author: MAIN, Justice.

text:
    EX PARTE Phillip D. ODOM et al.
    (In re Robert Diercks and Carin Diercks v. Phillip D. Odom et al.)
    1160620
    Supreme Court of Alabama.
    September 1, 2017
    William R. Stokes, Jr., of Stokes & Stokes, P.C., Brewton, for petitioners.
    David F. Steele, Jr., of Steele Law, LLC, Monroeville, for respondents.
   MAIN, Justice.

Robert Diercks and Carin Diercks, residents of a subdivision located in Escambia County, purchased a vacant lot in the subdivision located directly behind their house and began construction of a garage on the lot. A group of homeowners in the subdivision ("the plaintiffs") sued the Dierckses in the Escambia Circuit Court, contending that construction of the garage violated various restrictive covenants applicable to the lot. The trial court agreed. It entered a summary judgment in favor of the plaintiffs, enjoined the Dierckses from further construction on the garage, and ordered the removal of what had been constructed on the lot. On direct appeal, the Court of Civil Appeals reversed the judgment of the trial court, finding that the trial court had not properly applied the restrictive covenants. We granted certiorari to review that decision. For the following reasons, we reverse and remand.

I. Facts and Procedural History

The Second Alexander Heights Subdivision ("the subdivision") is located within the City of Brewton. The lots in the subdivision are subject to the following restrictive covenants:

"KNOW ALL MEN BY THESE PRESENTS: That Hines Realty Company, Inc., a corporation, the owner of Second Alexander Heights Addition to Escambia County, Alabama, a subdivision, as shown by plat of said subdivision recorded in Plat Book 5, Page 153, in the Office of the Judge of Probate of Escambia County, Alabama, do hereby adopt the following Protective Covenants with reference to the property located in said subdivision:
"1. Land Use and Building Type.
"A. Single family dwellings only and accessory structures customarily incidental to this use.
"B. All accessory structures must be of the same design and constructed of the same materials as the main dwelling house.
"C. The carports and garages must not open on or face toward the front of the lot.
"2. Size and Location of Structure.
"A. Dwelling house to contain a minimum of 1,700 square feet of living space exclusive of carport, garage and/or open porches.
"B. House to be located on lot in accordance with zoning regulations of the City of Brewton, Alabama.
"3. Building lot to be a minimum of 100 feet in width at the front building line with the exception of Lots # 17, # 18, and # 27."

The main thoroughfare through the subdivision is Brooks Boulevard. Brooks Boulevard runs through the subdivision in roughly the shape of a circle, which is divided into northern and southern halves by Robin Drive. Building lots are located on both sides of Brooks Boulevard and Robin Drive. The Dierckses home is located on lot 47, which they purchased in 1993. Lot 47 fronts the north side of Robin Drive. In 2010, the Dierckses purchased lot 58, an unimproved lot located directly behind their home. Lot 58 fronts the south side of the northern half of Brooks Boulevard.

In 2013, the Dierckses began efforts to construct a garage on lot 58. They hired a contractor and applied for a building permit for the structure. The application for a building permit, however, was denied by the City of Brewton on the basis that a city ordinance prohibits an accessory building from being located on a lot by itself. A city official met with the Dierckses and recommended that they combine lot 58 with their adjacent lot.

On May 29, 2014, the Dierckses conveyed lots 47 and 58 to themselves in a combined metes and bounds description, subject to the restrictive covenants. The Dierckses also had the two lots combined into a single parcel for taxation purposes at the Escambia County tax assessor's office. The Dierckses, however, did not seek to have the subdivision formally "replatted" or to amend the existing plat.

On June 2, 2014, the City of Brewton issued the Dierckses a building permit for the garage, and the Dierckses moved forward with construction. It is undisputed that the garage, once completed, will open onto and face Brooks Boulevard.

On October 20, 2014, before the garage was completed, the City of Brewton halted construction of the garage on the basis that it was in violation of a city ordinance that limited the height of accessory structures to a maximum height of 15 feet. While the Dierckses were pursuing a variance to the height ordinance, the plaintiffs filed this lawsuit. The lawsuit contended that the construction of the garage violated the restrictive covenants applicable to all lots in the subdivision and sought injunctive relief halting further construction of the garage and the removal of the completed portion of the garage.

In February 2016, the plaintiffs moved for a summary judgment. They argued that (1) the garage violated restrictive covenant 1.A. because the garage was not an accessory structure to a single-family dwelling located on lot 58; (2) that it violated covenant 1.C. because it faced the front of lot 58; (3) that it violated covenant 2.A. because the garage was not a dwelling house containing a minimum of 1,700 square feet of living space; (4) that it violated covenant 2.B. because the garage was in violation of the City of Brewton's building-height zoning ordinance; and (5) that it violated covenant 3 because the front boundary line of lot 58 is only 78.5 feet wide.

The Dierckses responded that the garage did not violate any of the restrictive covenants because, they argued, lots 47 and 58 had been validly combined into a single lot for the purposes of applying the restrictive covenants. For example, they argued that the garage did not violate the prohibition in covenant 1.C. of garages facing the front of the lot because, they asserted, the consolidation of the lots "effectively shifted the 'back' of the parcel to that portion which faces Brooks Boulevard." They also asserted equitable defenses, which are not raised on appeal.

On May 6, 2016, the trial court entered a summary judgment in favor of the plaintiffs and against the Dierckses. It concluded that no material facts were in dispute and that the plaintiffs were entitled to a judgment as a matter of law. The trial court concluded that "[t]he [Dierckses]' conveying to themselves Lots 47 and 58 by the deed dated May 29, 2014, does not avoid the application of the protective covenants to Lot 58." The trial court held that the garage violated covenants 1.A., 1.C., 2.A., 2.B., and 3. It enjoined the Dierckses from further construction and ordered them to remove the existing portion of the garage before August 1, 2016. The Dierckses appealed. The trial court stayed its order pending appeal.

The Court of Civil Appeals reversed the judgment of the trial court. Diercks v. Odom, 254 So.3d 215 (Ala. Civ. App. 2017). Relying on Hoffman v. Tacon, 293 Ala. 684, 309 So.2d 817 (1975), the majority concluded that, because the restrictive covenants did not expressly forbid the combination of adjacent lots, the Dierckses had indeed validly combined lots 47 and 58. The majority opinion reasoned:

"In its judgment, the trial court, primarily by treating lot 58 as a separate lot from lot 47 and by viewing the structure as the lone structure on lot 58, determined that the structure violated the restrictive covenants. However, as we have held, the Dierckses validly combined the lots, and the question for adjudication should have been whether the construction of the structure on the combined lot violated the restrictive covenants."

Diercks v. Odom, 254 So.3d at 220. The court, therefore, remanded the case for the trial court to reconsider its judgment in light of its holding.

Presiding Judge Thompson issued a dissenting opinion in which Judge Thomas concurred. He reasoned:

"Among other things, the undisputed evidence indicates that ... the front of the [garage] opens onto the front of lot 58, which runs along Brooks Boulevard, in violation of 'protective covenant' 1.C. of the subdivision. That covenant provides that 'carports and garages must not open on or face toward the front of the lot.'
"....
"The restrictive covenants governing the subdivision ensure that houses and detached structures within the subdivision are built in compliance with the zoning ordinance and that the subdivision has a cohesive appearance. The effect of the covenants is to prohibit open garages and carports from being seen from the street and to prevent detached accessory buildings from detracting from the appearance of the neighborhood. The structure the Dierckses intend to build clearly violates at least some of the restrictive covenants at issue."

Diercks v. Odom, 254 So.3d at 222 (Thompson, P.J., dissenting).

We granted certiorari to review the judgment of the Court of Civil Appeals.

II. Standard of Review

"Because we are reviewing the Court of Civil Appeals' reversal of a summary judgment, our review is de novo. 'On certiorari review, this Court accords no presumption of correctness to the legal conclusions of the intermediate appellate court. Therefore, we must apply de novo the standard of review that was applicable in the Court of Civil Appeals.' Ex parte Toyota Motor Corp., 684 So.2d 132, 135 (Ala. 1996). 'The law is well established that a de novo standard applies to appellate review of a trial court's summary judgment.' Ex parte Patel, 988 So.2d 957, 959 (Ala. 2007) (citing Ex parte Fort James Operating Co., 895 So.2d 294 (Ala. 2004) )."

Ex parte City of Mobile, 37 So.3d 150, 152 (Ala. 2009).

III. Analysis

The Court of Civil Appeals concluded that, because the Dierckses had combined their two lots, the trial court was required to apply the restrictive covenants to the Dierckses' parcel as though it were a single lot. The court reversed the judgment of the trial court and remanded the case for the trial court to reconsider its judgment.

In Hall v. Gulledge, 274 Ala. 105, 109-10, 145 So.2d 794, 798 (1962), we discussed the nature of restrictive covenants:

" ' "Where the owner of a tract of land adopts a general scheme for its improvement, dividing it into lots, and conveying these with uniform restrictions as to the purposes for which the lands may be used, such restrictions create equitable easements in favor of the owners of the several lots, which may be enforced in equity by any one of such owners. Such restrictions are not for the benefit of the grantor only, but for the benefit of all purchasers. The owner of each lot has as appurtenant to his lot a right in the nature of an easement upon the other lots, which he may enforce in equity.
" ' "Whether such restriction creates a right which inures to the benefit of purchasers is a question of intention, and to create such right it must appear from the terms of the grant, or from the surrounding circumstances, that the grantor intended to create an easement in favor of the purchaser." '
"We further stated [in Scheuer v. Britt, 118 So.2d 658, 659-60 (Ala. 1928) ]:
" 'In such cases the equitable right to enforce such mutual covenants is rested on the fact that the building scheme forms an inducement to buy, and becomes a part of the consideration. The buyer submits to a burden upon his lot because of the fact that a like burden is imposed on his neighbor's lot, operating to the benefit of both, and carries a mutual burden resting on the seller and the purchasers.'
"Quoting from the opinion in the same case on a former appeal it was noted:
" ' "Where a defined district is platted and publicly offered as a restricted district, the restrictive clauses in the several deeds are construed as mutual covenants, each lot subject to a servitude or easement in favor of all the others, including unsold lots of the grantor in the same plat. Such servitude being appurtenant to and running with the land, any subsequent purchaser of the lot within the plat, with notice of the easement thereon, takes it subject thereto, as between himself and other lot owners ...." ' "

In this case, there is no dispute that the subdivision was developed pursuant to a common scheme and that all the lots in subdivision were subject to the restrictive covenants. Nor is there any question that the servitudes imposed by the restrictive covenants attached to lot 58 at the time the subdivision became subject to the restrictive covenants. Likewise it is agreed that the property within lot 58, as designated in the subdivision plat, remains subject to the restrictive covenants. The question, rather, is one of interpretation. Specifically, how to interpret those covenants attaching to the property platted as lot 58 in light of the Dierckses' combination of lot 58 and lot 47 into a single parcel.

