author: THOMAS, Judge. BRYAN, Judge,

text:
    Derrik NELMS v. HILLSIDE VILLAGE APARTMENTS d/b/a Hale Properties, et al.
    2080371.
    Court of Civil Appeals of Alabama.
    Aug. 14, 2009.

      Karen D. Wbite-Humphrey, Huntsville, for appellant.
    Meredith Jowers Lees of Haskell, Slaughter, Young & Rediker, LLC, Birmingham, for appellee Hillside Village Apartments d/b/a Hale Properties.
   THOMAS, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(E) and (F), Ala. R.App. P.; Parker Bldg. Servs. Co. v. Lightsey, 925 So.2d 927 (Ala.2005); Stovall v. Universal Constr. Co., 893 So.2d 1090, 1097 n. 1 (Ala.2004); Ex parte Kraatz, 775 So.2d 801 (Ala.2000); General Motors Corp. v. Hill, 752 So.2d 1186 (Ala.1999); Ex parte Mountain Top Indoor Flea Market, Inc., 699 So.2d 158 (Ala.1997); and West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

This appeal was transferred to this court by the Alabama Supreme Court, pursuant to § 12-2-7(6), Ala.Code 1975.

THOMPSON, P.J., and PITTMAN and MOORE, JJ., concur.

BRYAN, J., concurs specially.

BRYAN, Judge,

concurring specially.

The appellant, Derrik Nelms, makes no attempt to distinguish the facts in General Motors Corp. v. Hill, 752 So.2d 1186 (Ala.1999), from the facts in this case and, therefore, fails to demonstrate why the supreme court’s holding in that case is inapplicable. Because Hill appears to control the resolution of the ci'ucial issue in this case, I concur.


source: Caselaw Access Project

author: THOMAS, Judge. MOORE, Judge,

license: Public Domain

text:
    Tiffany Nicole WOOD v. Johnny L. WOOD.

      2080212.

    Court of Civil Appeals of Alabama.
    Aug. 28, 2009.

      Margaret Y. Brown, Auburn, for appellant.
    Roland L. Sledge, Valley, for appellee.
   THOMAS, Judge.

Tiffany Nicole Wood (“the mother”) appeals from the judgment of the Chambers Circuit Court granting the petition to modify custody of the parties’ minor daughter (“the child”) filed by Johnny L. Wood (“the father”). We reverse and remand.

Facts and Procedural History

In September 2000 the mother and the father divorced. The judgment of divorce stated, with respect to custody of the child, “[t]hat the parties shall share joint custody of said minor child ... with primary residence being with the mother.” The judgment of divorce also incorporated a settlement agreement entered into by the parties. The settlement agreement stated that the father would have visitation, among other times, on “[the father’s] days off from work.” At the time the parties divorced, the father’s work schedule required him to work four days on followed by four days off. In 2007, the father’s work schedule changed to Monday through Friday, with weekends off. After the father’s work schedule changed, the parties agreed to change the visitation schedule to allow the child to live one week with the mother followed by one week with the father. The father testified that the mother had voluntarily entered into the agreement to change the visitation schedule. The mother admitted that she had agreed to the change; however, she stated that she had agreed only because she had been intimidated by the father. The change in the visitation schedule was not reduced to writing, and the parties did not file in' the trial court a petition to modify the visitation schedule from the schedule expressed in the judgment of divorce.

On February 19, 2008, the father petitioned the trial court for a modification of custody, requesting that the trial court grant him primary physical custody of the child and that it grant the mother standard visitation. On April 14, 2008, the mother answered the father’s petition and petitioned the trial court for a rule nisi and a modification of the visitation provisions of the judgment of divorce. The mother requested that the trial court (1) hold the father in contempt for failure to pay child support, (2) increase the amount of the father’s child-support obligation, (3) grant the mother sole legal custody of the child, and (4) modify the father’s visitation schedule.

After the father filed his petition for modification, the mother reduced the father’s visitation to only that allowed by the juclgnent of divorce. In response, the father moved the trial court for a pendente lite order, requesting that the court grant the father visitation on alternating weeks until the court issued its final order on the father’s petition for modification; the trial court granted the father’s motion. 'The trial court also ordered the father to continue to pay child support according to the terms of the judgment of divorce.

On August 26, 2008, the trial court held a hearing and heard ore tenus evidence. The trial court entered a final judgment on October 16, 2008, in which it awarded custody of the child to the father and granted the mother visitation, ordered the mother to pay child support in the amount of $226.28 per month, found the father in contempt for failure to pay $23,860 in past-due child support and ordered the father to pay the arrearage at a rate of $226.28 pei month. On October 16, 2008, the mother filed a motion for a new trial, which the trial court denied on October 21, 2008. The mother timely appealed to this court.

Issues

The mother raises three issues on appeal: (1) whether the trial court applied the correct custody-modification standard; (2) whether the trial court’s judgment granting the father’s petition to modify custody was supported by sufficient evidence; and (3) whether the trial court erred when it determined the amount and method of payment of the father’s child-support arrearage.

Standard of Review

“This court’s standard of review in custody matters when the evidence is presented ore tenus is limited. Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App.1993).
“ ‘Modification of child custody is a matter which falls within the discretion of the trial court. Hester v. Hester, 460 So.2d 1305 (Ala.Civ.App.1984). A trial court is afforded great discretion when determining matters of child custody. Its judgment is presumed correct and will not be disturbed on appeal absent an abuse of discretion or where it is shown to be plainly and palpably wrong. Benton v. Benton, 520 So.2d 534 (Ala.Civ.App.1988).’
“Id.”

AM. v. J.S., [Ms. 2071213, June 05, 2009] (Ala.Civ.App.2009). However, the question of whether the trial court applied the proper custody-modification standard is a question of law; thus, our review on that question is de novo. Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994).

Analysis

The mother first argues that the trial court’s judgment should be reversed because, she argues, it is unclear whether the trial court applied the proper custody-modification standard. The divorce judgement granted the parties “joint custody of said minor child ... with primary residence being with the [mother].” Thus, the divorce judgment granted the mother primary physical custody of the child. A noncustodial parent seeking a modification of custody must meet the standard established in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

“[The Alabama Supreme Court’s] decision in Ex parte McLendon provides that a party seeking a change in custody must show that the change ‘will materially promote [the] child’s welfare.’ 455 So.2d at 865. The McLendon standard is a ‘rule of repose,’ meant to minimize disruptive changes of custody because this Court presumes that stability is inherently more beneficial to a child than disruption. Ex parte McLendon, 455 So.2d at 865. It is founded on the longstanding principle that ‘[i]t is the court’s duty to scrupulously guard and protect the interests of children. And in the context of child-custody proceedings, the dominant consideration is always the best interest of the child.’ Ex parte Fann, 810 So.2d 631, 638 (Ala.2001).”

Ex parte Cleghorn, 993 So.2d 462, 468 (Ala.2008).

“ ‘ ... The [McLendon standard] requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.’ ”

Ex parte McLendon, 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

The father argues that the burden of proof fell not on him, but on the mother, because, he says, the mother voluntarily transferred custody of the child to him. The father cites Nicholas v. Nicholas, 464 So.2d 527 (Ala.Civ.App.1985), in support of his argument. Nicholas, however, is distinguishable from this case. In Nicholas, the wife voluntarily agreed at the time of the parties’ divorce that custody of their child would be placed with the husband. The husband then transferred custody of the child to the child’s paternal grandmother. Eight years later, the wife petitioned to regain custody of the child. This court stated:

“A parent who has voluntarily relinquished custody of a child and later attempts to regain custody bears a two-part burden of proof. First, she must prove that she is a fit parent; next, she must prove that a change in custody materially promotes the child’s best interests.”

Nicholas, 464 So.2d at 529 (citing Ex parte McLendon, supra; Clayton v. Pair, 457 So.2d 420 (Ala.Civ.App.1984); and In re Young, 456 So.2d 823 (Ala.Civ.App.1984)). In this case, the divorce judgment granted the father visitation, among other times, on his days off from work. At that time, the father worked a four-days-on, four-days-off schedule. Later, the father’s work schedule changed to Monday through Friday, with weekends off. After the change in the father’s work schedule, the mother and the father agreed to a visitation schedule that allowed the child to alternate weeks living with each parent. That agreement is hardly indicative of the mother’s voluntarily relinquishing custody of the child. Therefore, the burden of proof in this case was on the father, and not on the mother, to show that a modification of custody met the McLendon standard.

