author: MURDOCK, Justice.

text:
    EX PARTE Randolph G. WILSON, Jr.
    (In re: Randolph G. Wilson, Jr. v. Teresa L. Wilson)
    1160101
    Supreme Court of Alabama.
    January 16, 2018
    Terrie Scott Morgan of Capell & Howard, P.C., Montgomery, for petitioner.
    John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for respondent.
   MURDOCK, Justice.

Randolph G. Wilson, Jr. ("the husband"), petitioned this Court for certiorari review of the decision of the Court of Civil Appeals affirming the Montgomery Circuit Court's judgment denying his motion to modify his alimony obligations. Wilson v. Wilson, 262 So.3d 1192 (Ala. Civ. App. 2016). We reverse and remand.

I. Proceedings Below

The husband and Teresa L. Wilson ("the wife") were divorced in April 2004. Among other things, the divorce judgment awarded the wife $1,250 per month in periodic alimony. In August 2013, the husband commenced an action in which he sought to modify his periodic-alimony obligation ("the first modification action"). The complaint in the first modification action alleged that the husband planned to retire approximately 10 days after the initiation of the action and that, as a result of his retirement, he would suffer a significant decrease in income. The husband also alleged that the wife was now employed full-time and was capable of supporting herself without receiving periodic alimony.

During the course of the first modification action, the wife moved to have the husband held in contempt for the husband's alleged failure to comply with court orders regarding discovery. On March 5, 2014, the trial court entered a judgment in the first modification action granting the wife's motion to hold the husband in contempt and dismissing the husband's complaint. No appeal was taken.

In March 2015, the husband commenced the present action, again seeking to modify his alimony obligation. The husband alleged that he had suffered a material change in his income as a result of his retirement from the military and that the wife is now capable of supporting herself.

The trial court conducted a hearing at which evidence was presented ore tenus. The wife argued that the husband would be limited in the presentation of evidence to events and circumstances occurring after the entry of the March 5, 2014, judgment in the first modification action. The husband argued that he could present evidence of the change in his financial circumstances since the entry of the divorce judgment in April 2004. The trial court agreed with the wife and allowed the husband to present evidence only as to changes in circumstances occurring after the entry of the March 5, 2014, judgment.

In November 2015, the trial court entered a judgment in which it determined that the husband had failed to meet his burden for obtaining a modification of alimony. The court denied the husband's claim and awarded the wife $5,000 for attorney fees and costs. The husband appealed.

On appeal, the Court of Civil Appeals affirmed the judgment. Wilson v. Wilson, 262 So.3d 1192 (Ala. Civ. App. 2016). The Court of Civil Appeals held that alimony is subject to modification based only on those changes in income and living expenses of the parties that have occurred since the "judgment" in the most recent action in which either party attempted to obtain a change in alimony, regardless of whether that action resulted in a change, and not on the cumulative difference between current income and expenses and the income and expenses that provided the basis for whatever "award" was last made or modified. Judge Moore and Judge Thomas declined to embrace this rationale. Instead, Judge Moore concurred in the rationale in part and concurred in the result in a writing in which he concluded that the husband's claim was barred by the doctrine of res judicata. Judge Thomas joined Judge Moore's special writing.

This Court granted certiorari review to consider whether a decision as to the modification of periodic alimony is to be based on changes in circumstances since (1) the date that alimony was awarded or last modified or (2) the date of the most recent judgment disposing of a claim for modification of periodic alimony, regardless of whether that judgment yielded any such modification.

II. Standard of Review

" ' "On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. ..." Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala. 1996).'
" Ex parte Helms, 873 So.2d 1139, 1143 (Ala. 2003). ' "[O]n appeal, the ruling on a question of law carries no presumption of correctness, and this Court's review is de novo." ' Rogers Found. Repair, Inc. v. Powell, 748 So.2d 869, 871 (Ala. 1999) (quoting Ex parte Graham, 702 So.2d 1215, 1221 (Ala. 1997) )."

Ex parte C.L.C., 897 So.2d 234, 236-37 (Ala. 2004).

III. Analysis

An obligation to pay alimony may be modified based upon a material change in circumstances in the financial needs of the payee spouse and/or in the financial ability of the payor spouse to respond to those needs. See Ex parte Ederer, 900 So.2d 424, 426 (Ala. 2004) ; Glover v. Glover, 730 So.2d 218, 220 (Ala. Civ. App. 1998).

The issue in this case is what is the appropriate baseline for evaluating such changes. That is, must a party seeking a modification of periodic alimony show a material change since the last judgment or order addressing a claim for modification of such alimony, even if no such modification was granted in that judgment? Or is it enough to show a material change in the parties' circumstances since the last judgment or order in which periodic alimony actually was awarded or modified. The husband cites Ex parte Boley, 392 So.2d 840 (Ala. 1981), McInnish v. McInnish, 441 So.2d 960 (Ala. Civ. App. 1983), and Kiefer v. Kiefer, 671 So.2d 710, 711 (Ala. Civ. App. 1995), each of which addresses the standard for measuring modification of either alimony or child support by employing the same logic and rationale urged by the husband in the present case.

In contrast, the main opinion of the Court of Civil Appeals in the present case expressly rejects the rationale of Ex parte Boley and instead adopts the approach described in Taylor v. Taylor, 640 So.2d 971, 973 (Ala. Civ. App. 1994). Taylor stated simply that the party seeking modification of a periodic-alimony award must show "that a material change in the parties' circumstances has occurred since the trial court's last judgment or order." Id. at 973.

The husband's position is correct, both as a matter of equity and, based on a careful reading thereof, our precedents.

We begin by noting that Alabama cases have not made a clear distinction between the phrases "since the last judgment" and "since the last award." In point of fact, most prior decisions, despite employing one or the other of those phrases, do not in actuality address the intervening-judgment question but merely cite to or quote from cases that discuss the need to prove a material change in circumstances. This commonly is the case, because there has been no intervening judgment addressing a request for modification.

As noted, the rationale embraced by this Court in Ex parte Boley is in fact the rationale urged by the husband. The parties in Ex parte Boley were divorced in 1970, and the husband was ordered to pay child support. In 1978, the wife filed a petition requesting an increase in child support, which the trial court denied. In 1979, the wife again petitioned the court for an increase in child support. A different circuit judge found that there had been no material change in circumstances since the judgment had been entered on the 1978 petition, although there had been a material change in circumstances since the parties' divorce in 1970. The judge refused to consider any changes in circumstances prior to the 1978 judgment and denied the wife's request.

The Court of Civil Appeals reversed the judgment, rejecting the proposition that "a trial court in deciding a child support modification petition is limited to the period since the last decree, whether it be one denying the modification petition or one modifying a prior child support decree."

Rowe v. Boley, 392 So.2d 838, 840 (Ala. Civ. App. 1980), aff'd, Ex parte Boley, supra. The Court of Civil Appeals went on to state:

"[W]e think the rationale of the above cited cases [ Womble v. Womble, 56 Ala. App. 318, 321 So.2d 660 (1975), and Clarke v. Clarke, 47 Ala. App. 558, 258 So.2d 902 (1972) ] persuasively suggests that the period within which the changed circumstances must have occurred extends back to the decree awarding child support or to the last decree modifying child support. Otherwise, a situation could occur, as did occur in the instant case, where the request for modification was denied because there were insufficient changed circumstances during the short period since the last modification petition was denied, whereas if the court could have considered those circumstances that had occurred since the child support award was made, it is likely that a different result would have been reached. The welfare of the children cannot be properly served without consideration of the totality of circumstances since they last received an order for support. The primary consideration is the need of the children. If the needs of the children and the ability of the father to respond to those needs have materially changed since the last award fixing the amount of support, the trial court should be able to consider those changes in fashioning its decree. Therefore, we conclude that the trial court erred in not considering those circumstances that had materially changed since the 1970 child support award."

392 So.2d at 840 (emphasis added).

This Court affirmed the Court of Civil Appeals' judgment. We summarized the Court of Civil Appeals' decision with approval as follows:

"[I]n considering a modification of child support payments, a court should consider all changes in circumstances since the last decree awarding or actually modifying child support, rather than only those changes taking place since the last decree that considered the question of modification."