Concerning the construction of restrictive covenants, we have said:

"[A]ll doubts must be resolved against the restriction and in favor of free and unrestricted use of property. However, effect will be given to the manifest intent of the parties when that intent is clear and the restrictions are confined to a lawful purpose within reasonable bounds, and rights created by covenants have not been relinquished or otherwise lost. Wisneiwski v. Starr, 393 So.2d 488 (Ala. 1980). Furthermore, restrictive covenants are to be construed according to the intent of the parties in the light of the terms of the restriction and surrounding circumstances known to the parties. Kennedy v. Henley, 293 Ala. 657, 309 So.2d 435 (1975)."

Hines v. Heisler, 439 So.2d 4, 5-6 (Ala. 1983).

As an initial matter, we agree that, generally, lots can be combined and re-subdivided. See, e.g., Hoffman, 309 So.2d at 685-86 (residential lot could be re-subdivided where re-subdivision was not expressly prohibited and did not violate any existing restrictive covenants). Nevertheless, we agree with the view that, absent an express provision of the covenants permitting a combined lot to be treated as a single lot for the purposes of applying the restrictive covenants, as was the case in Marengo Hills, Inc. v. Watson, 368 So.2d 856, 857 (Ala. 1979), the property at issue must always conform with the covenants as they originally attached to the property. See Claremont Prop. Owners Ass'n, Inc. v. Gilboy, 142 N.C.App. 282, 288, 542 S.E.2d 324, 328 (2001) ("[T]he property may be combined or re-subdivided into different lots for purposes of ownership or convenience, but, absent a provision in the covenants to the contrary, the property must always conform to the servitudes created by the covenants as they originally attached to the property.").

Applying these principles to the matter before us, we recognize that at least one covenant is violated by the construction of the garage. Covenant 1.C. provides that "carports and garages must not open on or face toward the front of the lot." There is no ambiguity in this provision when applied to lot 58 alone-the "front" of the lot obviously refers to the side fronting Brooks Boulevard. See, e.g., Smith v. Ledbetter, 961 So.2d 141, 145 (Ala. Civ. App. 2006) (defining the term "fronts" used in a restrictive covenant as meaning the lot frontage abutting a street or highway); Rhinehart v. Leitch, 107 Conn. 400, 140 A. 763 (1928) ("When used of a lot with a house upon it, ['front'] means that portion of the lot abutting upon the street toward which the house faces. So when used of a bare lot, by transposition of significance, it is that side toward which, in ordinary circumstances, a house, when built, will most likely face ....").

The Dierckses argue that their combination of lot 58, which fronts Brooks Boulevard, with lot 47, which fronts Robin Drive, creates an ambiguity as to which side of the combined lot is the "front." They contend that, consistent with the rules of construction, this ambiguity must be resolved in their favor. We cannot agree.

Restrictive covenants must " 'be construed according to the intent of the parties in light of the terms of the restriction and surrounding circumstances known to the parties.' " Riverchase Homeowners Prot. Ass'n, Inc. v. City of Hoover, 531 So.2d 645, 647 (Ala. 1988) (quoting Hines, 439 So.2d at 5-6 ). Thus, we must apply the covenant as originally intended by the parties at the time the covenant was created. In this case, it is clear that the intent of the covenant was to prohibit a garage or carport located on lot 58 from opening onto Brooks Boulevard. The Dierckses may not unilaterally reverse the meaning of this covenant by the subsequent combination of the two lots into a single parcel. Thus, the Dierckses' garage violates the restrictive covenant prohibiting garages and carports from opening onto the front of the lot.

This conclusion finds support in caselaw from other jurisdictions. For example, in Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388 (1954), the North Carolina Supreme Court determined that the combination of two lots and re-subdivision of those lots into three lots was not prohibited by the applicable covenants but that nothing authorized a change in the original "front" line of the lots for the purposes of applying the restrictive covenants. In Ingle, two adjacent lots, lots 10 and 11, in a residential subdivision were originally platted to front Bueno Street. Lot 10, however, was a corner lot, and had frontage on Plaid Street, which was considered a side street. The lots were subject to a restrictive covenant that provided that no building shall be located nearer than 50 feet to the "front" line. The owner of the lots re-divided the property to form three adjacent lots facing Plaid Street. The defendant purchased one of the three lots, the corner lot with frontage on both Bueno and Plaid Streets, and sought to construct a house facing Plaid Street. The side of the house, however, was set back only 30.5 feet from Bueno Street. The court held that the terms "front" and "side" as used in the restrictive covenant "means the front and side as each existed at the time the covenant was made." 240 N.C. at 389, 82 S.E.2d at 394. Thus, the court concluded that the proposed location of the house would violate the restrictive covenant prohibiting a building from being located nearer than 50 feet from the "front" line, i.e., Bueno Street. The court stated: "[T]here is nothing in the covenants that authorizes the change of original front line in respect to requirements as to building set back distances." 240 N.C. at 289, 82 S.E.2d at 394. See also Fawn Lake Maint. Comm'n v. Abers, 149 Wash.App. 318, 324-25, 202 P.3d 1019, 1022-23 (2009) (holding that property owners could not unilaterally modify their homeowners' fee obligations under the subdivision covenants by combining their two adjacent lots into one); Claremont Prop. Owners Ass'n, 142 N.C.App. at 289, 542 S.E.2d at 329 (holding that the restrictive covenants intended to fix a road-maintenance-fee obligation to each lot upon creation of the lot by recorded plat and that the combining of lots would not alter the fee obligations); and Tear v. Mosconi, 239 Mich. 242, 244, 214 N.W. 123, 124 (1927) ("A builder may not treat the side line of the lot as a front line, and by so doing avoid the restrictions.").

Because the construction of the garage to open onto Brooks Boulevard violates restrictive covenant 1.C., the trial court correctly entered a summary judgment as to that issue. Thus, to the extent that the Court of Civil Appeals' decision is to the contrary, that decision is reversed, and we remand this case for further proceedings consistent with the principles discussed above. We pretermit discussion as to the remaining restrictive covenants.

IV. Conclusion

The judgment of the Court of Civil Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Murdock, J., concurs in the result.

      Phillip D. Odom, Linda Joy Odom, James Steven White, Gregory Wayne White, Kimberly Gibson White, Jason R. Castleberry, and Renee P. Ryan.

      The request for a variance was denied by the City of Brewton. The Dierckses' appeal of that determination remains pending.

      The Court of Civil Appeals also held that the trial court erred in concluding that the height of the garage violated covenant 2.B., which provides that the "house [is] to be located on the lot in accordance with zoning regulations of the City of Brewton, Alabama." The court explained-in our opinion, convincingly-that the plain language of covenant 2.B. applied only to the location of the house on a lot, and "does not regulate the height of accessory buildings by requiring compliance with local zoning regulations or otherwise." 254 So.3d at 220.

      Here we note that these terms are not synonymous with "replatting," which generally refers to the formal amendment or replacement of an approved subdivision plat.

      The covenant in Marengo Hills provided that "[n]othing herein contained shall prevent a purchaser from purchasing two or more adjoining lots for the purpose of constructing a dwelling on the composite area thereof, in which the entire area shall be treated as one residential building lot for the purpose of these restrictive covenants ...." 368 So.2d at 857.

      The Dierckses also argue that, if the term "front" is construed only to refer to the side of lot 58 facing Brooks Boulevard, then the lot is unusable in its entirety because lot 58 only has 78.5 feet of frontage on Brooks Boulevard and covenant 3 requires that a building lot must be "a minimum of 100 feet in width at the front building line." (Emphasis added.) This argument, however, confuses the front lot line with the front building line, which typically references the place on the lot where the front of the building is constructed, and may correspond with a setback requirement. See "building line," Black's Law Dictionary 235 (10th ed. 2014) (building line "is often referred to as a setback requirement"). Given the wedge shape of lot 58, it appears that covenant 3 would pose no restriction to building on lot 58 so long as the front building line is set back to a point on the lot where the lot width is at least 100 feet. We note that the record does not indicate the width of lot 58 at the front building line of the garage.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Ron L. HATHAWAY v. Sally M. FOOS
    2160254
    Court of Civil Appeals of Alabama.
    December 1, 2017
    Joan-Marie Sullivan, Huntsville, for appellant.
    Julia Smeds Roth and Eyster Key Tubb Roth of Middleton & Adams, LLP, Decatur, for appellee.
   THOMAS, Judge.

Ron L. Hathaway ("the former husband") and Sally M. Foos ("the former wife") were married in 1972 and divorced by a judgment entered by the Morgan Circuit Court in 1994. The divorce judgment provides, in pertinent part:

"6. When the [former] husband effects his retirement, the [former] wife shall be entitled to receive thirty percent (30%) of [the former] husband's retirement (whether by lump sum or by installment) under whatever retirement program [the former] husband elects to receive."