The trial court’s judgment and the record are silent as to what standard the trial court applied in granting the father’s petition to modify custody. Because we cannot discern the standard applied by the trial court, we reverse the trial court’s judgment and remand the cause for the trial court to consider the evidence in light of the McLendon standard. M.B. v. S.B., 12 So.3d 1217, 1219 (Ala.Civ.App.2009); Richardson v. Fotheringham, 950 So.2d 339, 342 (Ala.Civ.App.2006); and C.A.M. v. B.G.H., 869 So.2d 507, 508 (Ala.Civ.App.2003).

REVERSED AND REMANDED.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., dissents, with writing.

MOORE, Judge,

dissenting.

I respectfully dissent from the majority opinion’s reversal of the trial court’s judgment modifying custody of the parties’ child. In the present case, there is no indication in the record that the trial court applied the wrong custody-modification standard. “This court will not presume error on the part of the trial court.” Pickett v. Pickett, 792 So.2d 1124, 1128 (Ala.Civ.App.2001). Furthermore, “[a] trial court need not include a recital of findings of fact or conclusions of law in its final order unless a statute specifically requires it to do so.” Taylor v. Taylor, 387 So.2d 849, 852 (Ala.Civ.App.1980), overruled on other grounds, Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984). I agree with Judge Crawley’s dissent in C.A.M. v. 869 So.2d 507 (Ala.Civ.App.2003), stating that “[o]ur supreme court has held that, in a situation such as the one presented in this case, this court should review the evidence in light of the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984), rather than remand the case to the trial court for it to conduct the review.” 869 So.2d at 508 (citing Ex parte Johnson, 673 So.2d 410 (Ala.1994), opinion on remand, 673 So.2d 414 (Ala.Civ.App.), petition for writ of mandamus granted, Ex parte Breedlove, 673 So.2d 415 (Ala.1995)).

       Note from the reporter of decisions: On August 7, 2009, the Alabama Court of Civil Appeals withdrew the June 5, 2009, opinion in A.M. and substituted another one. The substituted opinion contains the same quoted material.

      . In Ex parle Fann, 810 So.2d 631, 636 (Ala.2001), the Alabama Supreme Court reiterated the well-established principle of Alabama law that, " '[w]here a trial court does not make specific findings of fact concerning an issue, this Court will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.' ” (Quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992).) However, the determination of what standard should be applied by the trial court is a legal determination, not a finding of fact. As such, it is afforded no such presumption.

      . Because we reverse the trial court's judgment and remand the cause for the trial court to consider the evidence in light of the McLen-don standard, we pretermit discussion of the remaining issues the mother raises in her appeal.


author: THOMAS, Judge.

text:
    Cynthia J. CORWIN (Martin) v. Rocky V. CORWIN.
    2080394.
    Court of Civil Appeals of Alabama.
    Aug. 28, 2009.
    Cynthia J. Corwin (Martin), pro se.
    Paul R. Cooper of Cooper & Cooper, Montgomery, for appellee.
   THOMAS, Judge.

This is the second time these parties have been before this court regarding the child-support arrearage owed by Rocky V. Corwin (“the father”) to Cynthia J. Corwin (Martin) (“the mother”). See Corwin v. Corwin, 5 So.3d 1278 (Ala.Civ.App.2008). In Corwin, we reversed the trial court’s judgment denying the mother’s contempt petition, in which she sought the establishment of the child-support arrearage. Corwin, 5 So.3d at 1281. Our instructions on remand were for the trial court to compute the child-support arrearage owed by the father. Id.

On remand, the trial court entered a judgment computing the child-support arrearage owed by the father; the judgment determined that the father owed $2,300 in past-due child support, based on a 23-month period of nonpayment of his $100 per month child-support obligation. The mother filed a postjudgment motion in which she argued that the trial court had erred in failing to include interest in the calculation. The trial court denied the mother’s motion, and she appealed. The mother argues on appeal that the trial court erred by failing to award her post-judgment interest on the child-support ar-rearage.

Alabama law requires that interest of 12 percent per year be applied to each installment of past-due child support. T.L.D. v. C.G., 849 So.2d 200, 204 (Ala.Civ.App.2002) (citing Ala.Code 1975, § 8-8-10). “ ‘[A] trial court with jurisdiction over proceedings to enforce an earlier child-support judgment is without authority to waive the imposition of statutorily imposed postjudgment interest upon such payments.’ ” T.L.D., 849 So.2d at 204 (quoting Walker v. Walker, 828 So.2d 943, 945 (Ala.Civ.App.2002)); see also State ex rel. Pritchett v. Pritchett, 771 So.2d 1048, 1051 (Ala.Civ.App.2000).

“Under Alabama law, child-support payment ‘installments become final judgments as of the date due.’ Oshorne v. Osborne, 57 Ala.App. 204, 206, 326 So.2d 766, 767 (Ala.Civ.App.1976). Because ‘judgments for the payment of money bear interest from the date of rendition’ ‘it follows that such [child-support] judgments would bear interest from due date.’ Osborne, 57 Ala.App. at 206, 326 So.2d at 767. Therefore, to properly calculate interest on an arrearage, one would have to compute the interest due on each installment from its due date. Id.”

Hollen v. Conley, 840 So.2d 921, 924 (Ala.Civ.App.2002).

The trial court erred by failing to compute, as part of the total amount owed by the father, the appropriate amount of postjudgment interest on the child-support arrearage. We therefore reverse the judgment, and we remand the cause with instructions that the trial court properly compute the father’s child-support arrear-age, including the statutorily mandated interest on each past-due installment.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.

      . The trial court’s judgment specifically denied the father’s request for a credit against the arrearage. In his brief, the father argues that he should be awarded a credit. However, because the father did not perfect a cross-appeal under Rule 4(a)(2), Ala. R.App. P., the issue is not properly before us and we will not consider his argument. Robicheaux v. Robicheaux, 731 So.2d 1222, 1224 (Ala.Civ.App.1998).


author: MOORE, Judge.

text:
    Diane E. JOHNSON v. Jodi HALAGAN, as personal representative of the estate of Clarence L. Johnson, deceased.
    2080130.
    Court of Civil Appeals of Alabama.
    Aug. 28, 2009.
    J.E. Sawyer, Jr., Enterprise, for appellant.
    Thomas F. Kelly, Jr., Clayton, for appel-lee.
   MOORE, Judge.

Diane E. Johnson (“the wife”) appeals from an order entered by the Barbour Circuit Court in a divorce action between her and Clarence L. Johnson (“the husband”).

Procedural History

On December 9, 2005, the husband filed a complaint seeking a divorce from the wife and an equitable division of the parties’ jointly owned real and personal property. On January 13, 2006, the wife filed an answer to the husband’s complaint; she also sought an award of periodic alimony.

On February 6, 2006, the wife filed a “motion for pendente lite hearing,” requesting that, pending a final hearing, she be awarded a monthly amount for spousal support. Following a hearing on February 22, 2006, at which counsel for both parties informed the court that they had reached an agreement pertaining to the pendente lite issues and placed the terms of the agreement on the record, the trial court, on February 27, 2006, entered a pendente lite order that, among other things, ordered the husband to pay to the wife $700 per month in spousal support and ordered the husband to pay insurance on the vehicle being driven by the wife and on the marital residence.

On November 7, 2006, the wife filed a motion asking that the trial court find the husband in contempt for his failure to pay to the wife the monthly spousal support as ordered, issue a restraining order preventing the husband from entering upon the premises of the marital residence, and increase the husband’s monthly spousal-support obligation. Following a hearing on March 13, 2007, at which ore tenus evidence was received, the trial court entered an order on April 20, 2007, that, among other things, (1) ordered that the marital residence be listed with a realtor and sold; (2) ordered the husband to pay all copays for doctor visits and prescription drugs, to keep medical insurance in effect, and to pay all outstanding medical bills pertaining to the parties; (3) ordered the husband to pay spousal support in the amount of $800 per month; (4) ordered the husband to return the lawnmower, “weed eater,” and other items needed for maintenance of the yard and to assist with the upkeep of the yard until such time as the marital residence was sold; (5) ordered the parties to maintain the status quo as to all certificates of deposit, bonds, and personal property and ordered the parties not to dispose of, disperse, and/or dissolve any of the personal and real property of the parties; and (6) reserved final disposition of the marital assets, moneys, certificates of deposit, bonds, proceeds from the sale of the marital residence, alimony, and any other matters until such time as the marital residence was sold.

