author: THOMPSON, Presiding Judge.

text:
    Mark CAMERON v. Wendy CAMERON
    2150546
    Court of Civil Appeals of Alabama.
    November 10, 2016 Rehearing Denied January 27, 2017 Certiorari Denied April 17, 2017
    Alabama Supreme Court 1160391
    Connie Cooper, Phenix City, for appellant.
    F. Patrick Loftin of Loftin, Loftin & May, Phenix City, for appellee.
   THOMPSON, Presiding Judge.

Mark Cameron ("the husband") appeals from a judgment of the Lee Circuit Court ("the trial court") divorcing him from Wendy Cameron ("the wife"), dividing the marital assets, and awarding the wife periodic alimony, among other things.

The record indicates the following. The parties married in April 2009 but had lived together since July 2003. The husband testified that, during the time they were living together before the marriage, the parties had not held themselves out as husband and wife. He said that they did not file joint income taxes or have a joint checking account and that the wife did not take his name until after they married. The wife did not dispute the husband's contentions.

Both the husband and the wife have children from previous marriages, all of whom were adults at the time of the divorce trial. The husband was 55 years old at the time of the trial, and the wife was 50 years old. The wife has custody of her son's children pursuant to a safety plan initiated by the Department of Human Resources.

The husband has worked as a truck driver for approximately 30 years. His gross annual income at the time of the trial was approximately $68,000. He testified that he has a 401(k) retirement account that he has paid into for 30 years. At the time of the trial, the account had a value of $292,467.91. The husband testified that he had purchased the house that became the marital residence in late December 1995 or January 1996. According to a list of assets submitted by the husband, the house had a value of approximately $90,000 and a mortgage debt of approximately $52,000. The monthly mortgage payment was $648. The husband also said that he had paid "every one" of the household bills since he moved into the house.

The wife testified that she had contributed $400 each month toward the mortgage payments from July 2003 until 2013, when she was involved in a motor-vehicle accident. She received a settlement of $58,000. After buying furniture for the marital residence, repaying a loan of $5,000 to one of her children, and giving each of her children $1,500, the wife said, she had approximately $23,000 remaining from the settlement. The wife said that she had attempted to give the husband $10,000, but, she said, he had told her he did not want her money. The wife said that she did give him $4,000 out of her settlement proceeds.

The wife worked when the parties first married. However, the husband said, the wife was "let go" from her job in 2010 or 2011 and had not worked since. The wife testified that she lost her job in November 2012. The husband testified that he had "gotten in her face a couple of times and told her to get out and get a job." He said that he worked 60 to 70 hours a week as a truck driver and that he could not "stand to see somebody sitting around." The husband said that the wife claimed she had hurt her back, but he could not say whether the pain was "real or not" because he is not a doctor. He said that her back pain had not affected her ability to enjoy camping and fishing. The wife testified that she is disabled and under the care of a pain-management physician and that she has taken a number of medications for pain she has suffered since the automobile accident.

The husband claimed that the parties had had sexual relations three times in the three years leading up to the trial in December 2015. He said that the last time they had sex was in February or March 2015. He testified that he and the wife maintained separate bedrooms but that the wife would "sneak in at night and lay down" with him. He also testified that they no longer had anything in common except fishing. The wife denied that they slept in different bedrooms or that she sneaked into bed with the husband. She said that they continued to sleep in the same bed after the husband filed for the divorce. Furthermore, she testified, they had sexual relations about once a week even after the husband filed the complaint for a divorce. She said that the two had had sex the week before the trial.

The wife discovered that the husband had been "sexting" with another woman. The husband claimed that his relationship with the other woman had not involved physical sexual relations and that he had ended that relationship. The wife, however, testified that, on a recent trip, she had discovered that the husband had a second telephone that he used to contact the other woman and that their relationship was ongoing.

