author: THOMPSON, Presiding Judge.

text:
    Larry Franklin BEVERLY v. Helen Patricia S. BEVERLY.
    2071085.
    Court of Civil Appeals of Alabama.
    April 3, 2009.
    Rehearing Denied July 10, 2009.

      S. Phillip Bahakel and Donna J. Beau-lieu of S. Phillip Bahakel & Associates, Pelham, for appellant.
    LaTresia Lewis Kinnell, Hoover, for ap-pellee.
   THOMPSON, Presiding Judge.

Larry Franklin Beverly (“the father”) and Helen Patricia S. Beverly (“the mother”) were divorced pursuant to a January 11, 2001, judgment of the trial court. The divorce judgment, which incorporated an agreement reached by the parties, provided in relevant part that the mother was awarded custody of the minor child of the marriage and that the father was to pay monthly child support. The child-support provision of the divorce judgment specifically noted that the parties’ child, whose date of birth is September 1, 1987, was “being treated for autism.” The divorce judgment further provided that the father’s child-support obligation would continue until the child reached the age of majority, married, or became self-supporting.

In 2002, the mother filed a petition for a rule nisi, alleging that the father had failed to pay child support as required by the divorce judgment. On October 4, 2002, the trial court entered a judgment awarding the mother a judgment for a child-support arrearage. A later order indicated that the father had satisfied that ar-rearage judgment.

On August 31, 2006, the mother initiated the current litigation when she filed a petition for a rule nisi in which she sought to have the father held in contempt for his failure to pay child support. In her August 31, 2006, petition, the mother also sought to modify the divorce judgment to require the father to pay postminority support for the child pursuant to Ex parte Brewington, 445 So.2d 294 (Ala.1983). References in the final judgment entered in this matter indicate that the father filed a “counter-complaint on petition for rule nisi and modification,” but that filing is not contained in the record on appeal.

On May 14, 2008, the trial court entered a judgment ordering the father to pay $355 per month for the postminority support of the child and awarding the mother $1,500 toward her attorney fee. The May 14, 2008, judgment stated, in pertinent part:

“Upon consideration of the pleadings, testimony, and exhibits presented at trial, the Court is of the opinion that the following Order should be entered. Accordingly, it is
“ORDERED, ADJUDGED AND DECREED
“1. That the child of the parties ... has been diagnosed with autism and said autism is a lifelong [sic], and will continue to exist throughout the child’s life. Due to his autism, the child is not now capable of earning an income that is sufficient to provide for his reasonable living expenses, and said child’s autism is the cause of his inability to earn that income. As a result, the child is now, and most likely will continue to be, a dependent child of the parties at a significant expense, both medically and educationally, pursuant to Ex parte Breiv-ington. The child is not self-supporting nor self-sustaining, and most likely will not be self-supporting or self-sustaining at any time in the foreseeable future.”

The father filed a postjudgment motion. On July 17, 2008, the trial court entered an order in which it denied the father’s post-judgment motion. In its July 17, 2008, order, the trial court made the following factual findings regarding its ruling:

“Evidence presented in Court showed that the child of the parties works a limited amount of time at a menial job. The witness who testified was not the child’s supervisor and he had limited information concerning the job or the duration of the job.
“The child of the parties is adjudged by this Court, based on the evidence presented, to be so mentally disabled he cannot support himself. Further, this adult child is not capable of earning an income sufficient to provide for his reasonable living expenses because of this disability.
“The Court finds that the needs of the child have increased, and the [father] is able to provide this support for the child. The Court also finds that it is extremely doubtful that the minor child will ever be capable of supporting himself.
“The Court has taken into account the support that the child receives in Social Security benefits.
“The [father] has a history of being in arrears in his obligations. At the time this case was filed in August of 2006, the [father] was in arrears. He continued to be in arrears until two months prior to the case being heard on April 30, 2008. For these reasons, the Court feels that an attorney fee award to the [mother] is appropriate.”

On appeal, the father first argues that the evidence did not support the trial court’s judgment requiring him to pay postminority support for the benefit of the child. The evidence presented to the trial court appears to have been primarily in the form of documents and the arguments and the representations of the parties. The documentary evidence sets forth both parties’ income and expenses; the mother’s submission of her expenses indicates that the child resides with her. The documentary evidence tends to support the trial court’s determination that the father could continue to contribute toward the child’s support after the child reached the age of majority.

In his brief on appeal, the father contends that the evidence indicates that the child was employed at the time of the hearing in this matter, and, therefore, according to the father, the evidence does not support a finding that the child could not support himself. However, the trial court’s factual findings indicate that the child works a limited amount of time each week, that the child’s employment is menial, and that there was no evidence regarding the likely duration of that employment. The trial court’s factual findings support a determination that the child’s employment income, even together with his disability income, is not sufficient to provide for his support so as to render the child not to be in need of continued support under the authority of Ex parte Brewington, supra.

Further, as the trial court’s judgment makes clear, the trial court received ore tenus evidence; the father contends that the only witness to testify was a representative of the child’s employer. The mother contends before this court that the parties agreed to submit documentary evidence rather than testimony to the trial court. Regardless, the record on appeal does not contain a transcript of the ore tenus hearing, and the father made no attempt to supply this court with a statement of the evidence pursuant to Rule 10(d), Ala. R.App. P. An appellate court is confined in its review to the appellate record, that record cannot be “changed, altered, or varied on appeal by statements in briefs of counsel,” and the court may not “assume error or presume the existence of facts as to which the record is silent.” Quick v. Burton, 960 So.2d 678, 680-81 (Ala.Civ.App.2006). Accordingly, when, as in this case, “oral testimony is considered by the trial court in reaching its judgment and that testimony is not present in the record as either a transcript or Rule 10(d), A[la]. R. A[pp]. P., statement, it must be conclusively presumed that the testimony [was] sufficient to support the judgment.” Rudolph v. Rudolph, 586 So.2d 929, 930 (Ala.Civ.App.1991). Thus, the father has failed to demonstrate error with regard to his argument that the trial court’s judgment was not supported by the evidence.

The father next argues that the “evidence” does not support the trial court’s child-support determination. As part of his argument, the father points out that the record does not demonstrate how the trial court reached its child-support award. Postminority support for a disabled adult child should be calculated pursuant to the Rule 32, Ala. R. Jud. Admin., child-support guidelines. Ex parte Cohen, 763 So.2d 253, 256 (Ala.1999).

In State ex rel. Golden v. Golden, 710 So.2d 924 (Ala.Civ.App.1998), the trial court’s judgment ordered the father to pay $50 per week in child support, and it stated that, “due to the relative situation of the parties,” that child-support amount constituted a deviation from the child-support guidelines. This court reversed, concluding that the trial court had faded to apply the child-support guidelines and to make sufficient findings justifying a deviation from those guidelines. In so holding, this court stated:

“A trial court has the discretion to deviate from the child support guidelines in situations where it finds the application of the guidelines would be manifestly unjust or inequitable. Schlick v. Schlick, 678 So.2d 1176 (Ala.Civ.App. 1996). However, if a trial court deviates from the guidelines, it must make findings of fact, based upon evidence before the court, which are sufficient to justify a deviation from the guidelines. Rule 32, Ala. R. Jud. Admin.”

State ex rel. Golden v. Golden, 710 So.2d at 926.

In this case, the findings contained in the trial court’s judgment and post-judgment order support a conclusion that the trial court intended to deviate from the child-support guidelines, which is a matter within the trial court’s discretion. State ex rel. Golden v. Golden, supra. However, the record does not demonstrate whether the trial court first applied the Rule 32 child-support guidelines in determining the father’s postminority-support obligation and then deviated from the amount recommended in those guidelines. Accordingly, we reverse that part of the trial court’s judgment pertaining to its determination of the amount of the father’s postminority-support obligation for the parties’ disabled adult child, and we “remand the case to the trial court for the entry of an order which complies with the child support guidelines or, in the alternative, for the entry of an order with findings of fact sufficient to justify the trial court’s deviation from the guidelines.” State ex rel. Golden v. Golden, 710 So.2d at 926.