Both parties filed additional contempt motions, and orders were entered by the trial court on those motions. Thereafter, on June 30, 2008, the trial court entered an order “after hearing extensive oral testimony during trial” that, among other things, (1) divorced the parties; (2) ordered that the marital residence located in Clio, Alabama, be sold and that a hearing “be set for division of the proceeds from [that] sale, as well as, [for] division of Certificates of Deposit” (emphasis added); (3) divided certain of the parties’ personal property; (4) ordered each party to be responsible for his or her own debts; (5) awarded each party his or her individual checking accounts and the funds therein; (6) declined to award the wife periodic alimony; and (7) declined to award either party any form of property settlement from the other party. On July 30, 2008, the wife filed a “motion for reconsideration or in the alternative motion for new trial”; that motion was denied by the trial court on August 22, 2008. On September 29, 2008, the wife filed a notice of appeal to this court.

Subsequent to the filing of the wife’s notice of appeal, the trial court, on September 30, 2008, purported to enter the following order: “The court having been notified of an appeal being taken by the [wife] it is hereby ordered, adjudged and decreed that all proceedings are stayed pending appeal.” Thereafter, on October 7, 2008, the trial court purported to enter the following order:

“The Court having received correspondence from the [wife] through her attorney ... that she does not intend to file an appeal bond hereby lifts and vacates the stay previously entered. The closing shall proceed and all funds and proceeds due either party shall be in-terplead[ed] into court for equitable distribution .... ”

On October 20, 2008, the trial court then purported to enter the following order: “The Court hereby sets this case for a hearing on distribution of marital assets for October 30, 2008 at 10:00 a.m. at the Barbour County Courthouse, Clayton Division.” The hearing set for October 30, 2008, was continued by the trial court and, it appears from the record, was eventually held on December 10, 2008. On December 10, 2008, the trial court purported to render the following order: “That any and all rights of [the wife] to be designated a beneficiary under the Joint and Survivor Annuity plan of payment elected by [the husband] from Ohio Police & Fire Pension Fund be hereby cancelled and of no further force and effect.” That purported order was not put into the State Judicial Information System (“SJIS”) and, thus, was not entered by the trial court, see Rule 58(c), Ala. R. Civ. P. There is, however, a December 10, 2008, entry in SJIS, which states: “Testimony taken and judge to rule and do order.” Thereafter, the trial court, on January 13, 2009, purported to enter an order disposing of the remaining marital assets of the parties.

On March 2, 2009, counsel for the husband filed a “suggestion of death” in the trial court, indicating that the husband had died on February 21, 2009. On March 10, 2009, counsel for the husband filed a suggestion of death with this court. On April 13, 2009, counsel for the husband filed a motion to substitute Jodi Halagan, as personal representative of the husband’s estate, as the appellee in this case. That motion was granted by this court that same day.

Analysis

Because “ ‘ “jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu,” ’ ” Horton v. Horton, 822 So.2d 431, 433 (Ala.Civ.App.2001) (quoting Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997), quoting in turn Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)), we must first consider whether we have jurisdiction over this appeal.

“[Jjurisdiction of a case can be in only one court at a time,” Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala.1984), and, “ ‘[o]nce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.’ ” Horton, 822 So.2d at 434 (quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982)). Thus, in the present case, the filing of the wife’s notice of appeal on September 29, 2008, divested the trial court of jurisdiction to act in the parties’ divorce action, which encompassed the division of all the parties’ real and personal property, until that appeal was resolved. “An order entered by a trial court without jurisdiction is a nullity.” J.B. v. A.B., 888 So.2d 528, 532 (Ala.Civ.App.2004). Accordingly, all orders entered by the trial court after September 29, 2008, “ ‘except [orders entered] in matters entirely collateral to the appeal,’ ” are nullities. HoHon, 822 So.2d at 434.

Having determined that the orders entered by the trial court after September 29, 2008, are nullities, we must now determine whether the trial court’s June 30, 2008, order is a final judgment that will support an appeal.

“ ‘... The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So.2d 869, 871 (Ala.Civ.App.1979).’
“Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006). See also § 12-22-2, Ala.Code 1975.
“This court has previously stated:
“ ‘ “ ‘It is a well established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.’” Owens v. Owens, 739 So.2d 511, 513 (Ala.Civ.App.1999), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala.1981). This court has stated:
“ ‘ “A final judgment is one that completely adjudicates all matters in controversy between all the parties.
“ . An order that does not dispose of all claims or determine the rights and liabilities of all the parties to an action is not a final judgment. In such an instance, an appeal may be had ‘only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.’ See Rule 54(b), Ala. R. Civ. P.” ’
“Adams v. NaphCare, Inc., 869 So.2d 1179, 1181 (Ala.Civ.App.2003) (quoting Eubanks v. McCollum, 828 So.2d 935, 937 (Ala.Civ.App.2002)).”

Blankenship v. Blankenship, 963 So.2d 112, 114 (Ala.Civ.App.2007). Additionally, this court, in Grubbs v. Grubbs, 729 So.2d 346, 347-48 (Ala.Civ.App.1998), held that a divorce judgment that “made no final distribution of all the parties property” was not a final judgment. See also McGill v. McGill, 888 So.2d 502, 504 (Ala.Civ.App.2004).

In the present case, the trial court did not finally dispose of all the marital assets of the parties in its June 30, 2008, order; instead, the trial court ordered that the marital residence be sold and further ordered that a hearing “be set for division of the proceeds from [that] sale, as well as, [for] division of [the] Certificates of Deposit.” That order was a nonfinal judgment because it did not “ ‘ “completely adjudicate[ ] all matters in controversy between ... the parties.” ’ ” Blankenship, 963 So.2d at 114. Additionally, the trial court did not certify its June 30, 2008, order as final pursuant to Rule 54(b), Ala. R. Civ. P. See id. Accordingly, the trial court’s June 30, 2008, order is not a final judgment, and we must dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, BRYAN, and TPIOMAS, JJ., concur.


text:
    Joseph GRACE v. STANDARD FURNITURE MANUFACTURING COMPANY, INC.
    2080201.
    Court of Civil Appeals of Alabama.
    Aug. 28, 2009.

      Charles R. Godwin, Timothy J. Godwin, and Gordon B. Godwin, Atmore, for appellant.
    Robert G. Jackson, Jr., Anthony M. Hoffman, and Jennifer S. Holifield of Zie-man, Speegle, Jackson & Hoffman, L.L.C., Mobile, for appellee.
   THOMAS, Judge.

Joseph Grace was employed as a forklift operator by Standard Furniture Manufacturing Company, Inc. (“Standard”), on November 8, 2005, when Grace was injured in an accident involving a forklift. Grace had surgery as a result of his injuries, and he was given permanent restrictions by his physician that prevented him from continuing his employment as a forklift operator. Standard reassigned Grace to a position in the furniture-assembly line. Grace sued Standard in January 2005, seeking workers’ compensation benefits. After a trial on September 29, 2008, the trial court entered the following judgment:

“This matter having come before this Court for trial on September 29, 2008[,] and the Court having heard the testimony finds, based on the evidence presented, in favor of [Standard].”

Grace appeals. He first argues that the trial court’s judgment fails to comply with Ala.Code 1975, § 25-5-88, which requires a trial court to make findings of fact and conclusions of law in workers’ compensation judgments. Standard argues that, based on a stipulation of the parties, the trial court was concerned with only one issue — whether Ala.Code 1975, § 25 — 6—57(a)(3)i., applied to Grace’s claim — and that, because it had only that one issue before it, we should consider the judgment to be “merely meager or omis-sive” and review it by considering whether it could be supported by the evidence at trial. See, e.g., Werner Co. v. Williams, 871 So.2d 845, 853 (Ala.Civ.App.2003) (“To the extent some of the findings of the trial court may be meager or omissive, we note that a reversal is not required. Instead, we merely conduct the same review as we would of more specific factual findings to determine whether the ultimate finding made by the trial court is supported by substantial evidence.”); and McCutcheon v. Champion Int'l Corp., 628 So.2d 742, 743 (Ala.Civ.App.1993) (“If the trial court’s findings are meager or omissive, this court may look to the record to determine if the trial court’s judgment should be upheld.”).

