author: THOMPSON, Presiding Judge. MOORE, Judge, concurring in part and dissenting in part.

text:
    Sherry Denise DARLING v. Raymon Devell DARLING
    2160378
    Court of Civil Appeals of Alabama.
    October 6, 2017
    * Note from the reporter of decisions: Judge Brown, district judge, Lamar County, was appointed to preside over this case upon the recusal of the judge to whom the case was assigned in Pickens County.
    Anthony B. Johnson of Johnson Law Firm, LLC, Centreville, for appellant.
    John T. Fisher, Jr., of The Fisher Law Firm, P.C., Tuscaloosa, for appellee.
   THOMPSON, Presiding Judge.

Sherry Denise Darling ("the wife") appeals from a judgment of the Pickens Circuit Court ("the trial court") divorcing her from Raymon Devell Darling ("the husband"). In the judgment, the trial court divided the marital property, awarded the parties "joint legal custody" of their minor child, and did not require either party to pay child support.

The wife filed a divorce complaint on February 26, 2013. After the parties requested almost a dozen continuances between them, this matter came to trial on October 21, 2016. The evidence adduced at trial indicated the following. The parties married on January 3, 1994. Two children were born during the marriage. One of the children had reached the age of majority by the time of the trial; the other child was 14 years old at the time of the trial.

The wife, who was 48 years old at the time of the trial, held several jobs during the marriage. She said that she had never earned more than $15 an hour in any of those jobs, which included working for health-care providers, at a garment plant, and at a WalMart "check center." The wife said that the husband had been the primary breadwinner throughout the marriage, and the parties agreed that the husband had paid all of the household bills, with the exception of the wife's cellular-telephone bill. At the time of the trial, the wife worked for the Pickens County Community Action Head Start program, where she had been employed for approximately ten years. The wife also testified that she was working toward earning an associate's degree.

The wife testified that she earned $12.64 an hour. She presented tax forms for 2015 indicating that she earned $17,191 that year. The wife explained that, in the summer months, she received a total of $2,409 in unemployment benefits. She testified that, during the months she worked, her take-home pay was approximately $1,400 each month. The wife said that she did not have a retirement account or savings because, she said, she did not make enough money to put any into a retirement account or a savings account. The husband disputed the wife's testimony, saying that the wife "blows" her money on clothes, purses, and shoes and that, even though he had encouraged her to save money throughout the marriage, the wife would not do so.

The husband, who was 47 years old at the time of the trial, worked for Mercedes Benz ("Mercedes"). Before going to work for Mercedes, the husband said, he had worked at Bryce Hospital and the Tuscaloosa police department earning less money than he earns working for Mercedes. The husband testified that he earned $30.04 an hour and that his monthly gross income was $5,340. The husband said his take-home pay was approximately $3,500 each month. The husband testified that his annual income at Mercedes has fluctuated between $60,000 and $86,000, depending on how brisk sales of the vehicles were. Tax documents submitted at trial indicated that, in 2015, the husband's income from Mercedes was $87,708. At the time of the trial, the husband said, he was scheduled to work 7.2 hours a day, with no overtime. He said that, because of issues with high blood pressure and diabetes, he was no longer able to work long overtime hours that allowed him to earn more than $80,000 in a year. The husband also received annual income from the Department of Veterans Affairs ("the VA") in the amount of $560 each month. The husband testified that he had a retirement account with Mercedes that had a balance of $117,800 at the time of the trial.

Both parties had life-insurance policies. The wife testified that she had recently purchased a $100,000 life-insurance policy naming the children as her beneficiaries. The husband testified that he had two life-insurance policies: one through the VA worth $100,000 naming the wife as the beneficiary and one through Mercedes worth five times his salary. The husband said that the wife was the beneficiary of most of the Mercedes policy "and then the kids kind of step down." The husband testified that he was willing to leave the wife as the beneficiary of his VA policy but that he would like to be able to change the other policy upon being granted the divorce.

The parties had no joint debts or joint banking accounts. The parties also had four vehicles. At the time of the trial, the wife drove a 2006 Chrysler 300 automobile, which was paid for in full. The husband drove a 2002 Toyota Sequoia sport-utility vehicle and an older-model GMC Sierra pickup truck. The husband also made the lease payment for a 2017 E-Class Mercedes for the parties' older child. The lease was possible through his job with Mercedes.

The husband testified that he had begun having the marital residence built the year before the parties married and that they had lived in that house during the entire marriage. The wife said that she was aware that there were two mortgages on the marital residence at the time of the trial. She said that the payment on the first mortgage was $622 each month and that the payment on the second mortgage was approximately $322 each month. Although the wife said that she did not know the balance owed on either mortgage, the husband testified that the balance owed on the first mortgage was "roughly" $55,000 and that the balance owed on the second mortgage was $23,000.

The wife estimated that the marital residence was worth approximately $140,000. The husband estimated that the marital residence had a value of approximately $165,000. The husband also said that the parties had approximately $80,000 in equity in the marital residence. The wife told the trial court that she would like to remain in the marital residence. The husband testified that he believed it would be fair to allow the wife to remain in the marital residence and to divide the equity between them. The parties also appear to own the lot adjoining the marital residence. It is unclear from the record whether the estimates of the value of the marital residence include the value of the adjoining lot.

The parties also owned a parcel of property across the street from the marital residence. A 1991-model mobile home that the parties own is situated on that property, which, the husband said, comprises approximately an acre and a half. The husband estimated that the mobile home had a value of approximately $10,000. The parties had rented it at one time, he said, but they had received no rental income in four years. There was no indebtedness on the mobile home or the property on which it is situated, the husband said.

The husband said that he was willing to take the mobile home and the property across the street from the marital residence. He said that he had already moved some furniture and a television to the mobile home and that it was ready for occupancy. The wife said that he had also moved a utility shed and his tools from the house to the mobile home. She said that she had no objection to the removal of the items, with the exception of certain photographs.

At the time of the trial, the parties both still lived in the marital residence, and the husband continued to pay all of the household bills. The husband worked nights and the wife worked days, so, they said, they do not often see each other. The husband testified that the wife usually did not return to the marital residence until after he left for work at about 9:30 or 10 p.m. The wife said that she did not like to be in the marital residence when the husband was there because "an argument starts and, you know, he jumps up in my face and scream and holler, so I just leave." She said that she often went to her parents' house after work.

The husband and the wife, both of whom still lived in the marital residence, each testified to caring for the children while the other was at work. The parties agreed that they each parented the children and that they did not oppose a joint-custody arrangement for the younger child. They agreed that if the wife lived in the marital residence and the husband lived in the mobile home, the children would be able to see either party when they wanted.

On October 31, 2016, the trial court entered the judgment divorcing the parties. The trial court ordered that the parties have "joint legal custody" of the minor child and that neither party would be responsible for paying child support to the other. The husband was awarded the marital residence and the adjoining lot and was ordered to assume all indebtedness on the marital residence. He was also awarded all of the personal property in the marital residence, the 2017 Mercedes automobile, the Toyota sport-utility vehicle, and the GMC pickup truck. The wife was awarded the property across the street from the marital residence and the mobile home located on that property. She was also awarded the Chrysler automobile. Both parties were awarded the personal property in their possession. The trial court explicitly denied all other relief the parties had requested, which would include the wife's request for alimony, a division of the husband's Mercedes retirement account, and a decision regarding who should be the beneficiaries of the parties' respective life-insurance policies. The wife filed a motion to alter, amend, or vacate the judgment, which the trial court denied after a hearing. The wife then filed a notice of appeal to this court.

On appeal, the wife contends that the trial court abused its discretion in dividing the marital property. Specifically, she argues that the property division was inequitable because the trial court failed to divide the husband's retirement account or to determine the beneficiaries of the parties' life-insurance policies.

"When the trial court fashions a property division following the presentation of ore tenus evidence, its judgment as to that evidence is presumed correct on appeal and will not be reversed absent a showing that the trial court exceeded its discretion or that its decision is plainly and palpably wrong. Roberts v. Roberts, 802 So.2d 230, 235 (Ala. Civ. App. 2001) ; Parrish v. Parrish, 617 So.2d 1036, 1038 (Ala. Civ. App. 1993) ; and Hall v. Mazzone, 486 So.2d 408, 410 (Ala. 1986). A property division is required to be equitable, not equal, and a determination of what is equitable rests within the broad discretion of the trial court. Parrish, 617 So.2d at 1038. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages, health, and station in life; the length of the parties' marriage; and the source, value, and type of marital property. Robinson v. Robinson, 795 So.2d 729, 734 (Ala. Civ. App. 2001). '[W]e note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.' Yohey v. Yohey, 890 So.2d 160, 164 (Ala. Civ. App. 2004)."

Stone v. Stone, 26 So.3d 1232, 1236 (Ala. Civ. App. 2009). Additionally, it is within the trial court's discretion whether to order a divorcing spouse to maintain a life-insurance policy for the benefit of the other spouse. Alexander v. Alexander, 65 So.3d 958, 965 (Ala. Civ. App. 2010).