The father also contends that the trial court erred in awarding the mother an attorney fee. The father cites § 30-2-54, Ala.Code 1975, which provides:

“In all actions for divorce or for the recovery of alimony, maintenance or support in which a judgment of divorce has been issued or is pending and a contempt of court citation has been made by the court against either party, the court may, of its discretion, upon application therefor, award a reasonable sum as fees or compensation of the attorney or attorneys representing both parties.”

(Emphasis added.)

The trial court found that father had not paid his child-support obligation for extended periods but that he then paid all outstanding arrearages shortly before the final hearing; however, the trial court did not find the father in contempt with regard to the periods in which he had failed to contribute support for the child. The father contends that because the trial court did not find him in contempt, it could not award the mother an attorney fee in this matter. See § 30-2-54; and Sosebee v. Sosebee, 896 So.2d 557, 564 (Ala.Civ. App.2004) (“We agree that § 30-2-54 precludes the award of an attorney fee ... in a contempt action when the trial court fails to make a finding of contempt .... ”). However, it is well settled that a trial court may award an attorney fee in a modification proceeding. Sosebee v. Sosebee, 896 So.2d at 564; Baggett v. Baggett, 870 So.2d 735, 741 (Ala.Civ.App.2003); Campbell v. Tolbert, 656 So.2d 828, 830 (Ala.Civ.App. 1994); and Breazeale v. Hayes, 489 So.2d 1111, 1113 (Ala.Civ.App.1986).

In Deines v. Deines, 424 So.2d 1334 (Ala.Civ.App.1983), the husband sought to modify the child-custody provision of the parties’ divorce judgment, and the wife counterclaimed alleging contempt based on the husband’s alleged failure to pay child support and alimony. In its judgment, the trial court, among other things, denied the husband’s petition to modify, entered a judgment for the wife awarding compensation for certain arrearages, and awarded the wife an attorney fee. The husband appealed the attorney-fee award. This court stated that an attorney fee could not be awarded in an enforcement proceeding in the absence of a contempt finding but that the trial court could award an attorney fee with regard to that part of the action pertaining to modification of the divorce judgment. 424 So.2d at 1335. However, because this court was unable to determine what portion of the attorney fee was permissible, i.e., attributable to the modification issues, we reversed the judgment and remanded the case for the trial court to determine the proper amount of the attorney fee. In doing so, this court noted:

“The trial court’s only stated reason for granting the fee was the fact that the wife ‘recovered back alimony.’ It is not unusual for a judge or court to fail to specify each and every reason or justification for a particular finding or holding. As a matter of fact, usually no such ground or basis for the award of a fee is stated therein.”

Deines v. Deines, 424 So.2d at 1335-36. See also Sosebee v. Sosebee, 896 So.2d at 564 (reversing the judgment as to the attorney-fee award and remanding the case for the trial court to consider whether, and to what extent, § 30-2-54 precluded the award of an attorney fee when the trial court did not specify the basis for its award of an attorney fee).

In its May 14, 2008, judgment, the trial court did not specify the basis for its award of an attorney fee to the mother. In its postjudgment order, the trial court indicated that a portion of that fee might be attributable to the contempt or enforcement issue. However, that finding does not indicate that it was the only ground upon which the trial court based its attorney-fee award. See Deines v. Deines, 424 So.2d at 1335 (“It is not unusual for a judge or court to fail to specify each and every reason or justification” for an award of an attorney fee.). Accordingly, we reverse the trial court’s judgment insofar as it awards the mother an attorney fee and remand the ease for the trial court to determine the appropriate attorney-fee award consistent with the principles set forth in this opinion. See Sosebee v. Sosebee, 896 So.2d at 564.

The mother is awarded an attorney fee on appeal in the amount of $1,000.

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

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . In Ex parte Brewington, our supreme court recognized an exception to the general rule that a court may not require a parent to support a child past the age of majority. Pursuant to that exception, a parent’s obligation of support may continue in those cases in which an adult child "is so mentally and/or physically disabled as to be unable to support himself.” Ex parte Brewington, 445 So.2d at 296.

      . The May 14, 2008, judgment does not mention the mother's claim seeking to recover a child-support arrearage. However, as indicated later in this opinion, the trial court's order denying the father's postjudgment motion states that the father had satisfied all past-due arrearages shortly before the hearing in this matter. Accordingly, we conclude that the mother would no longer have need to prosecute that claim, and, therefore, the May 14, 2008, judgment constituted a final judgment capable of supporting this appeal.


source: Caselaw Access Project

license: Public Domain

text:
    Jennifer Dyas REED v. Matthew DYAS.
    2071211.
    Court of Civil Appeals of Alabama.
    July 2, 2009.

      Richard L. Watters, Mobile, for appellant.
    James W. Bodiford, Jr., Mobile, for ap-pellee.
   THOMPSON, Presiding Judge.

Jennifer Dyas Reed (“the wife”) appeals from the trial court’s denial of her motion seeking to have Matthew Dyas (“the husband”) held in contempt for his alleged failure to pay certain debts pursuant to the parties’ divorce judgment.

The parties were divorced in July 2004. In the divorce judgment, the trial court awarded the wife the parties’ 1999 Saturn automobile; it awarded the husband the parties’ 2001 Nissan pickup truck and their 2003 Suzuki four-wheeler vehicles. The trial court ordered the husband to pay the debt on all the vehicles. The husband was awarded custody of the parties’ children.

The evidence is undisputed that, sometime after the divorce judgment was entered, the husband asked the wife to allow him to have the Saturn automobile in exchange for the pickup truck because he needed the passenger space for the children. The wife agreed. About two months after the exchange, the husband traded the Saturn automobile for a new vehicle. He also stopped making the required payments on the pickup truck and the four-wheelers.

The husband acknowledged that he had stopped making the required payments. During his testimony, he provided no reason or excuse for his action, and the record does not otherwise reflect any basis, such as an inability to pay, for the husband’s decision to stop making the payments.

The vehicles at issue were purchased in the wife’s name. Since the husband stopped making the payments, the wife has received numerous telephone calls and letters from creditors, many threatening to pursue legal action against her to recover the balance of the outstanding debts.

In November 2007, the wife filed a petition to modify the divorce judgment. The husband then filed a counterclaim for modification of child support. In response, the wife amended her petition to include a motion for contempt based upon the husband’s failure to pay the debts on the vehicles as required by the divorce judgment. An ore tenus hearing was held on the parties’ respective petitions, after which the trial court denied the wife’s petition for modification, granted the husband’s petition, and denied the wife’s motion for contempt, stating that “both parties have deviated from the Court’s order regarding said vehicles.”

The wife contends that the trial court exceeded its discretion in denying her motion for contempt because, she says, the undisputed evidence demonstrated that the husband had failed to pay the debts as required by the divorce judgment. We agree.

“ ‘Civil contempt’ is defined as a ‘willful, continuing failure or refusal of any person to comply with a court’s lawful writ, subpoena, process, order, rule, or command that by its nature is still capable of being complied with.’ Rule 70A(a)(2)(D), Ala. R. Civ. P. The determination of whether a party is in contempt is within the sound discretion of the trial court, and that determination will not be reversed absent a showing that the court exceeded the limits of its discretion. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994).”

Routzong v. Baker, 20 So.3d 802, 810 (Ala. Civ.App.2009). “‘The failure to perform an act required by the court for the benefit of an opposing party constitutes civil contempt.’ Carter v. State ex rel. Bullock County, 393 So.2d 1368, 1370 (Ala.1981).” J.K.L.B. Farms, LLC v. Phillips, 975 So.2d 1001, 1012 (Ala.Civ.App.2007). Furthermore, ‘“[t]he purpose of a civil contempt proceeding is to effectuate compliance with court orders and not to punish the contemnor.’ Watts v. Watts, 706 So.2d 749, 751 (Ala.Civ.App.1997).” Hall v. Hall, 892 So.2d 958, 962 (Ala.Civ.App.2004).