Our review of the record does not reveal that the parties stipulated that the trial court was limited to determining only whether § 25-5-57(a)(3)i. applied to Grace’s claim. The parties stipulated that the accident occurred in Baldwin County, that the accident arose out of Grace’s employment with Standard, and that the accident occurred during the course and scope of the employment. The “stipulation” regarding § 25-5-57(a)(3)i. that Standard relies upon is the following statement by Standard’s counsel at trial: “I don’t know why we would need to get into that unless — in a sense, [Grace’s counsel] has already stipulated it’s a real job by stipulating the statute controls, but we also can show that through [Grace’s] testimony.” We cannot agree that that statement is a stipulation of the parties that the only issue to be decided by the trial court was whether § 25-5-57(a)(3)i. applied to Grace’s claim.

“A stipulation is defined as a ‘voluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate need for proof or to narrow range of litigable issues.’ ” Evans v. Alabama Prof'l Health Consultants, Inc., 474 So.2d 86, 88 (Ala.1985) (quoting Black’s Law Dictionary 1269 (rev. 5th ed.1979), quoting in turn Arrington v. State, 233 So.2d 634, 636 (Fla.1970))(em-phasis added in Evans). Our supreme court has also “explained that one [making a stipulation] must make a ‘distinct, formal solemn admission made for the express purpose of relieving [the opposing party] from establishing’ an element of his claim or defense.” George H. Lanier Mem’l Hosp. v. Andrews, 901 So.2d 714, 725 (Ala.2004) (quoting Cook v. Morton, 254 Ala. 112, 116, 47 So.2d 471, 475 (1950)). A remark by one counsel that another has “in a sense” stipulated to a certain fact or regarding a certain issue is not proof of a voluntary agreement between the two counsel, and it is not a “distinct, formal solemn admission.” The record reflects that Standard’s counsel had entered into stipulations on the record. The record is devoid of any stipulations by Grace’s counsel.

Alabama law has long required only substantial compliance with § 25-5-88 and has long held that meager and omissive findings of facts or conclusions of law do not necessarily require a reversal of a workers’ compensation judgment. See Ex parte Curry, 607 So.2d 230, 232 (Ala.1992); Calvert v. Funderburg, 284 Ala. 311, 224 So.2d 664 (1969) (construing the predecessor statute to § 25-5-88). However, Alabama courts have also held that a judgment devoid of any findings of facts or conclusions of law as to a particular issue is wholly insufficient under § 25-5-88.

“ ‘The purpose of Ala.Code 1975, § 25-5-88, is to “ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.” ’ Farris v. St. Vincent’s Hosp., 624 So.2d 183, 185 (Ala.Civ.App.1993) (quoting Elbert Greeson Hosiery Mills, Inc. v. Ivey, 472 So.2d 1049, 1052 (Ala.Civ.App.1985)). ‘[T]he trial court has a duty to make a finding on each issue presented and litigated before it. In instances where the trial court fails to make a finding responsive to the issue presented, the case must be reversed.’ Thomas v. Gold Kist, Inc., 628 So.2d 864, 867 (Ala.Civ.App.1993); see also Harbin v. United States Steel Corp., 356 So.2d 179 (Ala.Civ.App.1978); and Dun & Bradstreet Corp. v. Jones, 678 So.2d 181 (Ala.Civ.App.1996). In Harbin v. United States Steel Corp., this court reversed the trial court’s judgment and remanded the case because the trial court had failed to address or to make findings regarding the issue of notice of injury to the employer, despite the issue being presented and litigated. In Harbin, this court stated:
“ ‘In the present case the question of whether Harbin notified his employer of his injury was pleaded, contested and submitted to the trial court for its determination. Despite this fact there was no finding made on this issue in the court’s original judgment. Nonetheless, Harbin maintains that the absence of a finding of notice of injury does not require reversal since a number of Alabama cases have held that when a finding of the trial court is merely meager or omissive, the reviewing court may examine the evidence in order to decide if the trial court’s judgment can be sustained. E.g., West Point Mfg. Co. v. Bennett, 263 Ala. 571, 83 So.2d 303 (1955); Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955). However, such is not the rule when, as here, there was no finding made on the issue in question.’
356 So.2d at 181-82.”

Equipment Sales Corp. v. Gwin, 4 So.3d 1125, 1129-30 (Ala.Civ.App.2008).

As our supreme court explained in discussing the precursor statute to § 25-5-88:

“In Ex parte Sloss-Sheffield Steel & Iron, Co. (Greek’s Case), 207 Ala. 219, 92 So. 458, 459 [ (1922) ], we said of the provisions of law just quoted, § 28, Act 1919, pp. 206-239, as follows: ‘The required statement of law, facts, and conclusions is necessary to make serviceable the review by certiorari which the statute provides .... ’ And in Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345 [(1928)], it was said of § 7578, Code 1923, a progenitor of § 304, Title 26:
“ ‘... The statute contemplates, not a recital of the evidence, with its conflicting lights and tendencies, but a determination by the trial judge of the facts established by the evidence, responsive to the issues presented, with the conclusion as to whether the facts found establish or fail to establish the liability asserted; and there should be a finding of every fact necessary to sustain the judgment of the court ....’”

Calvert, 284 Ala. at 314, 224 So.2d at 666 (some emphasis added; some emphasis in Calvert).

The trial court’s judgment in the present case is not merely meager or omissive. The judgment makes not one finding of fact or conclusion of law relating to Grace’s workers’ compensation claim. Even were we to agree that the only issue presented to the trial court for its determination was whether § 25-5-57(a)(3)i. applied to Grace’s claim, the judgment does not mention one fact relevant to the decision as to whether that statute applies. The “meager or omissive” doctrine was not intended to apply to a judgment that contains no findings of facts or conclusions of law. Such a judgment is not merely meager or omissive, and it cannot be said to be in substantial compliance with § 25-5-88. Therefore, we reverse the trial court’s judgment and remand the cause for the trial court to enter a judgment in compliance with § 25-5-88.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.


author: KELLUM, Judge.

text:
    Richard L. DURR v. STATE of Alabama.
    CR-08-0133.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.
    Rebecca Henry McCorkel and Derek Evan Yarbrough, Dothan, for appellant.
    Troy King, atty. gen., and Madeline H. Lews, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Richard L. Durr, pleaded guilty to one count of trafficking in marijuana and one count of trafficking in cocaine, violations of § 13A-12-231, Ala. Code 1975. The circuit court sentenced Durr to concurrent terms of life imprisonment; it also ordered Durr to pay various fines and statutory assessments.

On November 16, 2007, a Houston County grand jury indicted Durr on one count of trafficking in marijuana, and on February 20, 2008, another Houston County grand jury indicted Durr on one count of trafficking in cocaine. Durr pleaded guilty on April 21, 2008, to both counts of trafficking as alleged in the two indictments. Durr’s sentencing healing was continued until September 2008 in anticipation that Durr would assist the Houston County Sheriffs Department with an ongoing narcotics investigation, pursuant to Durr’s plea agreement with the State. On September 22, 2008, the circuit court sentenced Durr to concurrent terms of life imprisonment on each conviction. Durr subsequently filed a motion to withdraw his guilty pleas, or, in the alternative, for a new trial; the circuit court denied the motion. Durr appealed.

Durr argues that the circuit court abused its discretion when it denied his motion to withdraw his guilty pleas. Durr contends that his guilty pleas were not knowingly, voluntarily, and intelligently entered because, he says, the circuit court did not properly advise Durr pursuant to Rule 14.4, Ala. R.Crim. P., during his guilty-plea colloquy. Specifically, Durr alleges that the circuit court failed to advise him of the maximum and minimum sentencing range applicable to his convictions, how his sentence could be enhanced based on his prior felony convictions, and the provisions governing whether a sentence may run consecutively to or concurrently with another sentence. Furthermore, Durr points out that a signed Ireland form was not included in the record.

Rule 14.4(a), Ala. R.Crim. P., provides, in relevant part:

“(a) ... In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“(iii) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences.”

Rule 14.4(d), Ala. R.Crim. P., states: “The court may comply with the requirements of Rule 14.4(a) by determining from a personal colloquy with the defendant that the defendant has read, or has had read to the defendant, and understands each item contained in [the Explanation of Rights Form, also known as the Ireland form].”

It is well-established precedent that the circuit court must notify a defendant of the correct sentencing range when the defendant pleads guilty.