Ex parte Boley, 392 So.2d at 841 (emphasis added). This Court further stated:

"We recognize the general proposition that in a child support modification proceeding, the party seeking the modification has the burden of proving that there has been a material change in circumstances since the last decree. However, this Court has not heretofore addressed the precise issue here presented.
"Alabama courts have traditionally viewed with disfavor repetitive, harassing litigation over child support and custody. A former decree is conclusive of the interests of the child and the rights of the parents, so long as the status at the time of the decree remains without material change.
"....
"... While the party seeking to modify child support payments must show that there has been a material change in circumstances since the last decree awarding child support, a petition to modify untimely filed in the interim should not, as a matter of law, foreclose a trial judge from considering all factors and changes occurring since the amount of child support was last fixed. To hold otherwise would deprive the children of divorced fathers, in some instances, of additional child support that the father is able to pay and of which the children have need. We therefore affirm the judgment of the Court of Civil Appeals."

Ex parte Boley, 392 So.2d at 841-42 (emphasis added; citations omitted).

In McInnish, the Court of Civil Appeals applied the holding of Ex parte Boley to an order modifying alimony. McInnish held that the trial court did not err in considering evidence relating back to the original divorce proceeding, despite the existence of an order denying an intervening request for modification of alimony. See also Webb v. Webb, 780 So.2d 698 (Ala. Civ. App. 2000) (reversing a judgment modifying alimony, citing Taylor and the "last judgment" formulation, but nonetheless considering evidence of circumstances prior to the last judgment, in which both parties' requests to modify alimony were denied); cf. Brown v. Brown, 477 So.2d 454 (Ala. Civ. App. 1985) (holding that, as to modification of child custody, testimony that relates back to the last judgment that either awarded or modified custody should be allowed).

We conclude that the application to this case of the principle so well articulated by the Court of Civil Appeals in Rowe, embraced by this Court in Ex parte Boley, and applied by the Court of Civil Appeals in McInnish to the issue of alimony modification is dictated by principles of equity. We reject the conclusion of the Court of Civil Appeals in the present case that Taylor has the "better-reasoned approach." 262 So. 3d at 1199.

First, we note that the discussion of this issue in Taylor was dicta. Taylor did not involve an intervening judgment, and it did not actually address the question presented here (that is, the date from which the material change in circumstances is to be measured). Instead, Taylor merely cited Glenn v. Glenn, 626 So.2d 638, 639 (Ala. Civ. App. 1993), for the general rule that "[t]he burden is on the party seeking a modification of the periodic alimony award to show the trial court that a material change in the parties' circumstances has occurred since the trial court's last judgment or order." 640 So.2d at 973. Importantly, in both Taylor and Glenn, the last "judgment" was, in fact, the judgment that originally established alimony. Neither case addressed the effect of an intervening judgment denying a request for modification of alimony. Moreover, Glenn referred to a lack of a material change in circumstances since the original judgment, stating: "[T]he husband had substantially the same earning capacity at the time of the hearing that he had at the time of the divorce" and "[t]he original judgment, regarding support obligations, remains conclusive so long as there is no material change in circumstances sufficient to modify those support obligations." 626 So.2d at 639. Thus, Glenn provides little, if any, support for the conclusion reached by the Court of Civil Appeals in this case.

The issue before us is not solely about attempts to reduce alimony payments. It is about fairness in adjusting payment obligations-both up and down-as necessary to reflect circumstances materially different from those upon which the challenged payment obligation was based. The rule adopted by the Court of Civil Appeals, if allowed to stand, could just as easily bar a wife's petition seeking an increase in her alimony on the ground that her expenses had increased, her income had declined, or her husband's income had increased.

It is helpful, as well, to keep in mind the purpose behind alimony. " 'The purpose of periodic alimony is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.' " Ex parte Foley, 864 So.2d 1094, 1097-98 (Ala. 2003) (quoting O'Neal v. O'Neal, 678 So.2d 161, 165 (Ala. Civ. App. 1996) (emphasis added)). See also Hager v. Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974) (" '[P]eriodic alimony' is an allowance for the future support of the wife payable from the current earnings of the husband.")

It is a well settled principle of Alabama law that a trial court can "modify an original award of alimony or support on proof of changed circumstances of the parties." Parsons v. Parsons, 284 Ala. 105, 106, 222 So.2d 360, 361 (1969) ; Gambrell v. Gambrell, 268 Ala. 671, 672, 110 So.2d 248, 249 (1959) (to like effect); and TenEyck v. TenEyck, 885 So.2d 146, 152 (Ala. Civ. App. 2003) ("Periodic alimony is modifiable based upon changes in the parties' financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse."). As a practical matter, it appears that the approach adopted by the Court of Civil Appeals in this case may, in some cases, be inconsistent with the purpose of alimony, result in unfairness, and lead to potentially different results for two identically situated parties based on the aggressiveness of their attorneys. The cumulative effect of several changes in income over a period of, say, 10 years could well constitute a material change in circumstances that would fairly warrant an adjustment, either up or down, in alimony. But, if a party, on the advice of his or her attorney, attempted instead to obtain relief at several "stops" along the way, only to be rebuffed on each occasion because the change since the last attempt was, by itself, deemed insufficient, he or she might never receive the relief or added income he or she needs and to which he or she would otherwise be entitled under the law. A recognition of this reality underlay this Court's decision in Ex parte Boley, as it did the Court of Civil Appeals' decision in McInnish.

To take another example, an alimony recipient could file a petition for modification three years after the divorce, alleging that the payee's income had declined by 20% over three years and that the payor's expenses and financial condition remained unchanged. The trial court might find the existence of the alleged facts but deny the request for modification. This same recipient might then file a second petition three years later, alleging that the payee's income had declined by another 20%. Under the approach adopted by the Court of Civil Appeals, the trial court hearing the second petition could consider only the second decline of 20%, which might again result in a refusal to modify. In such a case, each individual denial by the trial court might be sustainable on appeal, despite the fact that the cumulative effect would be that the payee's income would have declined 40% from the time of the original award. And yet, someone whose lawyer waits until the end of that same six-year period to assert the entire 40% decline in a single petition no doubt would be in a better position to obtain relief than someone whose lawyer attempted to help his or her client on a more proactive, but piecemeal, basis during the same six-year period. We see no justification for such an outcome.

In Rowe, the Court of Civil Appeals reasoned that "the request for modification was denied because there were insufficient changed circumstances during the short period since the last modification petition was denied, whereas if the court could have considered those circumstances that had occurred since the child support award was made, it is likely that a different result would have been reached." 392 So.2d at 840. Our holding today clarifies Alabama law and, in so doing, avoids the disparate and inequitable outcome described in Rowe. As this Court reasoned in Ex parte Boley, "a petition to modify untimely filed in the interim should not, as a matter of law, foreclose a trial judge from considering all factors and changes occurring since the amount of child support was last fixed." Ex parte Boley, 392 So.2d at 842.

IV. Conclusion

Based on the foregoing, we reverse the judgment of the Court of Civil Appeals and remand the case for further proceedings consistent with this opinion.

We also deny the wife's request for an award of attorney fees and expenses on appeal.

REVERSED AND REMANDED; REQUEST FOR AWARD OF ATTORNEY FEES AND EXPENSES DENIED.

Stuart, C.J., and Parker, Shaw, Main, Wise, Bryan, and Sellers, JJ., concur.

Murdock, J., concurs specially.

MURDOCK, Justice (concurring specially).

I note that Judge Moore and Judge Thomas concurred in the result reached by the Court of Civil Appeals in this case on the ground that, in their view, the husband's petition was barred by the doctrine of res judicata. It appears to me that, in an appropriate case (i.e., one in which the facts are not materially different than those in a prior case), res judicata may indeed be available as a defense. That issue, however, was not the basis for the trial court's judgment or for the judgment of the Court of Civil Appeals, and therefore it is not addressed by the main opinion here.