In this case, the parties had been married more than 22 years at the time the divorce judgment was entered. The undisputed evidence demonstrated that the husband had been the primary wage earner throughout the marriage. The parties' individual tax returns reveal that, in 2015, the most recent year for which tax returns were available at the time of the trial, the wife had income of $19,600 and the husband had income of $88,247. In other words, the wife's annual income was less than a quarter of the husband's annual income. The marital residence was valued at between $140,000 and $165,000, and the mobile home was valued at $10,000. No evidence was presented as to the value of the property or lots on which those residences sat.

The husband testified that he was willing to give the wife the marital residence and half of the $80,000 in equity that had accrued in that residence during the marriage, saying that he believed it was fair for the wife to receive half the equity. He also said that he had moved furniture and a television to the mobile home and would willingly take the mobile home and the property on which it was located. Nonetheless, the trial court awarded the husband the marital residence. It may have been that the trial court believed that the wife would be unable to continue making the mortgage payments on the marital residence and, therefore, awarded that house to the husband. However, the trial court did not award the wife any portion of the equity in the house. The value of the mobile home was estimated at about a quarter of half the amount of equity in the marital residence. When the value of the marital residence is weighed against the value of the mobile home, the discrepancy between the property awarded to the husband and the property awarded to the wife becomes far greater. In addition, the husband's Mercedes retirement account, which had a balance of $117,800 at the time of the trial, was accrued entirely during the course of the marriage.

The trial court did not award the wife a portion of the husband's retirement account. The wife was awarded one vehicle, the Chrysler 300, while the husband was awarded three vehicles: the E-Class Mercedes, the Toyota sport-utility vehicle, and the GMC pickup truck. As mentioned, the wife was not awarded periodic alimony, and the issue was not reserved.

The parties are essentially the same age. The husband has high blood pressure and diabetes, but there is no evidence indicating that he cannot continue to work at his job with Mercedes. The wife hopes to earn an associate's degree to enable her to earn more money, but she had not completed that degree at the time of the trial. The trial court divorced the parties on the ground of the irretrievable breakdown of the marriage, and no fault was assigned to either party in causing the breakdown of the marriage. After reviewing the record and the division of marital property, we conclude that the trial court's property division so favors the husband as to be inequitable. The judgment dividing the marital property is plainly and palpably wrong and must be reversed.

The wife also argues that the trial court erred by failing to award child support pursuant to the guidelines set forth in Rule 32, Ala. R. Jud. Admin.

"Under the well-established ore tenus rule, the trial court's judgment is presumed correct; this court will not reverse the judgment absent a showing that the trial court's findings are plainly and palpably wrong or that the trial court abused its discretion. Tompkins v. Tompkins, 843 So.2d 759, 764 (Ala. Civ. App. 2002). Moreover, matters relating to child support 'rest soundly within the trial court's discretion, and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and thus is plainly and palpably wrong.' Bowen v. Bowen, 817 So.2d 717, 718 (Ala. Civ. App. 2001)."

Scott v. Scott, 915 So.2d 577, 579 (Ala. Civ. App. 2005).

Even though the judgment does not set forth a physical-custody arrangement regarding the parties' minor child, the wife does not contest the custody award ordered by the trial court, i.e., that "the parties shall have 'joint legal custody' " of the minor child. The term "joint legal custody" is defined in § 30-3-151(2), Ala. Code 1975, as follows:

"Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions."

The term "joint custody" is defined in § 30-3-151(1) as "[j]oint legal custody and joint physical custody." "Joint physical custody" is defined as "[p]hysical custody ... shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time." § 30-3-152(3).

This court has recognized that there is confusion in the trial courts' use of the various custody terms, and, therefore, we have interpreted those terms according to the intent of the trial court in using the term. For example, this court has explained:

" 'The trial court's divorce judgment awarded the parties "joint custody," yet it awarded the father "primary physical custody." "These terms have been commonly employed by the bench and bar; however, in light of the definitions of the types of custody set out in the joint-custody statute, those older terms are unclear and ... serve only to confuse the issue of custody." Harris v. Harris, 775 So.2d 213, 214 (Ala. Civ. App. 1999). Using the proper terms set out in the joint-custody statute, § 30-3-151, Ala. Code 1975, the divorce judgment can be construed only one way-that is, it awards the father sole physical custody and the mother and the father joint legal custody. See Harris, 775 So.2d at 214.'
" Richardson v. Fotheringham, 950 So.2d 339, 341 (Ala. Civ. App. 2006)."

Whitehead v. Whitehead, 214 So.3d 367, 371 (Ala. Civ. App. 2016).

Based on the testimony of the parties that, by living across the street from one another after the divorce, the minor child would be able to see either parent as the child desired, and based on its decision not to require either party to pay child support, it appears that the trial court intended to award the parties joint custody, meaning they would have joint legal and physical custody.

As to whether the trial court erred in failing to award the wife child support in accordance with the child-support guidelines set forth in Rule 32, Ala. R. Jud. Admin., this court has recognized that

"when a trial court properly orders joint physical custody to the parties, payment of child support by one spouse to the other is not mandatory. McElheny v. Peplinski, 66 So.3d 274, 282 (Ala. Civ. App. 2010) (citing Allen v. Allen, 966 So.2d 929, 932-33 (Ala. Civ. App. 2007), quoting in turn Boatfield v. Clough, 895 So.2d 354, 357 (Ala. Civ. App. 2004) )."

Bonner v. Bonner, 170 So.3d 697, 705-06 (Ala. Civ. App. 2015). Nonetheless, we have held that the application of the Rule 32 child-support guidelines is mandatory, Smith v. Smith, 587 So.2d 1217 (Ala. Civ. App. 1991), and the trial court cannot deviate from the guidelines without first making specific findings of fact to justify the deviation.

" '...[I]f the trial court enters on the record a written finding, supported by evidence presented to it, that the application of the guidelines would be unjust or inequitable, then the trial court has the discretion to deviate from the guidelines. Rule 32(A)(ii), Ala. R. Jud. Admin.; Smith [v. Smith], 587 So.2d [1217] at 1218 [ (Ala. Civ. App. 1991) ]. If the trial court fails to apply the guidelines or to present findings of fact based upon evidence before the court indicating why the guidelines were not followed, this court will reverse. Simmons v. Ellis, 628 So.2d 804 (Ala. Civ. App. 1993).'
" State ex rel. Department of Human Resources v. Hogg, 689 So.2d 131, 133 (Ala. Civ. App. 1996)."

Nelson v. Landis, 709 So.2d 1299, 1300 (Ala. Civ. App. 1998) (emphasis added).

In this case, after awarding the parties "joint legal custody" of their minor child, the trial court simply stated that "[n]either party is responsible for paying child support to the other." In the judgment, the trial court did not set forth any factual findings explaining why application of the guidelines would be unjust or inequitable or why the it was deviating from the guidelines. Accordingly, the judgment is reversed as to the issue of child support.

For the reasons set forth above, that portion of the judgment dividing the marital property is reversed and the cause is remanded to the trial court for it to reconsider the property division. In doing so, we note that the trial court may also consider whether the husband, the wife, or both parties are required to maintain a life-insurance policy for the benefit of the other spouse. We reiterate that whether such life insurance is required to be maintained is within the sound discretion of the trial court. We also reverse the judgment to the extent that the trial court did not set forth the factual basis for deviating from the child-support guidelines, and we remand the cause for the trial court to enter an order in compliance with the requirements of Rule 32(A), Ala. R. Jud. Admin.

The wife's request for an attorney fee on appeal is granted in the amount of $1,000.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Thomas and Donaldson, JJ., concur.

Moore, J., concurs in part and dissents in part, with writing, which Pittman, J., joins.

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

I concur in that part of the main opinion reversing the judgment of the Pickens Circuit Court ("the trial court") insofar as it fails to explicitly state its reasons for not awarding child support. 252 So.3d at 1095. I respectfully dissent to the remaining aspects of the opinion.

In its judgment divorcing Sherry Denise Darling ("the wife") and Raymon Devell Darling ("the husband"), the trial court, among other things, awarded the parties joint legal and physical custody of the parties' minor child (see discussion in main opinion addressing custody award, 252 So.3d at 1095), and divided the marital property of the parties by awarding the wife a mobile home, the lot on which the mobile home is situated, a 2006 Chrysler automobile, and all the personal property in her possession. The trial court also declined to require either party to make the other a beneficiary of his or her life-insurance policy.

The evidence in the record shows that the marital estate consisted of three lots of real property, one on which the mobile home is situated, which is valued at $10,000; one on which the marital home is situated, which is encumbered by two mortgages but in which the parties have equity of approximately $80,000; and a third lot, which adjoins the lot on which the marital residence is located and for which no value appears in the record. The marital estate also includes three automobiles; two older trucks, which were manufactured in 2000 and 2002, respectively, and which the husband regularly uses; and the 2006 Chrysler automobile that the wife regularly uses and that was awarded to the wife. The husband testified that, at the time of the trial, he was also leasing a 2017 Mercedes automobile for the parties' adult daughter. The husband owns a retirement account that was valued at $117,800 at the time of the trial.