The divorce judgment states that it incorporated an agreement between the parties as to the division of marital property. “[A] settlement agreement which is incorporated into a divorce [judgment] is in the nature of a contract.” Smith v. Smith, 568 So.2d 838, 839 (Ala.Civ.App. 1990). The husband’s obligation to pay the outstanding debt on all of the vehicles pursuant to the parties’ agreement did not end when the parties exchanged vehicles, which, we note, was at the husband’s request. The husband appears to recognize his obligation under the divorce judgment. In his appellate brief, his sole response to the wife’s argument is that “[t]he Court did not say that [the former husband] did not owe the debt — but only that he was not in contempt.” The husband makes no assertion that he has resumed paying the debts, or that he even intends to pay the debts.

“‘Judicial sanctions in civil contempt proceedings may, in a proper case, be employed for either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.’ United States v. United Mine Workers of America, 330 U.S. 258, 303-04 (1947). Alabama courts have reiterated that a civil-contempt determination may be used to encourage a con-temnor’s future compliance with court orders. Chestang v. Chestang, 769 So.2d 294 (Ala.2000); Pate v. Guy, 934 So.2d 1070 (Ala.Civ.App.2005).”

J.K.L.B. Farms, 975 So.2d at 1012.

In this case, the evidence is undisputed that the husband stopped making the payments on the vehicles that the trial court had ordered him to pay in the divorce judgment. The parties’ decision to exchange vehicles without returning to court to obtain permission to do so had no bearing on his obligation to pay the outstanding balances owed on those vehicles. The husband failed to perform an act required of him by the divorce judgment for the benefit of the wife; therefore, he was in contempt. The trial court exceeded its discretion in finding otherwise.

Accordingly, that portion of the judgment denying the wife’s motion for contempt is reversed, and the cause is remanded for the trial court to enter a judgment consistent with this opinion.

REVERSED AND REMANDED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . It is not clear from the record whether two or three four-wheeler vehicles were awarded to the husband; however, the specific number of vehicles is not relevant for a determination of the issue on appeal.


author: THOMAS, Judge.

text:
    Stanley BOWEN v. Kathy D. BOWEN.
    2070983.
    Court of Civil Appeals of Alabama.
    July 17, 2009.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    Jack Floyd of Floyd Law Firm, LLC, Gadsden, for appellee.
   THOMAS, Judge.

Stanley Bowen (“the former husband”) and Kathy D. Bowen (“the former wife”) were divorced in 2002. Some time after the divorce judgment was entered, the former husband was injured at work and he fell behind in his child-support and alimony payments, in part because moneys being deducted from his disability payments by his employer were not being forwarded to the former wife. In February 2003, the former wife sought to have the former husband held in contempt for various reasons; her action was docketed as case number DR-01-1172.01. State Dep’t of Human Res. ex rel. Bowen v. Bowen, 958 So .2d 901, 902 (Ala.Civ.App.2006). The State Department of Human Resources (“DHR”) later filed an action on behalf of the former wife seeking to have the former husband held in contempt for his failure to pay child support; that action was docketed as case number DR-01-1172.02; however, DHR’s action was later dismissed without prejudice. Bowen, 958 So.2d at 903. After the trial court entered a judgment on the former wife’s contempt action, the former husband filed a post-judgment motion. Id. at 902. The former husband attempted to interject a custody-modification issue in the pending contempt action; however, the former wife objected to his attempt, and the former husband then filed a third action, in May 2005, which was docketed as case number DR-01-1172.03, in which he sought custody of the older child of the parties, Conner. Id. The parties reached an agreement regarding custody, and the trial court entered a judgment in case number DR-01-1172.03 reflecting that agreement. Id. After considering the former husband’s post-judgment motion, the trial court also entered a judgment in October 2005 in case number DR-01-1172.01 determining that, after considering the lump-sum payments delivered to the former wife on behalf of the former husband by both his employer and the Social Security Administration, the former husband had overpaid his obligations to the former wife and his children. Id.

Because DHR had applied the moneys turned over by the former husband’s employer first to his child-support arrearage, the Social Security disability benefits awarded to the children were more than sufficient to pay the former husband’s remaining child-support arrearage. However, that left the former husband owing the former wife an alimony arrearage, despite the fact that the money had actually been paid by the former husband. To adjust the equities of the parties, the trial court, in its October 2005 judgment, credited the money overpaid to the former wife against the former husband’s future alimony obligation. The judgment read, in pertinent part, as follows:

“3. The [former wife] should receive $7,666.00 from Social Security. Provided she receives this money, the [former husband] shall receive a credit of $2,778.18 towards the balance of his alimony arrearage. The reminder $4,887.82 shall be credited towards future alimony payments at $100.00 per month. Once this credit expires the [former husband] shall continue the $100.00 month alimony payments subject to the provisions of the original Divorce Decree.
“4. The [former husband] shall receive a $1,000.00 credit towards the rifle which he was awarded in the original decree. He may apply this credit towards future alimony payments.”

DHR appealed the October 2005 judgment; however, because it was no longer a party, we dismissed the appeal. Bowen, 958 So.2d at 908. The former wife did not appeal the October 2005 judgment.

In September 2006, the former husband filed a petition seeking postminority educational support for Conner. The former husband further sought a modification of his periodic-alimony obligation and to have the former wife held in contempt for failing to return certain items to which the former husband was entitled under the divorce judgment. The former wife answered the former husband’s complaint and counterpetitioned for an increase in periodic alimony; for an award of $80,000, representing the value of the Chevrolet Tahoe automobile that the former husband had been required to pay the indebtedness on in the divorce judgment but that had been forfeited in the former husband’s bankruptcy proceedings; and to have the provision of the October 2005 judgment awarding the former husband a credit against his future periodic-alimony obligation declared void. The former husband opposed the former wife’s petition.

After a trial, at which the former husband, the former wife, and Conner testified, the trial court entered a judgment on May 8, 2008, holding the former wife in contempt as requested, eliminating the former husband’s credit against future alimony payments contained in the October 2005 judgment, and denying the petition for postminority educational support for Conner; the judgment further provided that any requests that were not specifically addressed in the judgment were denied, so the trial court effectively denied the former wife’s request for an increase in alimony and for a $30,000 judgment representing the value of the Chevrolet Tahoe automobile. The former husband filed a postjudgment motion, in which he argued that the trial court lacked jurisdiction to eliminate the credit awarded him in the October 2005 judgment and that the trial court had failed to consider the proper factors in denying the request for postmi-nority educational support. After a hearing on the motion, the trial court denied the former husband’s motion. The former husband appeals, arguing that the trial court erred in denying postminority educational support and in eliminating the credit against his future alimony payments provided for in the October 2005 judgment.

The portions of the May 2008 judgment pertinent to this appeal read as follows:

“3. The prospective alimony credit is hereby eliminated. [The former husband] shall recommence alimony payments of $100.00 per month beginning May of 2008.
“4. Since [the former husband] received a windfall with the full benefit of both lump sum Social Security Administration Disability checks for [the parties’ children] by virtue of the previous Court’s Order of October 2005, plus successfully avoided his obligation to supply adequate transportation for the [former wife] and the parties’ minor child in [the former wife’s] custody by bankrupting on the Tahoe debt, equity would demand that [the former husband’s] request for assistance on Conner’s college tuition be DENIED. Therefore, [the former husband’s] request in regards to that issue is hereby DENIED.”

On appeal, the former husband first challenges the trial court’s denial of postminority educational support, arguing that the trial court failed to consider the proper factors in denying the request. Our supreme court authorized the imposition of postminority educational support in Ex parte Bayliss, 550 So.2d 986 (Ala. 1989). When considering an application for postminority educational support, “the trial court shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” Ex parte Bayliss, 550 So.2d at 987. Other factors the trial court may consider include “the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.” Id. We agree with the former husband that the trial court improperly failed to consider those factors set forth in Ex parte Bayliss and focused instead on the former husband’s lump-sum backpay awards resulting from his workplace injury and subsequent disability determination and the outcome of his bankruptcy proceeding to determine that postminority educational support was not warranted. We therefore reverse the trial court’s denial of the former husband’s request for postminority educational support for Conner and remand the cause with instructions that the court apply the proper factors in its consideration of the request on remand.

