented to the Court with respect to payment of [the father's] bills."

The third paragraph provides that a certain witness's testimony was not relevant to the issue of child support. The fourth paragraph indicates that the child testified in camera. The final paragraph provides a short summary of evidence presented regarding a gun collection, which is not a subject of this appeal. Our review of the issues presented is limited by the brevity of the statement of evidence.

First, the mother argues that the circuit court abused its discretion by not ordering the father to pay child support. Matters related to child support, including modifications of a child-support order, rest soundly within the trial court's discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505, 507 (Ala. Civ. App. 1997).

" ' "Compliance with Rule 32(E)[, Ala. R. Jud. Admin., requiring the filing of certain child-support forms,] is mandatory, even though the trial court may find that the application of the [child-support] guidelines would be unjust or inequitable." ' " DeYoung v. DeYoung, 853 So.2d 967, 970 (Ala. Civ. App. 2002) (quoting M.S.H. v. C.A.H., 829 So.2d 164, 169 (Ala. Civ. App. 2002), quoting in turn Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000) ). "Rule 32(A)(1)(a), Ala. R. Jud. Admin., provides that a trial court may, in its discretion, deviate from the child-support guidelines under certain circumstances. Shared physical custody is a recognized basis for such a deviation." Shewbart v. Shewbart, 19 So.3d 223, 230-31 (Ala. Civ. App. 2009). Pursuant to Rule 32(A)(1)(a), a trial court has the discretion, in a case in which joint physical custody is awarded, to not award child support based on the particular circumstances of the case. See, e.g., Bonner v. Bonner, 170 So.3d 697, 701, 705 (Ala. Civ. App. 2015) (affirming a judgment that did not award child support when the parties were to exercise equal custodial periods with the child). However, even when a trial court states its reasons for deviating from the child-support guidelines, the decision to deviate is still subject to review to determine whether the deviation is justified by the particular circumstances of that case. See, e.g., State ex rel. O'Neal v. Jones, 646 So.2d 150, 151 (Ala. Civ. App. 1994) (reversing trial court's judgment deviating from the child-support guidelines due to the court's providing an insufficient reason for the deviation). We " 'cannot affirm a child-support order if [we have] to guess at what facts the trial court found in order to enter the support order it entered....' " Willis v. Willis, 45 So.3d 347, 349 (Ala. Civ. App. 2010) (quoting Mosley v. Mosley, 747 So.2d 894, 898 (Ala. Civ. App. 1999) ). In this case, pursuant to the May 12, 2017, modification judgment under review, the child lives with the mother for substantially longer periods than he lives with the father. Although a deviation from the child-support guidelines would be permissible in this case, by going so far as to not award child support in light of the particular joint-physical-custody schedule in this case, we agree with the mother that the circuit court abused its discretion. Accordingly, we reverse the circuit court's judgment insofar as it fails to require the father to pay child support. On remand the parties and the circuit court shall prepare the appropriate child-support forms in accordance with Rule 32(E), and the circuit court is instructed to comply with Rule 32 in making its child-support determination.

Second, we consider whether the circuit court abused its discretion by allowing the father to claim the child as a dependent on his income taxes every other year. "The allocation of the income tax dependency exemption rests in the sound discretion of the trial court, so long as the court states the reason for any deviation from the 'guidelines.' " K.T.W.P. v. D.R.W., 721 So.2d 699, 704 (Ala. Civ. App. 1998) (citing Flanagan v. Flanagan, 656 So.2d 1228, 1232 (Ala. Civ. App. 1995) ). "Although it is assumed that the custodial parent will receive the income-tax [exemption], the trial court can deviate from the Rule 32 guidelines and award the tax exemption to the noncustodial parent if the trial court states the reasons for deviation, in accordance with Rule 32(A)(ii), Ala. R. Jud. Admin." DeYoung v. DeYoung, 853 So.2d at 971. The award of the income-tax exemption is an issue that is related to child support; therefore, that award is also reversed, and the circuit court should, on remand, redetermine who is entitled to claim that exemption, as a part of its child-support determination made in compliance with Rule 32. See Arnold v. Arnold, 977 So.2d 501, 507-08 (Ala. Civ. App. 2007).

Finally, we cannot say that the circuit court abused its discretion by allowing the mother to have custody of the child for only 2 of 10 weeks in the summer in light of the fact that the circuit court interviewed the child in camera and considered the 10-year-old child's preferences. "[T]he preference of a child whose custody is at issue 'is an important factor for the trial court to consider in a custody modification case,' although that preference is not controlling." Dean v. Dean, 998 So.2d 1060, 1065 (Ala. Civ. App. 2008) (quoting S.R. v. S.R., 716 So.2d 733, 735-36 (Ala. Civ. App. 1998) ). The mother has not demonstrated that the judgment should be reversed regarding the issue of the parties' summer custodial periods.

We affirm the judgment as to the award of summer custodial periods, but we reverse the judgment as to child support and the income-tax exemption and remand the cause for the circuit court to enter a judgment in compliance with Rule 32.

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

Pittman and Moore, JJ., concur.