The wife did not want to divorce the husband. She testified that, between the time the husband filed the complaint for a divorce and the December 2015 trial, the husband told her that he was going to "call off" the divorce. She said that they had a conversation about not obtaining a divorce as recently as the week before the trial. They had also made plans to attend a birthday party together the weekend after the trial. The husband conceded that the parties went camping, hunting, and fishing together. However, he said, the wife joined him on the trips without being invited, and, he said, he did not want her to come along. The evidence also showed that, in the weeks just before the trial, the husband had told one of the wife's children that he loved another woman and no longer loved the wife. The wife also acknowledged that she had learned months before the trial that the husband did not intend to call off the divorce.

Stephanie Elliott, one of the wife's children, testified that the husband was the only father she knew. She testified that, while the trial was underway, she overheard the husband tell the wife "he would like to put [the divorce] off but he wanted to hear what the Judge had to say." Elliott said that, to see the parties together, with the exception of a few arguments, one would never know they were going through a divorce. She said that they talked about the future and purchased items to decorate the house. However, Elliott also said that she had told the wife that the husband was just "leading her on" when he talked about "calling off" the divorce.

Elliott testified that she and the husband had talked the month before the trial and that the husband had told her he was still seeing the other woman. He told Elliott she "should let him go because he was a piece of crap." He also told Elliott that he was sorry but that he was in love with the other woman. Rebecca Savage, the wife's other daughter, corroborated Elliott's testimony. The husband testified that he "lied" to Elliott and Savage "to get them off [his] case" and that he did not love another woman.

The husband testified that, during the marriage, the parties had purchased the vehicle the wife was driving at the time of the trial, an all-terrain vehicle ("ATV"), which the husband said cost $4,000, a fishing boat that had a debt of approximately $32,000, and a camper.

On December 15, 2015, the trial court entered a judgment divorcing the parties on the ground of the irretrievable breakdown of the marriage, "largely extending from the Husband's unwillingness to truthfully consider reconciliation, although he has deceived the Wife at times into thinking he would." In the judgment, the trial court explicitly stated that the husband showed "little if any credibility." The trial court wrote:

"As a witness in Court, the Husband was contradictory and evasive and generally not believable. At home he has led his wife and family along as if there would be a reconciliation between them. At Court, and to his friend, he indicates no interest in maintaining the relationship. He has tried to enjoy the benefits his wife can provide at home or in their camper, but he is no longer willing to be bound by any commitment to her."

In dividing the marital property, the trial court awarded the wife the marital residence and ordered the husband to continue to pay the mortgage of $648 each month. The wife received a Chrysler minivan, the parties' camper, a Pro Craft boat, her jewelry and clothing, and specific personal property. The husband was awarded a Dodge truck, a Nissan truck, a Skeeter boat, valued at $32,000, a Ranger boat, a Harley Davidson motorcycle, the ATV, his savings account valued at approximately $6,000, the parties' 2014 tax refunds in the amount of $5,125, his jewelry and clothing, and specific personal property. The husband was also awarded his entire 401(k) account, worth approximately $292,000. Any property not specified in the judgment was awarded to the party who had possession of such property on the date of the judgment. According to the wife, at the time of the trial she had $754 in her checking account and $54 in her savings account.

In addition to the division of marital property, the husband was ordered to pay the wife $10,000 alimony in gross, $1,000 each month in periodic alimony, and rehabilitative alimony of $225 each month for 18 months. The trial court also directed the husband to pay the wife's COBRA health-insurance premiums for 18 months.

The husband filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. After a hearing on the motion, the trial court determined that the amount of combined alimony was too great considering that the wife would not have a house payment. It lowered the amount of periodic alimony to $856.50 each month, and it removed the husband's obligation to pay $225 each month for rehabilitative alimony. The trial court stated that the change made the amount of money available to each party each month substantially equal. The husband then appealed the judgment to this court.

The husband contends that the trial court abused its discretion in awarding the wife periodic alimony and in dividing the marital property.