The former husband also argues that the trial court improperly eliminated the credit awarded him against his future alimony payments contained in the October 2005 judgment. Although the former wife’s initial pleading did not rely on Rule 60(b), Ala. R. Civ. P., the parties argued the applicability of that rule to the trial court and continue to argue that rule on appeal. Rule 60(b) provides:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)[, Ala. R. Civ. P.]; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than four (4) months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate court except during such time as an appeal from the judgment is actually pending before such court. If leave of the appellate court is obtained, the motion shall be deemed to have been made in the trial court as of the date upon which leave to make the motion was sought in the appellate court. This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three (3) years after the entry of the judgment (or such additional time as is given by § 6-2-3 and § 6-2-8, Code of Alabama 1975) to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, supersede-as, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.”

The former wife argues that the October 2005 judgment was void, thus compelling relief under Rule 60(b)(4); that it is no longer equitable that the October 2005 judgment have prospective application, thus presenting a basis for relief under Rule 60(b)(5); and that “sufficient grounds and reasons” justify relief from the judgment under Rule 60(b)(6), the “catch-all” provision of the rule. The former husband, however, argues that the former wife was not entitled to relief under any of the subdivisions of Rule 60(b). We agree with the former husband that the trial court had no basis under Rule 60(b) to reconsider the credit awarded the husband in the October 2005 judgment.

Because the former wife does not rely on the first three subdivisions of Rule 60(b), we need not discuss those subdivisions. Instead, we begin with the standard of review applicable to a Rule 60(b)(4) motion, which, unlike all other subsections of the rule, is not whether the trial court abused its discretion in granting or denying the motion; instead, an appellate court must determine whether, in fact, the judgment under attack is or is not void. Pollard v. Etowah County Comm’n, 539 So.2d 225, 227 (Ala.1989). If a judgment is void, the trial court must set it aside; and, conversely, if it is not, the trial court cannot grant the requested relief. Pollard, 539 So.2d at 228.

The former husband argues that the October 2005 judgment, if assailable at all, is merely voidable and not void. This distinction is vitally important, because “a Rule 60(b)(4) motion to have a prior judgment set aside will be granted only where the prior judgment is void rather than voidable.” Williams v. Williams, 581 So.2d 1116, 1117 (Ala.Civ.App.1991). A judgment is void only if “the prior judgment lacked jurisdiction over the subject matter, or over one or more of the parties, or otherwise acted in a manner inconsistent with due process.” Williams, 581 So.2d at 1117. The former wife does not, and cannot, contend that the trial court lacked jurisdiction over the subject matter of the prior action — the alimony and child-support obligations of the former husband — or over the parties to that action. See Marsh v. Marsh, 338 So.2d 422, 423 (Ala.Civ.App.1976) (noting the trial court’s continuing jurisdiction over the subject matter of a divorce action and the personal jurisdiction acquired through a party’s own modification petition). Nor does she or can she argue that the trial court acted in a manner inconsistent with due process when she had notice of the trial, participated in the trial, and participated in a failed appeal of the October 2005 judgment. See Neal v. Neal, 856 So.2d 766, 782 (Ala. 2002).

Instead, the former wife focuses on an argument that the trial court lacked “jurisdiction” to credit any amount of the lump-sum payments against the former husband’s alimony obligation. She relies on cases holding that it is improper to set off debts owed by a former wife against a former husband’s alimony obligation. See, generally, Sanders v. Burgard, 715 So.2d 808, 810 (Ala.Civ.App.1998); Ryan v. Ryan, 271 Ala. 248, 123 So.2d 102 (1960). We need not consider those cases, however, because the former wife’s argument is unavailing. Errors in the application of the law by the trial court do not render a judgment void. Halstead v. Halstead, 53 Ala.App. 255, 256, 299 So.2d 300, 301 (Civ. App.1974). “It is claimed that the judgment is void because it does not comply with the law of the State of Alabama. The simple fact that a court has erroneously applied the law does not render its judgment void.” Halstead, 53 Ala.App. at 256, 299 So.2d at 301; see also Neal, 856 So.2d at 781, 782 (“John confuses legal error with want of subject-matter jurisdiction or want of due process of law.” “However, the misinterpretations and misapplications of law that John ascribes to the aspects of the January 30, 1997[,] judgment ... did not deprive John of due process of law.”). The trial court could not have set aside the credit awarded in the October 2005 judgment under Rule 60(b)(4) because the October 2005 judgment was not void.

The former wife also relies on a portion of Rule 60(b)(5), which states, in part, that relief from a judgment may be obtained if “it is no longer equitable that the judgment should have prospective application.” As noted above, the standard of review of a motion considered under Rule 60(b)(5) is quite different from one considered under Rule 60(b)(4). When reviewing the trial court’s grant of a Rule 60(b)(5) motion, we must consider whether the trial court abused its discretion. Pollard, 539 So.2d at 227; Satterfield v. Winston Indus., Inc., 553 So.2d 61, 63 (Ala. 1989).

The former wife indicates in her brief to this court that the reason that a prospective application of the October 2005 judgment is no longer equitable is the underlying failure of the trial court’s October 2005 judgment to be properly based on applicable law. The portion of Rule 60(b)(5) upon which the former wife relies, however, does not permit a trial court to revisit a final judgment because of alleged failures in its legal underpinnings; instead, “[t]hat portion of Rule 60(b)(5) ... applies only when new facts or new law arises after the original judgment is entered, rendering prospective application of the judgment inequitable.” Satterfield, 553 So.2d at 63. The former wife has not alleged any changes in the facts or the law that give rise to any inequitable result if the October 2005 judgment is applied prospectively; she merely argues that the trial court “got it wrong” when it entered the October 2005 judgment. Thus, the former wife has failed to establish a basis upon which the trial court could have granted her Rule 60(b)(5) motion; in light of this failure, the trial court abused its discretion in granting relief under Rule 60(b)(5).

Finally, the former wife contends that she is entitled to have the October 2005 judgment set aside under Rule 60(b)(6). This final provision of Rule 60(b) is considered to be applicable in only the most extraordinary circumstances. Kimbrell v. Kimbrell, 965 So.2d 789, 794 (Ala. Civ.App.2007). Although we must review the trial court’s decision to grant a Rule 60(b)(6) motion only to determine whether the trial court abused its discretion, our caselaw has consistently required that a motion under Rule 60(b)(6) not be used as a substitute for an appeal. City of Daphne v. Caffey, 410 So.2d 8, 10 (Ala.1981); and Marsh v. Marsh, 338 So.2d at 423. That is, we have held that relief should not be granted in circumstances in which “a party ... has failed to do everything reasonably within [its] power to achieve a favorable result before the judgment becomes final.” Patterson v. Hays, 623 So.2d 1142, 1145 (Ala.1993). To put it simply, “Rule 60(b)(6) is not available as a substitute for an appeal and may not be used to relieve a party from failure to exercise the right of appeal.” Williams, 581 So.2d at 1118. The former wife has not alleged any extraordinary or compelling reasons for relief under Rule 60(b)(6). The failure of the former wife to appeal the October 2005 judgment, and the dismissal of the appeal of that judgment filed by DHR, are precluded by our caselaw from serving as a basis to set aside the October 2005 judgment regardless of its allegedly flawed legal basis. To affirm the grant of relief under Rule 60(b)(6) in this case would be to permit the former wife to “subvert the principle of finality of judgments,” Patterson, 623 So.2d at 1145, which we cannot allow.