Thompson, P.J., concurs in part and concurs in the result in part, with writing.

Thomas, J., concurs in part and dissents in part, with writing, which Donaldson, J., joins.

THOMPSON, Presiding Judge, concurring in part and concurring in the result in part.

The trial court's characterization of the custody award as one of "joint custody" does not preclude an award of child support, and I conclude that, under the facts of this case, the trial court erred in failing to require Stephen Kerry Green ("the father") to contribute to the support of the parties' child.

" 'Actions concerning child support, although guided by the mandatory application of Rule 32, Ala. R. Jud. Admin., are still committed to the sound discretion of the trial court, and its decision on such matters will not be disturbed on appeal absent a finding that the trial court's award is a palpable abuse of its discretion. Peck v. Peck, 581 So.2d 1119 (Ala. Civ. App. 1991) ; Belser v. Belser, 558 So.2d 960 (Ala. Civ. App. 1990). The amount of support which would result from the application of the guidelines is presumed to be the correct amount of child support. Rule 32(A), Ala. R. Jud. Admin. This presumption may be rebutted if the trial court makes a finding of fact that, based upon the evidence presented, the application of the guidelines would be manifestly unjust or inequitable. Rule 32(A)(ii), Ala. R. Jud. Admin.; Peck, supra. ' "

Bonner v. Bonner, 170 So.3d 697, 705 (Ala. Civ. App. 2015) (quoting Hutchins v. Hutchins, 637 So.2d 1371, 1373-74 (Ala. Civ. App. 1994) ).

In this case, under the judgment we have been asked to review, Connie Joe Green ("the mother") has custody of the child from early August each year until the end of May, i.e., during the school year. The father has visitation on odd weekends during those 10 months, amounting to approximately 44 days, assuming 2 months occur that have 5 weekends. The father also has visitation with the child for 56 days during the summer. The parties alternate holidays each year, so the division of that time is equal. Disregarding the equal award of holiday visitation to each party, the father has visitation with the child a little more than one-quarter of the time. Thus, although the trial court has ordered a purported "joint custody" award, the mother has the child in her home significantly more often than the father, which necessitates her spending more money than the father to support the child.

In Motley v. Motley, 69 So.3d 210 (Ala. Civ. App. 2011), this court held that a custody award that is substantially similar to the one in this case was not an award of joint custody, as the trial court in that case had found, but was instead an award of sole physical custody to the mother. After reaching that determination, this court held that the trial court in that case had erred in ordering the mother to pay child support to the father, the noncustodial parent. 69 So.3d at 218.

The award of custody in this case is similar to the award in Motley v. Motley, supra. I conclude that the custody award in this case is not in the nature of an award of joint physical custody. Rather, the mother has sole physical custody of the child, and the father, as the noncustodial parent, has rights of visitation. Motley v. Motley, 69 So.3d at 218.

A noncustodial parent, such as the father in this case, has a duty to contribute to the support of his child. Davenport v. Hood, 814 So.2d 268, 274 (Ala. Civ. App. 2000) ("[A] parent has a duty to support his or her minor child."). Unless there is a reason as to why requiring the father to contribute to the child's support is unjust or inequitable, there is no reason to deviate from the amount of child support established by a calculation made pursuant to the Rule 32, Ala. R. Jud. Admin., child-support guidelines. Hannah v. Hannah, 582 So.2d 1125, 1126 (Ala. Civ. App. 1991)

("When applied, the guidelines are presumed to render the correct amount of child support.").

In this case, neither party timely filed the required Rule 32, Ala. R. Jud. Admin., child-support forms. See Rule 32(E). The trial court's judgment does not incorporate any such forms and makes no reference to a calculation of child support made pursuant to the Rule 32 child-support guidelines. Rule 32 requires that a "child-support obligation shall be determined by using the schedule of basic child-support obligations," Rule 32(C)(1), and that the child-support forms "shall be of record and shall be deemed to be incorporated by reference in the court's child-support order." Rule 32(E). A trial court may deviate from the child-support guidelines upon a finding that the amount resulting from a calculation made pursuant to those guidelines is unjust or inequitable. Rule 32(A)(ii). However, the trial court is still required to comply with Rule 32(E). " ' "Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable." ' " DeYoung v. DeYoung, 853 So.2d 967, 970 (Ala. Civ. App. 2002) (quoting M.S.H. v. C.A.H., 829 So.2d 164, 169 (Ala. Civ. App. 2002), quoting in turn Thomas v. Norman, 766 So.2d 857, 859 (Ala. Civ. App. 2000) ). There is no indication of the appropriate amount of child support to be awarded in this case under the Rule 32 child-support guidelines, and the only reason identified by the trial court for its deviation from the child-support guidelines was the purported joint-custody award. I conclude that the trial court's failure to incorporate into its judgment the forms required by Rule 32(E) was reversible error. Robinson v. Robinson, 795 So.2d 729, 734 (Ala. Civ. App. 2001) (" 'A trial court's failure to follow the guidelines or to make written a finding that application of the guidelines would be unjust, is reversible error.' " (quoting State ex rel. Waites v. Isbell, 718 So.2d 85, 86 (Ala. Civ. App. 1998) ) ).