The trial court heard testimony from which it reasonably could have concluded the following. All the marital property, both real and personal, had been purchased solely from funds earned by the husband through his labor and military service before and during the marriage. Although the wife worked throughout the marriage, the wife did not contribute any funds to the payment of the parties' household bills, but used her income exclusively for her own personal benefit, purchasing shoes, clothing, and purses and paying for her own personal cellular-telephone expenses while refusing to save any money for retirement or other purposes. The parties filed separate income-tax returns throughout their marriage, with the wife claiming a dependent exemption for one of the parties' two children, even though the husband testified that she had not financially provided for either child.

The parties jointly cared for the children because both parties worked throughout the marriage; the wife also attended school throughout the marriage. During the last four years of the marriage, the husband became the primary caretaker for the children, the oldest of which, at the time of the trial, still resided with the parents while attending college at age 20 and the younger of which was about to turn 15 years old. The evidence indicated that, although the parties and the children continued to reside in the marital residence after the divorce complaint was filed, the wife had had little communication with the parties' oldest child and had seen the younger child "off and on." The husband bought all the groceries for the children, took care of all of the children's medical needs, furnished and paid for the older child's automobiles, and assumed nearly exclusive responsibility for the education and athletic participation of the children.

The wife testified that she had no debts and that she had disposable income each month after paying her own personal expenses. The evidence also shows that the wife had nearly completed her education and that, at age 48, her earning capacity was increasing. The husband testified that, with the exception of his retirement contribution, he used all of his income to support the family, leaving no disposable income for his personal benefit; he also testified that his health was deteriorating.

Consistent with the sacrifices the husband had made throughout the parties' marriage, the husband testified at trial that he would be willing to pay off the second mortgage on the marital home, and allow the wife to have the marital home, and to relocate to the mobile home across the street from the marital home so that he could continue raising the children. The trial court, however, weighed the equities and determined that it would be more fair for the parties to continue their separate economic arrangement as they had during the marriage. The trial court awarded the husband the marital home, subject to the two mortgages, and awarded the wife the mobile home where she could reside free and clear of any debt. The trial court also implicitly concluded that each party should keep his or her own retirement accounts, the wife having none as a result of her own financial decision-making.

The wife complains on appeal that the property division is inequitable because the husband received far more marital assets than the wife. However, when fashioning an equitable property division, the trial court is not required to award the parties any particular proportion of the marital estate. The trial court is required only to divide the marital property equitably. Consequently, an award to one spouse of a vastly greater percentage of the marital assets is not an abuse of discretion when it can be viewed as fair and equitable under the circumstances. See Weeks v. Weeks, 27 So.3d 526 (Ala. Civ. App. 2008). In this case, from the evidence before it, the trial court apparently concluded that the husband had acquired all the marital property independently of the wife and that the husband had also made greater noneconomic contributions to the marriage. The trial court also apparently concluded that the property division would allow the wife to continue to live independently without further support from the husband.

In reviewing the determinations of a trial court with regard to a property division, this court cannot substitute its judgment for that of the trial court, but can only reverse a judgment dividing marital property based in part on oral testimony if the judgment is plainly and palpably wrong so as to constitute a clear abuse of discretion. See Roberts v. Roberts, 802 So.2d 230, 235 (Ala. Civ. App. 2001). The main opinion does not explain how the determinations reached by the trial court violate any governing legal principles or how the trial court committed any legal error in reaching its decision. The main opinion simply decides that the property division is inequitable because the trial court awarded the husband a far greater percentage of the marital property than it awarded the wife. 252 So.3d at 1094. Given the circumstances of this particular marriage, I respectfully disagree with the main opinion on that point, so I dissent from that part of the main opinion reversing the property-division aspect of the trial court's judgment.

Finally, the main opinion notes that the trial court "may consider whether the husband, the wife, or both parties are required to maintain a life-insurance policy for the benefit of the other spouse." 252 So.3d at 1096. I do not believe the wife has sufficiently argued that the trial court committed any error on this point so as to require this court's consideration. See Rule 28, Ala. R. App. P. Even if she has, Alabama law clearly provides that a trial court need not make an explicit determination regarding each and every piece of personal property. Rather,

"when a final judgment of divorce does not reference a specific asset, liability, or piece of personal or real property, jointly owned by the parties, the property remains unaffected by the judgment, and the ownership, along with the benefits and burdens thereof, remains as it was before the entry of the divorce judgment. Radiola v. Radiola, 380 So.2d 817 (Ala. 1980) ; Miller v. Miller, 391 So.2d 119 (Ala. Civ. App. 1980) ; and McGuire v. Horton, 586 So.2d 9 (Ala. Civ. App. 1991)."

Clements v. Clements, 990 So.2d 383, 395-96 (Ala. Civ. App. 2007). By declining to address the life-insurance policies, the trial court impliedly left those policies in the same status as before the entry of the divorce judgment. The trial court did not commit any legal error in that regard. Thus, I dissent from that part of the main opinion noting that the trial court, on remand, may rule on the life-insurance-policy issue.

Pittman, J., concurs.

      In her appellate brief, the wife makes the statement that the trial court did not mention the alimony request she made in her complaint. However, she does not make an argument that the trial court erred or abused its discretion in failing to award her periodic alimony or to reserve the issue of periodic alimony. Therefore, any argument she could have made as to that issue is deemed waived. See Boshell v. Keith, 418 So.2d 89, 92 (Ala. 1982) ("When an appellant fails to argue an issue in its brief, that issue is waived.").

      We recognize that the husband's tax return reports a different annual income than the tax documents mentioned earlier in this opinion.

      The parties do not raise any issues regarding the fact that the E-Class Mercedes was being leased rather than purchased.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    EX PARTE MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES
    (In re: J.V. v. Marshall County Department of Human Resources)
    2160947
    Court of Civil Appeals of Alabama.
    October 6, 2017
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner.
    E. Shane Hollaway, Guntersville, for respondent.
   THOMAS, Judge.

The Marshall County Department of Human Resources ("DHR") has petitioned this court for a writ of mandamus directed to the Marshall Juvenile Court ("the juvenile court") requiring that court to cancel an evidentiary hearing set for October 16, 2017, and to order preparation of the transcripts of two hearings, which were held on May 1, 2017, and June 21, 2017. This matter has been before this court on six other occasions: Marshall County Department of Human Resources v. J.V., 152 So.3d 370 (Ala. Civ. App. 2014) ; Marshall County Department of Human Resources v. J.V., 203 So.3d 1243 (Ala. Civ. App. 2016) (" J.V. I"); Ex parte Marshall County Department of Human Resources, 234 So.3d 519 (Ala. Civ. App. 2016) (" J.V. II");

Ex parte Marshall County Department of Human Resources, 231 So.3d 325 (Ala. Civ. App. 2016) (mandamus petition denied by order) (table); Ex parte Marshall County Department of Human Resources (No. 2160757, July 10, 2017), --- So.3d ---- (Ala. Civ. App. 2017) (mandamus petition granted by order) (table); and Marshall County Department of Human Resources v. J.V. (No. 2160761, July 14, 2017), --- So.3d ---- (Ala. Civ. App. 2017) (appeal dismissed by order) (table).

This matter began in 2009, when DHR removed J.V.V. ("the child") from the custody of M.M.T. ("the mother") and placed the child in foster care. J.V. I, 203 So.3d at 1244. J.V. ("the father") resided in Florida when the child was removed from the mother's custody. Id. The father was awarded supervised visitation with the child in 2010 and unsupervised visitation with the child in December 2010 and January 2011. Id. The foster parents with whom the child was living accused the father of sexually abusing the child. Id. The father was criminally charged; however, the charges were later dropped. Id. at 1245. While the criminal charges were pending, the father spent 17 months in jail between October 2011 and February 2013. After the criminal charges were dropped, the father was transferred to a detention facility in Louisiana on an immigration hold, where he remained until September 2014, when he was released; he then moved to Georgia. Id. Although DHR had sought the termination of the father's parental rights during that period, the juvenile court had denied DHR's petition. Id.

In November 2014, the father filed a petition in the juvenile court seeking custody of the child. Id. The juvenile court, after a trial, entered an order in December 2014 requiring DHR to prepare a plan to transition custody of the child to the father and to have a home study performed on the father's home in Georgia. Id. However, that order was not a final custody judgment because it did not transfer custody of the child to the father but, rather, set the matter " 'for further review on disposition.' " Id. at 1246. Further review hearings were held on March 23, 2015, and May 12, 2015, to develop the transition plan. A May 2015 order indicated that physical custody of the child would be placed with the father on July 27, 2015, if Georgia approved the father's home for placement after a home study. Id.