Because the former wife did not establish a basis under either Rule 60(b)(4), (5), or (6) for relieving her from the provision of the October 2005 judgment awarding the former husband a credit against his future alimony obligation, we must reverse the trial court’s judgment insofar as it eliminated that credit. We have also reversed the trial court’s judgment insofar as it denied the request for postminority educational support for Conner because of the trial court’s failure to consider the relevant factors set out in Ex parte Bayliss. We remand the cause, and on remand the trial court should reconsider the request for postminority educational support by applying those factors to the evidence of record.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . At the trial, the former wife indicated that DHR had prosecuted the appeal of the contempt action on her behalf.


text:
    SOUTH ALABAMA SKILLS TRAINING CONSORTIUM, Central Alabama Skills Training Consortium, and North Alabama Skills Training Consortium v. Roberta FORD et al.
    2080068.
    Court of Civil Appeals of Alabama.
    July 24, 2009.

      T. Julian Motes, David M. O’Brien, and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellants.
    William F. Patty of Beers, Anderson, Jackson, Patty & Fawal, P.C., Montgomery; Gregory B. Stein of Stein, Brewster & Pilcher, LLC, Mobile; and Candis A. McGowan of Wiggins, Childs, Quinn & Pantazis, LLC, Birmingham, for appellees.
   THOMPSON, Presiding Judge.

This is the second time these parties have been before this court. This court has explained the procedural history and facts of this dispute as follows:

“The North Alabama Skills Training Consortium, the Central Alabama Skills Training Consortium, and the South Alabama Skills Training Consortium (collectively ‘the Consortia’) appeal from the denial of their petition for a writ of certiorari. The evidence and record on appeal reveal the following.
“I. Procedural History
“In June 2005, the employment contracts of nine state employees were not renewed; those employees were: Roberta Ford, Dolores Ibarra, John McGowin, Angela Mullins, Robyn Stin-son, Dawn Thorn, Emuel Todd, Annette Rea, and Gloria Watkins. In July 2005, eight of those employees — Ford, Ibarra, McGowin, Mullins, Stinson, Thorn, Todd, and Watkins (collectively ‘the employees’) — filed direct appeals with the attorney general’s office, purportedly pursuant to the Fair Dismissal Act (‘FDA’), § 36-26-100 et seq., Ala.Code 1975.1 See § 36-26-115, Ala.Code 1975. The employees alleged that their respective employers had violated the FDA, specifically §§ 36-26-102 through -104, Ala. Code 1975, by terminating their employment without notice and a hearing.2
“Ibarra, Thorn, and Todd identified Bevill State Community College (‘Bevill State’) as the respondent in their appeals. Bevill State responded, denied any employment relationship with Ibar-ra, Thorn, and Todd, and asserted that Ibarra, Thorn, and Todd were instead employed by the North Alabama Skills Training Consortium (‘NASTC’). Bevill State denied that the NASTC was one of its divisions or departments, and it denied that the FDA governed Ibarra’s, Thorn’s, and Todd’s employment.
“Ford and Watkins identified Southern Union State Community College (‘Southern Union’) as the respondent in their appeals. Southern Union responded, denied any employment relationship with Ford and Watkins, and asserted that Ford and Watkins were instead employed by the Central Alabama Skills Training Consortium (‘CASTC’). Southern Union denied that the CASTC was one of its divisions or departments, and it denied that the FDA governed Ford’s and Watkins’s employment.
“McGowin, Mullins, and Stinson identified Bishop State Community College (‘Bishop State’) as the respondent in their appeals. They each purported to appeal individually and on behalf of all similarly situated employees. The South Alabama Skills Training Consortium (‘SASTC’) responded, stating that it had been incorrectly identified as ‘Bishop State.’ The SASTC asserted that it, and not Bishop State, had employed McGowin, Mullins, and Stinson. The SASTC denied that it was a part of Bishop State, and it denied that the FDA applied to McGowin’s, Mullins’s, and Stinson’s employment.
“The Consortia subsequently filed a joint motion to dismiss the employees’ appeals, asserting that the employees were not governed by the FDA and, therefore, that an administrative law judge (‘ALJ’) lacked jurisdiction to consider the appeals. Each consortium stated that it had been incorrectly identified by the employees. Bevill State, Southern Union, and Bishop State (collectively ‘the colleges’) made no further filings in the action. The eight appeals were assigned to an ALJ and consolidated. The ALJ received briefs and documentary evidence, but he did not hold a hearing.
“On May 24, 2006, the ALJ issued a 43-page report and recommendation in which he found that the Consortia were departments within the colleges, that the employees were employed by the colleges, and that the colleges operated ‘under the control, authority, and auspices of the Alabama College System.’ The ALJ concluded that the FDA applied to the employees and that the employees had been wrongfully denied notice and hearings as to the discontinuation of their employment. The ALJ ordered as follows:
“ ‘2.... [T]he actions of the two-year colleges are hereby rescinded, and the [employees] are entitled to:
“ ‘a. The rights and privileges of the FDA, including their right to a hearing prior to their termination.
“ ‘b. Proper notice per the FDA.
“ ‘c. Reinstatement and back pay.
“ ‘3. The [colleges] are hereby placed on notice that any further employment action on their part must be in full compliance with the FDA.’
“The ALJ also ordered that ‘all of the [colleges’] employees who are situated as are the Petitioners in the case sub judi-ce[ ] are subject to the FDA.’
“On June 23, 2006, the Consortia filed in the Montgomery Circuit Court a petition for a writ of certiorari and a motion to stay enforcement of the ALJ’s order. The employees moved to dismiss the petition, arguing, among other things, that because the ALJ’s order was final under § 36-26-115, Ala.Code 1975, the Consortia had no right to appeal or petition for certiorari review. The employees also argued that the Consortia lacked standing and were not proper parties under Rule 17, Ala. R. Civ. P. The circuit court granted the motion to stay.
“On December 18, 2006, while the petition for certiorari review was pending before the circuit court, Rea filed a direct appeal with the attorney general’s office, citing § 36-26-115 and the ALJ’s May 24, 2006, order. Rea’s appeal named Bevill State as a respondent. The NASTC responded, alleged that it had been incorrectly identified as Bevill State, and asserted that Rea’s appeal was untimely and that the FDA did not apply to Rea. On February 13, 2007, relying almost entirely on the ‘similarly situated’ language of the May 24, 2006, order, the ALJ found that the FDA applied to Rea and stated that ‘the conclusion/holding rendered in the [May 24, 2006, order] applies, in toto, to the case here at bar.’ The NASTC filed in the Montgomery Circuit Court a petition for a writ of certiorari and a motion to stay enforcement of the ALJ’s decision. Rea’s action was not consolidated with that of the other employees.
“The circuit court held a short hearing, and subsequently it issued an order on May 8, 2007. The circuit court’s order denied the petitions for the writ of certiorari and granted the motions to dismiss in Rea’s action and in the employees’ action. The circuit court also stated:
“ ‘[T]he court agrees with all of the conclusions made by the Administrative Law Judge in his May 24, 2006, order in the underlying administrative proceeding in this case and with his February 13, 2007, order in the underlying administrative proceeding in the Rea case.... The court therefore affirms and incorporates the entire order from the underlying administrative proceedings issued by the Administrative Law Judge on May 24, 2006.’
“The Consortia filed a notice of appeal to this court on June 7, 2007, in the employees’ action and in Rea’s action; the circuit court granted a stay of enforcement of the ALJ’s order pending resolution of this appeal. The case was subsequently submitted to this court, which heard oral argument on April 17, 2008.
"1 Rea did not challenge the termination of her employment until December 18, 2006.
“2 The parties agree that the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975, does not govern their dispute.”