" 'Matters such as alimony and property division are within the sound discretion of the trial court. Ex parte Drummond, 785 So.2d 358 (Ala. 2000) ; Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993) ; and Montgomery v. Montgomery, 519 So.2d 525 (Ala. Civ. App. 1987). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala. Civ. App. 1996).
" 'In dividing property and awarding alimony, a trial court should consider "the earning abilities of the parties; the future prospects of the parties; their ages and health; the duration of the marriage; [the parties'] station[s] in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the cause of the divorce."
Russell v. Russell, 777 So.2d 731, 733 (Ala. Civ. App. 2000). Also, a trial court is not required to make an equal division of the marital property, but it must make an equitable division based upon the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala. Civ. App. 1996) ; and Brewer v. Brewer, 695 So.2d 1 (Ala. Civ. App. 1996). "A property division that favors one party over another does not necessarily indicate an abuse of discretion." Fell v. Fell, 869 So.2d 486, 496 (Ala. Civ. App. 2003) (citing Dobbs v. Dobbs, 534 So.2d 621 (Ala. Civ. App. 1988) ).'
" Turnbo v. Turnbo, 938 So.2d 425, [430] (Ala. Civ. App. 2006)."

Walker v. Walker, 216 So. 3d 1262, 1270-71 (Ala. Civ. App. 2016). Additionally, matters of alimony and property division rest soundly within the trial court's discretion, and rulings on those matters will not be disturbed on appeal except for a plain and palpable abuse of discretion. Welch v. Welch, 636 So.2d 464 (Ala. Civ. App. 1994).

The parties were married only seven years. Therefore, the husband's 401(k) account was not a marital asset subject to division. Brasili v. Brasili, 827 So.2d 813, 821 (Ala. Civ. App. 2002) ; § 30-2-51(b), Ala. Code 1975. Accordingly, it appears that the parties' largest single asset was the marital residence, which the husband purchased approximately 13 years before the parties married. The husband was not awarded any portion of the equity in the marital residence, although he was ordered to pay the remaining balance on the mortgage, which was approximately $52,000, at the rate of $648 each month. Neither party raised an issue regarding whether the wife's settlement resulting from the motor-vehicle accident constituted marital property subject to division.

The record is silent as to the value of much of the property divided between the parties. No evidence was presented as to the value of the marital residence or the value of most of the vehicles awarded to the parties in the judgment. In Combs v. Combs, 4 So.3d 1141 (Ala. Civ. App. 2008), this court was asked to consider whether a judgment dividing marital property and awarding alimony was inequitable. After noting that the wife in that case was awarded "some marital assets but no marital liabilities," we wrote:

"However, the record contains no valuation evidence as to the automobile, the truck, the business, or the parties' personal property. Further, the only evidence regarding the amount of [the] husband's expenses is that his alimony payments are $400 and the mortgage payment is $166. There is no evidence as to the amount of the monthly payments for the automobile, the truck, the motor-vehicle liability insurance, the business loan, or the payment on the four-wheeler. Without that information, it is impossible for us to determine whether those payments consume the husband's monthly income and financially cripple him, as he argues. 'A party who complains of error by the trial court must affirmatively show from the record on appeal that such error was in fact committed.' Walnut Equip. Leasing Co. v. Graham, 532 So.2d 655, 655 (Ala. Civ. App. 1988)."

Combs, 4 So.3d at 1149.

Similarly, in this case, because the parties failed to introduce evidence of the value of most of the assets, including the marital residence, specifically included in the judgment dividing the marital property or the items of personal property that were awarded to the parties, we are unable to conduct a meaningful review of whether the property division is equitable. Accordingly, we cannot say that the trial court's judgment dividing the marital property is plainly and palpably wrong.