On June 23, 2015, DHR moved for an evidentiary hearing. Id. at 1247. In its motion, DHR explained that Georgia had not approved the father's home for placement and that the child was not prepared to transition to the father's home. Id. After the requested hearing, the juvenile court entered a judgment on July 2, 2015, which ordered that legal and physical custody of the child be transferred to the father and that the transfer of physical custody occur no later than July 27, 2015, as required by the May 2015 order. Id. DHR appealed from that judgment. Id. We affirmed the judgment insofar as it awarded custody of the child to the father. Id. at 1253. However, we reversed the judgment insofar as it ordered the transition of custody to take place in July 2015, explaining that, based on the evidence before the juvenile court, "the father and the child do not have a relationship strong enough to accomplish the transition of custody" and concluding that "the child's best interest would [not] be served by immediately awarding custody to the father." Id. at 1254.

Upon remand, the juvenile court entered an order on April 3, 2016, in which it outlined a transition plan to which the parties had agreed. J.V. II, 234 So.3d at 520. The plan provided that the father would have unsupervised visitation with the child on the weekend of May 27, 2016, to May 30, 2016. Id. at 520. On May 26, 2016, DHR filed a motion seeking to prevent that visitation from occurring based on allegations that the child had attempted to harm herself and that visitation with the father would not be safe for the child; the juvenile court denied that motion. Id. at 520. DHR also filed a motion seeking to stay the visitation, which the juvenile court also denied. Id. at 520.

DHR then filed an emergency petition for the writ of mandamus in this court, in which it sought an order "compelling the juvenile court to 'terminate visitation between the child and the father.' " Id. at 520. We construed the request to terminate visitation as being a request to modify the award of custody to the father. Id. at 521. Based on that characterization, we determined that DHR was not entitled to the relief it sought in the petition. Id. at 521. In our opinion, we explained that the award of custody to the father had become the law of the case and that DHR's allegations were, in fact, new allegations supported by new evidence that had come into existence after the entry of the April 3, 2016, order and could be presented to the juvenile court only by way of a petition for modification. Id. at 521.

After the issuance of our opinion in J.V. II, DHR filed a petition for the writ of mandamus in our supreme court. See Ex parte Marshall Cty. Dep't of Human Res., 233 So.3d 345 (Ala. 2017) (" J.V. III"). That court issued an opinion on March 31, 2017, in which it determined that the April 3, 2016, custody order was not a final custody judgment incapable of alteration because, the court reasoned, in dependency cases there are typically a series of appealable dispositional custody orders and, the court noted, the April 3, 2016, order indicated that further review of the transition would occur on October 3, 2016. J.V. III, 233 So.3d at 355. Our supreme court also explained that, because the April 3, 2016, order was not a final custody judgment, "the juvenile court was free to take into account evidence regarding matters occurring after the entry of its April 2016 order and before any order that it might issue on October 3, 2016, in determining whether a modification of the terms of transition was warranted." Id. at 355. The supreme court observed that the juvenile court had not held a hearing on the allegations regarding the child's mental health and safety that DHR had made in its May 2016 filings in the juvenile court. Id. at 357. Specifically, our supreme court stated that "the juvenile court should have scheduled a hearing so that it could properly evaluate any evidence DHR might present ... as to the alleged change in the child's circumstances after the entry of the April 2016 order." Id. at 357.

After the issuance of our supreme court's certificate of judgment in J.V. III, upon request of the father, the juvenile court set the hearing referenced in the supreme court's opinion for July 13, 2017. DHR objected to the July 13, 2017, hearing and also filed a motion for a summary judgment in which it argued that the supreme court's decision in J.V. III had resolved the issue regarding custody finally and conclusively in favor of DHR. The juvenile court, after a hearing, denied DHR's motion for a summary judgment on June 21, 2017, and DHR filed both a notice of appeal to our supreme court and a petition for the writ of mandamus in our supreme court. Both the appeal and the petition were transferred to this court because, as they both arose from a dependency and custody matter, they fell within our subject-matter jurisdiction, see Ala. Code 1975, § 12-3-10 ; the appeal was assigned case no. 2160761 and the petition was assigned case no. 2160757.

We dismissed DHR's appeal of the denial of its motion for a summary judgment by order (case no. 2160761), citing Continental Casualty Co. v. SouthTrust Bank, N.A., 933 So.2d 337, 340 (Ala. 2006), because the order denying DHR's motion for a summary judgment was not capable of supporting an appeal. We further noted in our order that DHR's alternative request that this court allow DHR to pursue a Rule 5, Ala. R. App. P., permissive appeal was precluded by Rule 5. See Committee Comments, Rule 5 (stating that the rule does not "apply to cases appealable to the Court of Civil Appeals"). We granted DHR's petition for the writ of mandamus (case no. 2160757), which sought the cancellation of the July 13, 2017, hearing, by order because the filing of the notice of appeal in case no. 2160761 had removed jurisdiction over the action from the juvenile court, and it therefore lacked the authority to conduct the July 13, 2017, hearing or to otherwise act on the matter until this court concluded its review and entered a certificate of judgment. See M.G. v. J.T., 105 So.3d 1232, 1233 (Ala. Civ. App. 2012) (explaining that until this court issues its certificate of judgment on a matter, a lower court does not have jurisdiction to act on that matter).

After the resolution of DHR's most recent petition and appeal, the father again filed in the juvenile court a motion to set the matter for an evidentiary hearing. DHR again objected to the father's request. Although the juvenile court at first declined to set a hearing because it was unaware that the appeal (case no. 2160761) had been dismissed, it later placed the father's request on an August 16, 2017, motion docket. On August 17, 2017, the juvenile court entered an order setting an evidentiary hearing for October 16, 2017.

In addition, while the parties were litigating the father's right to a hearing, DHR requested, on June 28, 2017, that the juvenile court order transcription of the hearings held on May 1, 2017, and June 21, 2017. The juvenile court did not rule on that motion. DHR renewed its motion on July 17, 2017; again, the juvenile court did not act on the motion. On August 16, 2017, DHR made a third request for the transcription of the May 1, 2017, and June 21, 2017, hearings. The juvenile court still did not rule on the motion.

On August 25, 2017, DHR timely filed its petition for the writ of mandamus seeking review of the August 17, 2017, order setting an evidentiary hearing in the father's custody action. In its petition, DHR also requests that we order the juvenile court to authorize preparation of the May 1, 2017, and June 21, 2017, hearing transcripts. We called for an answer to the petition, which has been filed. After a review of the materials submitted to this court, we deny the petition in its entirety.

" ' "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ' "

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) ).

We first consider DHR's request that we order the juvenile court to authorize transcription of the May 1, 2017, and June 21, 2017, hearings. DHR relies on Ex parte Montgomery County Department of Human Resources, 10 So.3d 31 (Ala. Civ. App. 2008), to support its argument that it is entitled to a transcript of an evidentiary hearing under Rule 20, Ala. R. Juv. P. Indeed, our court has explained that, under former Rule 20, a juvenile court lacked the authority to deny such a request from a party who is willing to pay for the cost of a transcript because the rule provided that an evidentiary hearing " 'shall be transcribed ... upon the request of any party at the party's own expense.' " Ex parte Montgomery Cty. Dep't of Human Res., 10 So.3d at 39 (quoting former Rule 20(B) ) (emphasis omitted). However, Rule 20, Ala. R. Juv. P., has been amended twice since it was construed in Ex parte Montgomery County Department of Human Resources, and the portion of the rule discussed in that opinion no longer exists. DHR also relies on Rule 29, Ala. R. Jud. Admin., as support for its argument that it is "entitled to transcripts [of the May 1, 2017, and June 21, 2017,] hearings for 'the purpose of taking an appeal from such proceedings or for any other purpose.' " However, Rule 29 does not discuss the rights of the parties to a transcript; instead, it is concerned with how a transcript is compiled and the fees a court reporter may charge for a transcript.

Nonetheless, we need not decide whether, under the current version of Rule 20, Ala. R. Juv. P., a party seeking review of a juvenile court's order is entitled to a transcript of an evidentiary hearing upon which that order is based if the party is prepared to pay for that transcript. DHR has not explained the type of hearings that were held on May 1, 2017, and June 21, 2017. We note that DHR is vehemently objecting to the holding of an evidentiary hearing in this matter, and the father describes both hearings in question as "motion hearings" and states that no evidence was taken at either. We further note that the order denying DHR's motion for a summary judgment was entered on June 21, 2017, indicating that the hearing on that date may well have been a hearing held on that motion. Assuming without deciding that DHR would be entitled to a transcription of an evidentiary hearing under Rule 20 as it is currently written, DHR has failed to demonstrate that it seeks transcription of an evidentiary hearing. Thus, it has not established a clear, legal right to an order compelling the juvenile court to order transcription of the May 1, 2017, and the June 21, 2017, hearings.

We turn now to DHR's argument that it is entitled to an order requiring the juvenile court to cancel the evidentiary hearing set for October 16, 2017, at which the juvenile court intends to consider DHR's May 2016 motions, which sought to forestall the transfer of custody to the father under the now-vacated April 3, 2016, order. DHR argues that our supreme court's opinion in J.V. III"conclusively decided the issue of the father's request to modify custody of the child" and that the juvenile court has already denied its May 2016 motions, preventing their reconsideration. We cannot agree with DHR's reading of J.V. III.