South Alabama Skills Training Consortium v. Ford, 997 So.2d 309, 312-14 (Ala. Civ.App.2008). In our original consideration of this matter, this court analyzed, among other things, the applicability of the Fair Dismissal Act (“the FDA”), § 36-26-100 et seq., Ala.Code 1975, and the appropriate review available under the FDA, and we concluded that the FDA applied, that the employees were entitled to notice and a hearing pursuant to the FDA, and that the Consortia properly sought review of the decision of the administrative law judge (“ALJ”) in the circuit court pursuant to a petition for a writ of certiorari. This court reversed the circuit court’s judgment insofar as it affirmed the ALJ’s decision in Annette Rea’s action and the ALJ’s determination that its decision applied to employees similarly situated to the plaintiffs. South Alabama Skills Training Consortium v. Ford, supra. This court summarized our holdings as follows:

“Accordingly, we affirm the circuit court’s judgment to the extent it affirmed the ALJ’s ruling that the employees were governed by the FDA and, therefore, were entitled to notice and a hearing before being discharged or transferred. We reverse the circuit court’s judgment to the extent that it affirmed the ALJ’s application of the May 24, 2006, order to individuals who were not parties to the appeals before it. We likewise reverse the circuit court’s judgment to the extent that it affirmed the ALJ’s decision in Rea’s action. We also reverse the circuit court’s judgment to the extent that it held that no review via a petition for the common-law writ of certiorari may be had from an ALJ’s decision under § 36-26-115. Therefore, we remand this action to the circuit court with instructions that it issue a writ of certiorari and require the ALJ to rescind his May 24, 2006, order to the extent that that order applied to individuals who had not been made parties to the appeals before it and require the ALJ to rescind his February 13, 2007, order in Rea’s action and to reconsider her appeal in light of the holdings of this opinion.”

South Alabama Skills Training Consortium v. Ford, 997 So.2d at 334-35.

On remand, the employees filed a motion asking the circuit court to enter a judgment in compliance with this court’s opinion in South Alabama Skills Training Consortium v. Ford, supra. In their motion on remand, the employees also moved the circuit court to enter an order requiring the Consortia to pay them backpay and benefits. The Consortia opposed the employee’s motion on remand, arguing that the circuit court lacked jurisdiction to enter an order awarding the employees back-pay and benefits; the Consortia contended that the amount of backpay and benefits to be awarded was a “factual issue” to be determined by the ALJ.

On October 10, 2008, the circuit court entered a judgment ordering the ALJ to modify his May 24, 2006, order to remove the portion of the order stating that the decision applied to all “similarly situated” employees. In addition, the circuit court noted in its judgment on remand that because the Consortia had reinstated Rea, it was no longer necessary to remand her action to the ALJ for further proceedings. In addition to the foregoing, the circuit court stated that this court had affirmed the remaining aspects of its judgment affirming the ALJ’s decision. We note that the opinion affirms that part of the circuit court’s judgment affirming the decision of the ALJ holding that the FDA applied and, therefore, that the employees were entitled to notice and a hearing. See South Alabama Skills Training Consortium v. Ford, 997 So.2d at 334. The circuit court then proceeded to order in its judgment on remand that the employees receive backpay and benefits. See Perine v. Kennedy, 868 So.2d 1128 (Ala.Civ.App. 2003) (holding that a teacher whose discharge was upheld was entitled to backpay between the effective date of his discharge and the date the discharge was confirmed pursuant to the FDA); and Allen v. Bessemer State Tech. Coll., 703 So.2d 383 (Ala. Civ.App.1997) (an employee discharged without the required hearing under the FDA was entitled to reinstatement and backpay).

On appeal, the Consortia contend that the circuit court lacked jurisdiction to enter that part of its October 10, 2008, judgment in which it ordered the Consortia to pay the employees backpay and benefits. The Consortia contend that the amount of backpay and benefits due is disputed and, therefore, that the ALJ, not the circuit court, has jurisdiction to resolve that dispute. We agree that the circuit court lacked jurisdiction to enter that portion of its October 10, 2008, judgment pertaining to backpay and benefits, but not for the reason asserted by the Consortia.

The circuit court originally exercised jurisdiction in this matter pursuant to the Consortia’s petition for a writ of certiorari from the ALJ’s May 24, 2006, decision. See South Alabama Skills Training Consortium v. Ford, 997 So.2d at 332 (stating that Art. IV, § 142(b), Ala. Const.1901, grants the circuit courts the authority to review decisions of administrative agencies and to issue all appropriate writs in the exercise of their powers); see also Ex parte Alabama Textile Prods. Corp., 242 Ala. 609, 613, 7 So.2d 303, 305 (1942) (“The law ... confers on circuit courts the authority to exercise general superintendence over all inferior jurisdictions.”). A writ of certiorari “can, under appropriate circumstances, be used to review decisions of an administrative agency or board that are judicial or quasi-judicial in nature.” G.W. v. Dale County Dep’t of Human Res., 939 So.2d 931, 934-35 (Ala. Civ.App.2006) (citing State v. Albritton, 251 Ala. 422, 37 So.2d 640 (1948)). However, a circuit court’s review of a decision of an ALJ pursuant to a petition for a writ of certiorari is limited. As this court summarized in South Alabama Skills Training Consortium v. Ford:

“The circuit court’s standard of review of a petition for a common-law writ of certiorari is well settled. On common-law certiorari review, the circuit court’s ‘scope of review was limited to determining if the [ALJ’s] decision to [reinstate the employees] was supported by legal evidence and if the law had been correctly applied to the facts.’ Evans v. City of Huntsville, 580 So.2d 1323, 1325 (Ala.1991). ‘In addition, the court was responsible for reviewing the record to ensure that the fundamental rights of the parties, including the right to due process, had not been violated.’ Id. ‘Questions of fact or weight or sufficiency of the evidence will not be reviewed on certiorari.’ Personnel Bd. of Jefferson County v. Bailey, 475 So.2d 863, 868 (Ala.Civ.App.1985).
“ ‘ “ ‘[A] common-law writ of certio-rari extends only to questions touching the jurisdiction of the subordinate tribunal and the legality of its proceedings. The appropriate office of the writ is to correct errors of law apparent on the face of the record. Conclusions of fact cannot be reviewed, unless specially authorized by statute. The trial is not de novo but on the record; and the only matter to be determined is the quashing or the affirmation of the proceedings brought up for review.’ ” ’
“G.W. v. Dale County Dep’t of Human Res., 939 So.2d 931, 934 n. 4 (Ala.Civ. App.2006) (quoting City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919), quoting in turn Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91 (1916)).”

997 So.2d at 824. “ ‘The supervisory jurisdiction of the court on certiorari is restricted to an examination into the external validity of the proceeding had in the lower tribunal.’” Personnel Bd. of Jefferson County v. Bailey, 475 So.2d 868, 868 (Ala. Civ.App.1985) (quoting Alabama Elec. Coop. v. Alabama Power Co., 278 Ala. 123, 126, 176 So.2d 483, 485 (1965)).

In its original, May 8, 2007, judgment, the circuit court appropriately exercised its jurisdiction on certiorari review by affirming the order of the ALJ. This court later reversed portions of the circuit court’s ruling on certiorari review, but, in doing so, we concluded that review in the circuit court pursuant to the petition for the writ of certiorari was appropriate. South Alabama Skills Training Consortium v. Ford, supra.

A trial court must comply with an appellate court’s mandate on remand. Ex parte Queen, 959 So.2d 620 (Ala.2006). In its October 10, 2008, judgment on remand, the circuit court complied with this court’s instructions set forth in South Alabama Skills Training Consortium v. Ford, supra, to the extent that it directed the ALJ to remove that portion of his May 24, 2006, decision granting relief to nonparty employees who were “similarly situated” to the employees in this action. Given the parties’ resolution of Rea’s claim that she was subject to the FDA, the circuit court did not remand that action to the ALJ to reconsider Rea’s appeal. It is clear that, in compliance with this court’s instructions and in keeping with the nature of its review pursuant to the Consortia’s petition for a writ of certiorari, the circuit court had jurisdiction to enter those portions of its October 10, 2008, judgment on remand.

However, in its October 10, 2008, judgment on remand, the circuit court granted the employees additional relief. Specifically, the circuit court ordered that the employees were entitled to an award of backpay and benefits. We agree with the Consortia that the circuit court lacked jurisdiction to enter that part of its October 10, 2008, judgment, but not for the reason advocated by the Consortia.