      At the time of the divorce in 2004, the husband was serving in the Alabama Army National Guard. The husband retired in 2013 with an 80% disability rating as a result of a 1996 military helicopter crash.

      It appears that, at the time of the parties' divorce in 2004, the wife was not employed full-time and that the husband's income materially exceeded that of the wife. As of the time of the final hearing in the present action in 2015, the husband was earning a gross monthly income of $4,430 from military retirement and $1,654 per month from disability pay, or a total gross income of $ 6,084 per month. As of 2014, the wife had moved to New Hampshire and was working as a medical technologist; her gross income in 2014 was $5,397 per month. At the time of the final hearing in the present action, the wife's gross income had increased to $6,839 per month for the first half of 2015 (including significant overtime pay), although the wife testified that she expected her annual income for 2015 to be similar to her annual income for 2014.

      The Court of Civil Appeals' opinion lists six cases that cite or quote Kiefer for the proposition that a material change is measured from the last award that was made. 262 So. 3d at 1195-96. As the main opinion below also notes, however, "in all of those cases, the most recent judgments had awarded periodic alimony; in other words, there were no intervening judgments denying a requested modification of the periodic-alimony obligation." 262 So. 3d at 1196 (emphasis added).
      The Court of Civil Appeals' opinion also cites a number of cases for the alternative proposition. 262 So. 3d at 1196. But those cases also did not involve an intervening judgment denying a modification of periodic alimony. Moreover, those cases did not contain any meaningful analysis of the question presented here. For example, Miller v. Miller, 47 So.3d 262 (Ala. Civ. App. 2009), actually contains both formulations-an indirect citation to Kiefer referring to changes " 'since the last award was made,' " 47 So.3d at 264 (quoting Kiefer, 671 So.2d at 711 ), and an indirect quotation from Glover v. Glover, 730 So.2d 218, 220 (Ala. Civ. App. 1998), referring to " 'a material change in circumstances that has occurred since the trial court's previous judgment.' " 47 So.3d at 264-65.

      Ex parte Boley involved modification of child support, but its rationale applies equally to modification of alimony; McInnish applied the holding of Ex parte Boley to alimony.

      Glenn did not involve an intervening judgment that had ruled on a petition to modify alimony. The parties were divorced in August 1990. In August 1991, the husband filed a petition to modify his payment obligations as to both alimony and child support. In December 1991, the trial court held the husband in contempt but did not rule on his petition to modify. In May 1992, the wife filed a petition for a rule nisi. The trial court granted the wife's petition and partially granted the husband's petition with respect to child support. The Glenn court did not address the question presented here. It denied the husband's petition to modify alimony in a judgment in which it concluded that the husband's financial situation was the result of obligations imposed by the original judgment and not of any material change in circumstances.

      The granting of alimony is authorized by Ala. Code 1975, § 30-2-51(a), which provides:
      "If either spouse has no separate estate or if it is insufficient for the maintenance of a spouse, the judge, upon granting a divorce, at his or her discretion, may order to a spouse an allowance out of the estate of the other spouse, taking into consideration the value thereof and the condition of the spouse's family. ..."


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    Randolph G. WILSON, Jr. v. Teresa L. WILSON
    2150259
    Court of Civil Appeals of Alabama.
    March 2, 2018
    Terrie Scott Morgan of Capell & Howard, P.C., Montgomery, for petitioner.
    John Olszewski of Minor & Olszewski, L.L.C., Montgomery, for respondent.
    After Remand from the Supreme Court of Alabama
   THOMPSON, Presiding Judge.

The prior judgment of this court has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte Wilson, 262 So.3d 1202 (Ala. 2018). On remand to this court, and in compliance with the supreme court's opinion, the judgment of the trial court is hereby reversed and remanded.

REVERSED AND REMANDED.

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


author: DONALDSON, Judge.

text:
    A.M. v. HOUSTON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160642
    Court of Civil Appeals of Alabama.
    October 27, 2017 Rehearing Denied December 8, 2017 Certiorari Denied March 16, 2018
    Alabama Supreme Court 1170248
    M. Hampton Baxley of Ramsey, Baxley & McDougle, Dothan, for appellant.
    Steve Marshall, atty. gen., and Sharon E. Ficquette, chief legal counsel, and Karen P. Phillips, asst. atty. gen., Department of Human Resources, for appellee.
   DONALDSON, Judge.

A.M. ("the father") appeals from a judgment of the Houston Juvenile Court ("the juvenile court") granting the petition of the Houston County Department of Human Resources ("DHR") to terminate his parental rights to J.L.M. ("the child"). The father challenges the juvenile court's jurisdiction over the proceedings under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, and the juvenile court's decision to terminate his parental rights to the child. As discussed infra, we hold that the juvenile court had jurisdiction under the UCCJEA and that the juvenile court's decision to terminate the father's parental rights is supported by the evidence presented at trial. Accordingly, we affirm the judgment.

Facts and Procedural History

In February 2015, the father and E.C. ("the mother") were traveling from New Mexico to Florida. The mother became ill during the trip. According to the father, he and the mother stopped in Dothan to visit a friend while the mother recovered from her illness. The mother remained ill for approximately two weeks; she was then rushed to the hospital where she gave birth to the child on February 16, 2015. At that time, the child and the mother both tested positive for marijuana and the father tested positive for methamphetamine.

On February 19, 2015, DHR filed a dependency petition in the juvenile court, which was docketed as case no. JU-15-97.01 ("the dependency proceeding"). In that petition, DHR asserted that the child had no parent to care for him, that the father had tested positive for methamphetamine the day after the child was born, that the mother had an extensive history regarding protective services for other children in New Mexico, that there were pending felony drug charges against the mother, and that, regarding the mother, there was a pending extradition request from the State of New Mexico. The juvenile court entered a shelter-care order in the dependency proceeding on February 19, 2015, transferring custody of the child to DHR and setting an adjudicatory hearing for April 16, 2015.

The father completed an affidavit of substantial hardship, and an attorney was appointed to represent him in the dependency proceeding. The record indicates that, as of March 16, 2015, the mother was incarcerated in New Mexico. As of April 8, 2015, the father had returned to New Mexico, but he informed DHR that he would return to Alabama to comply with DHR's goals toward reunification. On April 16, 2015, the juvenile court entered an order adjudicating the child to be dependent after a hearing at which the father was present and conceded the child's dependency. The record indicates that the mother was still incarcerated in New Mexico at the time of the dependency hearing.

On November 30, 2016, DHR filed a petition seeking to terminate the father's and the mother's parental rights to the child, which was docketed as case no. JU-15-97.02 ("the termination proceeding"). On January 25, 2017, P.M. ("the paternal grandmother") and C.M. ("the paternal aunt") filed a joint motion to intervene in the termination proceeding, which was later granted.

DHR filed a motion seeking to serve the parents by publication in Alamogordo, New Mexico, and Dothan, Alabama. Thereafter, the attorney representing the paternal grandmother and the paternal aunt filed a notice of appearance of limited scope in the termination proceeding on behalf of the father for the sole purpose of contesting the juvenile court's jurisdiction.

On February 7, 2017, the father, the paternal grandmother, and the paternal aunt filed a joint motion seeking to dismiss the termination proceeding or to transfer the action to the State of New Mexico. They attached to their motion affidavits from the father and the paternal aunt indicating that the parties had always been residents of New Mexico and that they had no significant contacts with Alabama. DHR filed a response in which it asserted that the child had been in the physical custody of DHR since February 2015, that the father had not contested the juvenile court's jurisdiction in the dependency proceeding, and that the child had resided in Alabama since his birth. On April 12, 2017, after a hearing, the juvenile court entered an order denying the motion to dismiss.

The juvenile court conducted a trial in the termination proceeding on April 13, 2017. Chermaine Gartmond, the foster-care worker assigned to the child's case, testified that she had worked with the child since February 19, 2015, when he entered DHR's custody. Gartmond testified that the mother was incarcerated in a county detention facility in New Mexico at the time of the trial. Gartmond also testified that the mother had sent a letter to DHR shortly after the child was placed in DHR's custody in February 2015 but that the mother had no further contact with the child. According to Gartmond, at one point the mother had escaped from the detention facility in New Mexico, but she was later located and incarcerated again.