Although our supreme court in J.V. III did, as DHR contends, set aside the April 3, 2016, custody order, it did so after concluding that the April 3, 2016, custody order was not a final custody judgment.

Because the April 3, 2016, custody order was not a final custody judgment, the supreme court observed that this court had incorrectly concluded that DHR had to seek modification of the April 3, 2016, custody order if it desired to modify that order based on facts and circumstances that had developed or occurred after the entry of the April 3, 2016, custody order. J.V. III, 233 So.3d at 355. Instead, our supreme court explained, the juvenile court should have held a hearing on allegations regarding the child's mental health and safety that DHR had made in May 2016 filings in the juvenile court and should have considered "whether a modification of the terms of transition was warranted." Id.

DHR reads the opinion in J.V. III to somehow resolve the father's claim for a modification of custody:

"DHR maintains that there are no pending custody matters before the court in [the father's custody action] for which further disposition or any action is needed in the juvenile court. The issue of custody in [the father's custody action] was resolved by the final, conclusive decision from the Supreme Court. The juvenile court abused its discretion when it scheduled a trial for October 16, 2017. The juvenile court lacks jurisdiction to conduct a trial on custody when there is no petition properly before it. The decision of the Supreme Court became the law of the case, and [the father's] motion for further disposition is barred by res judicata. Greene v. Jefferson County Comm'n, 13 So.3d 901 (Ala. 2008)."

DHR does not explain how our supreme court's vacation of the April 3, 2016, custody order by issuing a writ of mandamus concluded the litigation by terminating the father's custody action. We see no support for that conclusion in J.V. III.

Contrary to DHR's position, our supreme court did not "conclusively determine the issue of the father's request to modify custody of [the child]." In fact, it appears that, in light of the vacation of the April 3, 2016, temporary custody order, the question regarding the appropriate visitation and transition plan remains open. The father and the juvenile court are attempting to comply with the supreme court's direction to have an evidentiary hearing on the allegations raised by DHR in its May 2016 filings so that the issue of the appropriate terms of transition can be decided. DHR has fought their attempts at every turn, further delaying this matter, which began eight years ago. Based on our reading of J.V. III, which does not conclusively determine the custody issue in favor of DHR or conclude the litigation over the appropriate terms of transition, DHR cannot establish a clear legal right to have the evidentiary hearing set for October 16, 2017, canceled.

Because DHR is unable to establish that it has a clear, legal right to the relief it seeks in this petition, we deny the petition.

PETITION DENIED.

Pittman and Donaldson, JJ., concur.

Thompson, P.J., and Moore, J., concur in the result, without writings.

      For the sake of consistency, we use the same case designations-e.g., J.V. I and J.V. II-that the Alabama Supreme Court used in Ex parte Marshall County Department of Human Resources, 233 So.3d 345 (Ala. 2017), which also involved the same parties.

      We note that in the present petition DHR has again asked, as alternative relief, that we entertain a Rule 5 permissive appeal despite our clear explanation in the order dismissing its appeal in case no. 2160761 that such relief is unavailable in this court.

      Perhaps DHR is under the impression that the April 3, 2016, custody order was reversed; however, even if that had been the case, nothing in the supreme court's opinion indicates that it is rendering a final custody judgment in favor of DHR.


text:
    EX PARTE MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES
    (In re: Marshall County Department of Human Resources v. J.V.)
    2160948
    Court of Civil Appeals of Alabama.
    October 6, 2017
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for petitioner.
    E. Shane Hollaway, Guntersville, for respondent.
   THOMAS, Judge.

This is the eighth time the Marshall County Department of Resources ("DHR") and J.V. ("the father") have appeared before this court in an appellate proceeding regarding the custody of J.V.V. ("the child"). For the history of the litigation between these parties, see Marshall County Department of Human Resources v. J.V., 152 So.3d 370 (Ala. Civ. App. 2014) ; Marshall County Department of Human Resources v. J.V., 203 So.3d 1243 (Ala. Civ. App. 2016) ; Ex parte Marshall County Department of Human Resources, 234 So.3d 519 (Ala. Civ. App. 2016);Ex parte Marshall County Department of Human Resources, 231 So.3d 325 (Ala. Civ. App. 2016) (mandamus petition denied by order) (table); Ex parte Marshall County Department of Human Resources (No. 2160757, July 10, 2017), --- So.3d ---- (Ala. Civ. App. 2017) (mandamus petition granted by order) (table); Marshall County Department of Human Resources v. J.V. (No. 2160761, July 14, 2017), --- So.3d ---- (Ala. Civ. App. 2017) (appeal dismissed by order) (table); and Ex parte Marshall County Department of Human Resources, 252 So.3d 1098 (Ala. Civ. App. 2017).

On May 1, 2017, DHR filed a petition in the Marshall Juvenile Court ("the juvenile court") seeking the termination of the parental rights of the father to the child. The petition was served on the father on or about July 5, 2017, and, on July 14, 2017, DHR moved the juvenile court to set the case for trial. The juvenile court set DHR's motion for a hearing to be held on September 6, 2017. The juvenile court canceled that hearing by order entered on August 7, 2017, indicating that it would not act on the termination-of-parental-rights petition because it believed that it lacked jurisdiction to do so until the conclusion of appellate litigation, namely a petition for the writ of mandamus (appellate case no. 2160757) and an appeal (appellate case no. 2160761) filed by DHR in juvenile-court case no. JU-09-300067.05, the father's custody action.

The father immediately informed the juvenile court that both the mandamus petition and the appeal had been ruled on and that this court had issued its certificate of judgment in both cases. On August 8, 2017, DHR again moved the juvenile court to set the termination action for trial. In response, the juvenile court set DHR's motion for a hearing to be held on November 8, 2017.

DHR filed this petition for the writ of mandamus with this court on August 25, 2017. DHR complains that the juvenile court has failed to comply with Ala. Code 1975, § 12-15-320(a), which requires that a juvenile court complete a termination-of-parental-rights trial within 90 days after the petition is served on the parent. DHR complains that the 90-day period within which the trial is to be completed will expire before the juvenile court holds its scheduled hearing on DHR's motion. Thus, it contends, it is entitled to a writ of mandamus to compel the juvenile court to set the termination-of-parental-rights petition for a trial within the 90-day period.

" ' "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." ' "

Ex parte A.M.P., 997 So.2d 1008, 1014 (Ala. 2008) (quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala. 2003), quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995) ).

As DHR contends, § 12-15-320(a) requires that a juvenile court complete a termination-of-parental-rights trial within 90 days of the service of the termination-of-parental-rights petition on the parent or parents. The 90th day after July 5, 2017, is October 3, 2017. The juvenile court set DHR's motion for a motion hearing in November; thus, as DHR contends, any trial on the petition will be conducted well after the expiration of the 90-day period, in violation of § 12-15-320(a).

The materials before us demonstrate that the juvenile court was concerned about its jurisdiction to consider the termination petition in light of DHR's appeal of the denial of its summary judgment in the father's custody action. Until the certificate of judgment on this court's dismissal was entered in appellate case no. 2160761, the juvenile court considered itself to lack jurisdiction over the termination-of-parental-rights petition, which is based, in part, on DHR's contention that the father's custody action has been conclusively resolved by the Alabama Supreme Court's vacation, in Ex parte Marshall County Department of Human Resources, 233 So.3d 345 (Ala. 2017), of an April 3, 2016, order in the father's custody action. Although the juvenile court's lack of jurisdiction over the custody action may not have prevented its consideration of the termination-of-parental-rights petition, which instituted a separate action, we understand the juvenile court's desire to await the conclusion of the attempts at appellate review instituted by DHR in the custody action.

However, we agree with DHR that it is entitled to have the trial on the termination-of-parental-rights petition concluded in a timely manner, as required by § 12-15-320(a). The juvenile court has jurisdiction over both the custody action and the termination-of-parental-rights action at the present time, and this court is releasing today an opinion denying DHR's petition for the writ of mandamus in the custody action, which sought cancellation of the October 16, 2017, trial in the custody action. We therefore grant DHR's petition and order that the juvenile court set a trial on the termination-of-parental-rights petition as soon as is practicable, unless that petition is otherwise resolved.

PETITION GRANTED; WRIT ISSUED.

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

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

      In the alternative, DHR requests that we treat the petition as a request for a permissive appeal pursuant to Rule 5, Ala. R. App. P. As we explained to DHR in the July 14, 2017, order dismissing its appeal of the denial of its motion for a summary judgment in the custody case, appellate case no. 2160761, this court may not consider permissive appeals. See Committee Comments, Rule 5 (stating that the rule does not "apply to cases appealable to the Court of Civil Appeals").