As already discussed, certain portions of the circuit court’s judgment complied with our appellate mandate. However, nothing in this court’s opinion in South Alabama Skills Training Consortium v. Ford, supra, required the circuit court to enter a ruling pertaining to backpay and benefits. Further, as explained earlier, the circuit court’s consideration of this matter was pursuant to certiorari review. The circuit court could not go beyond that method of review to afford the Consortia relief it had not originally requested in its petition for writ of certiorari. Although they argue the issue now, in their petition for certiora-ri from the ALJ’s May 24, 2006, order, the Consortia did not raise, as an alternative basis for relief, an argument that the employees’ rights to backpay and benefits could be offset by any income earned by the employees during the time the review process was pending in the courts. Thus, the Consortia failed to challenge or seek review of that portion of the ALJ’s May 24, 2006, order that pertained to the award of backpay and benefits, and, accordingly, the circuit court did not have that issue before it on remand. As a result, that the portion of the ALJ’s May 24, 2006, order pertaining to backpay and benefits remains in effect.

The absence of jurisdiction renders that portion of the circuit court’s judgment awarding backpay and benefits void, and, because this appeal pertained solely to that portion of the judgment that is void, the appeal must be dismissed.

APPEAL DISMISSED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . In this opinion, we refer to the parties by the same designations we used in South Ala-hama Skills Training Consortium v. Ford, supra.

      . Rea had been employed by, and apparently was reinstated by, the NASTC.

      . We note that, although they were discharged from their original positions with the members of the Consortia, McGowin, Mullins, Stinson, and Watkins were subsequently employed in other jobs for the Consortia at reduced rates of pay; each of those employees seeks to recover only the difference between the reduced rate of pay and the amounts he or she would have received in his or her original employment position.

      . In fact, nothing pertaining to the ALJ's award of backpay and benefits had been raised before this court in that appeal.

      . In their briefs submitted to this court, the Consortia contend that they are entitled to a setoff under the FDA against the award of backpay and benefits of any amounts an employee earned until he or she was reinstated pursuant to the opinion in South Alabama Skills Training Consortium v. Ford, supra. The Consortia acknowledge that our appellate courts have interpreted the FDA as allowing an award of the full amount of backpay and benefits. However, the Consortia contend that the issue should be reexamined. As this court has earlier stated: “The question raised by briefs are interesting, and may, when properly presented, be decided by this Court on appeal. At this time the question is not properly presented and not for decision in disposing of this appeal.” Tarver v. Household Fin. Corp., 45 Ala.App. 344, 345, 230 So.2d 534, 535 (Civ. 1970).


author: WELCH, Judge. WISE, Presiding Judge,

text:
    Clemmie Lee SPENCER v. STATE of Alabama.
    CR-07-0963.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2009.
    Rehearing Denied April 24, 2009.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1080976.
    Gary L. Blume, Tuscaloosa, for appellant.
    Troy King, atty. gen., and Jean-Paul M. Chappell, asst. atty. gen., for appellee.
   WELCH, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM, J., concurs.

WISE, P.J., concurs in part and concurs in the result, with opinion, which KELLUM, J, joins.

WISE, Presiding Judge,

concurring in part and concurring in the result.

I concur with the conclusion in the unpublished memorandum that the appellant, Clemmie Lee Spencer, did not preserve his claims that the State did not give him written notice of his revocation hearing, did not give him written notice of his alleged probation violations, and did not provide him with the evidence against him. I also concur with the conclusion that the circuit court did not abuse its discretion when it revoked Spencer’s probation. Finally, I concur with the conclusion that Spencer is not entitled to any relief on his claim that the circuit court erred when it initially revoked his probation and sentenced him to the penitentiary without first conducting a revocation hearing. However, I disagree with the implication in the unpublished memorandum that the circuit court could properly house Spencer in the State penitentiary pending his revocation hearing.

The record indicates that Spencer was serving his sentence in the Tuscaloosa County Community Corrections prison diversion program. On August 16, 2006, Spencer’s probation officer filed a “Motion for Revocation of Release.” On February 16, 2007, the circuit court entered an order stating, “Capias writ ordered for defendant. Defendant ordered to serve balance of sentence in prison.” (C.R. 3.) Spencer was arrested on January 8, 2008, and he was subsequently transferred to Kilby Correctional Facility. On January 25, 2008, the circuit court conducted a revocation hearing. It then entered a written order in which it ordered Spencer to serve the balance of his sentence in prison.

Section 15 — 18—175(d)(3), Ala.Code 1975, provides that a circuit court shall conduct a revocation hearing before it revokes a community corrections sentence. In effect, the circuit court’s February 16, 2007, order revoked Spencer’s community corrections sentence. However, the circuit court did not conduct a revocation hearing before it entered that order. Therefore, the circuit court erred when it entered its February 16, 2007, order. Because § 15-18 — 175(d)(3), Ala.Code 1975, specifically prohibits a circuit court from revoking a community corrections sentence without first conducting a revocation hearing, I disagree with the implication in the unpublished memorandum that the circuit court could properly house Spencer in the State penitentiary pending the revocation hearing.

However, as the unpublished memorandum notes, the circuit court did subsequently conduct a revocation hearing shortly after Spencer was taken into custody. Further, in its written revocation order, the circuit court ordered that Spencer receive credit for the time he has served. Therefore, Spencer has received the remedy to which he was entitled — a revocation hearing. Accordingly, Spencer’s claim is moot, and the error in the circuit court’s entry of the February 16, 2007, order was harmless. See Rule 45, Ala. R.App. P.

Finally, I concur with the conclusion in the unpublished memorandum that Spencer should have raised any claim regarding his pre-hearing detention in the State penitentiary in a petition for a writ of habeas corpus.

For these reasons, I respectfully concur in part and concur in the result.

KELLUM, J., concurs.


author:
WISE, Presiding Judge.
      WELCH, Judge,

text:
    H.L.B. v. STATE of Alabama.
    CR-07-1250.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.
    Rehearing Denied April 24, 2009.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1080991.
    Joseph M. Willoughby, Gadsden, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WINDOM and KELLUM, JJ., concur.

WELCH, J., dissents, with opinion.

WELCH, Judge,

dissenting.

In an unpublished memorandum, the majority affirms H.L.B.’s conviction for first-degree rape by forcible compulsion committed against his nearly 16-year-old daughter. I respectfully dissent. I believe that there is insufficient evidence to convict H.L.B. with first-degree rape under § 13A-6-61 (a)(1), Ala.Code 1975, because M.B., the victim and H.L.B.’s daughter, was asleep at the time of the rape. I maintain that there is sufficient evidence to convict H.L.B. of first-degree rape under § 13A-6-61(a)(2), Ala.Code 1975. Section 13A-6-61 provides:

“A person commits the crime of rape in the first degree if:
“(1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion.
“(2) He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being physically helpless or mentally incapacitated.”
“Forcible compulsion” is defined as “[p]hysieal force that overcomes earnest resistance or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8), Ala. Code 1975. Section 13A-6-60(7) states that “physically helpless” means that “a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.”

Further, the Alabama Supreme Court has stated:

“ ‘There is an element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion ... derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult ... without the use of physical force or violence or the explicit threat of physical force or violence.’
“[Powe v. State,] 597 So.2d [721] at 728 [ (Ala.1991) ], quoting Commonwealth v. Rhodes, 510 Pa. 537, 557, 510 A.2d 1217, 1227 (1986).
“In Ex parte J.A.P., 853 So.2d 280 (Ala.2002), the Alabama Supreme Court limited Powe’s forcible-compulsion analysis to cases involving the sexual assault of children by adults who exercise positions of domination and control over the children.”

R.E.N. v. State, 944 So.2d 981, 984 (Ala. Crim.App.2006).

In this case, M.B. testified that on the night of the incident she went into the bedroom and got into the bed, took her shorts off and was wearing a t-shirt and underwear, and fell asleep.