The husband also asserts that, as he demonstrated in the exhibits attached to his postjudgment motion, he does not have the financial ability to meet the monthly payments the trial court ordered him to pay the wife. In his appellate brief, the husband does not argue that the wife failed to demonstrate a need for periodic alimony. Thus, any argument the husband could have made regarding whether the wife demonstrated a need for periodic alimony is deemed waived. Edosomwan v. A.B.C. Daycare & Kindergarten, Inc., 32 So.3d 591, 593 (Ala. Civ. App. 2009) (citing Tucker v. Cullman-Jefferson Ctys. Gas Dist., 864 So.2d 317, 319 (Ala. 2003) )(stating that issues not raised and argued in brief are waived).

" '[T]he purpose of periodic alimony is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.' O'Neal [v. O'Neal ], 678 So.2d [161] at 164 [ (Ala. Civ. App. 1996) ] (emphasis added). However, '[t]he amount awarded to one spouse should not "cripple" the other spouse.' Daugherty v. Daugherty, 579 So.2d 1377, 1380 (Ala. Civ. App. 1991)."

Rubert v. Rubert, 709 So.2d 1283, 1285 (Ala. Civ. App. 1998).

The record in this case shows that the monthly obligations imposed on the husband in the judgment include a mortgage payment of $648, periodic alimony of $856.50, and COBRA payments for the wife's health insurance for 18 months. According to a letter from the husband's employer's benefits specialist that was attached as an exhibit to the husband's postjudgment motion, the COBRA payments for the wife would be $424.86 each month. Therefore, pursuant to the divorce judgment, the husband must pay a total of $1,929.36 in court-ordered payments each month.

The husband submitted his affidavit in support of his postjudgment motion. In his affidavit, and in his brief on appeal, the husband asserts that his gross income for 2014 was $68,315. However, his W-2 form for 2014 indicates that his gross income was $74,264.85 and that his taxable income was $68,315. In its amended judgment, the trial court found that, in 2014, the husband earned $54,060 in net income, or $4,505 a month in take-home pay. The husband contends that his net pay in 2014 was $41,122 and that his monthly take-home pay was $3,426; however, this court cannot determine from the record how the husband reached those figures, and no documentary evidence or testimony supports those figures. In considering the deductions listed on the husband's W-2 form, it appears that the trial court's calculations are correct, and we certainly cannot say that the trial court's calculations are not supported by the evidence. In his affidavit, the husband provided a list of estimated monthly expenses, including rent but excluding the payments he must make to the wife, which totaled $2,339. Using the trial court's figure of $4,505 as the husband's monthly net pay, the husband would be left with approximately $2,166 a month after his expenses are paid. After paying $1,929.36 to meet his court-mandated expenses, the husband would be left with approximately $237 a month. Accordingly, we cannot say that the husband does not have the ability to pay the wife the amounts the trial court ordered.

The husband also contends that the trial judge should have recused himself after allegedly making a comment to the husband's attorney that, as set forth in the husband's motion to recuse, "You might want to speak with your client, and if he still wants a divorce I'm going to hit him hard financially." The comment was apparently made after the trial of the case. In the motion to recuse, the husband asserts that the trial judge admitted to the posttrial mediator that he had made the comment.

However, the alleged comment does not appear in the record on appeal. The husband's attorney did not attach an affidavit (either her own or the mediator's) to the recusal motion, and she took no steps to supplement the record pursuant to Rule 10(f), Ala. R. App. P. Statements made in briefs are not evidence. ("[A]n Geer Bros. v. Walker, 416 So.2d 1045, 1049 (Ala. Civ. App. 1982) appellate court cannot consider statements in brief that are not supported by the record."). Thus, the husband's assertions regarding the statement allegedly made by the trial judge cannot be the basis for reversal of the trial court's denial of the motion to recuse. Accordingly, we find no basis for determining that the trial judge erred in denying the husband's motion requesting that the trial judge recuse himself.

For the reasons set forth above, the judgment is affirmed.

AFFIRMED.