Gartmond testified that the father had not had any physical contact with the child since April 16, 2015. According to Gartmond, DHR had offered to pay the costs associated with lodging and meals for the father if he secured transportation to Alabama to have contact with the child, but the father never returned to Alabama. Gartmond testified that, in an effort to reunite the father and the child, DHR had asked the father to participate in parenting classes and to undergo substance-abuse treatment. Gartmond testified that she had received documentation that indicated that the father had completed a parenting class and an assessment for substance-abuse services in New Mexico but that the father had not followed up with the recommended substance-abuse treatment. Gartmond testified that the father had stated that he would like for the child to be adopted by the paternal grandmother or the paternal aunt.

Gartmond also testified about various potential relative resources for the child. While the mother was still in the hospital in Alabama after the birth of the child, she provided DHR with a list of potential relative resources, which included S.C., the child's maternal grandfather, and two other unspecified relatives. Gartmond testified that S.C., who was residing in Florida, indicated that he was unable to take custody of the child but that he would assist the mother or the father if they received custody of the child. Gartmond testified that another worker contacted two other unspecified maternal relatives located in New Mexico but that those relatives indicated that they were not able to care for the child and that they suffered from substance-abuse issues.

Gartmond testified that DHR had worked with the paternal grandmother in an attempt to place the child with her. The paternal grandmother completed the Interstate Compact for the Placement of Children ("ICPC") process in New Mexico. The initial ICPC report prepared by a New Mexico agency following a home-study of the paternal grandmother was unfavorable, based on issues related to her financial problems, her criminal history involving a guilty plea for marijuana possession in 2003, and concerns related to her capacity to protect the child from the father. Gartmond testified that the paternal grandmother had only $66 in monthly discretionary income. Gartmond also stated that the father had indicated that he wanted to live with the paternal grandmother and the child, that the paternal grandmother became easily agitated when questioned about her capacity to protect the child, and that she was unable to state how she would be able to provide supervision for the child. An addendum to the ICPC report explained that the initial recommendation was to deny the paternal grandmother's home as an acceptable placement for the child based on concerns regarding the paternal grandmother's impulse control and judgment. The addendum explained that, overall, the results of the home study on the paternal grandmother were positive, that the paternal grandmother had been gainfully employed for many years, and that the paternal grandmother had received positive recommendations. Gartmond also testified that the paternal grandmother had expressed that she was financially unable to secure transportation to travel to Alabama to visit the child, even though DHR had offered to assist with her lodging and food expenses.

Gartmond testified that DHR had also considered the paternal aunt and her husband as potential relative resources for the child. According to Gartmond, the paternal aunt first contacted DHR in July 2016, when she was living in Japan with her husband who was stationed there as part of his service in the United States military. The paternal aunt indicated that she and her husband would be returning to New Mexico, and Gartmond informed her that she would need to complete the ICPC process in New Mexico once she returned. Gartmond testified that the paternal aunt returned to New Mexico in November 2016 and that she provided her with information related to the ICPC process. Gartmond testified that, in order to begin the ICPC process, the paternal aunt was required to first submit a notarized letter stating her intent to provide for the child and identifying how she is able to do so. According to Gartmond, the paternal aunt had still not completed that step as of the trial date in April 2017. Gartmond also testified that the paternal aunt had indicated that she wanted to visit with the child, but that she had not done so. Gartmond testified that neither the paternal grandmother nor the paternal aunt had ever seen the child in person. Gartmond opined that the juvenile court should grant the termination petition so that DHR could obtain permanency for the child, who had been in foster care his entire life-over two years at the time of the trial.

Rae Bryan, the service supervisor for the foster-care unit of DHR, testified that she spoke with the paternal aunt, informed her of the ICPC process, and asked for her permanent address. The paternal aunt told Bryan that she would have to contact DHR later to provide a permanent address, but she did not provide that address until the day before the trial in the termination proceeding. Bryan also testified that DHR had contacted a paternal uncle who was not interested in serving as a placement for the child.

Bryan testified that, despite the New Mexico agency's recommendation that the paternal grandmother's home be approved as an acceptable placement for the child, DHR did not approve it based on concerns related to the paternal grandmother's protective capacities and her display of poor judgment. Bryan read the following from the ICPC report:

"There are concerns regarding [the paternal grandmother's] impulse control and judgment. She has made poor decisions in the past with her son, [E.], hiding marijuana for him. More recently, she has not had insurance for her vehicle. There are concerns about her ability to keep [the child] safe and may trust [the father] when she shouldn't. There are concerns regarding her ability to control her anger. While it is understandable that she is upset with this investigator when her protective capacities were questioned, there appears to be a pattern of her losing her temper."

Toward the end of the trial, the attorney for the father, the paternal grandmother, and the paternal aunt told the juvenile court that "a case ha[d] been opened" in the State of New Mexico the day before the trial. The attorney provided a case number and a judge's name but did not indicate what type of case had been opened or provide additional details. The juvenile court advised the attorney that the trial on the termination proceeding would continue and that the attorney should file a notice with the juvenile court containing information regarding the New Mexico case. The record does not indicate that the juvenile court was provided with written notice of the name or case number of any other action concerning the child in any other state or any documentation relating to any other proceedings. The father does not assert on appeal that the juvenile court failed to follow any provisions of the UCCJEA regarding communications with a court in any other state.

On May 3, 2017, the juvenile court entered a judgment that, among other things, terminated the parental rights of the father to the child. On May 16, 2017, the father timely filed a notice of appeal to this court. Neither the mother, nor the paternal grandmother, nor the paternal aunt filed a notice of appeal.

Discussion

On appeal, the father challenges the juvenile court's subject-matter jurisdiction over the termination proceeding and the juvenile court's decision to terminate his parental rights.

I. Jurisdiction

The father asserts that Alabama lacked jurisdiction over the dependency proceeding and the termination proceeding under the UCCJEA and that the juvenile court should have transferred the proceeding to New Mexico.

"The UCCJEA is a jurisdictional act that establishes subject-matter jurisdiction over child-custody proceedings." H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014). The UCCJEA differentiates between a court's jurisdiction to make an "initial child custody determination" and a court's "continuing, exclusive jurisdiction" over a child-custody determination. See §§ 30-3B-201 and -202, Ala. Code 1975. A "child custody proceeding" is "[a] proceeding in a court in which legal custody, physical custody, or visitation with respect to a child is an issue" and includes proceedings alleging dependency and seeking termination of parental rights. § 30-3B-102(4), Ala. Code 1975. A "child custody determination" is defined as "[a] judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order." § 30-3B-102(3). An "initial determination" is defined as "[t]he first child custody determination concerning a particular child." § 30-3B-102(8).

Because the April 2015 dependency judgment was the initial determination for purposes of the UCCJEA, we must determine whether the juvenile court had continuing, exclusive jurisdiction pursuant to § 30-3B-202 over the termination proceeding. Section 30-3B-202 provides:

"(a) Except as otherwise provided in Section 30-3B-204, [Ala. Code 1975,] a court of this state which has made a child custody determination consistent with Section 30-3B-201 or Section 30-3B-203[, Ala. Code 1975,] has continuing, exclusive jurisdiction over the determination until:
"(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
"(2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
"(b) A court of this state which has made a child custody determination and does not have continuing, exclusive jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 30-3B-201."

Although the father did not appeal from the April 2015 dependency judgment or challenge the jurisdiction of the juvenile court in the dependency proceeding, we must examine whether the juvenile court had jurisdiction to make the initial child-custody determination, pursuant to § 30-3B-201(a), in the dependency proceeding in order to determine whether the juvenile court properly exercised continuing, exclusive jurisdiction over the termination proceeding pursuant to § 30-3B-202.

Pursuant to § 30-3B-201(a), which is "the 'exclusive jurisdictional basis' for an Alabama court to ascertain whether it has subject-matter jurisdiction to make an initial child-custody determination," H.T., 163 So.3d at 1062, a court may make an initial child-custody determination only if one of the following applies:

"(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
"(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala. Code 1975,] and:
"a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
"b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
"(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208 ; or
"(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3)."