“ ‘The Alabama Supreme Court and this Court “have consistently held that a defendant must be informed of the maximum and minimum possible sentences as an absolute constitutional prerequisite to the acceptance of a guilty plea.” Ex parte Rivers, 597 So.2d 1308, 1309 (Ala.1991). It is well settled, moreover, that “if the appellant’s sentence could be enhanced under any of the enhancement statutes, the appellant should be informed of the additional sentence he could receive under the applicable enhancement statute.” Elrod v. State, 629 So.2d 58, 59 (Ala.Cr.App.1993), citing Rivers. Accord, White v. State, 616 So.2d 399 (Ala.Cr.App.1993); Looney v. State, 563 So.2d 3, 4 (Ala.Cr.App.1989); Smith v. State, 494 So.2d 182 (Ala.Cr.App.1986).’ ”

Kennedy v. State, 698 So.2d 1174, 1177 (Ala.Crim.App.1997) (quoting Aaron v. State, 673 So.2d 849, 849-50 (Ala.Crim.App.1995) (emphasis added in Kennedy)).

Furthermore, this Court has stated:

“ ‘[T]he Alabama Supreme Court held that “a defendant, prior to pleading guilty, must be advised of the maximum and minimum potential punishment for his crime” by the trial court in order to sustain a ruling that the defendant voluntarily entered a guilty plea. See, Gordon v. State, 692 So.2d 869 (Ala.Cr.App.1996); Pritchett v. State, 686 So.2d 1300 (Ala.Cr.App.1996); Knight v. State, 55 Ala.App. 565, 317 So.2d 532 (1975); Moore v. State, 54 Ala.App. 463, 309 So.2d 500 (1975). This holding is supported by Boykin [v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] and Rule 14.4, Ala. R.Crim. P. The rule that the trial judge conduct a colloquy with the defendant before accepting a guilty plea ensures that a criminal defendant is adequately advised of his rights so that he may make a voluntary and intelligent decision to enter such a plea.’ ”

Jones v. State, 727 So.2d 889, 891 (Ala.Crim.App.1998) (quoting Heard v. State, 687 So.2d 212, 213 (Ala.Crim.App.1996)).

The record reflects that, during the guilty-plea colloquy, the following discussion took place:

“MR. MAXWELL [prosecutor]: Judge, what we are going to do for a proffer of the Court is he has two trafficking cases that he is pleading guilty to. He has two prior felony convictions, which would make the only sentence, I believe, to be life.
“And what we are asking the Court to do is this, is to take the pleas on the trafficking cases today and set a sentencing hearing for sixty days down the road.
“THE COURT: Mr. Durr, do you understand these two cases of trafficking in CC-07-1503 and CC-08-115, and do you understand those charges?
“[DURR]: Yes, sir.
“THE COURT: Do you understand the range of punishment, which we’ve gone over; is that correct?
“[DURR]: Yes sir.
“THE COURT: Do you understand by pleading guilty in this case you waive your right to a jury trial? Do you understand that?
“[DURR]: Yes, sir.
“THE COURT: And are you pleading guilty voluntarily and freely?
“[DURR]: Yes, sir.
“THE COURT: Did anyone force you or threaten you or coerce you in any manner to get you to plead guilty?
“[DURR]: No, sir.
“THE COURT: Anyone promise you any reward or inducements?
“[DURR]: No, sir.
“THE COURT: And do you understand the rights that you would have if you went to trial? Has your attorney explained those to you?
“MR. YARBROUGH [defense counsel]: Yes, sir, he understands it.
“THE COURT: And you all are going to do an Explanation of Rights and Plea of Guilty form, I understand?
“MR. YARBROUGH: Yes, sir, I’ll do that, and ive’ll file it with the Court.
“THE COURT: And what are the facts?
“[Prosecutor recited the facts.]
“THE COURT: Okay. Mr. Durr, are those facts true and correct, or do you dispute any [of] those facts?
“[DURR]: Yes, sir.
“THE COURT: They are true?
“[DURR]: Yes, sir.
“THE COURT: And how do you plead, guilty or not guilty?
“[DURR]: Guilty.”

(R. 3-9; emphasis added.)

Before Durr entered his plea of guilty, the circuit court failed to inform Durr regarding, or to ascertain whether Durr understood, the mandatory minimum and maximum sentences provided under Alabama law, including any sentence enhancements, as well as whether his sentences would run consecutively or concurrently. Furthermore, the circuit court did not ascertain on the record that Durr had read and understood the explanation of rights on an Ireland form. In fact, the exchange between the circuit court and defense counsel indicated that an Ireland form had not been executed at the time of the guilty-plea colloquy. See Brown v. State, 712 So.2d 1112, 1114 (Ala.Crim.App.1997).

Based on the foregoing, we hold that Durr’s guilty plea was involuntary because the circuit court failed to comply with Rule 14.4(a) or (d). Accordingly, the judgment of the circuit court is reversed, and this cause is remanded to the Houston Circuit Court so that Durr may have the opportunity to withdraw his guilty plea and to enter another plea after he has been informed of the applicable sentencing range, including potential enhancements, and whether his sentence will run consecutively or concurrently with another sentence.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

      . Our examination of the record indicates that the fines imposed by the circuit court were less than the mandatory fines provided for in § 13A-12-231, Ala.Code 1975. Likewise, the circuit court failed to order that Durr pay all statutorily mandated assessments. However, it appears from the colloquy that a plea agreement existed between the Stale and Durr. Because no copy of the agreement was included in the record on appeal, the exact terms of the agreement are not known to this Court. The State may elect to forgo the application of mandatory fines and other enhancements — including application of the Habitual Felony Offender Act. If so, this Court may not order the trial court to impose these fines. See, e.g., Ex parte Johnson, 669 So.2d 205 (Ala.1995). If, in fact, the waiver of the application of the mandatory fines and other enhancements was part of the plea agreement, we note that it should be explicitly set out in the plea agreement.

      . Ireland v. State, 47 Ala.App. 65, 250 So.2d 602 (1971).


text:
    Ricky Dale QUATTLEBAUM v. STATE of Alabama.
    CR-08-0194.
    Court of Criminal Appeals of Alabama.
    Aug. 7, 2009.

      Dustin Judd Fowler, Dothan; and Til-den Jeffrey Haywood, Dothan, for appellant.
    Troy King, atty. gen., and Michael G. Dean, asst. atty. gen., for appellee.
   On Return to Remand

KELLUM, Judge.

The appellant, Ricky Dale Quattlebaum, appeals the revocation of his probation. The record indicates that Quattlebaum pleaded guilty to sexual abuse in the first degree. He was sentenced to 10 years’ imprisonment; however, the court suspended that sentence and placed Quattleb-aum on 5 years’ supervised probation.

On August 26, 2008, the State filed a motion seeking to revoke Quattlebaum’s probation based on Quattlebaum’s alleged failure to abide by the conditions of his probation, namely, the condition imposed by the circuit court preventing Quattleb-aum from participating in any volunteer fire or rescue department programs. On September 29, 2008, the circuit court conducted a probation-revocation hearing. At the conclusion of that hearing, the circuit court entered a notation on the case-action summary stating: “Probation is revoked.” This appeal followed.

On May 18, 2009, we remanded this case to the circuit court for that court to enter a new probation-revocation order stating the evidence it had relied on in revoking Quattlebaum’s probation. In its order on remand, the circuit court stated:

“James Brazier, an investigator with the Houston County Sheriffs Department, stated to the Court that [Quattlebaum] was a registered sex offender and that [Quattlebaum] went on a volunteer fire department run in Cottonwood, Alabama, on August 25, 2008, in violation of a specific order from the Court not to do so. (Tr. 4, 7, 9) Both Mr. Jerry Adams and Mr. Harry Smith gave information to Officer Brazier that [Quattlebaum] was working with the volunteer fire department. (Tr. 9)”

(Return to remand, p. 5.)

The record in this case indicates that the circuit court stated at the conclusion of the probation-revocation hearing its reason for revoking probation, but did not state the evidence the court relied on in revoking Quattlebaum’s probation. The circuit court’s order on remand cured that deficiency and set forth the evidence the court relied on in revoking Quattlebaum’s probation. Thus, we conclude that the circuit court’s order was adequate.

Quattlebaum also contends on appeal that the State presented insufficient evidence to warrant the revocation of his probation; that the circuit court relied solely on hearsay evidence to revoke his probation; and that the State failed to present evidence that he had received a written copy of the terms and conditions of his probation.

“ ‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala.Crim.App.1992). This Court “has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2cl at 983.’ ”

Bauer v. State, 891 So.2d 1004, 1006 (Ala.Crim.App.2004) (quoting Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998)). This court has recognized a third exception to the application of the general rules of preservation in a probation-revocation hearing — a defendant can raise for the first time on appeal the allegation that the court erred in failing to advise him of his right to request an attorney to represent him during the probation-revocation proceedings. See Law v. State, 778 So.2d 249, 250 (Ala.Crim.App.2000). With the exception of Quattlebaum’s argument regarding the sufficiency of the evidence, the remaining issues raised by Quattlebaum are raised for the first time on appeal, do not fall within any of the recognized exceptions, and, therefore, are precluded from review on appeal.

Regarding Quattlebaum’s sufficiency argument, the record indicates that the circuit court entered an order on January 23, 2007, stating: “Quattlebaum is ordered by this Court not to participate in any volunteer fire department calls and to be removed from the volunteer fire department roster due to him being a registered sex offender.” (Supp. R. 10.) At the September 29, 2008, probation-revocation hearing, James Brazier, an investigator with the Houston County Sheriffs Department, testified that he received information that Quattlebaum had gone on an emergency call with the Cottonwood rescue squad on August 25, 2008. Brazier testified that he subsequently verified the information when he spoke with Jerry Adams and Harvey Smith. According to Brazier, the rescue squad worked in conjunction with the volunteer fire department.

Cindy Crum, an emergency medical technician, testified that she was working with the rescue squad on August 25, 2008. Crum testified that she and other members of the rescue squad responded to a telephone call from Quattlebaum, who expressed concern about bad weather around his house. Crum testified that once the squad was at Quattlebaum’s house, Quatt-lebaum jumped into the ambulance and accompanied Crum and other members of the rescue squad to a staging area, where the rescue squad waited, prepared to respond to any emergency calls if needed.

Quattlebaum contends that there was insufficient evidence that he violated the terms and conditions of his probation because, he argues, the circuit court’s January 23, 2007, order prevented him from participating in volunteer fire department calls and did not prohibit him from any involvement with the rescue squad. The record indicates that Quattlebaum objected to the revocation of his probation on this basis at the conclusion of the probation-revocation hearing.

“ ‘ “The decision to revoke probation is a judicial function and should be based upon the appellant’s conduct and not upon an accusation only. The State must submit enough substantive evidence to reasonably satisfy the trier of the facts that a condition of probation was breached.” Hill [v. State, 850 So.2d 716 (Ala.Cr.App.1977)].’ ”

Chasteen v. State, 652 So.2d 319, 320 (Ala.Crim.App.1994) (quoting Mitchell v. State, 462 So.2d 740, 742 (Ala.Crim.App.1984)).

The evidence presented to the circuit court at the revocation hearing established that Quattlebaum had participated in an emergency call with the rescue squad. Although Brazier testified that the rescue squad worked in conjunction with the volunteer fire department, there was no evidence indicating that the rescue squad and the volunteer fire department were one and the same. The State presented no evidence indicating that Quattlebaum participated in an emergency call with the volunteer fire department or that he maintained his name on the roster for the volunteer fire department. The terms and conditions of Quattlebaum’s probation did not expressly prohibit him from participating in emergency calls with the rescue squad. Therefore, the evidence presented to the circuit court does not support the conclusion that Quattlebaum violated the terms and conditions of his probation.

Because the State failed to present evidence that Quattlebaum participated in a volunteer fire department call or continued to maintain his name on the volunteer fire department roster, thus violating the terms of conditions of his probation, the circuit court erred in revoking Quattleb-aum’s probation. The circuit court’s order revoking Quattlebaum’s probation is reversed, and this cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

       Note from the reporter of decisions: On May 18, 2009, the Court of Criminal Appeals issued an order remanding the case to the trial court for that court to amend and clarify its order revoking Ricky Dale Quattlebaum's probation. The case was resubmitted on return to remand on June 12, 2009.


author: WELCH, Judge.

text:
    Corey Demekus BRYANT v. STATE of Alabama.
    CR-08-0211.
    Court of Criminal Appeals of Alabama.
    Aug. 28, 2009.

      Corey Demekus Bryant, pro se.
    Troy King, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.
   WELCH, Judge.

Corey Demekus Bryant appeals the circuit court’s summary denial of his Rule 32, Ala. R.Crim. P., petition for postconviction relief and reinstatement of his original 60-year sentence.

The record reflects that Bryant pleaded guilty to murder on December 12, 1990; he was sentenced to 60 years’ imprisonment on February 1, 1991. On February 5, 1991, Bryant filed a timely motion for sentence reduction. After several continuances, the trial court conducted a hearing on the motion on May 16,1991, after which it entered an order reducing Bryant’s sentence to 40 years’ imprisonment. Bryant filed a notice of appeal from that order, but this Court dismissed the appeal on May 28, 1991, as being from a non-appeal-able order (case no. CR-90-1221). Bryant subsequently filed three Rule 32 petitions attacking his conviction and sentence, all of which were denied by the circuit court; the denials were affirmed by this Court on appeal. See Bryant v. State (No. CR-01-2636), 876 So.2d 1196 (Ala.Crim.App.2003) (table); Bryant v. State (No. CR-95-0305), 683 So.2d 1075 (Ala.Crim.App.1996) (table); and Bryant v. State (No. CR-92-1598), 639 So.2d 586 (Ala.Crim.App.1993) (table).

Bryant filed this, his fourth, Rule 32 petition, on September 3, 2008. In his petition, Bryant alleged: (1) that the trial court lacked jurisdiction to accept his plea because, he said, the arrest warrant was invalid; and (2) that the trial court lacked jurisdiction to reduce his sentence and that his reduced sentence was therefore illegal because, he said, he was not present at the hearing on May 16, 1991, when his sentence was reduced. On October 6, 2008, the State filed a “Response, Motion for Summary Dismissal of Defendant’s Rule 32 Petition, and Motion to Reinstate Original 60-year Sentence,” in which it argued, among other things, that Bryant’s claims were haired by Rules 32.2(a), (b), and (c), Ala. R.Crim. P., and were insufficiently pleaded. (C. 42.) With respect to Bryant’s challenge to his reduced 40-year sentence, however, the State nonetheless agreed with Bryant that the trial court lacked jurisdiction to reduce his sentence on May 16, 1991, and that the reduced sentence was illegal, but on a different ground than alleged by Bryant. The State argued that the trial court lacked jurisdiction to reduce Bryant’s sentence on May 16, 1991, more than three months after he had originally been sentenced on February 1, 1991, because, it said, although Bryant had filed a timely motion for sentence reduction, which was construed as a motion for a new trial and that motion was continued several times before the May 16, 1991, hearing, the motion was not continued by agreement of the parties in accordance with Rule 24.4, Ala. R.Crim. P., and, thus, the motion was deemed denied by operation of law 60 days after Bryant’s February 1, 1991, sentencing — on April 2, 1991 — and the trial court’s May 16, 1991, order purporting to reduce Bryant’s sentence was void for lack of jurisdiction. The State requested that the circuit court reinstate Bryant’s original 60-year sentence.

The circuit court issued an order on October 22, 2008, summarily denying Bryant’s petition on the grounds that the petition was barred as successive under Rule 32.2(b), that the claims were insufficiently pleaded, and that Bryant’s claim regarding his absence at the May 16, 1991, sentence-reduction hearing was moot because, it said, the trial court lacked jurisdiction to reduce the sentence when Bryant’s postjudgment motion for sentence reduction was not continued by agreement of the parties in accordance with Rule 24.4, Ala. R.Crim. P. The circuit court reinstated Bryant’s original 60-year sentence. On November 4, 2008, Bryant filed a motion objecting to the summary denial of his petition, arguing that the circuit court had not specifically “re-fut[ed]” his challenge to the arrest warrant. (C. 58.) Bryant filed a notice of appeal on November 7, 2008. On November 25, 2008, Bryant filed an untimely motion to set aside that portion of the circuit court’s order reinstating his 60-year sentence, arguing — in direct contradiction to the argument in his petition that the trial court did not have jurisdiction to reduce his sentence on May 16, 1991 — that the trial court did have jurisdiction to reduce his sentence on May 16, 1991, because, he said, his motion for sentence reduction had been continued by agreement of the parties past the 60th day after sentencing. The circuit court purported to deny this untimely motion on December 22, 2008.