In 2016 the former wife filed in the circuit court a proposed Qualified Domestic Relations Order ("QDRO") regarding each of the former husband's pension plans. On May 2, 2016, the circuit court entered an order that reads, in pertinent part:

"The Court has received two proposed Qualified Domestic Relations Orders, one for The Pension Value Plan for Employees of Boeing Company and the other for the John Deere Pension Plan for Salaried Employees, for entry in this case. Neither of the proposed Orders has been signed as approved by the [former husband]. In the absence of the [former husband]'s signatures, the Court declines to sign and enter the proposed QDRO's."

Because the former husband did not thereafter execute the proposed QDROs, the circuit court entered an order requiring him to appear at a show-cause hearing. The former husband filed a response in which he asserted, among other things, that the action was due to be dismissed because the former wife had not paid a filing fee. The former wife filed a response; however, she did not respond to the former husband's assertion regarding the nonpayment of a filing fee.

On July 7, 2016, the circuit court entered an order in which it determined, in pertinent part:

"The Court considers this to be an ancillary enforcement proceeding requested by the [former wife] to conclude a portion of the parties' property division that remains in an incomplete status many years after the entry of the Decree of Divorce. The Court necessarily retained jurisdiction to enter subsequent orders that would aid in completing the division of assets specified in the Decree of Divorce. This is not a contempt proceeding[,] at least at this stage, or a modification proceeding and does not require the payment of the civil docket fee."

On October 25, 2016, the circuit court entered a judgment, in which it reiterated its determination that the former wife was not required to commence a new action or to pay a filing fee, and it determined that the former wife was entitled to a certain percentage of all "retirement programs or plans the [former husband] elects to receive." The former husband filed a timely postjudgment motion, which the circuit court denied. The former husband filed a timely notice of appeal.

The former husband firsts asks this court to dismiss the appeal because, he argues, the circuit court incorrectly concluded that the former wife was not required to pay a filing fee. Our review of a trial court's conclusions of law is de novo. See BT Sec. Corp. v. W.R. Huff Asset Mgmt. Co., 891 So.2d 310, 312 (Ala. 2004). The former husband points to our decision in Montgomery v. Montgomery, 37 So.3d 168 (Ala. Civ. App. 2009), for his argument that the circuit court lacked subject-matter jurisdiction and that, for that reason, its October 25, 2016, judgment is void. In Montgomery, we explained:

"The issue at the heart of this case is whether a trial court retains jurisdiction over a divorce judgment in order to implement or enforce its judgment. This court has held that '[a] court rendering a judgment has the inherent power to enforce its judgment and to make such orders as may be necessary to render it effective.' King v. King, 636 So.2d 1249, 1254 (Ala. Civ. App. 1994) ; see also Patchett v. Patchett, 469 So.2d 642 (Ala. Civ. App. 1985). We conclude that a trial court has the inherent power to issue a QDRO subsequent to the entry of a divorce judgment in an effort to implement or enforce the judgment or to render the divorce judgment effective. Cf. Jardine v. Jardine, 918 So.2d 127, 131-32 (Ala. Civ. App. 2005) (discussing and quoting Haney v. Haney, 50 Ala. App. 79, 81, 277 So.2d 356, 357 (Ala. Civ. App. 1973), in which this court held that a trial court had the power to order the sale of a marital residence, even though a provision for the sale of the marital residence was not set forth in the parties' original agreement or the divorce judgment, because 'the parties' original divorce agreement and resulting judgment "was final only under the circumstances existing at the time, but [was] subject to modification for the purpose of implementing" the result intended by that judgment').
"However, we agree with the husband that the wife should have filed separate actions, paid the appropriate filing fees, and given the husband proper notice of her filings because the wife was seeking to implement or enforce the divorce judgment. Cf. Colburn v. Colburn, 14 So.3d 176, 178 (Ala. Civ. App. 2009) (holding that the trial court lacked jurisdiction to enter a judgment of contempt 'because the parties filed their [contempt] motions after the entry of a final judgment in the case, [and, therefore,] their motions constituted independent proceedings over which the trial court could gain jurisdiction only if the parties paid the filing fees required to commence such proceedings'). Section 12-19-71(a), Ala. Code 1975, sets forth the amount of filing fees to be paid in civil actions, and subsection (7) states the dollar amount required 'for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations order.' "

37 So.3d at 172-73 (footnote omitted).

Section 12-19-71(7), Ala. Code 1975, provides that a filing fee of $248 is required "for cases filed in the domestic relations docket of the circuit court seeking to modify or enforce an existing domestic relations court order." By filing the proposed QDROs, the former wife sought enforcement of a provision of the existing divorce judgment, but she did not pay the appropriate filing fee. Thus, the circuit court did not acquire subject-matter jurisdiction, and the October 25, 2016, judgment is void. See Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008) (explaining that "[a] judgment entered by a court lacking subject-matter jurisdiction is absolutely void"). "A void judgment will not support an appeal, and 'an appellate court must dismiss an attempted appeal from such a void judgment.' " Colburn v. Colburn, 14 So.3d 176, 179 (Ala. Civ. App. 2009) (quoting Vann, 989 So.2d at 559 ). The appeal is dismissed with instructions to the circuit court to vacate its October 25, 2016, judgment. Because we are dismissing the appeal, we pretermit discussion of the remaining issues raised by the former husband on appeal. See Favorite Mkt. Store v. Waldrop, 924 So.2d 719, 723 (Ala. Civ. App. 2005) (stating that the court would pretermit discussion of further issues in light of the dispositive nature of another issue). The former wife's request for an award of attorney fees on appeal is denied.

APPEAL DISMISSED WITH INSTRUCTIONS.

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


author: MOORE, Judge.

text:
    Robert DIERCKS and Carin Diercks v. Phillip D. ODOM, et al.
    2151011
    Court of Civil Appeals of Alabama.
    October 20, 2017
    After Remand from the Alabama Supreme Court
   MOORE, Judge.

The prior judgment of this court, reversing a summary judgment entered by the Escambia Circuit Court, see Diercks v. Odom, 254 So.3d 215 (Ala. Civ. App. 2017), has been reversed, and the cause remanded by the Supreme Court of Alabama. See Ex parte Odom, 254 So.3d 222 (Ala. 2017). On remand to this court, and in compliance with the supreme court's opinion, the summary judgment entered by the Escambia Circuit Court is hereby affirmed.

AFFIRMED.

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


text:
    Edward KIZALE v. Nancy KIZALE
    2160296
    Court of Civil Appeals of Alabama.
    December 1, 2017
    Stephen F. Brown, Decatur, for appellant.
    Submitted on appellant's brief only.
   THOMAS, Judge.

Edward Kizale ("the former husband") and Nancy Kizale ("the former wife") were divorced by a September 2014 judgment of the Morgan Circuit Court ("the trial court"). The parties had previously been awarded custody of their grandchildren after the death of the grandchildren's mother, the parties' daughter; the September 2014 divorce judgment awarded the parties joint legal custody and the former wife sole physical custody of the grandchildren. Among other things, the September 2014 divorce judgment also ordered the former husband to pay $898 in child support each month and to "assume ..., indemnify, and hold harmless the [former] wife from liability" and to "remove her name as a joint user" on the following specified debts: the balance owed on the Wells Fargo PMA Visa card, the balance owed on the Wells Fargo line of credit, the Bank of America debt, and the Chase debt (hereinafter referred to collectively as "the specified debts"). The former husband's $898 per month child-support obligation was originally based on the former husband's imputed 2014 annual income of $43,500 and the former wife's imputed minimum-wage income (amounting to $1,257 per month); however, during the pendency of the former husband's postjudgment motion directed to the divorce judgment, the parties reached an agreement, which the trial court approved, that the former husband would pay $800 per month in child support. The September 2014 divorce judgment specifically determined that both parties were voluntarily underemployed.

In September 2015, the former wife filed a petition seeking to hold the former husband in contempt for, among other things, failing to timely pay child support as ordered and failing to remove her name as a joint user from the Bank of America and Wells Fargo accounts. The former husband answered the former wife's petition, generally denying that he was in contempt, and counterclaimed, seeking a reduction of his child-support obligation and that the former wife be held in contempt for failing to permit certain visitation. Both parties sought an award of attorney fees.

Although certain issues were determined in a February 15, 2016, order, the trial court held a trial on the contempt, child-support, and debt issues in May 2016. The trial court entered a final judgment in August 29, 2016 ("the contempt judgment"), determining that the former husband was in civil and criminal contempt for failing to remove the former wife's name from the accounts related to the specified debts and declining to modify his child-support obligation. Regarding the provision requiring the former husband to assume liability for the specified debts, the contempt judgment states:

"The Final Decree requires [the former husband] to assume and pay the [specified] debts. The Final Decree also required [the former husband] to remove [the former wife's] name from [the specified] debt[s]. ...
"[The former husband] admits that he has failed to refinance [the specified] debt[s] or otherwise put the [specified] debt[s] in his sole name, and testified that he 'wasn't sure that was the best course of action.' The Court finds that he has not complied with the Orders of the Final Decree and has had the ability to do so. Therefore, the Court finds beyond a reasonable doubt that [the former husband] is in criminal contempt and continuing civil contempt of court for failing to abide by the Order in the Final Decree. ... To purge himself of civil contempt, [the former husband] shall, within ninety (90) days, refinance the Wells Fargo debts, the Bank of America debts, and the Chase debt, which is in the joint names of the parties, as previously Ordered, and shall finance [the specified debts] in his name only."

The trial court sentenced the former husband to a period of incarceration but suspended that sentence. The contempt judgment further ordered the former husband to pay $1,500 toward the former wife's attorney fees and pronounced that any relief specifically requested but not awarded was denied. After his postjudgment motion was denied by operation of law, see Rule 59.1, Ala. R. Civ. P., the former husband timely appealed from the contempt judgment.

The testimony at the contempt trial reflects the following facts. The former husband is self-employed. At the time of the divorce trial, the former husband was apparently earning money by "flipping" houses. He had also invested in some parcels of real property, which property he had sold, some at a loss, after the divorce. Detailing the profit and loss on each property is unnecessary, because the trial court stated in the contempt judgment that "most of these investments did not realize substantial income," and the trial court did not consider the losses sustained to be so substantial and continuing as to warrant a modification of the agreed upon child-support obligation. The former husband does not challenge those findings on appeal.