Section 30-3B-201(a)(1) provides that "a court of this state has jurisdiction to make an initial child custody determination" if "[t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding ...." Because the child was less than six months old on the date of the commencement of the dependency proceeding, the child's "home state" is defined as "the state in which the child lived from birth" with a parent or a person acting as a parent. § 30-3B-102(7).

The father argues that Alabama lacked home-state jurisdiction over the dependency proceeding. In support of his argument, the father cites H.T., supra. In H.T., the mother appealed from a judgment terminating her parental rights. The mother argued, among other things, that Alabama was not the child's home state under the UCCJEA at the time dependency proceedings were initiated in Alabama, and, therefore, she asserted that the juvenile court lacked continuing jurisdiction to terminate her parental rights to the child. 163 So.3d at 1063. The mother in H.T. gave birth to the child in the State of Georgia, and the Cleburne County DHR removed the child from the hospital and initiated dependency proceedings in Alabama. Id. The mother argued that the child had "lived from birth" in Georgia. Id. at 1064. This court held, among other things, that "a limited hospital stay in a state following birth, without more, is insufficient to establish a home state for the child as that term is defined by § 30-3B-102(7)." Id. at 1065. This court explained that the mother had provided an Alabama address to the Cleburne County DHR, that that address was contained on other documents in the record, and that the mother had moved frequently between Alabama and Georgia before the child was born. Id. at 1066. This court also held that, based on the circumstances in that case, the child did not have a "home state" under the UCCJEA. We further determined, however, that the juvenile court in H.T. had jurisdiction pursuant to § 30-3B-201(a)(2) of the UCCJEA, which "requires there to be a significant connection between the state and the child and at least one parent, as well as the availability of substantial evidence in the state relevant to the child-custody determination." Id.

The present case is similar to H.T. because, at the time the dependency proceeding was initiated, the child had no home state pursuant to § 30-3B-201(a)(1) and § 30-3B-102(7). Applying this court's holding in H.T., excepting his hospital stay, the child in this case, before the dependency proceeding, had not otherwise been present in Alabama and could not be deemed to have "lived from birth" in Alabama. Likewise, the child had never even been present in New Mexico to create home-state jurisdiction for that state. We must next determine whether the juvenile court had jurisdiction to make an initial child-custody determination, pursuant to subdivisions (2), (3), or (4) of § 30-3B-201(a), in the dependency proceeding.

Section 30-3B-201(a)(2) provides an Alabama court with jurisdiction to make an initial child-custody determination if

"[a] court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala. Code 1975,] and:
"a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
"b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships."

An Alabama court would not have been able to exercise jurisdiction under subdivision (2) at the time of the dependency proceeding because the child and his parents did not have a "significant connection" with Alabama and "[s]ubstantial evidence" was not available in Alabama concerning the child at that time. In order for jurisdiction to have been proper in New Mexico under this subdivision, the child and at least one parent must have had a "significant connection" with New Mexico and"[s]ubstantial evidence ... concerning the child's care, protection, training, and personal relationships" must have been available in New Mexico. We are not directed to any evidence, let alone substantial evidence, concerning any connection of the child to New Mexico. Accordingly, New Mexico also would not have had jurisdiction under subdivision (2).

In order for either Alabama or New Mexico to exercise jurisdiction under § 30-3B-201(a)(3), "[a]ll courts having jurisdiction under subdivision (1) or (2) [must] have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208[, Ala. Code 1975]." Neither Alabama nor New Mexico would have had jurisdiction under subdivision (3), because no other state had jurisdiction under subdivision (1) or (2) and, thus, no other state could have declined to exercise jurisdiction.

Because New Mexico did not have jurisdiction under the criteria contained in the UCCJEA, and because no other state would have had jurisdiction, the Alabama juvenile court had jurisdiction in the dependency proceeding to make an initial child-custody determination under § 30-3B-201(a)(4) because "[n]o court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3)."

Having determined that the juvenile court had jurisdiction to enter the initial child-custody determination (the dependency judgment), we now turn to the question whether the juvenile court retained continuing, exclusive jurisdiction to enter further custody orders (i.e., the termination judgment). As explained above, a court of this state that properly makes an initial child-custody determination retains continuing, exclusive jurisdiction over the child-custody determination until "a court of this state determines that neither the child, nor the child and [at least] one parent, ... have a significant connection" with Alabama or that the parents and the child no longer reside in Alabama and substantial evidence concerning the child is no longer available in Alabama. § 30-3B-202(a)(1).

The undisputed evidence indicated that the child had remained in Alabama since his birth and that all records pertaining to the child are located in Alabama. After his discharge from the hospital into DHR's custody in February 2015, the child has remained in foster care in Alabama. At the time of the trial in the termination proceeding, the child had been cared for by a foster family in Alabama and had received medical treatment and services in Alabama for over two years. There is no evidence to suggest that the factors necessary to absolve an Alabama court of its continuing, exclusive jurisdiction exist in this case. Therefore, the juvenile court properly exercised its continuing jurisdiction under § 30-3B-202 of the UCCJEA.

The father also argues that, even if the juvenile court had jurisdiction, pursuant to § 30-3B-207, "Alabama should relinquish jurisdiction based on the fact that Alabama is simply an inconvenient forum for the primary parties." That section provides that an Alabama court with jurisdiction "may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum." § 30-3B-207(a). We review a trial court's decision regarding whether it is an inconvenient forum under § 30-3B-207 for an abuse of discretion. See Ramsey v. Ramsey, 995 So.2d 881, 886 (Ala. Civ. App. 2008) ("we must affirm that determination [i.e., the trial court's determination regarding whether it was an inconvenient forum under § 30-3B-2017] unless the appellant demonstrates that the trial court abused its discretion"). The father asserts that the child's paternal relatives have limited financial resources and that it is "unrealistic and unreasonable to expect that ... [they] would be able to come to Alabama with any great regularity or for any extended amount of time." The evidence indicated that the paternal grandmother and the paternal aunt had never physically met the child despite offers of financial assistance from DHR, that the father's last contact with the child was in April 2015, and that the father, the paternal grandmother, and the paternal aunt, despite knowledge of the pendency of the termination proceeding, did not institute proceedings in New Mexico until, according to their attorney's assertions, the day before trial. The evidence further indicated that the child had lived in Alabama with his foster parents since his birth and that records pertinent to the child are located in Alabama. The juvenile court could have determined that the father, the paternal grandmother, and the paternal aunt had not demonstrated a sincere interest in participating in the child's life or in these proceedings. Based on the evidence in the record, the juvenile court did not abuse its discretion in refusing to transfer the action to New Mexico.

II. Termination of Parental Rights

The father also challenges the juvenile court's decision to terminate his parental rights. In determining whether to terminate the father's rights to the child, "[the] juvenile court [was] required to apply a two-pronged test ...: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) the court must properly consider and reject all viable alternatives to a termination of parental rights." B.M. v. State, 895 So.2d 319, 331 (Ala. Civ. App. 2004) (citing Ex parte Beasley, 564 So.2d 950, 954 (Ala. 1990) ). Moreover, the factors a juvenile court should consider when determining whether to terminate a parent's parental rights are located in § 12-15-319, Ala. Code 1975. We have further explained that

"appellate courts must apply a presumption of correctness in favor of the juvenile court's findings in a termination-of-parental-rights action. J.C. v. State Dep't of Human Res., 986 So.2d 1172, 1183 (Ala. Civ. App. 2007). 'Additionally, we will reverse a juvenile court's judgment terminating parental rights only if the record shows that the judgment is not supported by clear and convincing evidence.' Id. See Ex parte McInish, 47 So.3d 767, 774 (Ala. 2008) (explaining standard of review of judgment resting upon factual determinations required to be based on clear and convincing evidence)."