      Indeed, the filing of a notice of appeal divests the trial court of jurisdiction over an action. Portis v. Alabama State Tenure Comm'n, 863 So.2d 1125, 1126 (Ala. Civ. App. 2003) (quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala. Civ. App. 1982) )("It is well settled that '[o]nce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.' "); see also Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala. Civ. App. 2001) (explaining that, once an appeal is taken, a trial court may not enter a judgment or order in an action until such time as the appellate court issues its certificate of judgment). However, the filing of a petition for the writ of mandamus, unlike the filing of a notice of appeal, does not remove jurisdiction over the underlying action from the trial court. State v. Webber, 892 So.2d 869, 871 (Ala. 2004) ("The filing of a petition for a writ of mandamus against a trial judge does not divest the trial court of jurisdiction, stay the case, or toll the running of any period for obeying an order or perfecting a filing in the case.").


author: KELLUM, Judge.

text:
    Solomon Makil KNIGHT v. STATE of Alabama
    CR-16-0885
    Court of Criminal Appeals of Alabama.
    October 13, 2017
    Solomon Makil Knight, pro se.
    Steve Marshall, atty. gen., and James R. Houts, asst. atty. gen., for appellee.
   KELLUM, Judge.

Solomon Makil Knight appeals the circuit court's summary dismissal of what he styled as a "Petition for Writ of Habeas Corpus Incomplete Jury Instruction(s)," but which was, in fact, a Rule 32, Ala. R. Crim. P., petition for postconviction relief. (C. 2.) In his petition, Knight challenged his 2008 conviction for reckless manslaughter and his resulting sentence of 17 years' imprisonment. This Court affirmed Knight's conviction and sentence on direct appeal in an unpublished memorandum issued on June 19, 2009. Knight v. State (No. CR-07-1657), 51 So.3d 405 (Ala. Crim. App. 2009) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on November 13, 2009.

On January 30, 2017, Knight filed the instant petition, what appears to be at least his second petition challenging his 2008 conviction and sentence. As best we can discern, Knight alleged in his petition: (1) that his trial counsel was ineffective for not objecting to the trial court's jury instruction on manslaughter as a lesser-included offense of intentional murder as charged in the indictment, and (2) that his 17-year sentence is illegal because, he said, he is entitled to be resentenced under the presumptive sentencing standards, which took effect on October 1, 2013. On January 31, 2017, the circuit court issued an order instructing Knight either to pay the filing fee associated with his petition or to submit a request to proceed in forma pauperis. On March 2, 2017, Knight submitted a request to proceed in forma pauperis; the circuit court granted the request on March 3, 2017.

On March 23, 2017, the State filed a response to Knight's petition, in which it requested that the circuit court summarily dismiss the petition. The State argued that claim (1), as set out above, was precluded because it should have been, but was not, raised in Knight's first Rule 32 petition, and that claim (2), as set out above, was meritless because the presumptive sentencing standards, which took effect on October 1, 2013, do not apply retroactively, and, even if the standards did apply retroactively, manslaughter fell under the voluntary sentencing standards, not the presumptive sentencing standards. The State also argued that claim (2) was "not properly filed in that it should be filed with the nearest Circuit Court to where the Petitioner resides and not the Trial Court which heard his case." (C. 15.) On March 24, 2017, the circuit court issued an order granting the State's request for summary dismissal and dismissing Knight's petition.

On appeal, Knight's sole argument is that the circuit court erred in summarily dismissing his petition, which he now concedes was a Rule 32 petition and not a habeas corpus petition, instead of returning the petition to him so that he could file the petition in the proper form for a Rule 32 petition, and he requests that we reverse the circuit court's judgment and remand this cause for the circuit court to return the petition to him to be refiled in the proper form under Rule 32.6(a), Ala. R. Crim. P. The State agrees with Knight and also requests that we reverse the circuit court's judgment and remand this cause for the circuit court to return the petition to Knight so that Knight may refile the petition in the proper form under Rule 32.6(a). We reject both Knight's and the State's requests.

In the early 1990s, this Court consistently reversed judgments dismissing Rule 32 petitions that were styled as habeas corpus petitions and remanded the cases with instructions that the petitions be returned so that they could be refiled in the proper form under Rule 32.6(a). See, e.g., Williams v. State, 642 So.2d 491 (Ala. Crim. App. 1993) ; Wheeler v. State, 615 So.2d 1330 (Ala. Crim. App. 1993) ; O'Neal v. State, 601 So.2d 1155 (Ala. Crim. App. 1992) ; Wright v. State, 597 So.2d 761 (Ala. Crim. App. 1992) ; and Drayton v. State, 600 So.2d 1088 (Ala. Crim. App. 1992). However, in 1995, the Alabama Supreme Court overruled that line of cases in Maddox v. State, 662 So.2d 915 (Ala. 1995), which we quote in its entirety:

"Jimmy Lee Maddox was convicted in 1972 of forgery in the first degree. He filed a post-conviction petition for writ of habeas corpus and/or writ of error coram nobis 21 years after his conviction. The Court of Criminal Appeals remanded the case to the circuit court with directions to return the petition to Maddox so that he could file it in the court of original conviction, as required by Rule 32, Ala. R. Crim. P. See Maddox v. State, 662 So.2d 914 (Ala. Crim. App. 1993).
"Judge Bowen dissented from the majority opinion, stating:
" 'Rule 32.5 [, Ala. R. Crim. P.,] requires that post-conviction petitions "shall be filed in and decided by the court in which the petitioner was convicted." This petition was filed in the court of original conviction.
" 'Rule 32.4 mandates that any "post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under ... [R]ule [32]." This petition, styled as one for a writ of habeas corpus and/or error coram nobis, was so treated.
" 'Rule 32.7(d) provides that "[i]f the court determines that the petition is ... precluded, ... and that no purpose would be served by any further proceedings, the court may dismiss the petition or grant leave to file an amended petition." This petition was summarily dismissed because, as a collateral attack on a 21-year-old conviction for which the statute of limitations had long since run, it showed on its face that it was precluded. The appellant did not request leave to amend his petition.
" 'Apparently this Court believes that the foregoing provisions of Rule 32 are less important than the following directive of Rule 32.6(a) :
" ' "The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form."
" 'I cannot share that belief. Just as Rule 32.7(d) (allowing summary dismissal of a petition) overrides, in some cases, the Rule 32.7(a) requirement that the prosecutor file a response, see Bishop v. State, 608 So.2d 345, 347-48 (Ala. 1992), agreeing with my dissent in and reversing Bishop v. State, 592 So.2d 664 (Ala. Cr. App. 1991), Rule 32.7(d) also takes precedence, in some cases, over the Rule 32.6(a) requirement that the petition be filed on the proper "form." Our blind adherence to the holding of Drayton v. State, 600 So.2d 1088 (Ala. Cr. App. 1992), is a literal exaltation of form over substance.
" 'It is ridiculous to remand this cause so that the appellant will have the opportunity to file a petition in the proper form that will be promptly dismissed. I dissent.'
"662 So.2d at 915.
"We granted the State's petition for certiorari review to address the State's contention that the Court of Criminal Appeals erred 'in holding that a petition which was due to be dismissed as a successive petition and precluded by the statute of limitations must be remanded so Appellant can file it on the proper form so that it can be dismissed and denied again.' We agree, and we adopt Judge Bowen's dissent as the opinion of this Court. See our opinion in Lockett v. State, 644 So.2d 34 (Ala. 1994), which addresses this same issue; our holding in Lockett requires that we reverse the judgment in this case."

662 So.2d at 916. Here, as in Maddox, Knight's petition was filed in the court of original conviction as required by Rule 32.5, and nothing in the record indicates that the circuit court did not properly treat the petition as a Rule 32 petition in accordance with Rule 32.4.

The State argues that because it incorrectly averred in its response to the petition that Knight's challenge to the legality of his sentence "should be filed with the nearest Circuit Court to where the Petitioner resides and not the Trial Court which heard his case," because the circuit court referenced the State's response in its order, and because the "the circuit court's order does not clearly reflect the basis of the court's dismissal of the petition" (State's brief, pp. 5-6), the circuit court's order "could be interpreted as relying on the improper grounds for dismissal cited by the State." (State's brief, pp. 3-4.) This is true. This Court could interpret the circuit court's order as summarily dismissing Knight's petition on an improper ground, i.e., on the ground that the petition should have been filed in a different venue. However, we decline to do so because circuit judges "are presumed to know the law and to follow it in making their decisions." Ex parte Slaton, 680 So.2d 909, 924 (Ala. 1996). That the circuit court referenced in its order the State's response to Knight's petition, which response happened to include an incorrect assertion, is not sufficient to overcome the presumption that the circuit court knew and followed the law when dismissing Knight's petition. Cf. Bagley v. State, 186 So.3d 488, 489 (Ala. Crim. App. 2015) ("The circuit court's identification of Bagley's petition according to its style [a habeas corpus petition] is not alone sufficient to overcome the presumption that the circuit court followed the law when dismissing Bagley's petition."). Absent any indication in the record to the contrary, we presume that the circuit court properly treated Knight's petition as a Rule 32 petition for postconviction relief and ruled on it accordingly.