The former husband explained that he had decided to leave the real-estate investment market and to pursue a new business opportunity-creating a company "to provide wireless internet and loyalty and customer targeting services to its customers." The former husband explained that he had invested quite a bit of time to learn about and to develop a cellular-telephone application that would serve these purposes, and he testified that, within a month of the contempt trial, he expected to be earning $6,000 per month from this venture. He said that he had been living off of his retirement funds and had utilized those funds to pay his child-support obligation since the entry of the September 2014 divorce judgment. According to the former husband, he had, at the time of the trial on the contempt action, $6,400 in an individual retirement account and $4,000 in an "Edward Jones account." He said that the $800 per month child-support figure had been "flawed" because he had not really been realizing rental income from his investment properties at the time of the entry of the September 2014 divorce judgment and that he had been living off of his retirement funds even then.

The trial court asked the former husband, whom it had specifically concluded in the September 2014 divorce judgment was underemployed based on his previous employment and his education level, why he could not work a full-time job and use his spare time to create his new business until it became successful instead of living off of his dwindling retirement accounts and seeking a reduction in his child-support obligation. The former husband explained:

"I feel victimized here. I'm the only parent involved in maintaining the lifestyle for my [grandchildren]. I wish the other side of this equation would try to contribute to the welfare of the [grandchildren]. I'm sort of taking this exception to having this burden completely put on myself. I'm doing my best to take care of the [grandchildren], and I think that is-the best for myself and my [grandchildren] to get them into a position where their future is secure. I'm trying to get them involved with this business. I've applied for Boulder, Colorado, to do a programming job. Part of the problem is I'm technologically obsolete. The languages and the operating systems I have worked on are obsolete. Everything is cloud based. It's in the cloud. No one uses that. So I'm at a disadvantage. I cannot get the kind of salary to maintain the-my earn rate, my debt ratios, for the month. I need to get something that goes beyond working-or working at [a discount retailer]. That's not going to pay the bills. It may pay the $800 a month [in child support], but it's just not going to work out."

The former husband testified that he believed that he could pay $500 per month in child support for the next year. He said that he would be happy to return to court the following year to recalculate child support when, he said, he expected to be earning $10,000 per month. The trial court appended to the contempt judgment a child-support-guidelines form indicating that the trial court had imputed income of $3,625 per month to the former husband and income of $1,797 per month to the former wife to calculate a monthly child-support obligation of $761.12. The trial court specifically noted that, although the former husband's current child-support obligation of $800 per month exceeded the amount calculated pursuant to the guidelines, the variance was less than 10% and, thus, the rebuttable presumption in favor of a modification set out in Rule 32(A)(3)(b), Ala. R. Jud. Admin., was not applicable.

Regarding the provision in the September 2014 divorce judgment requiring the former husband to assume the specified debts, the former husband testified that he had attempted to remove the former wife as a joint user of the accounts related to the specified debts. He said that "Wells Fargo will not allow it, nor will the Bank of America, and I have a reason [sic] statement to show that." Later, the former husband mentioned having repeatedly attempted to have the former wife removed from the accounts related to the specified debts and stated that he had received a letter from Bank of America regarding his request. However, the record contains no documentary evidence indicating that Wells Fargo or Bank of America had declined any request by the former husband to have the former wife removed from the accounts related to the specified debts. Counsel for the former wife questioned the former husband about his efforts to assume the liability for the specified debts:

"[Former wife's counsel]: You haven't attempted to consolidate the[ ] [specified] debts and work with a debt consolidation agency to remove her name and put these in your name?
"[Former husband]: I'm not sure if that's the best course of action because that would basically show as a bankruptcy. It has the same-I'm trying to rebuild my credit and to do a debt consolidation would further damage my credit."

The former husband first argues that the trial court erred in holding him in both criminal and civil contempt of the September 2014 divorce judgment when that judgment did not order him to refinance or otherwise put the specified debts in his sole name. The two types of contempt-criminal and civil-are governed by different standards of review. In the case of civil contempt, we have often explained that

"whether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm."

Stack v. Stack, 646 So.2d 51, 56 (Ala. Civ. App. 1994) ; see also Hammock v. Hammock, 867 So.2d 355, 359-60 (Ala. Civ. App. 2003).

Unlike civil contempt, criminal contempt requires proof beyond a reasonable doubt of the alleged contemnor's guilt. See Ex parte Ferguson, 819 So.2d 626, 629 (Ala. 2001).

"[T]he standard of review in an appeal from an adjudication of criminal contempt occurring in a civil case is whether the offense, i.e., the contempt, was proved beyond a reasonable doubt. Hicks v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed. 2d 721 (1988) ; Combs v. Ryan's Coal Co., 785 F.2d 970 (11th Cir. 1986) ; and United States v. Turner, 812 F.2d 1552 (11th Cir. 1987).... In Turner, the Court, in discussing the standard of review in a criminal-contempt case, said:
" 'The essential elements of the criminal contempt for which punishment has been imposed on [the defendant] are that the court entered a lawful order of reasonable specificity, [the defendant] violated it, and the violation was wilful. Guilt may be determined and punishment imposed only if each of these elements has been proved beyond a reasonable doubt.'
" Turner, 812 F.2d at 1563. The Turner court also stated, quoting Gordon v. United States, 438 F.2d 858, 868 n. 30 (5th Cir. 1971) :
" ' "The test is whether the evidence is sufficient to justify the trial judge, as trier of the facts, in concluding beyond a reasonable doubt that the defendant was guilty, and that such evidence is inconsistent with any reasonable hypothesis of his innocence. Such is the substantial evidence test.' "
" Turner, 812 F.2d at 1563."

Ex parte Ferguson, 819 So.2d at 629.

First, the former husband points out that the September 2014 divorce judgment required that he remove the former wife's name "as a joint user" from the accounts related to the specified debts, not that he refinance the specified debts or place them in his sole name. Thus, he contends, he could not be found in either civil or criminal contempt for failing to do something that the September 2014 divorce judgment did not require. Indeed, the provision in question states: "Accordingly, the [specified] debts ... shall be assumed and payable by the [former] husband, who shall indemnify and hold harmless the [former] wife from liability on same and shall remove her name as a joint user." As the former husband contends, the language used in the September 2014 divorce judgment does not require the former husband to refinance the specified debts in his sole name. See Barnes v. Barnes, 28 So.3d 800, 802 (Ala. Civ. App. 2009) (explaining that a provision requiring a spouse to assume a mortgage debt and to hold the other spouse harmless from any further liability on that mortgage debt did not require the spouse to refinance the mortgage and that a trial court's order compelling the spouse to do so was an impermissible modification of a property settlement). Thus, we agree with the former husband that he could not be held in either criminal or civil contempt for failing to refinance the specified debts in his sole name. Accordingly, insofar as the contempt judgment held the former husband in contempt for failing to refinance the specified debts into his sole name and ordered that the former husband refinance the specified debts into his sole name as a condition of purger, the contempt judgment is reversed, and the cause is remanded for the trial court to remove that provision as a condition of purger.

However, we are not convinced that the trial court lacked the authority to otherwise hold the former husband in contempt. The former husband admitted that he had not removed the former wife as a joint user of the accounts related to the specified debts. He testified that he had attempted to do so on more than one occasion and that neither Wells Fargo nor Bank of America would do as he requested. However, as noted above, he produced no documentary evidence of any such request or any such refusal. In fact, in his postjudgment motion, the former husband admitted that he had not produced evidence demonstrating that he had attempted to fulfill his obligation to remove the former wife as joint user on the accounts related to the specified debts, stating: "If required to submit to an additional evidentiary hearing, the [former husband] will produce evidence of his efforts and the responses from the subject banks." The trial court, in which is reposed the ability to consider the veracity of the witnesses before it, was not required to believe that the former husband had attempted to have the former wife's name removed from the accounts related to the specified debts. See Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala. Civ. App. 1999) (explaining that the ore tenus presumption in favor of a trial court's factual findings "is based in part on the trial court's unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor"). Thus, we cannot agree with the former husband that the evidence presented at the contempt trial does not support a conclusion that the former wife had proved beyond a reasonable doubt that he was admittedly in contempt of the provision requiring him to remove the former wife's name as a joint user on the accounts related to the specified debts. Insofar as the finding of contempt is based on the former husband's failure to comply with that aspect of the September 2014 divorce judgment requiring that he remove the former wife's name as a joint user of the accounts related to the specified debts, the contempt judgment is affirmed.

The former husband next argues, citing Null v. Null, 423 So.2d 887 (Ala. Civ. App. 1982), that "a contempt citation does not apply to a debt" and contends that the trial court was limited to awarding the former wife a judgment for the amount of the "debt." Certainly, as we have recently explained, Article I, § 20, of the Alabama Constitution of 1901 prohibits the imposition of a sentence of incarceration for failing to pay a debt. Ward v. Cranford, 169 So.3d 1054, 1056 (Ala. Civ. App. 2014). However, the former wife did not request that the former husband be required to pay a debt, and the contempt judgment does not order the former husband to pay a debt or to face incarceration. Instead, the contempt judgment merely sentences him to a suspended jail sentence for failing to comply with the requirement that he remove the former wife as a joint user of the accounts related to the specified debts. Thus, the former husband's argument on this point is unconvincing.

The former husband next argues that the trial court erred by ordering him to pay a portion of the former wife's attorney fees. He contends that, because, he says, he should not have been held in contempt, there is no basis for an award of attorney fees. However, because we are affirming the finding of contempt based on the former husband's failure to remove the former wife as a joint user on the accounts related to the specified debts, a contempt finding to support an award of attorney fees exists. See Moody v. State ex rel. Payne, 355 So.2d 1116, 1119 (Ala. 1978) ("[I]n proper circumstances a reasonable attorney's fee may be allowed the prevailing prosecuting party in a civil contempt proceeding."). Accordingly, we affirm the contempt judgment insofar as it ordered the former husband to pay $1,500 toward the former wife's attorney fees.