She also testified that, between 2:30 a.m. and 2:45 a.m., she woke up, and H.L.B., her father, was behind her, pushing her, touching her, and that H.L.B.’s “private part” was inside her. M.B. further stated that she still had her t-shirt and underwear on, but her underwear was pushed over and she was facing the wall away from H.L.B. H.L.B. said, “ ‘I’m sorry.’ ” (R. 492.) M.B. further testified that she screamed, cried, and ran into the bathroom and sat in the bathroom with the door locked, crying. H.L.B. knocked on the door and said, “ ‘I’m sorry. Come here.’ ” (R. 496.) M.B. stated that she stayed in the bathroom and after she heard H.L.B. walk away, that she went outside, got into the family’s van, and fell asleep in the front seat.

The State presented evidence indicating that M.B. was H'.L.B.’s daughter, that M.B. and H.L.B. had a close relationship, and that H.L.B. had had custody of M.B., but was on a visitation schedule at the time of the incident. However, because evidence was presented indicating that at the time H.L.B. placed his penis inside M.B., that M.B. was asleep and unable to resist H.L.B., M.B. was unconscious within the meaning of § 13A-6-60(7). Therefore, M.B. was unable to resist H.L.B. within the meaning of § 13A-6-60(8).

There was no evidence presented indicating that there was an interval of time between the time that M.B. awoke and before she went to the bathroom where she either struggled with or acquiesced to H.L.B. Due to her unconsciousness, M.B. would have been unable to communicate her unwillingness to have sexual intercourse with H.L.B.; therefore, this act was a rape under § 13A-6-61 (a)(2) and not (a)(1). This is not a situation where the victim was aware of H.L.B.’s intent to have intercourse and acquiesced because of the parent-child relationship.

Because I believe that there is insufficient evidence to convict H.L.B. of rape under § 13A-6-61(a)(l), Ala.Code 1975, I respectfully dissent.


author: KELLUM, Judge.

text:
    Vito GILMER v. STATE of Alabama.
    CR-07-1077.
    Court of Criminal Appeals of Alabama.
    March 20, 2009.

      Thomas M. Goggans, Montgomery, for appellant.
    Troy King, atty. gen., and Stephanie E. Reiland, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Vito Gilmer, was convicted of murder, a violation of § 18A-6-2, Code of Alabama 1975, and assault in the third degree, a violation of § 13A-6-22, Code of Alabama 1975. The circuit court sentenced Gilmer to 40 years’ imprisonment for the murder conviction and to 1 year’s imprisonment for the third-degree assault conviction; the sentences were to run concurrently. The court also ordered Gilmer to pay $5,500 in restitution, $75 to the crime victims compensation fund, and court costs. This appeal followed.

A detailed recitation of the facts is unnecessary to dispose of this appeal. However, the record establishes the following pertinent procedural history. After the jury rendered its verdict and the circuit court imposed its sentence, Gilmer, on February 1, 2008, filed a motion for a new trial. In his motion, Gilmer contended that he had learned of newly discovered evidence from a sister of a witness for the State tending to show that the witness had subsequently recanted her sworn testimony at trial. The witness was one of two state’s witnesses who had testified that Gilmer had threatened to kill one of the victims. Gilmer requested a hearing on his motion for a new trial.

On March 13, 2008, the circuit court conducted a hearing on Gilmer’s motion for a new trial. Neither defense counsel nor Gilmer were present at the hearing. At the beginning of the hearing on the motion for a new trial, the following exchange occurred between the prosecutor and the circuit court:

“[PROSECUTOR]: I just got off the phone with [defense counsel]. He is out of town this morning. He said that he didn’t know the hearing was set today and that he will be back on Friday. I believe we can get with Your Honor on Monday. I have got the basis for the motion for new trial was that newly discovered evidence that Ditara Belser’s sister Nichelle testified in trial [sic] stated that Nichelle recanted her testimony that she had given at the trial. I have Nichelle Belser.
“THE COURT: Swear them in.”

(Second Supplemental Record, 2.)

Nichelle Belser and her sister, Ditara Belser, then testified at the hearing. Nic-helle Belser denied recanting her trial testimony. Ditara Belser testified that Nichelle had not told her that her trial testimony was untrue. The trial court subsequently denied Gilmer’s motion for a new trial.

The dispositive issue raised by Gilmer on appeal is whether the circuit court erred by conducting a hearing on his motion for a new trial without him or his trial counsel present. The State concedes in its brief on appeal that the circuit court erred by holding a hearing on the motion for a new trial in the absence of Gilmer and his defense counsel.

The Alabama Supreme Court has recognized that a hearing on a motion for a new trial is a critical stage of the proceedings. Ex parte Belue, 727 So.2d 785 (Ala. 1998). Therefore, Gilmer was entitled to be represented by counsel during the proceedings on the motion for a new trial, absent a valid waiver. King v. State, 613 So.2d 888 (Ala.Crim.App.1993); Casteel v. State, 976 So.2d 505 (Ala.Crim.App.2007). There is no dispute that Gilmer’s counsel was not present at the hearing on his motion for a new trial, and the record contains no indication that there was a valid waiver of Gilmer’s right to counsel at that hearing. Accordingly, the trial court erred in conducting a hearing on the motion for a new trial without Gilmer’s counsel present.

Moreover, we cannot conclude that the error was harmless. Gilmer claimed at trial that the shootings were accidental, i.e., that the gun went off in a struggle, killing one victim and wounding the other. Two witnesses, the victim of the assault and Nichelle Belser, testified at Gilmer’s trial that they heard Gilmer threaten to kill the murder victim. The two witnesses who said they heard Gilmer threaten the murder victim helped establish the requisite intent for murder.

Gilmer alleged in his motion for a new trial that Nichelle Belser had recanted her trial testimony. At the hearing on that motion, when questioned by the prosecution, Nichelle denied recanting her testimony, and her sister testified that Nichelle had not indicated to her that she was recanting her testimony. We cannot speculate how Nichelle or her sister would have testified under a rigorous examination by defense counsel.

“ ‘ “Unlike an appellate court, the trial judge hearing a motion for new trial reviews the evidence de novo and examines the record independently. The trial court ‘is under the duty to give the defendant the benefit of its independent conclusion as the sufficiency of credible evidence to support the verdict.’ People v. Veitch, 128 Cal.App.3d 460, 467, 180 Cal.Rptr. 412 (Div.Two 1982). The trial judge sits as the ‘18th juror’ in evaluating the weight of the evidence against the defendant. As a practical matter, the motion for a new trial is the defendant’s last opportunity for an unconstrained review on the merits of the evidence against him. On appeal, both jury conclusions and the factual decisions of the trial court are either immune from review or treated under a highly deferential standard. Consequently, the defendant’s failure to take full legal advantage of the statutory right substantially diminishes his ability to challenge the sufficiency of the evidence.
“ ‘ “Not only are substantive rights involved but counsel can enable the defendant to protect these rights. An effective motion for a new trial ordinarily requires a lawyer’s understanding of legal rules and his experience in presenting claims before a court. The presence of trained counsel at this stage insures that the most favorable arguments will be presented and ‘that the accused’s interests will be protected consistently with our theory of criminal prosecution.’ [U.S. v.] Wade, 388 U.S. [218] at 227, 87 S.Ct. [1926] at 1932 [18 L.Ed.2d 1149 (1967) ].” ’ ”

King v. State, 613 So.2d at 890 (quoting Menefield v. Borg, 881 F.2d 696, 699 (9th Cir.1989)).

Accordingly, we remand this cause for the circuit court to conduct another hearing on the February 1, 2008, motion for a new trial at which both defense counsel and Gilmer shall be present. If Gilmer waives the assistance of counsel, the record should affirmatively reflect that there was a valid waiver of counsel. If the circuit court, following a hearing on the February 1, 2008, motion, determines that Gil-mer is entitled to relief, it is authorized to grant such relief as it deems necessary. The circuit court shall take all necessary action to ensure that the circuit clerk makes due return to this Court at the earliest possible time and within 56 days from the release of this opinion. The return to remand shall include a transcript of the remand proceedings.

REMANDED WITH INSTRUCTIONS.

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