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

      "Sexting" is sending a sexually explicit text message from a cellular telephone.

      It appears from the record that the wife's first husband died.

      Before the trial, the parties submitted "Lee County Family Court's Divorce Disclosure Forms" to the trial court. On his forms, the husband estimated values for a number of the parties' assets, including the marital residence. However, those forms were not introduced as evidence during the trial.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    EX PARTE Paul W. DUMAS
    (In re: Ruth Howell Walters v. Laura Walters Wood)
    2170171
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Mickey J.G. McDermott, Montgomery, for petitioner.
    Letta Dillard Gorman, Geneva, for respondent.
   MOORE, Judge.

Paul W. Dumas, the father of S.K.D. and K.W.D. ("the children"), petitions this court for a writ of mandamus directing the Montgomery Circuit Court ("the trial court") to vacate its order awarding custody of the children to their maternal grandmother, Ruth Howell Walters ("the maternal grandmother"). The father also requests this court to direct the trial court to transfer the action to the Lowndes Circuit Court. We dismiss the petition in part and deny it in part.

Background and Procedural History

The exhibits attached to the petition and the answer filed by the maternal grandmother reveal the following. On February 6, 2015, the father and Laura Walters Wood ("the mother") entered into a settlement agreement in a divorce action in the Lowndes Circuit Court. The mother and the father agreed that they would have joint legal custody of the children, that the mother would have "primary" physical custody of the children, and that the father would exercise visitation.

On September 22, 2015, the maternal grandmother filed a petition in the trial court, seeking grandparent visitation with the children. On November 13, 2015, the trial court dismissed the maternal grandmother's petition. On December 10, 2015, the maternal grandmother filed a motion to vacate the trial court's order of dismissal and sought to amend her petition to request custody of the children.

On August 22, 2016, the mother filed an answer to the maternal grandmother's petition and a motion to dismiss the petition. After the maternal grandmother filed a response to the mother's filing, the mother filed a subsequent response on September 12, 2016, requesting the dismissal of the action or to transfer the action to the Lowndes Circuit Court; she also attached an affidavit of the father in support of her response.

After a hearing, at which only the maternal grandmother and her attorney were present, the trial court entered an order on September 25, 2017, awarding custody of the children to the maternal grandmother.

On September 26, 2017, the mother filed a motion to set aside the order. On September 28, 2017, the father, who apparently had not been made a party to the action or served, filed an expedited motion to set aside the award of custody and to dismiss the case; he also requested that the action be transferred to the Lowndes Circuit Court and that he be awarded temporary custody of the children. He alleged that he had not been given notice of the action.

On September 28, 2017, the father filed in the Lowndes Circuit Court a petition to modify the parties' divorce judgment, a motion for pendente lite custody of the children, and a motion for suspension of his child-support obligation pendente lite.

On October 3, 2017, the father filed in the trial court, among other things, a motion for an emergency hearing and a motion for the immediate return of the children to him.

On November 6, 2017, the trial court entered an order stating that a hearing on the mother's motion to set aside the September 25, 2017, order had been held on November 2, 2017, at which the father, the mother, the maternal grandmother, and their attorneys, among others, had been present. The trial court ordered that it would retain jurisdiction of the action and that pendente lite custody of the children would remain with the maternal grandmother pending a final hearing.

The father filed his mandamus petition with this court on November 10, 2017.

Standard of Review

"As this Court has consistently held, the writ of mandamus is a
" ' "drastic and extraordinary writ that will be issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court." '
" Ex parte Wood, 852 So.2d 705, 708 (Ala. 2002) (quoting Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala. 1993) )."

Ex parte Alabama Dep't of Transp., 978 So.2d 17, 20-21 (Ala. 2007).