Finally, the former husband argues that the trial court erred by failing to modify his child-support obligation. As noted above, the former husband agreed in January 2015 to pay $800 per month in child support. In addition, the record reflects that the grandchildren receive $540 per month in Social Security benefits as a result of their mother's death. The trial court indicated in the contempt judgment that it had failed to include the $540 that the grandchildren receive in its original determination in the divorce judgment of the former wife's income, and the trial court increased the former wife's income by that $540 in the child-support-guidelines form attached to the contempt judgment. Based on that child-support-guidelines form, the former husband's child-support obligation should be $761.12. The former husband argues that, because of the miscalculation of the former wife's income in the original child-support calculation, he will, over time, be significantly overpaying child support and that, therefore, the trial court erred by failing to modify his child-support obligation to remedy that error.

The testimony at the contempt trial established that the former husband had agreed to pay $800 per month in child support in January 2015 based on what he contends were "flawed" computations. Even at the time of the divorce trial, the former husband was not employed and was attempting to fund his lifestyle through his own business "flipping" houses, which venture was not profitable and resulted in the sale of several properties at a loss. The record further reflects that the trial court had found the former husband underemployed and had imputed income to the former husband in the September 2014 divorce judgment; the contempt judgment reiterates the trial court's conclusion that the former husband is underemployed. The trial court's comments on the record make clear the trial court's belief that the former husband could secure employment to provide sufficient funds to meet his obligations while still attempting to develop and market his new business, at least until it proves successful and is producing actual income.

"Our standard of review in a case involving a modification of a child-support order is well settled. Matters related to child support, including subsequent modifications of a child-support order, rest soundly within the trial court's discretion and will not be disturbed on appeal, absent a showing that the ruling is unsupported by the evidence and thus is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala. Civ. App. 1997) ; Williams v. Braddy, 689 So.2d 154 (Ala. Civ. App. 1996). A child-support award may be modified upon a showing of a material change of circumstances that is substantial and continuing. Id.; State ex rel. Shellhouse v. Bentley, 666 So.2d 517 (Ala. Civ. App. 1995)."

Jackson v. Jackson, 777 So.2d 155, 158 (Ala. Civ. App. 2000).

We are further guided by the following principles. " '[W]hen[, as here,] the judgment establishing the support obligation" is based on an agreement between the parties, the [judgment] should not be modified except for clear and sufficient reasons and after thorough consideration and investigation." ' " Chunn v. Chunn, 183 So.3d 985, 989 (Ala. Civ. App. 2015) (quoting Pendegraph v. Pendegraph, 628 So.2d 849, 850 (Ala. Civ. App. 1993), quoting in turn Tucker v. Tucker, 588 So.2d 495, 497 (Ala. Civ. App. 1991) ) (emphasis added in Chunn ). In addition, the length of time between the agreement and the request for modification is also a consideration. As we explained in Tucker, "a modification is particularly disfavored in the case of a decree based on an agreement between the parties when so short a time, here approximately fourteen months, separates the decree and the hearing for modification." 588 So.2d at 497. The period between the agreement and the request for modification in the present case is approximately 10 months.

The trial court clearly considered relevant the fact that the former husband was underemployed at the time of the entry of the September 2014 divorce judgment and that significant income had been imputed to him. The trial court concluded that the continued underemployment of the former husband was not a change in circumstances, even though perhaps he had managed some profit from his previous venture, which he had abandoned. In light of the testimony, including the former husband's testimony that a job at a discount retailer would provide income sufficient to meet his child-support obligation, and the above-stated principles, we cannot agree that, even in light of the miscalculation of the former wife's income, the trial court erred by failing to modify the former husband's child-support obligation.

In conclusion, we affirm the contempt judgment insofar as that judgment determined that the former husband was in contempt for failing to remove the former wife's name as a joint user from the accounts related to the specified debts, ordered the former husband to pay $1,500 toward the former wife's attorney fees, and denied the former husband's request for a modification of his child-support obligation. However, because the divorce judgment did not require the former husband to refinance the specified debts in his sole name, the trial court's determination that the former husband was in contempt for failing to do so is reversed. The cause is remanded to the trial court for that court to enter an order reforming the conditions of purger to delete the requirement that the former husband refinance the specified debts.

The former husband requests in the conclusion of his brief that this court "order the trial court to award [the former husband an] attorney[ ] fee ... for the expenses he paid in defending and appealing the[ ] contempt [claim asserted by the former wife]." The former husband's request is denied.

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

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

Thompson, P.J., concurs in the result, without writing.

      As will be discussed infra, the trial court indicated that it had corrected its earlier error in the divorce judgment by including in the income of the former wife the $540 per month in Social Security death benefits the children received as a result of their mother's death. See, generally, Dinkel v. Dinkel, 598 So.2d 918 (Ala. Civ. App. 1991) (indicating that Social Security disability benefits received by children should be included in the income of the custodial parent); and Cannon v. Cannon, 585 So.2d 82 (Ala. Civ. App. 1991) (indicating that Social Security death benefits received by children should be included in the income of the custodial parent).

      The former husband does not question the trial court's authority to hold him in both civil and criminal contempt. Indeed, "[t]here is no legal prohibition against the finding of both criminal and civil contempt in an appropriate factual setting." Norland v. Tanner, 563 So.2d 1055, 1058 (Ala. Civ. App. 1990). We note, however, that we have construed a similar dual contempt finding as being in the nature of civil contempt because, "although it had characteristics of both criminal and civil contempt," the finding of contempt "clearly sought compliance with the [divorce judgment]" and "allowed the [former husband] control of [his] incarceration." Parker v. Parker, 640 So.2d 979, 981 (Ala. Civ. App. 1994).

      The burden of proof for civil contempt has not been addressed in recent caselaw. However, it appears that a finding of civil contempt must be supported by clear and convincing evidence. See Jordan v. Wilson, 851 F.2d 1290, 1292 (11th Cir. 1988) (stating that "proof of the defendant's contempt [must be] clear and convincing"); and United States v. Rizzo, 539 F.2d 458, 465 (5th Cir. 1976) ("In a civil contempt action the proof of the defendant's contempt must be 'clear and convincing,' a higher standard than the 'preponderance of the evidence' standard, common in civil cases, although not so high as 'beyond a reasonable doubt.' "); see also Ex parte Hacker, 250 Ala. 64, 70, 33 So.2d 324, 330 (1947) (Brown, J., dissenting) (explaining, in an appeal involving contempt of an injunction, that a "complaining party [has] the burden of sustaining [contempt] allegations by clear and convincing evidence").

      Because the evidence was sufficient to support the conclusion that the former wife had met the beyond-a-reasonable-doubt burden of proof, the evidence was necessarily sufficient to meet any lesser burden of proof.

      We note that the former husband does not separately challenge the sentence imposed for his contempt, and we will not address that sentence in this opinion. However, in light of our reversal, in part, of the contempt finding, the trial court is authorized upon remand to reevaluate the sentence imposed when it reforms the purger condition in compliance with this opinion.

      The former husband fails to mention that Null was implicitly overruled by Patterson v. Patterson, 518 So.2d 739 (Ala. Civ. App. 1987), as recognized by this court in Ward v. Cranford, 169 So.3d 1054, 1056 (Ala. Civ. App. 2014).

      We note that a trial court may not award an attorney fee based on a finding of criminal contempt. See Ex parte Collins, 860 So.2d 1259, 1260 (Ala. 2003). An award of attorney fees in a case containing both a civil and a criminal contempt finding is not in error. Norland, 563 So.2d at 1058.


author: JOINER, Judge.

text:
    D.E.R. v. STATE of Alabama
    CR-15-1183
    Court of Criminal Appeals of Alabama.
    December 15, 2017
    John Morgan Cunningham, Gadsden, for appellant.
    Luther Strange, atty. gen., and Stephen N. Dodd, asst. atty. gen., for appellee.
    On Application for Rehearing
   JOINER, Judge.

This Court's opinion of April 28, 2017, is withdrawn, and the following is substituted therefor.

D.E.R. was convicted of first-degree sodomy, see § 13A-6-63, Ala. Code 1975, and sexual abuse of a child less than 12 years old, see § 13A-6-69.1, Ala. Code 1975. D.E.R. was sentenced to concurrent terms of 25 years' imprisonment for the sodomy conviction and 20 years' imprisonment for the sexual-abuse conviction. All appropriate fines and fees were assessed against D.E.R.

Facts and Procedural History

The evidence at trial tended to show the following: K.R., who was 13 years old at the time of trial, testified that she and K.L., her cousin, would sometimes visit D.E.R., a relative. One day in December 2011, when K.R. and K.L. were eight years old, they went to D.E.R.'s house to deliver his mail. K.R. testified:

"A. We went down there. He asked us if we let little boys play in our panties and we said, 'No.' He said, 'I'll give you a dollar if you let me.'
"....
"A. After he asked us, I thought he was playing at first and then we went out-I went outside. And then when I looked and came back in, he was on his knees at the couch with [K.L.]
"....
"Q. Did you see this man here touch your cousin?
"A. Yes, ma'am.
"Q. Tell the jury what you saw, please.
"A. I seen him put his hand in her pants."

(R. 210-12.) K.R. testified that she and K.L. then went to K.R.'s mother's house. K.R. told her mother that she had seen D.E.R. touch K.L., and K.R.'s mother informed K.L.'s parents. K.R. identified D.E.R. in court. On cross-examination, K.R. testified that she did not see D.E.R. kiss K.L.'s vaginal area, as K.L. alleged.