On appeal, Bryant contends that the circuit court erred in summarily denying his petition without conducting an evi-dentiary hearing because, he says, both his claims are jurisdictional and, thus, are not banned by any of the provisions of Rule 32.2, and both are meritorious on their face. He also contends that the circuit court erred in reinstating his original 60-year sentence. We reject both arguments.

Contrary to Bryant’s contention, a challenge to an arrest warrant does not present a jurisdictional challenge. See, e.g., Bearden v. State, 825 So.2d 868 (Ala.Crim.App.2001); Duren v. State, 813 So.2d 928 (Ala.Crim.App.2000); and Sumlin v. State, 710 So.2d 941 (Ala.Crim.App.1998) (all holding that a challenge to an arrest warrant is not jurisdictional). Therefore, the circuit court correctly found this claim to be barred as successive under Rule 32.2(b), which provides:

“If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”

Bryant’s sole attempt to overcome the successive-petition bar was to argue, incorrectly, that this claim was jurisdictional. Bryant did not allege in his petition, in any of his other filings, or in his brief on appeal, that he had good cause for not raising this claim in any of his three previous petitions or that he could not have ascertained this claim through the exercise of reasonable diligence when his previous petitions were heard, nor did he allege that the failure to entertain this claim would result in a miscarriage of justice. See, e.g., Whitt v. State, 827 So.2d 869, 876 (Ala.Crim.App.2001) (“[T]he circuit court correctly ruled that Whitt’s claims ... were successive under Rule 32.2(b) because they could have been raised in his first Rule 32.2 petition.... Whitt made no attempt to show cause why the claims could not have been raised in his previous petition or to show that failure to entertain the new claims would result in a miscarriage of justice.”). See also Wallace v. State, 959 So.2d 1161 (Ala.Crim.App.2006), and Fortner v. State, 825 So.2d 876 (Ala. Crim.App.2001). Because this is Bryant’s fourth petition and because he failed to show good cause why this claim was not raised in any of his previous petitions, it is barred by Rule 32.2(b). In addition, as the State asserted in its response, this claim is also barred by Rule 32.2(c), Ala. R.Crim. P., because Bryant’s petition was filed long after the two-year limitations period applicable to his conviction had expired. See, e.g., Sumlin, 710 So.2d at 942 (“[BJecause the claim [challenging the arrest warrant] is not a jurisdictional claim and because the petition was filed more than two years after this court issued its certificate of judgment, it is also procedurally barred by the limitations period of Rule 32.2(c), Ala. R.Crim. P.”). Accordingly, summary denial of this claim was proper under Rule 32.7(d), Ala. R.Crim. P.

As for Bryant’s challenge to his reduced 40-year sentence, we note first that Bryant did not receive a true adverse ruling on this claim. Although the circuit court found that Bryant’s specific challenge to the trial court’s jurisdiction was moot, it nonetheless found exactly what Bryant argued — that the trial court lacked jurisdiction to reduce his sentence on May 16, 1991 — albeit for a different reason than argued by Bryant in his petition. “[A]n adverse ruling is a prerequisite to appellate review .... ” Roberts v. State, 579 So.2d 62, 65 (Ala.Crim.App.1991). In addition, Bryant’s argument on appeal — that the circuit court erred in reinstating his original 60-year sentence because, he says, the trial court did have jurisdiction to reduce his sentence on May 16, 1991 — is in direct conflict with the argument he made in his petition — that the trial court did not have jurisdiction to reduce his sentence on May 16,1991.

“A party cannot assume inconsistent positions at trial and on appeal, and a party cannot allege as error proceedings in the trial court that were invited by him or were a natural consequence of his own action. Leverett v. State, 462 So.2d 972 (Ala.Cr.App.1984), cert. denied, 462 So.2d 972 (Ala.1985). A defendant cannot invite error by his conduct and later profit by the error. Timmons v. State, 487 So.2d 975 (Ala.Cr.App.), cert. denied, 487 So.2d 975 (Ala.1986).”

Fountain v. State, 586 So.2d 277, 282 (Ala.Crim.App.1991). Finally, Bryant’s challenge to the reinstatement of his original 60-year sentence was not timely raised in the circuit court. Bryant did not raise this claim in his timely postjudgment motion objecting to the circuit court’s order; rather, he raised it for the first time in his untimely motion to set aside the reinstatement of his original sentence. “The general rules of preservation apply to Rule 32 proceedings.” Boyd v. State, 913 So.2d 1113, 1123 (Ala.Crim.App.2003).

That being said, because Bryant’s resen-tencing — both at the sentence-reduction hearing in 1991 and in the circuit court’s order denying Bryant’s Rule 32 petition in 2008 — implicates the jurisdiction of the court, we address the propriety of the circuit court’s findings regarding Bryant’s claim and its reinstatement of Bryant’s original 60-year sentence.

In its order, the circuit court found that the trial court lacked jurisdiction to reduce Bryant’s sentence on May 16, 1991, more than three months after his original sentence was imposed because, it said, the record did not indicate that Bryant’s post-judgment motion for sentence reduction was continued by agreement of the parties in accordance with Rule 24.4, Ala. R.Crim. P. Although, as explained below, we agree with the circuit court that the trial court lacked jurisdiction to reduce Bryant’s sentence on May 16, 1991, because Bryant’s postjudgment motion was not continued by agreement of the parties, we point out that the circuit court’s reliance on Rule 24.4 for this proposition was misplaced. As noted above, Bryant was convicted in December 1990 and was sentenced in February 1991. The Alabama Rules of Criminal Procedure took effect on January 1, 1991, after Bryant’s conviction, but before his sentencing. At that time, Rule 1.5, Ala. R.Crim. P., provided that “[tjhese rules shall govern all criminal proceedings commenced at or after 12:01 a.m., January 1, 1991.” Rule 1.5 was amended effective April 21, 1992, to read: “These rules shall govern all criminal proceedings, without regard to when the proceeding was commenced.” However, because that amendment occurred long after Bryant’s conviction and sentence, it is not applicable to Bryant. See, e.g., Ex parte Ziglar, 604 So.2d 384, 387 (Ala.1992) (The amendment to Rule 1.5, Ala. R.Crim. P., “was not intended to be applied ex post facto in violation of Art. I, § 7, Alabama Constitution (1901), and Art. I, § 9, United States Constitution.”). Rather, the original Rule 1.5, as it read at the time of Bryant’s sentencing is applicable here, and that rule dictates that the Alabama Rules of Criminal Procedure, including Rule 24.4, do not apply to Bryant’s case because the case was commenced before January 1, 1991, the effective date of the current rules. See Prince v. State, 623 So.2d 355, 361 n. 1 (Ala.Crim.App.1992) (holding that the current Rules of Criminal Procedure were not applicable because the “amendment [to Rule 1.5] was not effective until April 21,1992, some five months after the appellant’s November 1991 trial”). See also Alderman v. State, 647 So.2d 28 (Ala.Crim.App.1994). Therefore, the circuit court erred in relying on Rule 24.4.

However, at the time of Bryant’s conviction and sentence, the Temporary Rules of Criminal Procedure were in effect. At that time, Rule 13(d), Ala. R.Crim. P. Temp., provided:

“No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days, except as provided in this section. A failure by the trial court to rule on such motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day. Provided, however, that with the express consent of the district attorney and the defendant or his attorney, which consent shall appear in the record, the motion may be carried past the sixtieth day to a date certain; if not ruled upon by the trial court as of the date to which the motion is continued, the motion is deemed denied as of that date, unless it has been continued again as provided in this section. The motion may be continued from time to time as provided in this section.”

This rule is very similar to current Rule 24.4, Ala. R.Crim. P. Both provide for a motion for a new trial to be denied by-operation of law after 60 days, and both include the requirement that the parties’ consent to having the motion extended beyond the time period must be express and appear on the record. The only difference between the two is that the 60-day period under Rule 13(d), Ala. R.Crim. P. Temp., began to run the day the motion for a new trial was filed, while the 60-day period under Rule 24.4, Ala. R.Crim. P., begins to run the day of sentencing. Given the substantial similarities between the two rules, established caselaw regarding Rule 24.4, Ala. R.Crim. P., is equally applicable to Rule 13(d), Ala. R.Crim. P. Temp. Therefore, although the circuit court incorrectly relied on Rule 24.4, Ala. R.Crim. P., its analysis and conclusion was nonetheless correct.