Moreover, not only is a circuit court not required to state its reasons for summarily dismissing a Rule 32 petition, see Fincher v. State, 724 So.2d 87, 89 (Ala. Crim. App. 1998) ("Rule 32.7 does not require the trial court to make specific findings of fact upon a summary dismissal."), but, with certain exceptions not applicable here, the general rule is that this Court may affirm a circuit court's judgment if it is correct for any reason. See Bryant v. State, 181 So.3d 1087, 1100 (Ala. Crim. App. 2011) ; Moody v. State, 95 So.3d 827, 833 (Ala. Crim. App. 2011) ; and McNabb v. State, 991 So.2d 313, 333 (Ala. Crim. App. 2007), and the cases cited therein. Thus, even if we were to presume that the circuit court summarily dismissed Knight's petition on an improper ground, this Court may nonetheless affirm the court's judgment if it is correct for another reason, which it clearly is.

Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit court to summarily dismiss a petitioner's Rule 32 petition

"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings ...."

See also Hannon v. State, 861 So.2d 426, 427 (Ala. Crim. App. 2003) ; Cogman v. State, 852 So.2d 191, 193 (Ala. Crim. App. 2002) ; Tatum v. State, 607 So.2d 383, 384 (Ala. Crim. App. 1992). Summary disposition is also appropriate when the petition is obviously without merit or where the record directly refutes a Rule 32 petitioner's claim. See Shaw v. State, 148 So.3d 745, 765 (Ala. Crim. App. 2013).

Claim (1) in Knight's petition was not sufficiently pleaded to satisfy the requirements Rule 32.3, Ala. R. Crim. P., which places on the petitioner "the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief," and Rule 32.6(b), Ala. R. Crim. P., which requires that a petition "contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings." Knight made only the bare allegation in his petition that his "trial counsel was ineffective by failing to object to the court's improper jury instruction(s), specifically, instructing the jury of the lesser included offense(s) for the offense of manslaughter, either 'voluntary' or 'involuntary.' " (C. 2.) However, Knight failed even to allege in his petition why he believed the manslaughter instruction to be improper, much less plead any facts indicating that the instruction was, in fact, improper. Therefore, summary dismissal of this claim was appropriate.

Claim (2) in Knight's petition was, as argued by the State in its response to the petition, meritless on its face. Not only are the presumptive sentencing standards, which took effect on October 1, 2013, not retroactively applicable to Knight, who was sentenced in 2008, but also, even if they were, manslaughter is not an offense that falls within those standards; manslaughter is an offense covered only by the voluntary sentencing standards. See Presumptive and Voluntary Sentencing Standards Manual 19, 53 (2013). Therefore, summary dismissal of this claim was also appropriate.

Because summary dismissal of the two claims in Knight's petition was clearly proper, it would be " 'ridiculous to remand [this] cause so that [Knight] will have the opportunity to file a petition in the proper form that will be promptly dismissed.' " Maddox, 662 So.2d at 916 (quoting Judge Bowen's dissent).

Based on the foregoing, the judgment of the circuit court summarily dismissing Knight's Rule 32 petition is affirmed.

AFFIRMED.

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

      Under Alabama law, there are only two types of manslaughter-provocation (heat-of-passion) manslaughter and reckless manslaughter. Alabama does not recognize voluntary and involuntary manslaughter.

      We note that the presumptive sentencing standards were amended effective October 1, 2016.


author: POLSTON, J.

text:
    Rico JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC17-845
    Supreme Court of Florida.
    September 6, 2018
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, Florida, for Petitioner
    Pamela Jo Bondi, Attorney General, Tallahassee, Florida, Wesley Heidt, Bureau Chief, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, Florida, for Respondent
   POLSTON, J.

Rico Johnson seeks review of the decision of the Fifth District Court of Appeal in Johnson v. State , 215 So.3d 644 (Fla. 5th DCA 2017), on the ground that it expressly and directly conflicts with the decision of this Court in Evans v. State , 177 So.3d 1219 (Fla. 2015). The issue before this Court is whether a witness who identifies the defendant's voice could establish a prior special familiarity with the defendant's voice during an ongoing investigation. As explained below, we hold that the testifying witness's requisite prior special familiarity with the defendant's voice can be acquired at any time prior to trial. Therefore, we approve the decision of the Fifth District in Johnson and recede from Evans .

BACKGROUND

Rico Johnson was charged with conspiracy to traffic in cocaine. The facts of this case are well summarized by the Fifth District's decision:

In September 2014, the City/County Investigative Bureau in Seminole County (the "CCIB") began investigating the sale and distribution of cocaine that allegedly involved Appellant, co-conspirator Edward Howard, Jr., and more than one hundred other suspects. A wiretap on Howard's telephone allowed the CCIB to record calls and receive data about intercepted phone calls, including the date and time of the call, whether it was an incoming or outgoing call from the wiretapped phone, and the numbers dialed by the wiretapped phone. The investigating agents correlated the suspects' names with phone numbers and video surveillance of them and relayed that information to Agents Matt Scovel, the lead investigative agent, and Kevin Pederson, the administrator of the software system that intercepted the phone calls. During the investigation, Agents Scovel and Pederson listened to thousands of intercepted phone calls involving the suspects.
Based on the intercepted phone calls, the CCIB executed a search warrant at Howard's home on a day it suspected that Appellant would be delivering a supply of cocaine. Although cannabis and cash were found in the home, they found no cocaine. During the search, Agent Scovel spoke with Appellant for approximately five minutes but Agent Scovel "did most of the talking" because Appellant "felt uncomfortable talking to [him]." At the same time, Agent Pederson had a five-minute conversation with Howard, who spoke for approximately half of the time. This was the only time that either agent personally spoke with Appellant or Howard. Based on the intercepted phone calls, sixteen suspects, including Appellant and Howard, were eventually arrested and charged with conspiracy to traffic in cocaine.
At trial, the State called Agents Scovel and Pederson to identify Appellant's and Howard's voices, respectively, on the recorded phone calls. Agent Scovel testified that he recognized Appellant's voice from the intercepted phone calls, their conversation at the time of the search, and a DVD recording of a hearing where Appellant testified for approximately twenty minutes. That recording was not entered into evidence at Appellant's trial or played for the jury. Agent Pederson testified that he recognized Howard's voice from the intercepted phone calls and their conversation at the time of the search. The State later played several phone calls for the jury in which Appellant, Howard, and other suspects allegedly discussed drug transactions in coded terms. According to Agent Scovel's testimony, the coded calls involved discussions between Howard and Appellant, and between Howard and other co-conspirators, about buying and selling cocaine, the amounts of and prices for the cocaine, the availability of buyers, and plans to meet to exchange the cocaine for money.

215 So.3d at 646. Johnson was convicted of conspiracy to traffic in cocaine and sentenced to 15 years' imprisonment.

On appeal, Johnson argued that the trial court erred in allowing Agent Scovel's lay opinion testimony because Scovel lacked the prior special familiarity to identify Johnson's voice on the recordings under this Court's decision in Evans , usurping the function of the jury. Id. However, the Fifth District affirmed, concluding that Johnson's reliance on Evans was misplaced. The Fifth District reasoned that Scovel's identification testimony met the requirements under Evans because he both possessed a prior special familiarity with Johnson's voice and was a witness who heard the crime. Id. at 651. The Fifth District concluded that Scovel's testimony did not invade the province of the jury and held that the trial court did not abuse its discretion in admitting the identification testimony.

ANALYSIS

Johnson contends that, under the standard for lay opinion testimony in Evans , a prior special familiarity with the defendant's voice could not be established once the investigation was ongoing. Although Evans supports Johnson's argument, we conclude that we should recede from Evans .

"Generally, a lay witness may not testify in terms of an inference or opinion, because it usurps the function of the jury. The jury's function is to determine the credibility and weight of such testimony."

Floyd v. State , 569 So.2d 1225, 1231-32 (Fla. 1990) (citation omitted). However, Florida has long recognized the ability of a testifying witness to offer an opinion as to identity. See Roberson v. State , 40 Fla. 509, 24 So. 474, 478 (1898) ("The opinion of a witness as to the identity of a person seen by him is admissible in all cases where the witness has a previous personal acquaintance with or knowledge of such person, and bases his opinion upon such acquaintance or knowledge."). Lay opinion testimony is permissible as to what the witness perceived when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

§ 90.701, Fla. Stat. When a witness is previously familiar with a defendant, they are permitted to identify the voice of the defendant as a lay witness. See State v. Cordia , 564 So.2d 601, 602 (Fla. 2d DCA 1990) ; Hardie v. State , 513 So.2d 791, 792 (Fla. 4th DCA 1987).