Further, even assuming that the trial court's statement that the parties shall "jointly share custody and expenses" for the child is an implicit finding that the application of the child-support guidelines is unjust, see Knight v. Norris, 607 So.2d 274, 276 (Ala. Civ. App. 1992), I cannot agree that the custody award set forth in the judgment is sufficient to warrant a deviation from the child-support guidelines under Rule 32. As already stated, I conclude that that custody arrangement is actually one awarding the mother sole physical custody. Rule 32 contemplates a deviation when, among other things, there is "[s]hared physical custody or visitation rights providing for periods of physical custody or care of children by the obligor parent substantially in excess of those customarily approved or ordered by the court." Rule 32(A)(1)(a). In this case, the father was awarded a fairly standard schedule of alternating weekend and holiday visitation, and he was awarded summer visitation of only two to four weeks in excess of that generally awarded by trial courts in a standard visitation award. The judgment at issue does not provide the father visitation that is "substantially in excess" of visitation periods contemplated by the child-support guidelines. See Comment to Rule 32 (as amended to conform to amendments to Rule 32 effective October 4, 1993) ("The Schedule of Basic Child Support Obligations is premised on the assumption that the noncustodial parent will exercise customary visitation rights, including summer visitation. Any abatement of child support because of extraordinary visitation should be based on visitation in excess of customary visitation."); see also Comment to Amendments to Rule 32 Effective January 1, 2009 (same). Accordingly, I conclude that the trial court erred in failing to determine a child-support obligation for the father, and, for that reason, I concur in the result insofar as the main opinion reverses the trial court's judgment as to the issue of child support.

Similarly, because the issue of the income-tax exemption is a part of the overall child-support determination, I also concur in the result insofar as the main opinion reverses that part of the judgment. I concur in that part of the main opinion that affirms the award of summer custodial periods.

THOMAS, Judge, concurring in part and dissenting in part.

I respectfully dissent from the main opinion's decision to reverse of the judgment of the Jefferson Circuit Court, Bessemer Division, insofar as it addressed the issue of child support and to remand the cause for the circuit court to enter a judgment in compliance with Rule 32(E), Ala. R. Jud. Admin. In all other respects, I concur with the main opinion.

Connie Joe Green ("the mother") filed a postjudgment motion that, regarding child support, reads: "The court erred by ordering no child support on the part of the [father] since child support was never addressed in court at the time of trial." Thus, the mother admitted that neither party had requested an award of child support at the modification hearing. " '[T]he appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling.' " Greener v. Killough, 1 So.3d 93, 100 (Ala. Civ. App. 2008) (quoting Ex parte Wiginton, 743 So.2d 1071, 1073 (Ala. 1999) ).

However, like the main opinion, I have considered the issue, because the Rule 10(d), Ala. R. App. P., statement reveals the circuit court's awareness that it did not file or "incorporate[ ] by reference in its child-support order, a CS-42 child-support form, as required by Rule 32(E). We have reversed judgments for the failure to complete CS-42 forms, but we have done so only when we could not discern the basis for the child-support award from the record. See Batain v. Batain, 912 So.2d 283, 284-85 (Ala. Civ. App. 2005) (citing similar cases). In this case, I do not need to discern the basis for the circuit court's child-support judgment; a valid reason is set out in writing. The circuit court intentionally deviated from the Rule 32 child-support guidelines based upon a determination that the mother and Stephen Kerry Green ("the father") "jointly share custody and expenses." " 'When oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), [Ala.] R. [App.] P., statement, it must be conclusively presumed that the testimony is sufficient to support the judgment.' " Quick v. Burton, 960 So.2d 678, 680 (Ala. Civ. App. 2006) (quoting Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala. Civ. App. 1991) ). I am unconvinced that the fact that child lives with the mother for substantially more time than he lives with the father mandates a conclusion that the mother provides more support for the child than does the father, and I cannot disregard the language in the judgment, which informs me that the circuit court concluded that the mother and the father "jointly share" the child's expenses. It is well established that when

"the trial court had the benefit of seeing and hearing the witnesses in an oral hearing and there is legal evidence to support its decree, the reviewing court will not substitute its judgment for that of the trier of the facts, even though the reviewing court might have reached a different conclusion.
Porter v. Porter, 46 Ala. App. 22, 237 So.2d 507 [ (Ala. Civ. App. 1970) ] ; Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598 [ (1970) ] ; Kyser v. Doan, 271 Ala. 229, 122 So.2d 764 [ (1960) ]."

Harrell v. Long, 49 Ala. App. 322, 324, 272 So.2d 248, 250 (Ala. Civ. App. 1973). I would affirm the judgment in all respects because I conclude that the mother has not demonstrated plain and palpable error regarding the issue of child support. Berryhill v. Reeves, 705 So.2d 505, 507 (Ala. Civ. App. 1997).

Donaldson, J., concurs.

      Nothing in the record supports a conclusion that the mother and the father had shared joint custody of the child in the past.