Discussion

In his mandamus petition, the father argues that the award of custody to the maternal grandmother was entered without notice being afforded to him and that the action should be transferred to the Lowndes Circuit Court. We note, however, that the trial court's November 6, 2017, order indicates that a hearing had been held on the mother's motion to set aside the September 25, 2017, order, at which the father and his attorney were present and arguments of counsel were presented. No transcript of that hearing is before this court, so we cannot determine whether the father made a general appearance or a special appearance, whether the parties were given an opportunity to present evidence and declined, or otherwise what took place at that hearing. "An appellate court does not presume error; the appellant has the affirmative duty of showing error." Greer v. Greer, 624 So.2d 1076, 1077 (Ala. Civ. App. 1993). Without a transcript indicating that the father made a special appearance, that the parties were denied the opportunity to present evidence, or other error, we must presume that the trial court's hearing on November 2, 2017, cured any deficiency in notice that previously existed. Chisolm v. Crook, 272 Ala. 192, 194, 130 So.2d 191, 193 (1961). Because the November 6, 2017, order awarded the maternal grandmother pendente lite custody of the children, we conclude that that order impliedly vacated the September 25, 2017, custody order, thus rendering any challenge by the father to the September 25, 2017, order moot. See, e.g., J.L. v. G.N., 210 So.3d 1136, 1139 (Ala. Civ. App. 2016). Based on the foregoing, we dismiss the father's petition to the extent that it challenges the September 25, 2017, order.

Turning to the father's argument that this case should be transferred to the Lowndes Circuit Court, we initially note that the father fails to cite any authority in support of his argument.

" Rule 21(a), Ala. R. App. P., requires that a petition to an appellate court for the writ of mandamus 'shall contain ... a statement of the reasons why the writ should issue, with citations to the authorities and the statutes relied on.' (Emphasis added.) Similarly, Rule 28(a)(5) [now Rule 28(a)(10) ], Ala. R. App. P., requires that arguments in briefs contain 'citations to the authorities, statutes and parts of the record relied on.' (Emphasis added.) It is settled that a failure to comply with the requirements of Rule 28(a)(5) [now Rule 28(a)(10) ] requiring citation of authority for arguments provides the Court with a basis for disregarding those arguments:
" 'When an appellant fails to cite any authority for an argument on a particular issue, this Court may affirm the judgment as to that issue, for it is neither this Court's duty nor its function to perform an appellant's legal research. Rule 28(a)(5) [now Rule 28(a)(10) ]; Spradlin v. Birmingham Airport Authority, 613 So.2d 347 (Ala. 1993).'
" City of Birmingham v. Business Realty Inv. Co., 722 So.2d 747, 752 (Ala. 1998). See also McLemore v. Fleming, 604 So.2d 353 (Ala. 1992) ; Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala. 1985) ; and Ex parte Riley, 464 So.2d 92 (Ala. 1985). If anything, the extraordinary nature of a writ of mandamus makes the Rule 21 requirement of citation to authority even more compelling than the Rule 28 requirement of citation to authority in a brief on appeal."

Ex parte Showers, 812 So.2d 277, 281 (Ala. 2001). Based on the foregoing, we decline to address the father's argument that this action should be transferred to the Lowndes Circuit Court, and we deny his mandamus petition as to this issue.

PETITION DISMISSED IN PART AND DENIED IN PART.

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

      We interpret this provision as an agreement that the mother would have sole physical custody of the children. See, e.g., Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ. App. 2003).

      There is no order granting this motion in the attachments to the mandamus petition or the answer; however, from the subsequent proceedings discussed infra, we can infer that that motion was granted.

      The order did not reference the motion to set aside or the other motions that had been filed by the father.


text:
    EX PARTE Amy Dolena BRESLOW
    (In re: Amy Dolena Breslow v. Jonathan Lee Breslow)
    2170264
    Court of Civil Appeals of Alabama.
    February 2, 2018
    Michael C. Lambert, Athens, for petitioner.
   THOMPSON, Presiding Judge.