K.L., who was 12 years old at the time of trial, testified that she spent a lot of time with K.R., whose father lives near D.E.R.'s house. K.L. testified that she and K.R. visited D.E.R. on December 16, 2011, and that their visit was different than usual because D.E.R. "asked us if we let little boys play in our panties." K.R. left D.E.R.'s house, but K.L. remained seated on a couch in the living room. D.E.R. then moved in front of K.L. and put his hands in K.L.'s pants; D.E.R. touched K.L.'s genitals underneath her underwear. K.L. initially testified that she could not remember if D.E.R. touched her with any other part of his body. After some coaxing, K.L. testified as follows:

"Q. [K.L.], do you remember telling people that [D.E.R.] kissed you on your own spot?
"A. Yes, ma'am.
"Q. And did that happen?
"A. Yes, ma'am.
"Q. Did that happen that day when you were there when he put his hand in your panties?
"A. Yes, ma'am.
"....
"Q. Okay, [K.L.], tell the jury, if you will, what happened with [D.E.R.] when he did those things to you. We need you to tell us. Just the truth of what happened, okay?
"A. (No response.)
"Q. I'm sorry, sweetie. Can you tell the jury what he did?
"A. (No response.)"

(R. 265-67.) After a break, K.L. continued testifying:

"Q. [K.L.], I know this is hard for you to talk about, but can you please tell the jury where [D.E.R.] touched you?
"A. On my private part.
"Q. Okay. And what did he touch you with?
"A. His hand.
"Q. Okay. Did he touch you with any other part of his body?
"A. Not that I can remember.
"Q. Okay. Did he ever put his mouth on you?
"[DEFENSE COUNSEL]: Objection, Your Honor.
"THE COURT: Overruled.
"[DEFENSE COUNSEL]: Asked and answered.
"Q. Did he put his mouth on you?
"A. Yes, ma'am.
"Q. Where did he put his mouth?
"A. On my private part.
"Q. Okay. And that really happened?
"A. Yes, ma'am.
"Q. And can you tell this jury whether or not what you've told them here today, was it true?
"A. Yes, ma'am."

(R. 268-69.)

On cross-examination, K.L. had difficulty answering a number of D.E.R.'s questions; she could not recall several details of the events that occurred on December 16, 2011, and portions of her testimony were inconsistent with K.R.'s testimony. Specifically, K.L. testified:

"Q. Well, I know this is tough for you, but I need to know how you claim that [D.E.R.] kissed your private parts. How did he go about doing that?
"A. (No response.)
"Q. Let me try to help you, I guess. You said he kissed your private part, right?
"A. Yes.
"....
"Q. Did he pull your pants off? "A. No.
"Q. He did not. Okay. How did he kiss your private part with your pants on?
"A. I don't know."

(R. 280-81.)

T.L., K.L.'s mother, testified that D.E.R. is T.L.'s uncle. T.L. testified that, after K.R.'s mother contacted her, she and K.L.'s father went to K.R.'s mother's house. T.L. testified that K.L. was extremely upset and did not want to discuss the incident. K.R. told T.L. and the other adults present that D.E.R. had touched K.L. but not that he had placed his mouth on K.L. T.L. then took K.L. to Riverview Regional Medical Center ("RRMC") to "make sure that nothing else had happened" to K.L. T.L. testified that K.R. had not told her that D.E.R. had kissed K.L.'s vaginal region; instead, T.L. testified that she first became aware of that specific accusation during the trial.

Because of K.L.'s difficulty testifying, the State obtained the medical records from K.L.'s visit to RRMC and moved to introduce them under the rule of completeness, Rule 801(d)(1)(B), Ala. R. Evid., the child-victim-witness act, and "as medical business records." In response, D.E.R. argued that the records should not be admitted because, he said: (1) the patient-declarant statements contained therein were actually made by T.L.; (2) the statements contained in the records had already been testified to under oath; (3) the records were not certified; (4) the records were not properly authenticated absent witness testimony; and (5) the records were excluded by the trial court's previous ruling on D.E.R.'s motion in limine.

The trial court ruled that the records were not excluded by D.E.R.'s motion in limine because until K.L.'s difficulty testifying the State had not intended to introduce the records. The court also noted that the records would need to be properly authenticated before they could be admitted, and the court recessed the trial until the following Monday.

When the trial reconvened, D.E.R. argued that the records were inadmissible, among other reasons, because they did not conform to a hearsay exception. The trial court questioned whether the records were admissible under Rule 803(4), Ala. R. Evid., and D.E.R. responded: (1) that K.L. testified to the same statements that were contained in the medical records and that the records would serve only to bolster K.L.'s testimony and could, therefore, prejudice D.E.R.; (2) that the person giving the patient-declarant statements in the records was not K.L.; (3) that statements of fault, such as identifying D.E.R. as the abuser, were inadmissible; (4) that the statements did not satisfy Rule 803(4), Ala. R. Evid.; and (5) that the health-care-professional declarant was not present to testify under oath or to be subject to cross-examination.

Ultimately, the trial court ruled that, under Rule 803(4), Ala. R. Evid., the State could read certain portions of the records to the jury. D.E.R. objected:

"Your Honor, one more objection for the record. We object to the records just coming in being read by the court. We think that the proper predicate would be for them to come in through a witness that's been called to the stand and not just read from the court as evidence or testimony and, therefore, just-
"THE COURT: All right. Well, objection noted, but denied."

(R. 370.)

The State read for the jury the following excerpt from K.L.'s medical records:

"Initially this is from the case history:
" '[D.E.R.] touched her and kissed her and indicated vaginal area tearful.
" 'The patient reports a single assailant, who is known by the patient. [D.E.R.] Sexual acts. Fondling, yes. States he touched her there. Kept his clothes on.
" 'This eight-year-old Caucasian female presents to the ER via carry with complaints of reported sexual assault.
" 'Patient's great uncle reportedly offered her money to let him touch her between the legs. And he did that and then possibly kissed her between the legs.
" 'The patient denies any penetration or genital-to-genital contact.
" 'Event occurred earlier today.' "

(R. 373-74.)

During its deliberations, the jury asked the trial court if it could "see the hospital records," and the court informed the jury: "The hospital records themselves were not received into evidence. There was a section read into the record from the records, but the records themselves were not received into evidence. Therefore, they're not available for you to have with you in the jury room." (R. 509.) The jury subsequently found D.E.R. guilty of first-degree sodomy and sexual abuse of a child less than 12 years old.

Discussion

A.

On appeal, D.E.R. contends that the trial court abused its discretion when it admitted the statements contained in the medical records because, he says, the statements do not conform to Rule 803(4), Ala. R. Evid., and they were not properly authenticated. Specifically, D.E.R. claims that the statements did not meet the requirements set forth in Biles v. State, 715 So.2d 878 (Ala. Crim. App. 1997), because: (1) the physician to whom the patient-declarant statements were made did not testify at trial, and, therefore, there was no evidence to show that the patient-declarant statements were relied upon in diagnosing or treating K.L.; and (2) the records "indicate that both [K.L.] and [T.L.] made statements to the doctor ... [and,] without the testimony of the doctor, the Court cannot be certain which statements can be attributed to either person." (D.E.R.'s brief, p. 12.)

1.

Initially, we address the State's claim that, because D.E.R. did not object to the admission of the records on the specific basis he now raises on appeal, he has failed to preserve his claim for appellate review. See Ex parte Frith, 526 So.2d 880, 882 (Ala. 1987) ("The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial."). Although D.E.R. objected to the admission of the records on several grounds, he did not specifically cite Biles, supra, and claim that the State had failed to meet the requirements set forth in Biles. D.E.R. did, however, argue that the statements were not properly admissible absent testimony from the physician who had recorded the statements and that T.L., not K.L., made the statements. " 'This Court has always looked to substance over form,' Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 971 (Ala. 1994)." Ex parte Abrams, 3 So.3d 819, 822 (Ala. 2008). See Cameron v. State, 615 So.2d 121, 124 (Ala. Crim. App. 1992) ("Although the appellant did not use the 'magic words' ... in stating his objection, the court was sufficiently 'inform[ed] ... of the legal basis of the objection.' "). The trial court was sufficiently informed that D.E.R. was objecting on the specific grounds he raises on appeal; therefore, we cannot say that D.E.R. failed to preserve this issue.

2.

We now turn to the merits of D.E.R.'s claim. The determination of whether the statements contained in the medical records were properly admitted involves a question of double hearsay. Regarding double hearsay:

"If one of the foregoing statements is contained within another out-of-court statement then the party offering the evidence has a double or multiple hearsay problem. Suppose, for example, that a party offers a witness to authenticate a medical record which contains a patient's statement. Here there are two declarants-i.e., the person making the entry in the record and the patient. The declarations of both must satisfy hearsay. This could be accomplished in a number of ways. Either or both statements could fall within exceptions or they could be nonhearsay if offered to prove something other than the truth of the matter asserted. The proponent, however, will likely wish to offer such evidence as substantive proof of the matter asserted. This could be accomplished by qualifying the patient's declaration within the exception for statements reasonably pertinent to diagnosis or treatment and the medical record itself within the business record exception."

Charles Gamble, McElroy's Alabama Evidence § 261.03(9)(6th ed. 2009)(emphasis added). Rule 805, Ala. R. Crim. P., states that "[h]earsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." (Emphasis added.) "The admission of evidence under a hearsay exception is within the sound discretion of the trial court. See Lacy v. State, 673 So.2d 820, 825 (Ala. Crim. App. 1995) (and cases cited therein)." Moore v. City of Leeds, 1 So.3d 145, 148 (Ala. Crim. App. 2008).

Here, the medical records contain the statements of two declarants: (1) the patient declarant-K.L. and/or T.L.; and (2) the health-care-professional declarant who made the entry into the medical records. D.E.R. argued that the statements should not be read to the jury (1) because the State failed to lay a proper predicate for their admission, which, he contended, required testimony to authenticate the medical records; and (2) because they did not conform to Rule 803(4). The State claimed, and the circuit court agreed, however, that, if the medical records themselves were not admitted as exhibits, the statements contained therein could be read aloud to the jury because those statements conformed to Rule 803(4). Having the jury receive the statements of both the patient declarant and the health-care-professional declarant as testimony as opposed to admitting the medical records as exhibits, however, did not serve to exempt the health-care-professional-declarant statements from the requirement that they conform to a hearsay exception; the statements were offered to prove the truth of the matter asserted-that D.E.R. had sexually abused and sodomized K.L.-and, accordingly, were hearsay. The record makes no indication that the State offered the health-care-professional-declarant statements under a hearsay exception. To the extent that the State offered the healthcare-declarant statements under Rule 803(4), those statements did not satisfy that exception.