      "Joint physical custody does not necessarily mean physical custody of equal durations of time." § 30-3-151(3), Ala. Code 1975.

      We did not review the mother's Rule 10(d) statement, which she included in her appellate brief. This court is limited to a review of the record alone, and "[t]he record cannot be changed, altered or varied on appeal by statements in briefs of counsel, nor by affidavits or other evidence not appearing in the record." Cooper v. Adams, 295 Ala. 58, 61, 322 So.2d 706, 708 (1975).

      The mother does not appeal the trial court's characterization of the custody award as one of "joint custody," and, therefore, that issue is not before this court.


author: BURKE, Judge.

text:
    Justin Shawn MILLER v. STATE of Alabama
    CR-16-0322
    Court of Criminal Appeals of Alabama.
    October 13, 2017
    Frank Wilson Myers, Sr., Vestavia, for appellant.
    Steve Marshall, atty. gen., and Michael A. Nunnelley, asst. atty. gen., for appellee.
   BURKE, Judge.

Justin Shawn Miller appeals his convictions for first-degree robbery, a violation of § 13A-8-41, Ala. Code 1975, and conspiracy to commit first-degree robbery, a violation of § 13A-4-3(a), Ala. Code 1975, and his resulting sentences of 20 years' imprisonment and 10 years' imprisonment, respectively. Miller was also ordered to pay a $100 fine, a $100 Alabama Crime Victims' Compensation Assessment, an undefined restitution amount, and court costs in each case.

On December 19, 2014, the Baldwin County grand jury indicted Miller on one count of first-degree robbery and one count of conspiracy to commit first-degree robbery of the Courtyard Marriott Hotel in Gulf Shores. Trial proceedings began on October 18, 2016, before Judge Braxton Kittrell, Jr. The following evidence was presented at trial:

Emily Hunter Lee, Miller's former coworker at the Marriott, testified that she had been in contact with Miller approximately six weeks before the robbery of the Marriott. At that time, Lee and Miller discussed how easy it would be to steal liquor from a hotel liquor closet because they had the employee code and there were no security cameras near that area. Lee testified that she did not think it was a serious conversation and that she was "completely joking" about stealing the liquor. (Supp. R. 12.)

Lynn Stiebe, a general manager at the Marriott at the time of the incident, testified that she had previously hired Miller to work the front desk at the Marriott. On one occasion, Miller brought his gun to the hotel in his backpack and showed it to several employees. Stiebe later terminated Miller's employment because he failed to show up for several consecutive shifts.

Deborah Morris, an employee at the Marriott, testified that in the early morning hours of July 22, 2014, she was working the desk at the Marriott when a man appeared suddenly. Morris claimed that the man came from the left, which was a secured area where an "employee-entrance door" is located. (Supp. R. 35.) The employee entrance door required a code to gain access to the building. The man had a gun and demanded that Morris give him the money she had in her drawer. Morris gave the man all the money in the drawer, which totaled $556.55. The man then left the Marriott through the front door.

Joshua Thomas testified that he had been staying at Miller's apartment around the time of the incident. On the night of July 21, 2014, Thomas left work between 10 and 11 p.m. As Thomas was walking back to Miller's apartment, Miller, who was driving in his Jeep sport-utility vehicle, picked Thomas up. Thomas asked Miller if Miller knew of any way for Thomas to make some money, because he was homeless. Miller told Thomas that he could take Miller's pistol and go to the Marriott and steal $600. According to Thomas, Miller told Thomas the security code to the door and explained how easy it would be to get the money from the woman who was working the desk. Miller and Thomas returned to Miller's house. Thomas got dressed in black clothing and a black hat, and put a torn up shirt over his face. Thomas stated that Miller removed the bullets from the gun and gave the gun to Thomas. Miller drove Thomas to the Marriott and showed Thomas where he would be waiting on him after the robbery. Thomas identified a video recording in which one could see Thomas and Miller sitting in Miller's white Jeep. Thomas testified that the video was taken when Miller was showing Thomas the layout of the Marriott. Miller also showed Thomas the door that Thomas would enter using the code that Miller had given Thomas, and the location of security cameras.

Thomas testified that he went in the door, took the money from an employee, and left through the front door of the lobby. Thomas stated that he then got in Miller's Jeep. Thomas claimed that he got approximately $570 from the Marriott clerk, and that he kept approximately $300. Miller also kept some of the money. Miller and Thomas returned to Miller's apartment and went to sleep. The following day, Thomas saw his face on the news and went to the Gulf Shores Police Department to turn himself in. Thoms testified that he eventually told the truth to the detectives about Miller's involvement. Thomas later pleaded guilty and was given youthful-offender status. As part of his plea agreement, he agreed to testify at Miller's trial.

Detective Brad Conway with the Gulf Shores Police Department testified that he responded to a call regarding the robbery. After talking to Morris and Stiebe, Detective Miller asked whether anyone had recently quit or been fired, because it appeared that the suspect may have had some knowledge about the Marriott based on the route the suspect took and his avoidance of security cameras. Stiebe told Detective Conway that Miller had recently been let go and, after further investigation, Miller was arrested.