S.S. v. Calhoun Cty. Dep't of Human Res., 212 So.3d 940, 949 (Ala. Civ. App. 2016). "When [the juvenile court's] findings rest on ore tenus evidence, this court presumes their correctness." K.S.B. v. M.L.B., 219 So.3d 650, 653 (Ala. Civ. App. 2016). "Furthermore, when the juvenile court has not made specific factual findings in support of its judgment, we must presume that the juvenile court made those findings necessary to support its judgment, provided that those findings are supported by the evidence." K.P. v. Etowah Cty. Dep't of Human Res., 43 So.3d 602, 605 (Ala. Civ. App. 2010) (citing D.M. v. Walker Cty. Dep't of Human Res., 919 So.2d 1197, 1210 (Ala. Civ. App. 2005) ).

The father tested positive for methamphetamine when the child was born, and the father admitted that he was unable to care for the child. In order to reunite with the child, the father was asked to obtain substance-abuse treatment and to complete parenting classes. Although the evidence indicated that the father had completed parenting classes, the father did not complete substance-abuse treatment. Further, at the time of the trial in the termination proceeding, the father had not seen or communicated with the child in over a year, and he had not provided any financial support for the child. Based on the evidence in the record, the juvenile court could have found that the father had "abandoned the child," § 12-15-319(a)(1) ; that the father had a history of "excessive use of ... [a] controlled substance[ ], of a duration or nature as to render [him] unable to care for the needs of the child," § 12-15-319(a)(2) ; that "reasonable efforts by [DHR] ... leading toward the rehabilitation of the [father] had failed," § 12-15-319(a)(7) ; that the father had failed "to maintain regular visits with the child" or "to maintain consistent contact" with the child, § 12-15-319(a)(10) and (11) ; and that the father had failed "to adjust his ...

circumstances to meet the needs of the child," § 12-15-319(a)(12).

The father also argues that DHR did not use reasonable efforts to reunite the family.

"Whether DHR has made reasonable efforts to reunite a parent and a child is a fact-dependent inquiry. J.B. v. Jefferson Cnty. Dep't of Human Res., 869 So.2d 475, 482 (Ala. Civ. App. 2003). '[T]he efforts actually required by DHR in each case, whether the court is considering rehabilitation or reunification, depend on the particular facts of that case, the statutory obligations regarding family reunification, and the best interests of the child.' J.B., 869 So.2d at 482."

A.M.F. v. Tuscaloosa Cty. Dep't of Human Res., 75 So.3d 1206, 1210 (Ala. Civ. App. 2011). The father asserts that DHR failed to follow through with potential relative resources and he asserts that that demonstrates a lack of reasonable efforts toward reunification. We first note that this court has held that "DHR [is] not required to establish that [it] ... made reasonable efforts to rehabilitate the relationship between the children and their relatives ...." D.F.H. v. State Dep't of Human Res., 51 So.3d 1081, 1092 (Ala. Civ. App. 2010). In order to reunite with the child, the father was asked to complete substance-abuse treatment and parenting classes. Although the evidence indicated that the father had completed parenting classes, the father did not complete substance-abuse treatment. The evidence also indicates that the father made no effort to inquire about the child or otherwise maintain a relationship with him, despite financial assistance having been offered by DHR. Based on the information contained in the record, "the juvenile court reasonably could have concluded that an adequate amount of time and effort had been expended in an attempt to rehabilitate the [father] but that further time and effort would not help achieve the goal of family reunification in light of the [father's] lack of progress ...." M.A.J. v. S.F., 994 So.2d 280, 292 (Ala. Civ. App. 2008) (noting that "the law speaks in terms of 'reasonable' efforts, not unlimited or even maximal efforts").

The father also argues that viable alternatives to the termination of his parental rights existed. The father points to the paternal grandmother and the paternal aunt as relative resources that he asserts constitute viable alternatives to termination. " 'Whether a relative is suitable to assume custody of a child and whether such placement serves the best interests of the child are both questions of fact to be determined by the juvenile court.' " D.F.H., 51 So.3d at 1091 (quoting R.L.M.S. v. Etowah Cty. Dep't of Human Res., 37 So.3d 805, 812 (Ala. Civ. App. 2009), citing in turn T.B. v. Cullman Cty. Dep't of Human Res., 6 So.3d 1195, 1204-05 (Ala. Civ. App. 2008) ).

Although the ICPC report indicated that the paternal grandmother's home had been approved by the New Mexico agency, the evidence indicated that the initial recommendation had been to deny the paternal grandmother's home as an acceptable placement for the child based on various concerns related to the paternal grandmother's financial instability and her capacity to protect the child from the father. The evidence indicated that the paternal grandmother had not ever visited the child, despite offers of financial assistance from DHR, and the paternal grandmother had not filed a petition seeking custody of the child. With regard to the paternal aunt, the evidence indicated that, although she had been advised of the necessary steps in order to complete the ICPC process, she had not even begun the process at the time of the trial in the termination proceeding. Likewise, the paternal aunt had never attempted to visit with the child. Based on the evidence in the record, the juvenile court could have determined that neither the paternal grandmother nor the paternal aunt were suitable relative resources for the child.

Furthermore, the evidence indicated that the father has not adjusted his circumstances or made much effort to reunite with the child in over two years.

"This court has held that leaving a child in foster care when the parent ... is not progressing toward reunification is not a viable alternative to the termination of parental rights. T.G. v. Houston County Dep't of Human Res., 39 So.3d 1146, 1152-53 (Ala. Civ. App. 2009) ; R.L.B. v. Morgan County Dep't of Human Res., 805 So.2d 721, 725 (Ala. Civ. App. 2001). This court has rejected 'maintain[ing] the children in foster care until, perhaps, the mother could rehabilitate herself sufficiently to become a fit mother' when the court concluded that the possibility of such rehabilitation was 'remote.' S.B. v. State Dep't of Human Res., 743 So.2d 470, 472 (Ala. Civ. App. 1999)."

Jefferson Cty. Dep't of Human Res. v. L.S., 60 So.3d 308, 315-16 (Ala. Civ. App. 2010). Ultimately, "the paramount concern in [termination] proceedings is the child's best interests." J.V. v. State Dep't of Human Res., 656 So.2d 1234, 1235 (Ala. Civ. App. 1995). The juvenile court could have determined that the child's best interests would be served by terminating the father's parental rights and allowing the child to have permanency through adoption by his foster parents-the caregivers with whom he had been since his birth.

Because the juvenile court properly exercised its continuing jurisdiction under § 30-3B-202 of the UCCJEA and because the juvenile court's decision to terminate the father's parental rights is supported by clear and convincing evidence, we affirm the judgment.

AFFIRMED.

Pittman and Thomas, JJ., concur.

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

      We note that, even if the juvenile court did not properly exercise jurisdiction over the dependency proceeding and that, therefore, the dependency judgment is void, as the father suggests, based on the facts and circumstances in this case, the juvenile court could have exercised jurisdiction to make an initial child-custody determination in the termination proceeding on the basis that by the time the termination proceeding was initiated, Alabama was the home state of the child pursuant to § 30-3B-201(a)(1).

      We again note that the institution of proceedings in New Mexico is merely an assertion by the father's counsel; no evidence is contained in the record related to the existence of those purported proceedings.


author: THOMAS, Judge.

text:
    1 QUICK BAIL BONDS, LLC v. STATE of Alabama
    2160959
    Court of Civil Appeals of Alabama.
    December 1, 2017 Rehearing Denied January 26, 2018 Certiorari Denied March 16, 2018
    Alabama Supreme Court 1170416
    Thomas E. Drake II of The Drake Law Firm, Cullman, for appellant.
    Steve Marshall, atty. gen., and James R. Houts, deputy atty. gen., for appellee.
   THOMAS, Judge.

In July 2015, Angel Ariel Zubia Mendias, a Mexican citizen, was arrested and charged with trafficking in methamphetamine. The Cullman Circuit Court set his bail in the amount of $1 million. In August 2015, 1 Quick Bail Bonds, LLC ("1 Quick"), posted bond in the amount of $25,000 for his release. Upon release, Mendias fled to Arizona and did not appear for his trial. The circuit court ordered that the bond be conditionally forfeited. The forfeiture, in the amount of $1 million, was made final on November 8, 2016.