The admission of the identification testimony focuses on whether the identification testimony usurps the fact-finding function of the jury. See Alvarez v. State , 147 So.3d 537, 543 (Fla. 4th DCA 2014) ("[N]o record evidence exists which indicates that the detective was in a better position than the jurors to view the highly inconclusive and indiscernible surveillance video and enlarged stills and thereby determine the skin color and races of the perpetrators."); Ruffin v. State , 549 So.2d 250, 251 (Fla. 5th DCA 1989) ("When factual determinations are within the realm of an ordinary juror's knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury."). When a mere comparison of identification evidence over the course of an investigation is the basis for the prior special familiarity, the identification testimony does not assist the jury in identifying the defendant. Alvarez , 147 So.3d at 543 (finding error when the detective was unable to make the identification until extensively rewatching the video); Ruffin , 549 So.2d at 251 (finding the trial court erred in allowing identification testimony from three officers who simply viewed the videotape and testified it depicted the defendant).

In Evans , this Court addressed whether the trial court erred in permitting a law enforcement officer to offer his opinion that the voice on a 911 recording was that of the defendant. 177 So.3d at 1228. At trial, the lead detective testified that he recognized the defendant's voice on the 911 recording because he compared it to recorded jail calls between the defendant and family members. Id. Because the lead detective based his identification on two recordings of the defendant after the crime was committed, the only basis under which lay identification testimony could be admissible was if a prior special familiarity was established. Id. at 1230. This Court determined that "[a] police officer investigating a particular suspect's voice after the investigation is ongoing , as in this case, does not constitute the requisite prior familiarity with the suspect." Id. at 1230 (emphasis added). Accordingly, this Court concluded that the "detective usurped the role of the jury by being permitted to opine that a voice heard on a 911 call-back recording belonged to the defendant." Id. at 1224.

In this case, Agent Scovel's familiarity with Johnson's voice arose as the lead investigative agent who investigated the conspiracy over 100 days, listened to thousands of recorded phone calls, and confirmed Johnson's identity and voice during his in-person interview. Further, the record reflects that Agent Scovel listened to the phone calls both in real time and after the fact. The jury in this case did not share Agent Scovel's familiarity with Johnson and was not in the same position to assess the identity of the voices on the recorded calls. Additionally, the jury was unable to simply compare the voice on the recorded calls to the DVD of the hearing where Johnson testified because the DVD was not admitted into evidence due to Johnson's objection. Because Agent Scovel had the opportunity to become familiar with Johnson's voice over the course of the conspiracy investigation, Scovel was in a better position to make the identification and his testimony did not invade the province of the jury. Accordingly, the record demonstrates that Agent Scovel possessed a special familiarity with Johnson's voice. However, based on our precedent in Evans , Agent Scovel's familiarity established after the investigation was ongoing would prevent him from obtaining the requisite prior special familiarity with a suspect's voice.

However, as Justice Lewis outlined in his dissent in Evans , "Florida courts have consistently allowed law enforcement officers to identify the voice of a defendant where the officer has gained familiarity with the voice." 177 So.3d at 1243 (Lewis, J., dissenting). We agree with the Fifth District's conclusion that in the context of section 90.701, Florida Statutes, a prior special familiarity means that "prior to trial, the identification witness must have gained familiarity with the defendant that assists the witness in identifying him." Johnson , 215 So.3d at 652. A "prior special familiarity," as explained by the Fifth District in Johnson , "involves a witness with some advantage over the jury, gained by personal contact with the defendant, apart from that which the jury could experience in the courtroom." Id. at 651. Because allowing voice identification testimony that was acquired during an ongoing investigation is consistent with aiding the jury instead of invading the province of the jury, we now recede from Evans . We conclude that a familiarity with a defendant's voice acquired during an ongoing investigation may constitute the requisite prior special familiarity for voice identification testimony. Therefore, the trial court properly allowed Agent Scovel to identify Johnson's voice on the recorded calls and we approve the decision of the Fifth District.

CONCLUSION

In summary, because the identification witness may acquire a special familiarity with the defendant's identity at any time prior to trial, we recede from Evans and approve the Fifth District's decision in Johnson .

It is so ordered.

CANADY, C.J., and LEWIS, LABARGA, and LAWSON, JJ., concur.

PARIENTE, J., concurs in result in part and dissents in part with an opinion, in which QUINCE, J., concurs.

PARIENTE, J., concurring in result in part and dissenting in part.

While the rule announced in Evans v. State , 177 So.3d 1219 (Fla. 2015), may have been unnecessarily broad, as applied to other cases like this one, I write to emphasize the significant differences between this case and Evans . I further write to urge the trial courts to exercise extreme caution before allowing an investigating police officer to testify to voice identification based on "prior special familiarity," especially where the familiarity comes only after arrest.

While I concur in the result in this case because of the significant factual differences between this case and Evans , I dissent from the majority's unnecessarily broad holding that "the testifying witness's requisite prior special familiarity with the defendant's voice can be acquired at any time prior to trial." Majority op. at 1115-16. Such a holding opens the door to police officers gaining the requisite "special familiarity" to testify to voice identification based simply on listening to audio recordings created after the defendant has been arrested, which are equally available to the jury.

The differences between this case and Evans clearly illustrate this concern. In the case before us, after obtaining a wiretap to investigate a conspiracy to sell and distribute cocaine, Agent Scovel, along with other agents, "listened to thousands of intercepted calls involving the suspects" over 100 days. Johnson v. State , 215 So.3d 644, 646 (Fla. 5th DCA 2017) ; majority op. at 1117-18. The phone calls were correlated with suspect names, phone numbers, and video surveillance. Johnson , 215 So.3d at 646. In fact, the Fifth District Court of Appeal determined that Agent Scovel was so involved with the crime that he "witnesse[d] ... the conspiracy as it unfolded." Id. at 651.

This extensive investigation formed the basis for Johnson's ultimate arrest, and many of the phone recordings were entered into evidence at trial. It was that extensive investigation of listening to thousands of hours of intercepted phone calls that distinguishes this case from Evans. As the Fifth District explained, properly distinguishing Evans :

In Evans , the state made the decision not to offer the exemplar telephone recordings into evidence. Had the recordings been admitted, Evans would have been directly, factually analogous to Ruffin [v. State , 549 So.2d 250 (Fla. 5th DCA 1989),] and Alvarez [v. State , 147 So.3d 537 (Fla. 4th DCA 2014) ]. The jury would have been able to make the same comparison that was made by the police because the police enjoyed no expertise or special familiarity with the voice. Because the state made the decision not to give the exemplar to the jury, the Evans court treated it as an invasion-of-the-province-of-the-jury case. In other words, it would circumvent the intent of the evidence code to allow the state to disadvantage the jury by withholding tangible evidence in its possession so as to justify the use of otherwise inadmissible lay testimony. Simply put, Evans is a case where the police merely compared one recording to another, an exercise that was well within the province of the jury, had it been given the opportunity to do so.

Id. at 650 (footnote omitted) (emphasis added). Where Detective Judy in Evans was in no better position than the jury to identify Evans' voice, Agent Scovel's testimony in this case was not only reliable, but also helpful to the jury by providing information based on familiarity with the crime that the jury could not obtain. See Manson v. Brathwaite , 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) ; majority op. at 1118.

In receding from Evans , the majority announces a new per se rule-that the necessary "prior special familiarity with the defendant's voice can be acquired at any time prior to trial "-that could cause additional issues. Majority op. at 1115-16 (emphasis added). The majority's new rule subjects criminal defendants to undue prejudice. Under this new rule, theoretically, an officer could listen to recordings outside the courthouse just before trial and then proceed to testify as a voice identification witness based on "prior special familiarity."

Further, the danger of unfair prejudice is a critical issue in any case where a police officer testifies as a lay identification witness based on "prior special familiarity." See § 90.403, Fla. Stat. (2017). Not only are there significant "constraints on cross-examination," but the danger of unfair prejudice is exacerbated when police officers testify as lay witnesses identifying the defendant. Hardie v. State , 513 So.2d 791, 793 (Fla. 4th DCA 1987). As this Court explained in Evans :

"[E]rror in admitting improper testimony may be exacerbated where the testimony comes from a police officer." Martinez v. State , 761 So.2d 1074, 1080 (Fla. 2000). "When a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave." Id. (quoting Rodriguez v. State , 609 So.2d 493, 500 (Fla. 1992) ). "There is the danger that jurors will defer to what they perceive to be an officer's special training and access to background information not presented during trial." Charles [v. State , 79 So.3d [233,] 235 [ (Fla. 4th DCA 2012) ].
In fact, permitting questions that elicit a witness's position as a police officer when that witness is identifying a defendant's voice or image has been held to be reversible error even when the identification itself was permissible.

177 So.3d at 1230. Thus, regardless of when the officer forms the prior special familiarity, trial courts must carefully consider the prejudice to which the defendant is subjected by allowing such testimony and limit the testimony accordingly. See id. at 1231.

CONCLUSION

For the reasons explained above, I agree with the majority that, based on the facts of this case, the trial court properly allowed Agent Scovel to identify Johnson's voice based on his "prior special familiarity." However, I dissent from the majority's broad holding that prior special familiarity necessary to admit identification testimony may be acquired any time before trial.

QUINCE, J., concurs.

      We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      We conclude that the three-prong test of when we recede from precedent is met. See Brown v. Nagelhout , 84 So.3d 304, 309 (Fla. 2012).