Miller and his father testified on Miller's behalf. Miller claimed that he had not been involved in the robbery, and that he had actually turned Thomas in to the authorities when he saw him in the video of the robbery.

During trial, the court charged the jury on the crime of first-degree robbery. The court continued to charge the jury as follows:

"The law also provides that a person is legally accountable for the behavior of another constituting a crime if, with the intent to promote or assist the commission of the crime, he either procures, induces or causes such other person to commit the crime or aids or abets such other person in committing a crime.
"Aiding and abetting comprehends all words of assistance, encouragement, presence of constructive support ... to render assistance should it become necessary.
"A person to be guilty of aiding and abetting, you must find that there was by prearrangement or on the spur of the moment the criminal events contemplated and that the person who is guilty as an aider and abettor must be present with the intent to assist should it become necessary. Does not actually assist but be there in case it becomes necessary."

(Supp. R. 213-14.) The court also charged the jury on conspiracy to commit first-degree robbery. The court instructed the jury that the defendant could be guilty of both first-degree robbery and conspiracy to commit first-degree robbery, neither of the crimes, or just one of the crimes. At the conclusion of the court's jury instructions, the court asked both parties whether the court had "overlooked anything," and both parties indicated that they were satisfied. (Supp. R. 217.) The jury then retired for deliberations. Miller asked the judge for an exception to the judge's refusal to give his requested instruction on the "uncorroborated testimony of the co-defendant." (Supp. R. 219). The judge then called the jury back to the courtroom and further instructed the jury that the defendant could not be convicted solely on the testimony of an accomplice without the presence of corroborating evidence.

After some deliberation, a spokesperson for the jury asked the judge for a "deeper explanation of the difference between the two charges, the conspiracy and then the [first-degree robbery] charge." (Supp. R. 221.) The judge reread the law on both charges, as well as aiding and abetting as it relates to the first-degree-robbery charge. The judge also confirmed to the jurors that they could find that the defendant was guilty of both or neither of the charges, or that he was guilty of one charge but not the other charge. The jury retired to deliberate again. Later, the jury returned with another question, seeking an explanation of the difference between conspiracy and aiding and abetting. After a lengthy discussion and an attempt by the judge to articulate the charges, defense counsel stated: "Judge, I think we've almost gone too far where its almost a mistrial. They're almost getting a judicial directive in the examples that are so similar to the facts at hand." (Supp. R. 237.) After more discussion, the jurors were released for the night and were told to return to continue deliberations the following day. Later that night, defense counsel filed a motion for a mistrial, arguing that under § 13A-1-8(b)(2), Ala. Code 1975, the defendant could be convicted only of either first-degree robbery or conspiracy to commit first-degree robbery, but not both.

The next day, jurors returned to continue deliberations. The record of the proceedings resumed with a substitute judge, Judge Scott Taylor, presiding over the trial because Judge Kittrell was unavailable. After hearing arguments from both parties relating to Miller's motion for a mistrial, the court noted that the motion for mistrial was untimely and found that the instructions given by Judge Kittrell were proper. The jury ultimately reached a verdict of guilty on both charges.

On appeal, Miller argues: 1) that the trial court erred by charging the jury on both conspiracy to commit first-degree robbery and on aiding and abetting a first-degree robbery; 2) that the trial court committed reversible error by incorrectly instructing the jury that it could return a verdict of guilty on both counts; and 3) that the trial court erred by failing to grant a mistrial when the jury was confused by the incorrect jury instructions.

The Alabama Supreme Court has long held:

" 'Review on appeal is restricted to questions and issues properly and timely raised at trial.' Newsome v. State, 570 So.2d 703, 717 (Ala. Crim. App. 1989). 'An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.' Pate v. State, 601 So.2d 210, 213 (Ala. Crim. App. 1992).
" '[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof.' McKinney v. State, 654 So.2d 95, 99 (Ala. Crim. App. 1995) (citation omitted). 'The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.' Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987). 'The purpose of requiring a specific objection to preserve an issue for appellate review is to put the trial judge on notice of the alleged error, giving an opportunity to correct it before the case is submitted to the jury.' Ex parte Works, 640 So.2d 1056, 1058 (Ala. 1994)."

Ex parte Coulliette, 857 So.2d 793, 794-95 (Ala. 2003). The defendant must object to the failure to issue a requested jury instruction before the jury retires to deliberate in order to preserve that argument for appellate review. See Davis v. State, 747 So.2d 921, 924 (Ala. Crim. App. 1999) (holding that, to preserve an issue concerning jury instructions for appellate review, the defendant is required to object specifically to the contested charge).