On February 15, 2017, the circuit court entered an order requiring payment of escrow funds held pursuant to an escrow agreement between the circuit court, 1 Quick, and Traditions Bank. Because 1 Quick did not remit payment, the circuit court ordered Traditions Bank to pay the State $25,000 plus a fee. The record contains a copy of a check in the amount of $25,635.01 made payable to the circuit court.

On March 6, 2017, 1 Quick filed a Rule 60(b), Ala. R. Civ. P., motion in the circuit court requesting that the final forfeiture judgment be set aside and alleging that,

"through the diligence and efforts of [1 Quick] (as well as the Cullman Sheriff[']s Department), [Mendias] has been located, arrested, and is now detained/imprisoned in the Cullman County Detention facility."

The circuit court entered an order granting 1 Quick's request that the final forfeiture judgment be set aside; however, the next day the circuit court vacated the order and required 1 Quick to provide proof demonstrating that Mendias was in custody. The record contains a document indicating that Mendias had been arrested and incarcerated in the Cullman County Detention Center on March 30, 2017, as opposed to March 6, 2017.

On April 7, 2017, 1 Quick moved the circuit court to be released as bondsman for Mendias and to remit the final forfeiture of the bond pursuant to § 15-13-139, Ala. Code 1975, which provides, in its entirety:

"In forfeiture cases where the sureties have paid the amount of the forfeiture into the court or in cases where the forfeiture has been made final or absolute and there is no further litigation pending on the forfeiture, and the surety locates the defendant and causes the return of the defendant to the custody of the court where the bond was forfeited, and if the defendant was substantially procured by actions of the surety, and the administration of justice has not been thwarted nor the successful prosecution of the defendant has been affected, then the court which ordered the forfeiture, shall have full power and jurisdiction in all proceedings conducted pursuant to this article and within a period of six months from the date of issuance of any final forfeiture judgment, to consider any costs to the state or its subdivisions which resulted as a cause of the default, if any, and upon giving consideration thereto, may, in the court's discretion, remit the whole of the penalty of the bail, or undertaking, or any portion thereof, which is in excess of any costs to the state or its subdivisions, and render a new final judgment against the sureties appearing upon the bail bond or undertaking. In forfeiture cases, if the judgment has been paid into the State or Municipal Treasury, the court may issue an order to the custodian of the treasury to make a refund to the sureties."

On May 6, 2017, the circuit court granted 1 Quick's request to be released as bondsman for Mendias, and, on June 29, 2017, the circuit court entered a final judgment in favor of the State regarding 1 Quick's request to remit the final forfeiture of the bond.

On July 6, 2017, 1 Quick filed a notice of appeal to the Alabama Court of Court of Criminal Appeals, which transferred the appeal to this court. See Wells v. State, 675 So.2d 886 (Ala. Civ. App. 1996) ; see also Ex parte Board of Pardons & Paroles, 793 So.2d 774, 777 (Ala. 2000) (citing Ex parte Moore, 244 Ala. 28, 29, 12 So.2d 77, 77 (1942) )(explaining that our supreme court has historically recognized that a proceeding involving a bond forfeiture is civil in nature). Because the amount involved exceeds $50,000, we transferred 1 Quick's appeal to the supreme court, pursuant to § 12-1-4, Ala. Code 1975. The supreme court then transferred 1 Quick's appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

On appeal, 1 Quick argues that the circuit court abused its discretion by concluding that it was not entitled to remission of the final forfeiture judgment.

"Under the language of § 15-13-139, Ala. Code 1975, a trial court is given complete discretion to remit all or any portion of a final forfeiture judgment. We note that it is the duty of a reviewing court to presume that the trial court properly exercised its discretion when a question of its discretion is raised on appeal. Baumler v. Baumler, 368 So.2d 864 (Ala. Civ. App. 1979). This court will not revise a trial court's exercise of its discretion unless it determines from the evidence that the trial court plainly and palpably erred. Livengood v. Sechler, 382 So.2d 567 (Ala. Civ. App. 1980)."

Wells, 675 So.2d at 887-88.

Joshua Lee McElhone, the owner of 1 Quick, testified that he had been in the bail-bond business for 19 years. McElhone testified that it was common practice for undocumented aliens to contact bondsmen to post bail, because, according to McElhone, posting bail is the "quickest way" to cause the United States Immigration and Customs Enforcement Agency ("ICE") to initiate deportation proceedings, which, he said, defendants prefer "every time" over incarceration.

McElhone said that, when he posted bail for the release of Mendias in exchange for Mendias's payment of $5,000, he had been aware that Mendias was an undocumented alien and that ICE had a "detainer" on Mendias. McElhone explained that he had expected that, when Mendias was released from the Cullman County Detention Center, ICE would assume his custody, and he would be deported.

McElhone testified that, after he had located Mendias in Arizona, he notified the Pima County, Arizona, Sheriff's Department; the Cullman County Sheriff's Department; and the United States Marshals Service. He said that Mendias was taken into custody and that, at the time of the bond-forfeiture hearing, Mendias was incarcerated in the Cullman County Detention Center. McElhone insisted that, but for his efforts, Mendias would not have been located. However, McElhone admitted that Mendias had been returned to custody by the United States Marshals Service nearly five months after the forfeiture had been made final; that McElhone had not been qualified to do, he said, "bounty work"; and that he had been informed that "being a bail agent wasn't good enough, that I had to go through our local law enforcement and get them to write a letter submitting why this individual needed to be picked up."

Thus, we conclude that the circuit court could have reasonably determined that Mendias's return to custody had not been "substantially procured by" McElhone's actions. See § 15-13-139. Furthermore, Mendias fled in August 2015, the bond was conditionally forfeited in May 2016, the forfeiture was made final in November 2016, and Mendias was returned to custody in March 2017. In Ex parte Board of Pardons & Paroles, 793 So.2d at 778, our supreme court explained:

"Once a forfeiture is made final, the money forfeited becomes 'public money of the State General Fund.' See Ala. Code 1975, § 15-13-130. When [the defendant] failed to return for the completion of his trial, the bond was forfeited. Once the forfeiture was made final, the money became the property of the State, and remission of any portion of the amount forfeited would have been an act of grace."

(Footnote omitted.) Whether to remit all or any portion of the amount forfeited or to deny 1 Quick's request was a matter within the sound discretion of the circuit court. 1 Quick has failed to demonstrate that the circuit court abused its discretion. Therefore we affirm the circuit court's judgment.

AFFIRMED.

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


author: PITTMAN, Judge.

text:
    EX PARTE Eugene KEELER
    (In re: Eugene KEELER v. ANDERSON AUTOMOTIVE, LLC)
    2170099
    Court of Civil Appeals of Alabama.
    December 15, 2017 Certiorari Denied March 16, 2018
    Alabama Supreme Court 1170264
    Thomas C. Donald, Birmingham, for petitioner.
    Submitted on petitioner's brief only.
   PITTMAN, Judge.

Eugene Keeler petitions this court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") to grant his motion asking the trial court to vacate the order it entered on December 21, 2016, in the action docketed by that court as case no. CV-16-900561 and to vacate all orders entered in that action subsequent to December 21, 2016. Because we conclude that the trial court lacked jurisdiction to enter its December 21, 2016, order, which vacated a default judgment that had been entered in favor of Keeler, and the orders it entered in case no. CV-16-900561 subsequent thereto, we grant the petition and issue the writ.

Procedural History

In April 2016, Keeler sued Anderson Automotive, LLC ("Anderson Automotive"), alleging that Anderson Automotive was liable to Keeler under various theories of recovery for damage allegedly suffered by Keeler as a result of the manner in which Anderson Automotive had repaired Keeler's automobile. When Anderson Automotive failed to answer the complaint or otherwise defend, Keeler sought the entry of a default judgment against Anderson Automotive. George Anderson ("George"), who is a member of Anderson Automotive but is not a licensed attorney, appeared on behalf of Anderson Automotive at the first hearing regarding Keeler's motion for a default judgment on August 19, 2016. The trial court informed George that, because he was not a licensed attorney, he could not represent Anderson Automotive and continued the hearing until September 7, 2016, so that George could employ an attorney to represent Anderson Automotive. Keeler obtained a continuance of the September 7, 2016, hearing, and the trial court reset the hearing for October 4, 2016. When neither George nor a licensed attorney appeared on behalf of Anderson Automotive when the case was called for hearing on October 4, 2016, the trial court, that same day, entered a default judgment against Anderson Automotive in the amount of $47,156.88.