"This Court, in Biles v. State, 715 So.2d 878, 887 (Ala. Crim. App. 1997), explained the scope of this hearsay exception:
" ' Rule 803(4) permits "all statements serving reasonably as the basis of diagnosis or treatment ... [to be admitted] as substantive proof of the matter asserted." Ala. R. Evid. 803(4), Advisory Committee's Notes. In determining whether a statement comes within the hearsay exception, courts have applied a "two-pronged test." The first prong "is the requirement that the statement must be one upon which medical personnel reasonably rely in diagnosis and treatment. The second prong consists of a requirement that the declarant possess a motive which is consistent with the rule's underlying purpose ... [of] seeking diagnosis or treatment." McElroy's Alabama Evidence § 261.02(4)(5th ed. 1996).' "

Moore, 1 So.3d at 148.

With respect to the first prong of Biles, supra, the health-care-professional-declarant statements were those "upon which medical personnel reasonably rely in diagnosis and treatment." Because the health-care-professional declarant did not testify, however, we can only speculate as to his or her motive in making such statements-e.g., recording them for other health-care professionals to utilize in diagnosing or treating K.L. Therefore, we cannot say that the health-care-professional-declarant statements satisfy the second prong of Biles.

Assuming, without deciding, that the patient-declarant statements conformed to Rule 803(4), the health-care-professional-declarant statements still failed to satisfy the requirement that they conform to a hearsay exception. To the extent that the State contends that the medical records were admissible under the business records exception of Rule 803(6), Ala. R. Evid., that argument also fails. Rule 803(6) provides a hearsay exception for records of a regularly conducted activity; the rule states:

"A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from the information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term 'business' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit."

(Emphasis added.) " 'Unless a statute provides otherwise, evidence generally only comes into court through articulation by a witness.' " Pickett v. State, 456 So.2d 330, 333 (Ala. Crim. App. 1982) (quoting Hutchens v. State, 45 Ala. App. 507, 518, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970) ).

No custodian or other qualified witness testified that the medical records complied with the requirements set out in Rule 803(4), and, as we discuss below, the records were not certified in compliance with a statute permitting certification. The trial court, therefore, abused its discretion when it admitted the health-care-professional-declarant statements without requiring that those statements satisfy a hearsay exception.

3.

The State argues, alternatively, that the statements were admissible because, it says, "no testimonial foundation is required under [ § 12-21-5 et seq., Ala. Code 1975 ] for the introduction of a medical record like K.L.'s." (State's brief, p. 16.) This argument, however, is without merit. This Court has held:

"[I]n order to constitute an exception to the hearsay evidence rule, the hospital record must be shown to have been made in the usual course of business, as required by Section 12-21-5[, Ala. Code 1975.] Section 12-2-6 and -7 must be read in conjunction with Section 12-21-5. Whetstone v. State, 407 So.2d 854, 860 (Ala. Cr. App. 1981). Section 12-21-5 is a 'specialized business record statute ... which renders admissible a certified copy of hospital records that are kept in the regular course of the particular hospital's business.' C. Gamble, McElroy's Alabama Evidence, Section 254.01(7), p. 99, 1980 Supplement (3rd ed. 1977). Consequently, a copy of a hospital record will constitute an exception of the hearsay evidence rule where (1) the copy was properly certified by the custodian (Section 12-21-7), (2) the original hospital record was made and kept in the usual and regular course of business of the hospital, (3) it was in the regular course of business of the hospital to make and keep such record, and (4) the record was made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter ( Section 12-21-5 ) .... A certified copy of an original hospital record which meets the requirements of the business records act of Section 12-21-43 constitutes an exception to the hearsay rule. Seay v. State, 390 So.2d 11, 12 (Ala. 1980) ; McElroy, Section 254.01(7). However, hearsay in a properly certified copy of a hospital record not shown to have been made in the regular course of business is objectionable. Whetstone, 407 So.2d at 860-61 ; Lowery v. State, 55 Ala. App. 511, 518, 317 So.2d 357 [ (1974) ], cert. denied, 294 Ala. 763, 317 So.2d 372 (1975)."

Pickett, 456 So.2d at 332-33.

" 'Unless a statute provides otherwise, evidence generally only comes into court through articulation by a witness. That is, except for those things self-proving or matters presumed or notice without proof, there is no anonymous evidence.' Hutchens v. State, 45 Ala. App. 507, 518, 232 So.2d 687, 697, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970), quoted in Pickett v. State, 456 So.2d 330, 333 (Ala. Cr. App. 1982).
"In Lowery v. State, 55 Ala. App. 514, 518-20, 317 So.2d 365, 369-70, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975), this Court noted:
" 'We find that ... [ Ala. Code 1975, § 12-21-5,] allows a properly certified copy of hospital records to be admitted into evidence without parol evidence from the custodian, but only, by the explicit terms of that statute, when the original would be admissible.' "

Mayben v. State, 629 So.2d 723, 726 (Ala. Crim. App. 1993). See also Lowery v. State, 55 Ala. App. 514, 520, 317 So.2d 365, 370 (1975) ("[A] certified copy of a death certificate cannot be used alone to prove the cause of death as alleged in a murder indictment where the physician attending the deceased at the time of his death, and who signed the death certificate, was within the state, but was not called as witness by the prosecution.");

Arthers v. State, 459 So.2d 972 (Ala. Crim. App. 1984) (noting that where hospital record contained notation that defendant had stated that he would kill his wife if she did not take an overdose of drugs, it was error to admit without presence of person who made notation).

Section 12-21-5, Ala. Code 1975, provides:

"When the original would be admissible in any case or proceeding in a court in the state, a certified copy of the hospital records of any hospital organized or operated under or pursuant to the laws of Alabama, including records of admission, medical, hospital, occupational, disease, injury and disability histories, temperature and other charts, X rays and written interpretations thereof, pictures, photographs, files, written orders, directions, findings and reports and interpretations of physicians, doctors, surgeons, pathologists, radiologists, specialists, dentists, technicians and nurses, as well as of all employees of such hospital, forming a part of such hospital records as to the health, condition, state, injuries, sickness, disease, mental, physical and nervous disorders, duration and character of disabilities, diagnosis, prognosis, progress, wounds, cuts, contusions, lacerations, breaks, loss of blood, incisions, operations, injuries, examinations, tests, transfusions, hospitalization and duration thereof, medication, medicines, supplies, treatment and care and the cost, expenses, fees and charges therefor and thereof, a part of, or shown on or in, said hospital records of any patient in said hospital, when certified and affirmed by the custodian of said hospital records when certified and affirmed by the custodian of said hospital records as provided in Section 12-21-7, shall be admissible in evidence, without further proof in any court in the state where admissible, if and when said hospital records were made and kept in the usual and regular course of business of said hospital to make and keep said records and that said records were made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter."

Section 12-21-7, Ala. Code 1975, provides:

"The certificate of the custodian of the hospital records provided for in Sections 12-21-5 and 12-21-6 shall show the name of the parties to the case or proceeding and the name of the court to which made, by appropriate caption, and said certificate shall be in form in substance as follows, to-wit:
"I, ________________, hereby certify and affirm in writing that I am ________________ of the ________________ Hospital, a hospital organized or operated pursuant to or under the laws of Alabama, located at ________________, Alabama, that I am custodian of the hospital records of said hospital and that the within copy of said hospital records are an exact, full, true and correct copy of said hospital records pertaining to ________________.
"I further certify that I am familiar with and know, and knew when made and charged, the reasonable value and price for the various charges made and shown in said hospital records pertaining to ________________ and that said charges are in my judgment just, reasonable and proper and in keeping with those generally charged in the county and community where said hospital is located.
"All of which I hereby certify and affirm on this ____ day of ________________, 2___."

The record on appeal contains an affidavit that accompanied K.L.'s medical records. The affidavit reads as follows:

"Before me, the undersigned authority, personally appeared HIM Director who being duly sworn deposed as follows:
"My name is Bryan McCauley, CFO, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:
"I am the custodian of records for Riverview Regional Medical attached hereto are 14 pages of medical records. These said pages are kept in the regular course of business, and it was in the regular course for an employee or representative of RRMC, with knowledge of the act, event, condition, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonabl[y] soon thereafter.
"The records attached hereto are originals or exact duplicates of originals and nothing has been removed from the original files before making copies."

(C. 63.) The affidavit was signed by Bryan McCauley and was notarized and dated April 11, 2016.

In Yarborough v. Springhill Memorial Hospital, 545 So.2d 32 (Ala. 1989), the Supreme Court of Alabama held that medical records attached to an affidavit had not been certified in accordance with § 12-21-7, Ala. Code 1975. The affidavit-submitted by Josie Carter-read, in relevant part:

" 'I am familiar with the standards of hospital and nursing practice which govern the operation of a hospital operating room, in Mobile, Alabama, the State of Alabama, and the national medical community.
" 'I have reviewed the hospital records relative to treatment of Samuel Yarborough while he was a patient at Springhill Memorial Hospital in October of 1986. Particularly, I have reviewed the Springhill Memorial Hospital records pertaining to the treatment of Mr. Yarborough while he was a patient in the operating room. Copies of the hospital records are attached herewith and designated as Exhibit "1" to this Affidavit [omitted from this opinion].' "

545 So.2d at 33.

The affidavit submitted in Yarborough, supra, was substantially more detailed than the affidavit in the instant case. Although the affidavit accompanying K.L.'s records lists "State of Alabama" and "County of Etowah" in the caption and names RRMC and the custodian of records, it fails to refer to D.E.R., the Etowah Circuit Court, or the location of the hospital. Most notably, however, is its lack of reference to K.L.-the patient about whom the medical records were prepared. The affidavit states only generally that "14 pages of medical records ... kept in the regular course of business" are attached thereto. Here, the affidavit accompanying K.L.'s medical records fails to substantially comply with § 12-21-7, Ala. Code 1975, and, therefore, we cannot say that K.L.'s medical records were certified in accordance with that statute. Because the medical records were not certified, the State's argument is without merit.