In the present case, Miller did not object to the court charging the jury on both counts as charged in the indictment or the court's charge that the jury could find Miller guilty of both counts before the jury retired for deliberations. The only exception that Miller requested regarding the jury charges was sought in relation to the court's failure to give his requested instruction on the uncorroborated testimony of Thomas, the codefendant, and this objection was made after the jury initially retired for deliberations. After the jury returned to ask questions, Miller again indicated that he was satisfied by the court's instruction. It was not until the jury returned again later, mid-deliberations, that Miller objected to the court's instructions and, even then, Miller's objection was based on the ground that the court's responses to the jury questions had gone too far beyond stating the law and had become more of a "judicial directive" based on the examples the court gave to the jury. (Supp. R. 237.) Miller finally objected on the ground that the jury could not return a guilty verdict for both the first-degree-robbery charge and the conspiracy charge; however, he did not file the objection until a recess was taken for the night. Therefore, Miller's claims that the court erred in giving the jury instructions on both charges and that the court erred in instructing the jury that it could find Miller guilty of both charges were not properly preserved for appellate review.

Likewise, Miller's claim that the circuit court erred in failing to grant a mistrial was also untimely. Wilson v. State, 651 So.2d 1119, 1122 (Ala. Crim. App. 1994) ("To be timely, a motion for a mistrial must be made 'immediately after the question or questions are asked that are the grounds made the basis of the motion for the mistrial.' " (quoting Ex parte Marek, 556 So.2d 375, 379 (Ala. 1989) )). Miller indicated several times that he was satisfied with the jury instructions, and he did not raise the claim that he was entitled to a mistrial until after the jury had retired to deliberate. Therefore, his motion for a mistrial was untimely and was not properly preserved for appellate review.

However, Miller argued in his written motion for a mistrial that he could not be convicted of both first-degree robbery and conspiracy to commit first-degree robbery under § 13A-1-8(b), Ala. Code 1975. We agree.

Section 13A-8-41, Ala. Code 1975, provides, in pertinent part, that "[a] person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he ... is armed with a deadly weapon or dangerous instrument." Section 13A-8-43(a)(2), Ala. Code 1975, states:

"(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
"....
"(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property."

Currently, there is no distinction between principals and accessories under Alabama law. See, e.g., Faircloth v. State, 471 So.2d 485, 489 (Ala. Crim. App. 1984), aff'd, 471 So.2d 493 (Ala. 1985) ("Alabama Code § 13A-2-23 (1975) continues the long recognized abolition of the distinction between principals and accessories in Alabama."). Section 13A-2-23, Ala. Code 1975, provides:

"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"(1) He procures, induces or causes such other person to commit the offense; or
"(2) He aids or abets such other person in committing the offense; or
"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make."

With regard to the concept of complicity, this Court has stated:

" 'The mere fact that a person witnesses a crime does not make him an accomplice.' Nelson v. State, 405 So.2d 392, 397 (Ala. Cr. App. 1980), reversed on other grounds, 405 So.2d 401 (Ala. 1981). 'The mere presence of a person at the time and place of a crime is not sufficient to justify his conviction for the commission of the crime.' Dolvin v. State, 391 So.2d 129, 133 (Ala. Cr. App. 1979), reversed, 391 So.2d 133 (Ala. 1980). However, 'if presence at the time and place a crime is committed, in conjunction with other facts and circumstances, tends to connect the accused with the commission of the crime, then the jury may find the accused guilty.' Dolvin, 391 So.2d at 137. '[P]resence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred.' 22 C.J.S. Criminal Law § 88(2)(d) (1961). Gibson v. State, 49 Ala.App. 18, 20, 268 So.2d 49 (1972).
" 'A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: ... He aids or abets such other person to commit the offense.' Alabama Code 1975, § 13A-2-23(2). 'Any word or act contributing to the commission of a felony, intended and calculated to incite or encourage its accomplishment, whether or not the one so contributing is present, brings the accused within the statute that makes any person concerned in the commission of a felony, directly or indirectly, a principal. No particular acts are necessary to make one an aider and abettor.'
Scott v. State, 374 So.2d 316, 318-19 (Ala. 1979) (citations omitted). However, 'mere consent to a crime, when no aid is given and no encouragement rendered, does not amount to participation.' State v. Tally, 102 Ala. 25, 68, 15 So. 722, 738 (1894).
" '[T]o be an aider or abettor when no assistance is given or word uttered, the person so charged must have been present by preconcert, special or general, or at least to the knowledge of the principal, with the intent to aid him. This view is very clearly stated by Mr. Wharton. He says: "It is not necessary, therefore, to prove that the party actually aided in the commission of the offense. If he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able readily to come to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law he was aiding and abetting." 1 Whart. Cr. Law, § 210. And the same idea is thus expressed by Mr. Stephens in his Summary of Criminal Law: "The aiding and abetting must involve some participation. Mere presence without participation will not suffice if no act whatever is done in concert, and no confidence intentionally imparted by such presence to the perpetrators." See Connaughty v. State, 1 Wis. 159 [ (1853) ]. And Mr. Bishop says: "A principal in the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act." Bish. Cr. Law, 648. And Mr. Wharton further says: "Something must be shown in the conduct of the bystander which indicates [to the perpetrator, manifestly a design to encourage, incite, or in some manner afford aid or consent to the particular act, though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone will be regarded as an encouragement.... The confederacy must be real.... Mere consent to a crime, when no aid is given and no encouragement rendered, does not amount to participation." 1 Whart. Cr. Law, §§ 211a, 211c, 211d.' Tally, 102 Ala. at 68, 15 So. 722."