Amy Dolena Breslow ("the mother") petitions this court for a writ of mandamus directing the Limestone Circuit Court ("the trial court") to enter an order dismissing the modification and contempt petition that Jonathan Lee Breslow ("the father") filed in the trial court. For the reasons set forth below, we deny the mother's petition.

The materials submitted to this court in support of and in opposition to the mother's petition indicate the following. On May 11, 2016, the trial court entered a judgment divorcing the mother and the father. In the judgment, the trial court incorporated the parties' agreement, executed May 6, 2016, that provided, among other things not relevant to this matter, that they "shall share Joint Legal Custody" of the parties' children, with the mother having sole physical custody. The agreement further provided that the father

"shall receive visitation with the minor children on eighty (80) days throughout each and every year, with time to be prearranged by agreement of the parties and with the [mother] having the final say on the time, place and duration of said visitations. The parties agree to encourage each other to coordinate visitation and activities in advance and be respectful of the time schedules of either party in coordination of the visitation due to a standard schedule not being followed by the parties."

It was also agreed that the mother could relocate at her discretion. Because the children were not yet of an age to travel, the father agreed to be responsible for arranging transportation to visit with the children and to pay for his travel expenses, as well as the costs and expenses he and the children incurred during his visitation periods.

The materials before us indicate that on October 15, 2017, the father filed an "amended petition for modification and contempt" ("the modification petition"). In the modification petition, the father stated that, after the divorce judgment was entered, the mother relocated to California.

He alleged that, when the mother moved, she told him " 'she would do everything in her power to keep the Father's children from him.' " The father said that the mother has denied him visitation with the children since December 10, 2016. Consequently, the father said, he was requesting that the trial court modify the existing visitation provision in the divorce judgment and, instead, implement the standard "out-of-state visitation schedule." The father also sought a change in the cost arrangement regarding visitation and to have the mother held in contempt for her "severe breach" of the existing visitation order.

The mother filed a motion to dismiss the modification petition "for lack of subject matter jurisdiction." Specifically, the mother argued in her motion that the children and she-the custodial parent-reside in California and have not lived in Alabama "in well over twelve (12) months." As a result, the mother argued, the trial court "is without subject matter jurisdiction to consider the [father's] petition to modify" the visitation provision of the divorce judgment. The trial court denied the mother's motion to dismiss on October 27, 2017. The mother filed her petition for a writ of mandamus with our supreme court on December 8, 2017. Because this court has original appellate jurisdiction over the matter pursuant to § 12-3-10, Ala. Code 1975, our supreme court transferred the matter to this court on December 12, 2017.

In her petition seeking a writ of mandamus, the mother argues that under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, the trial court has lost continuing, exclusive jurisdiction to determine custody or visitation in this matter.

"The UCCJEA is a jurisdictional act that establishes subject-matter jurisdiction over child-custody proceedings. See Ex parte M.M.T., 148 So.3d 728, 731 (Ala. Civ. App. 2014) (quoting § 30-3B-201, Ala. Code 1975, Official Comment). 'An Alabama ... juvenile court may not make any custody determination-neither an initial custody determination nor a determination as to modification of custody-regarding a child unless that court has jurisdiction to make an initial custody determination under the UCCJEA....' J.D. v. Lauderdale Cnty. Dep't of Human Res., 121 So.3d 381, 384-85 (Ala. Civ. App. 2013)."

H.T. v. Cleburne Cty. Dep't of Human Res., 163 So.3d 1054, 1062 (Ala. Civ. App. 2014).

" ' "Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Integon Corp., 672 So.2d 497, 499 (Ala. 1995). The question of subject-matter jurisdiction is reviewable by a petition for a writ of mandamus. Ex parte Flint Constr. Co., 775 So.2d 805 (Ala. 2000).'
" Ex parte Liberty Nat'l Life Ins. Co., 888 So.2d 478, 480 (Ala. 2003)."

Ex parte Progressive Specialty Ins. Co., 31 So.3d 661, 663 (Ala. 2009).