B.

Having found that the trial court erred in the admission of the statements in the medical records, we must determine whether that error was harmless. Rule 45, Ala. R. App. P., provides:

"No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties."

The Supreme Court of Alabama has stated:

"The harmless error rule excuses the error of admitting inadmissible evidence only because the evidence was so innocuous or cumulative that it could not have contributed substantially to the adverse verdict, Ex parte Curtis 502 So.2d 833 (Ala. 1986), and Ex parte Bush, 474 So.2d 168 (Ala. 1985)."

Ex parte Baker, 906 So.2d 277, 284 (Ala. 2004).

"[I]n assessing harmless error, the factors to be considered include ' " 'the importance of the [declarant's] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the [declarant] on material points, ... and the overall strength of the prosecution's case.' " ' Baker v. State, [906 So.2d 210, 240 (Ala. Crim. App. 2001), rev'd on other grounds, Ex parte Baker, 906 So.2d 277 (Ala. 2004) ) ](quoting James v. State, 723 So.2d 776, 782 (Ala. Crim. App. 1998) (in turn quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed. 2d 674 (1986) ))."

Featherston v. State, 849 So.2d 217, 222 (Ala. 2002). This Court has stated that, when determining whether an error is harmless, " ' "[t]he question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." ' " James v. State, 723 So.2d 776, 781 (Ala. Crim. App. 1998) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ).

As noted above, the State introduced the statements at the end of its case-in-chief because of K.L.'s difficulty in testifying to the acts-specifically, the sodomy-that D.E.R. is alleged to have committed. K.L. testified that D.E.R. placed his hand between her legs underneath her underwear, and, after some coaxing from the prosecutor, K.L. testified reluctantly that D.E.R. kissed her vaginal region. K.R. testified that she saw D.E.R. place his hands in K.L.'s pants but that she did not see D.E.R. kiss K.L.'s vaginal region. T.L. testified that she took K.L. to the hospital after K.R. informed her that D.E.R. had touched K.L.'s genitals but that she had been unaware of the allegation that D.E.R. had kissed K.L.'s vaginal region until trial. The State moved to admit the statements after K.L. testified, stating that it had not anticipated that K.L. would have such difficulty on the stand. Accordingly, the statements contained in the medical records were of significant importance to the State's case, at least with respect to the sodomy charge.

The overall strength of the State's case with respect to the sexual-abuse charge was supported by the statements in the medical records in addition to testimony from K.L., K.R., and T.L. Specifically, K.R. and K.L. testified that D.E.R. asked them if they "let little boys play in [their] panties" and that D.E.R. touched K.L.'s genitals; likewise, T.L. testified that she learned that D.E.R. had touched K.L.'s genitals. The testimony from K.R., K.L., and T.L., therefore, corroborated the statements from the medical records. Although the statements in the medical records were improperly admitted, they were cumulative to a plethora of other properly admitted evidence. See Brownfield v. State, 44 So.3d 1, 21 (Ala. Crim. App. 2007) ("The erroneous admission of evidence that is merely cumulative is harmless error."). Accordingly, the admission of the statements was harmless as evidence in D.E.R.'s sexual-abuse case.

On the other hand, the overall strength of the State's case with respect to the sodomy charge depended largely on the statements from the medical records. As noted above, the State sought to admit the records only because it was not satisfied with K.L.'s reluctant and inarticulate testimony that D.E.R. had kissed her genitals, which was, aside from the statements in the medical records, the State's only evidence that D.E.R. had committed sodomy. Moreover, the fact that the jury requested to view the medical records indicates that the jurors considered the statements during their deliberations. We can only speculate as to the verdict the jury might have returned on the sodomy charge without the statements. Consequently, there is a reasonable possibility that the statements might have contributed to D.E.R.'s sodomy conviction, and we cannot say that the statements were so innocuous or cumulative that they could not have contributed substantially to the verdict returned against D.E.R. on the sodomy charge.

Conclusion

The trial court abused its discretion when it admitted the health-care-professional-declarant statements without requiring the statements to conform to a hearsay exception. Although the statements were cumulative to and corroborated by other evidence, they were significant in proving the sodomy charge against D.E.R. and served to substantially strengthen the State's case in that regard. We cannot affirmatively rule out the reasonable possibility that the statements might have contributed to D.E.R.'s sodomy conviction; therefore, the erroneous admission of the statements was not harmless as to that conviction. With respect to D.E.R.'s sexual-abuse conviction, however, the error was harmless.

Based on the foregoing, the judgment of the trial court is affirmed with respect to D.E.R.'s sexual-abuse conviction and reversed with respect to D.E.R.'s sodomy conviction, and this case is remanded for proceedings consistent with this opinion.

APPLICATION FOR REHEARING GRANTED IN PART AND OVERRULED IN PART; OPINION OF APRIL 28, 2017, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Welch and Kellum, JJ., concur. Windom, P.J., and Burke, J., concur in the result.

      As we discuss below, whether the records and the statements contained therein were admissible involves a question of double hearsay. We refer to the statements made to the health-care professional by K.L. and/or T.L. as the "patient-declarant statements"; likewise, we refer to the statements made by the health-care professional and entered into the medical records as the "health-care-professional-declarant statements."

      Before trial, D.E.R. moved to exclude "any other documents not otherwise published at this point in time," and the trial court granted his motion.

      Biles established the following two-prong test for whether a statement falls within 803(4): (1) "[T]he statement must be one upon which medical personnel reasonably rely in diagnosis and treatment"; and (2) "the declarant [must] possess a motive which is consistent with the rule's underlying purpose ... [of] seeking diagnosis or treatment." 715 So.2d at 887.

      D.E.R. also appears to argue that the records were improperly admitted because the doctor who treated K.L. did not "testify that the statements as to the identity of the assailant were necessary for the treatment of [K.L.]" (D.E.R.'s brief, p. 7.) D.E.R. does not support this claim with legal authority or citations to the record, and he fails to delineate his argument with respect to this issue. Accordingly, this claim is deemed waived. See Rule 28(a)(10), Ala. R. App. P.

      Again, although D.E.R. did not speak the words "double hearsay" at trial and does not explicitly state them in his brief on appeal, the substance of his argument was sufficiently clear to inform the circuit court and this Court of the legal basis of his argument-that the medical records themselves were hearsay and did not conform to Rule 803(4) and, therefore, were inadmissible without witness testimony to authenticate them. " 'This Court has always looked to substance over form,' Southern Sash Sales & Supply Co. v. Wiley, 631 So.2d 968, 971 (Ala. 1994)." Ex parte Abrams, 3 So.3d 819, 822 (Ala. 2008). See Cameron v. State, 615 So.2d 121, 124 (Ala. Crim. App. 1992) ("Although the appellant did not use the 'magic words' ... in stating his objection, the court was sufficiently 'inform[ed] ... of the legal basis of the objection.' ").

      The record on appeal indicates that an attending physician, a registered nurse, and a licensed practical nurse all signed K.L.'s medical records.

      Briefly, we note that the patient-declarant statements appear to conform to Rule 803(4). With respect to the first prong of Biles, supra, "[a] patient's statement that she had been raped ... would certainly be pertinent to medical diagnosis and treatment." Gamble, § 261.02(4). With respect to the second prong-"the requirement that the declarant possess a motive which is consistent with the rule's underlying purpose"-T.L. testified that she took K.L. to RRMC after learning of the accusations that D.E.R. had sexually abused K.L. because, she testified, she wanted to determine whether any further abuse had occurred. Id. We also note that "[n]othing within the express language of the rule requires that the statement have been made by the patient or person seeking diagnosis or treatment." Id. at § 261.02(3). See also Moore v. City of Leeds, 1 So.3d 145, (Ala. Crim. App. 2008).

      In its brief on appeal, the State cites in passing Cope v. State Department of Human Resources, 549 So.2d 982, 986 (Ala. Civ. App. 1989), for the proposition that "hospital records are regarded as especially trustworthy in this state" and Heckford v. Florida Department of Corrections, 699 So.2d 247, 251 (Fla. Dist. Ct. App. 1997), for the proposition that " 'Under the business records exception, the trustworthiness of medical records is presumed.' " (State's brief, p. 16.)

      Rule 803(6) provides that records of a regularly conducted business may be certified under Rule 902(11) or 902(12), Ala. R. Evid. Rule 902(11) concerns certified domestic records of regularly conducted activity, and Rule 902(12) concerns certified foreign records or regularly conducted activity. Accordingly, those provisions are not applicable here.
      On application for rehearing, the State argues that the records were admissible under Rules 803(1) and 902(11), Ala. R. Evid. The State did not present these arguments in its original brief on appeal; therefore, they are not properly before this Court. See Thomas v. State, 224 So.3d 688, 693 (Ala. Crim. App. 2016) (citing Water Works & Sewer Bd. of City of Selma v. Randolph, 833 So.2d 604, 608-09 (Ala. 2002) ("The well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing. See Ex parte Lovejoy, 790 So.2d 933, 938-99 (Ala. 2000), where this Court stated: ... ' " 'New supporting arguments presented for the first time on rehearing generally will not be considered.' Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251, 253 (Ala. 1985) (opinion on application for rehearing))." ' ").

      "A person commits the crime of sexual abuse of a child less than 12 years old if he or she, being 16 years old or older, subjects another person who is less than 12 years old to sexual contact." § 13A-6-69.1 Ala. Code 1975. Sexual contact is "[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party." § 13A-6-60, Ala. Code 1975.

      In order to convict D.E.R. of first-degree sodomy, the State was required to prove that D.E.R., being at least 16 years old, engaged in deviate sexual intercourse with K.L., who was less than 12 years old at the time of the offense. See § 13A-6-63(a)(3), Ala. Code 1975. Deviate sexual intercourse is "[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another." § 13A-6-60, Ala. Code 1975.