Payne v. State, 487 So.2d 256, 261-62 (Ala. Crim. App. 1986).

Section 13A-4-3(a), Ala. Code 1975, provides that "[a] person is guilty of criminal conspiracy if, with the intent that conduct constituting an offense be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one or more of such persons does an overt act to effect an objective of the agreement."

With regard to double jeopardy, this Court has explained:

"The Supreme Court of the United States has held that the Double Jeopardy Clause of the Fifth Amendment contains three protections: 'It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.' North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (footnotes omitted), overruled on other grounds, Alabama v. Smith, 490 U.S. 794 (1989). See Schiro v. Farley, 510 U.S. 222, 229 (1994) (reaffirming the three protections of the Double Jeopardy Clause). 'These Protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense.' Schiro, 510 U.S. at 229 (citing United States v. Wilson, 420 U.S. 332, 339 (1975). The Alabama Supreme Court has held that the Double Jeopardy Clause of Art. I § 9, of the Alabama Constitution of 1901, applies to protect only those three areas enumerated in Pearce. See Ex parte Wright, 477 So.2d 492, 493 (Ala. 1985) ; Adams v. State, 955 So.2d 1037, 1098 (Ala. Crim. App. 2003), reversed on other grounds, Ex parte Adams, 955 So.2d 1106 (Ala. 2005) (holding that Adams, who was 17 years old at the time of the offense, is not eligible for a sentence of death).
"In Blockburger v. United States, the Supreme Court of the United States enumerated the 'same elements' test for determining whether two charges constitute the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment. 284 U.S. 299, 304 (1932). Under the Blockburger test, 'where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.' Id. (emphasis added)."

Gholston v. State, 57 So.3d 178, 184 (Ala. Crim. App. 2010).

Under the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), Miller's convictions for first-degree robbery and conspiracy to commit first-degree robbery would not violate double-jeopardy principles because the elements of each offense are separate and distinct. Each requires proof of a factual element that the other does not. However, in Davis v. State, 262 So.3d 1275 (Ala. Crim. App. 2017), this Court recently held that, although two offenses may be considered as separate offenses under the Blockburger test, where the legislative intent indicates that a defendant should not be convicted and punished separately for the two offenses, the offenses should be treated as the same for double-jeopardy purposes. In Davis, the defendant was convicted of intentional murder and felony murder based on the underlying felony of first-degree robbery. See id. This Court stated in Davis:

"When multiple offenses are prosecuted in one trial, the Double Jeopardy Clause 'prevent[s] the sentencing court from prescribing greater punishment than the legislature intended.' Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). A defendant suffers multiple punishments in violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature intended. Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). In Missouri v. Hunter, the Court noted that '[t]he opinion in Blockburger[ v. United States, 284 U.S. 299 (1932) ] stated: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304.' 459 U.S. at 366. However, the Court further stated ' "[t]he Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz v. United States, supra, 450 U.S. [333] at 340 [ (1981) ] (emphasis added).' Id.
"Both crimes of which Davis was convicted constitute murder under the same statute. In this case, there was one murder of one victim under one set of circumstances. The statute commences, 'A person commits the crime of murder if he or she does any of the following'; thus indicating that the Legislature's intent was to set out alternative methods of committing murder. Moreover, the murder statute provides a single sentencing provision that applies to § 13A-6-2(a)(1) and (a)(3).
" 'The inquiry is whether the Legislature intended to permit multiple punishments. The Blockburger test is a useful tool for ascertaining legislative intent, but it is not the only tool. Other (nonexclusive) considerations relevant to determining whether the Legislature intended multiple punishments are: whether the offenses provisions are contained within the same statutory section, whether the offenses are phrased in the alternative, whether the offenses are named similarly, whether the offenses have common punishment ranges, whether the offenses have a common focus (i.e. whether the "gravamen" of the offense is the same) and whether that common focus tends to indicate a single instance of conduct, whether the elements that differ between the offenses can be considered the "same" under an imputed theory of liability which would result in the offenses being considered the same under Blockburger (i.e. a liberalized Blockburger standard utilizing imputed elements), and whether there is legislative history containing an articulation of an intent to treat the offenses as the same or different for double jeopardy purposes.'
" Ervin v. State, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999).
"Felony murder and intentional murder may be considered as separate offenses under the Blockburger test because felony murder requires proof of a felony, which intentional murder does not, and intentional murder requires proof of intent, which felony murder does not. However, it is clear that the Legislature intended that both constitute murder, a single offense carrying a single sentence."

262 So.3d at 1285-86.

In the present case, the legislative intent concerning whether a defendant could be convicted of first-degree robbery and conspiracy to commit first-degree robbery based on the same conduct is clear. Section 13A-1-8(b)(2), Ala. Code 1975, states the following:

"(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
"....
"(2) One offense consists of only a conspiracy or other form of preparation to commit the other."