“Generally, a trial court retains jurisdiction to modify a sentence for [only] 30 days after that sentence is pronounced; however, [a] motion to alter, amend, or vacate a sentence is the functional equivalent of a motion for a new trial and ‘should be treated the same procedurally as a motion for new trial or a motion in arrest of judgment ....”’ State v. Monette, 887 So.2d 314, 315 (Ala.Crim.App.2004), quoting Melvin v. State, 583 So.2d 1365, 1366 (Ala.Crim.App.1991). See also Dixon v. State, 920 So.2d 1122, 1127 (Ala.Crim.App.2005) (“A motion to set aside or modify a sentence falls under the purview of Rule 24.4.”). Thus, under Rule 13(d), Ala. R.Crim. P. Temp., a trial court had jurisdiction to modify a sentence based on a timely motion for sentence modification for at least 60 days after the motion was filed, and could have retained jurisdiction even longer if the motion was continued by express agreement of the parties. An express agreement by the parties however, must appear on the record “before the expiration of the 60th day,” and the failure of the express agreement to appear on the record “may not be corrected after [the 60-day] period expires.” Johnson v. State, 18 So.3d 969, 972 (Ala.Crim.App.2009).

In this case, the record contains the case-action summary as well as the trial court’s orders continuing Bryant’s motion for sentence reduction. None of these documents reflect any agreement by the parties to continue the motion past the 60th day after Bryant filed his motion on February 5, 1991. To the contrary, the case-action summary and the orders reflect only that the trial court continued the motion once “[a]t request of Defendant” (C. 51), and four times with no indication as to the reason for the continuances. Bryant argues in his reply brief on appeal that the prosecutor did not object to any of the continuances and, thus, that the continuances should be considered as being based on the express consent of the parties. However, contrary to Bryant’s contention, the failure of the prosecutor to object to the continuances does not constitute an express agreement on the record. See Taylor v. State, 905 So.2d 36 (Ala.Crim.App.2005), overruling Underwood v. State, 879 So.2d 611 (Ala.Crim.App.2003). Because Bryant’s motion for sentence reduction was not continued by express agreement of the parties with that agreement appearing on the record before the expiration of the 60-day period in Rule 13(d), Ala. R.Crim. P. Temp., Bryant’s motion was denied by operation of law 60 days after he filed the motion on February 5, 1991 — or on April 8, 1991 — and the circuit court correctly found that the trial court lacked jurisdiction to reduce Bryant’s sentence on May 16,1991.

We note that in an amendment to his reply brief, Bryant makes an additional, and inconsistent, argument from the argument presented in his initial brief and reply brief — he argues that a motion for sentence reduction is not the equivalent of a motion for a new trial and, thus, that an agreement on the record to continue his motion for sentence reduction was unnecessary. However, as noted above, this Court has already held that “[a] motion to alter, amend, or vacate a sentence is the functional equivalent of a motion for a new trial and ‘should be treated the same pro-eedurally as a motion for new trial or a motion in arrest of judgment ....’” Monette, 887 So.2d at 315, quoting Melvin, 583 So.2d at 1366. Moreover, even if Bryant was correct that a motion for sentence reduction is not the equivalent of a motion for a new trial, this does not help his cause. As noted above, absent a timely filed motion for a new trial or its equivalent, a trial court loses jurisdiction to modify a sentence 30 days after it is imposed. Therefore, if Bryant’s motion for sentence reduction is not considered the equivalent of a motion for a new trial, the trial court lost jurisdiction to modify his sentence 30 days after he was sentenced on February 1, 1991, or on March 4, 1991, more than two months before it reduced Bryant’s sentence on May 16, 1991. Thus, regardless of how Bryant’s motion is construed, the trial court did not have jurisdiction to reduce his sentence on May 16, 1991. Because the trial court did not have jurisdiction to reduce Bryant’s sentence for this reason, the circuit court correctly found Bryant’s argument regarding his absence from the May 16, 1991, sentence-reduction hearing to be moot.

In addition, once the circuit court determined that the trial court lacked jurisdiction to reduce Bryant’s sentence on May 16, 1991, it properly ordered that Bryant’s original, and valid, 60-year sentence be reinstated. When an order purporting to modify a sentence is void for lack of jurisdiction, the original valid sentence must be reinstated. See, e.g., Ex parte Hitt, 778 So.2d 159, 162 (Ala.2000) (“[T]he order purporting to modify Hitt’s D.U.I. sentence is void. The original D.U.I. sentence must be reinstated.”). See also Cruitt v. State, 893 So.2d 1236 (Ala.Crim.App.2003); State v. Trussed, 880 So.2d 1177 (Ala.Crim.App.2003); Estes v. State, 776 So.2d 206 (Ala.Crim.App.1999); and State v. Gagliardi, 747 So.2d 366 (Ala.Crim.App.1999) (all ordering reinstatement of original valid sentence when resentence was void for lack of jurisdiction).

Contrary to Bryant’s contention, the reinstatement of an original, harsher, sentence in this situation does not violate double-jeopardy principles. We agree with Bryant that “[o]nee a valid sentence has been entered, it cannot, in the absence of fraud or another compelling reason, be altered anytime thereafter so as to increase the severity of the sentence.” Ex parte Tice, 475 So.2d 590, 591-92 (Ala.1984) (emphasis added). “Increasing a valid sentence after a defendant has commenced serving the sentence violates the prohibition against double jeopardy in both the United States and Alabama Constitutions.” Snell v. State, 723 So.2d 105, 108 (Ala.Crim.App.1998) (emphasis added). However, “[a]n increase in sentence where the [previous] sentence is void is the ‘most common exception to the general rule prohibiting enhancement of an imposed sentence.’” Cline v. State, 571 So.2d 368, 369-70 (Ala.Crim.App.1990), quoting A. Campbell, Law of Sentencing § 59 (1978). “[I]n correcting an illegal sentence, the double jeopardy protection is not violated even if the defendant has begun serving the original sentence.” Id. at 370 (emphasis added). “ ‘[E]ven after the defendant has begun to serve his sentence, the trial court is obligated to alter an invalid sentence; further, any increase in the sentence does not raise double jeopardy problems.’ ” Greenhill v. State, 746 So.2d 1064, 1072 (Ala.Crim.App.1999) (emphasis added), quoting Love v. State, 681 So.2d 1108, 1109 (Ala.Crim.App.1996). See also Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), and Hughes v. State, 518 So.2d 890 (Ala.Crim.App.1987). Therefore, because the reduced 40-year sentence imposed on May 16, 1991, was void for lack of jurisdiction, the circuit court properly reinstated Bryant’s original 60-year sentence.

Based on the foregoing, the judgment of the circuit court is affirmed.

AFFIRMED.

WISE, P.J., and WINDOM, KELLUM, and MAIN, JJ., concur.

      . The written order was dated May 17, 1991; however, for purposes of this opinion, we refer to the hearing date as the dale of Bryant's sentence reduction.

      . Rule 32.2(c), Ala. R.Crim. P., was amended effective August 1, 2002, to reduce the limitations period from two years to one year; however, for those cases that became final before August 1, 2001, the two-year limitations period applies. See Hyde v. State, 950 So.2d 344 (Ala.Crim.App.2006).

      . Rule 24.4, Ala. R.Crim. P., provides:
      "No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section. A failure by the trial court to rule on such a motion within the sixty (60) days allowed by this section shall constitute a denial of the motion as of the sixtieth day; provided, however, that with the express consent of the prosecutor and the defendant or the defendant’s attorney, which consent shall appear in the record, the motion may be carried past the sixtieth day to a date certain; if not ruled upon by the trial court as of the date lo which the motion is continued, the motion is deemed denied as of that dale, unless it has been continued again as provided in this section. The motion may be continued from time to time as provided in this section.”

      . The 60th day was actually April 6, 1991; however, because that day was a Saturday, the motion was deemed denied the next business day, Monday, April 8, 1991. See Rule 1.3(a), Ala. R.Crim. P.

      . The 30th day was actually March 3, 1991; however, because that day was a Sunday, the trial court lost jurisdiction the next business day, Monday, March 4, 1991. See Rule 1.3(a), Ala. R.Crim. P.

      . The 60-year sentence was clearly within the statutory range for a murder conviction in 1991. See § 13A-6-2(c), Ala.Code 1975 (providing that murder is a Class A felony), and § 13A-5-6(a)(l), Ala.Code 1975 (providing that the punishment for a Class A felony is "life or not more titan 99 years or less than 10 years”).