On November 16, 2016, 43 days after the entry of the default judgment, George filed a notice of appeal to this court on behalf of Anderson Automotive; that appeal was docketed as case no. 2160124. Noting that the notice of appeal had been filed by George, who is not a licensed attorney, 43 days after the entry of the default judgment, this court directed the parties to submit letter briefs addressing the issues whether the appeal was timely filed and whether George could validly file a notice of appeal on behalf of Anderson Automotive. Anderson Automotive did not file a letter brief; instead, a licensed attorney filed a notice of appearance on behalf of Anderson Automotive and a motion for leave to file a Rule 60(b), Ala. R. Civ. P., motion in the trial court. Keeler's letter brief asserted that the appeal was due to be dismissed because, Keeler said, the notice of appeal had been untimely filed and because, Keeler said, the notice of appeal could not have been validly filed on behalf of Anderson Automotive by George because he was not a licensed attorney. On December 20, 2016, this court entered a judgment dismissing the appeal because the notice of appeal was neither timely filed nor valid. Anderson Auto., LLC v. Keeler (No. 2160124, Dec. 20, 2016), 234 So.3d 517 (Ala. Civ. App. 2016) (table). On January 9, 2017, this court issued its certificate of judgment in the appeal and, that same day, issued an order denying, as moot, Anderson Automotive's motion for leave to file a Rule 60(b) motion in the trial court.

Meanwhile, on December 20, 2016, the day this court dismissed the appeal in case no. 2160124, Anderson Automotive filed a Rule 60(b) motion in the trial court asking that court to vacate the default judgment it had entered on October 4, 2016. On December 21, 2016, the trial court entered an order purporting to grant Anderson Automotive's Rule 60(b) motion. On January 18, 2017, Keeler filed a "motion to reconsider" challenging the December 21, 2016, order; that motion asserted that the trial court had erred in granting the Rule 60(b) motion in the absence of any evidence supporting that motion. The trial court denied Keeler's "motion to reconsider" on February 22, 2017. On March 24, 2017, 93 days after the entry of the December 21, 2016, order purporting to grant Anderson Automotive's Rule 60(b) motion, Keeler filed in this court a petition for a writ of mandamus directing the trial court to vacate that December 21, 2016, order. This court docketed Keeler's March 24, 2017, mandamus petition as case no. 2160459. On April 3, 2017, we dismissed that mandamus petition because it was untimely filed. Ex parte Keeler (No. 2160459, April 3, 2017), 246 So. 3d 131 (Ala. Civ. App. 2017) (table).

On August 3, 2017, Keeler filed a motion in the trial court, asking the trial court to vacate its December 21, 2016, order and all orders entered subsequent thereto based on a ground that was different from the ground he had asserted in his January 18, 2017, "motion to reconsider." The new ground asserted for the first time in Keeler's August 3, 2017, motion was that the trial court had lacked jurisdiction to enter its December 21, 2016, order purporting to grant Anderson Automotive's Rule 60(b) motion. On October 5, 2017, the trial court held a hearing regarding Keeler's motion. On October 11, 2017, the trial court implicitly denied Keeler's motion by entering an order (1) stating that, as previously ordered on July 31, 2017, the action was set for jury trial on December 11, 2017, and (2) ordering the parties to mediate their dispute. On October 25, 2017, Keeler timely filed the mandamus petition now before us. We called for an answer to Keeler's petition; however, no answer was filed.

Analysis

Regarding certificates of judgment issued by the Alabama appellate courts, Rule 41(a), Ala. R. App. P., provides: "The certificate of judgment of the court shall issue 18 days after the entry of judgment unless the time is shortened or enlarged by order." The period for issuing the certificate of judgment relating to this court's judgment dismissing Anderson Automotive's appeal in case no. 2160124 on December 20, 2016, was neither shortened nor enlarged by order. Thus, pursuant to Rule 41(a), the period for issuing the certificate of judgment relating to the dismissal of that appeal was 18 days. The 18th day after the entry of the judgment dismissing Anderson Automotive's appeal in case no. 2160124 was Saturday, January 7, 2017.

In pertinent part, Rule 26(a), Ala. R. App. P., provides:

"In computing any period of time prescribed by these rules, ... the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period extends until the end of the next day that is not a Saturday, Sunday, or legal holiday ...."

Therefore, because the 18th day after the entry of the judgment dismissing Anderson Automotive's appeal was a Saturday, pursuant to Rule 26(a), the 18-day period for the issuance of the certificate of judgment relating to that judgment was extended from Saturday, January 7, 2017, to Monday, January 9, 2017, the next day that was not a Saturday, a Sunday, or a legal holiday. Thus, in accordance with Rules 41(a) and 26(a), this court issued its certificate of judgment related to the dismissal of Anderson Automotive's appeal in case no. 2160124 on Monday, January 9, 2017.

In Landry v. Landry, 91 So.3d 88, 90 (Ala. Civ. App. 2012), this court explained:

"[U]ntil an appellate court enters its certificate of judgment, its decision is not yet final and its jurisdiction over a case is not terminated. See Rule 41(a), Ala. R. App. P. (an appellate court's 'certificate of judgment ... shall issue 18 days after the entry of judgment unless the time is shortened or enlarged by order'); see also Portis [v. Alabama State Tenure Comm'n], 863 So.2d [1125] at 1126 [ (Ala. Civ. App. 2003) ] ; and Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala. Civ. App. 2001)."

See also Smith v. N.C. ex rel. Pierce, 98 So.3d 546, 548 (Ala. Civ. App. 2012) (following this court's holding in Landry ).

Thus, on December 20, 2016, when Anderson Automotive filed its Rule 60(b) motion seeking relief from the default judgment the trial court had entered in favor of Keeler on October 4, 2016, this court still had jurisdiction over that default judgment because Anderson Automotive's appeal in case no. 2160124 was still pending on that date. "Under Rule 60(b), Ala. R. Civ. P., leave to make a motion seeking relief from a trial court's judgment 'need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court' (emphasis added)." Jenkins v. Covington, 939 So.2d 31, 33-34 (Ala. Civ. App. 2006). Because the appeal in case no. 2160124 was still pending in this court on December 20, 2016,

"it was incumbent upon [Anderson Automotive] to obtain leave from [this court] in order for [Anderson Automotive] to file a valid motion under Rule 60(b) when [it] did and in order for the trial court to have jurisdiction to rule upon that motion. E.g., Brown v. Foster, 785 So.2d 1141, 1141-42 (Ala. Civ. App. 2000)."

Jenkins, 939 So.2d at 34.

When Anderson Automotive filed its Rule 60(b) motion in the trial court on December 20, 2016, the motion for leave to file a Rule 60(b) motion in the trial court that Anderson Automotive had filed in this court was still pending, and it was subsequently denied upon the issuance of our certificate of judgment in case no. 2160124 on January 9, 2016, because it was then moot. Thus, when Anderson Automotive filed its Rule 60(b) motion in the trial court on December 20, 2016, it did not have leave from this court to file that motion, and, consequently, that motion was not valid and did not vest the trial court with jurisdiction to rule on it. See Jenkins. Therefore, the trial court's December 21, 2016, order purporting to grant Anderson Automotive's Rule 60(b) motion is void because the trial court lacked jurisdiction to enter it.

Conclusion

Because the trial court's December 21, 2016, order purporting to grant Anderson Automotive's Rule 60(b) motion is void, we grant Keeler's petition and issue a writ of mandamus directing the trial court to vacate the December 21, 2016, order and all subsequent orders entered in this action.

PETITION GRANTED; WRIT ISSUED.

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