Miller's conviction for first-degree robbery was obtained based on the theory that he aided and abetted his co-conspirator, Thomas, in the commission of the offense. Specifically, the State presented evidence indicating that Miller was the one who suggested to Thomas that Thomas take Miller's pistol and rob the Marriott. Miller helped Thomas get dressed for the robbery, gave Thomas the pistol, and drove him to the scene of the incident. Before Thomas robbed the Marriott, Miller took Thomas and showed Thomas the layout of the Marriott, the entrance and route to use during the robbery, and where Miller would be waiting in the getaway car when Thomas was done. Miller told Thomas the security code to use to enter the Marriott through the employee-only entrance, which Miller obtained through his past employment with the Marriott. After Thomas completed the robbery as planned, Miller drove Thomas home. Based on the particular facts of this case, the same conduct used to prove that Miller aided and abetted Thomas in committing first-degree robbery was used to prove that Miller conspired with Thomas to commit first-degree robbery. Therefore, because one of Miller's convictions consisted of only a conspiracy to commit the other, i.e., first-degree robbery, which the Legislature clearly intended to prohibit in § 13A-1-8(b)(2), Ala. Code 1975, Miller's convictions for both first-degree robbery and the conspiracy to commit first-degree robbery are improper.

Consequently, because the conduct supporting Miller's conspiracy conviction is encompassed in Miller's first-degree-robbery conviction, this case is remanded to the circuit court to vacate Miller's conviction for conspiracy to commit first-degree robbery and its sentence of 10 years' imprisonment. Miller's conviction for first-degree robbery and the resulting sentence of 20 years' imprisonment is due to be affirmed. Due return shall be made to this Court within 42 days of the issuance of this opinion.

AFFIRMED IN PART; AND REMANDED WITH DIRECTIONS.

Windom, P.J., and Welch, Kellum, and Joiner, JJ., concur.

      Note from the reporter of decisions: On February 9, 2018, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On March 2, 2018, that court denied rehearing, without opinion. On May 11, 2018, the Supreme Court denied certiorari review, without opinion (1170548).


text:
    Steve HERRING, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0840
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Merienne BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1234
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


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    Frank JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2565
    District Court of Appeal of Florida, First District.
    January 22, 2019 Rehearing Denied March 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


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    Victor HICKS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Julie L. Jones, Respondent.
    No. 1D18-4343
    District Court of Appeal of Florida, First District.
    November 9, 2018 Rehearing Denied March 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
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text:
    Richard G. SUMMERALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-5281
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Kyra J. BAKER, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D18-1202
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tyrone Marquis TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2480
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Tony Gerald ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5276
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
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    Scott BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1831
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
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text:
    Samuel SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3356
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Wilson HOLMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2614
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    William Joshua GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-965
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Deshawn GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2574
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Terry L. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-3231
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Eugene BRITT, Appellant, v. Mark S. INCH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D17-5393
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Christopher Michael ARGUELLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1422
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    S.D., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2203
    District Court of Appeal of Florida, First District.
    March 7, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robert MCKINNON, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-1302
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jacob Ryan AMBROZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2027
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Randy A. CHESSER, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-2987
    District Court of Appeal of Florida, First District.
    February 25, 2019
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Eva Lana SILVER and Max Lana, Appellant/Petitioner(s), v. Nicolle ASSIMAKOPOULOS-PANUTHOS, et al, Appellee/Respondent(s).
    CASE NO.: 2D19-0521
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Joseph CANNISTRA, Appellant/Petitioner(s), v. Kevin RODRIGUEZ, Appellee/Respondent(s).
    CASE NO.: 2D19-0531
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Curtis Shorts CRUMBLEY, Appellant/Petitioner(s), v. Rodney Deon CRUMBLEY, Appellee/Respondent(s).
    CASE NO.:2D18-1516
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Douglas Marshall JACKSON a/k/a Ben Yahweh Abiyah-Mosheh and Andrew Rolle a/k/a Ben Yahweh Solomon, Appellant/Petitioner(s), v. DESOTO CORRECTIONAL INSTITUTION, Appellee/Respondent(s).
    CASE NO.: 2D18-3740
    District Court of Appeal of Florida, Second District.
    March 6, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Mark GORMAN, Appellant/Petitioner(s), v. Irina TULIANO, Appellee/Respondent(s).
    CASE NO.: 2D18-3416
    District Court of Appeal of Florida, Second District.
    March 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Certiorari is dismissed.


text:
    Karen L. REED, as Trustee, Appellant/Petitioner(s), v. Les DUNBAR, Appellee/Respondent(s).
    CASE NO.: 2D19-0416
    District Court of Appeal of Florida, Second District.
    March 22, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    Becki Ruth MAAS and Ryan D. Maas, Appellant/Petitioner(s), v. DEUTSCHE BANK TRUST CO. AMERICAS, as Trustee, Appellee/Respondent(s).
    CASE NO.: 2D19-0329
    District Court of Appeal of Florida, Second District.
    March 06, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    BOCA STEL 2, LLC, et al, Appellant/Petitioner(s), v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee/Respondent(s).
    CASE NO.: 2D18-2741
    District Court of Appeal of Florida, Second District.
    February 20, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    B.H., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D18-4189
    District Court of Appeal of Florida, Second District.
    March 21, 2019
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.