In her petition, the mother relies on § 30-3B-202(a)(1), Ala. Code 1975, a part of the UCCJEA, to support her contention that the trial court no longer had jurisdiction to consider the father's modification petition. That statute provides that an Alabama court that

"has made a child custody determination consistent with Section 30-3B-201 [involving jurisdiction to make an initial custody determination] or Section 30-3B-203 [involving jurisdiction to modify a custody determination made in another state] has continuing, exclusive jurisdiction over the determination until:
"(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships ...."

§ 30-3B-202(a).

The mother then cites Ex parte Collins, 184 So.3d 1036, 1038 (Ala. Civ. App. 2015), for the proposition that

"the fact that a parent remains in this state does not, in and of itself, establish continuing, exclusive jurisdiction. A court must still determine whether the child and at least one parent have a significant connection to this state and whether substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. See Patrick v. Williams, 952 So.2d 1131 (Ala. Civ. App. 2006)."

The mother's argument is contrary to the law applicable in situations in which a custodial parent has moved from the state after an initial custody determination, made during the course of a divorce proceeding, awarded joint legal custody to a child's parents. The Alabama Parent-Child Relationship Protection Act ("the relocation act"), § 30-3-160 et seq., Ala. Code 1975, governs questions of jurisdiction and venue in such a situation. The relocation act mandates that, if only one person having joint custody, joint legal custody, or joint physical custody pursuant to an initial custody award maintains a principal residence in this state, "the child shall have a significant connection with this state" and the trial court retains continuing jurisdiction. § 30-3-169.9(b), Ala. Code 1975. We note that the opinion in Ex parte Collins, supra, does not indicate whether the parties in that case had been awarded joint custody, joint legal custody, or joint physical custody. It also does not appear from the opinion that the parties argued that § 30-3-169.9 was applicable in that matter. Therefore, we conclude that the language from Collins that the mother relies on to support her argument that the trial court does not have jurisdiction in this case is inapposite. In other words, Collins is not dispositive of this matter.

The father's modification petition avers that the father resides in Limestone County. The mother does not dispute that the father has continued to live in Alabama since the parties' divorce. Because the father has maintained his principal residence in Alabama, there is no need for the trial court to determine whether the child and at least one parent "have a significant connection to this state." § 30-3B-202(a)(1). Pursuant to § 30-3-169.9(b), the trial court may retain continuing jurisdiction over custody of the children and the enforcement of the divorce judgment. Accordingly, the trial court did not err in denying the mother's motion to dismiss the modification petition.

The mother has failed to demonstrate that she has a clear legal right to a dismissal of the modification petition. Accordingly, the petition for a writ of mandamus is denied.

PETITION DENIED.

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

      In her petition for a writ of mandamus, the mother asserts that the father's modification petition was filed as a "counterclaim" to a complaint the State of Alabama had filed to enforce child support. No such complaint appears in the materials submitted to this court. This court called for answers to the petition but received none; thus, we accept as true the averments in the mother's mandamus petition. See Ex parte Turner, 840 So.2d 132, 134-35 (Ala. 2002) (holding that when a respondent fails to challenge factual allegations contained in a petition for the writ of mandamus, the appellate court accepts as true the factual statements in the petition).

      Section 30-3-169.9 provides:
      "(a) In those instances where the change of principal residence of a child results in the relocation of a child to a residence outside this state, the provisions of Sections 30-3B-101 to 30-3B-314, inclusive [i.e., the UCCJEA], shall apply to actions commenced under this article.
      "(b) Where the parties have been awarded joint custody, joint legal custody, or joint physical custody of a child as defined in Section 30-3-151, and at least one parent having joint custody, joint legal custody, or joint physical custody of a child continues to maintain a principal residence in this state, the child shall have a significant connection with this state and a court in fashioning its judgments, orders, or decrees may retain continuing jurisdiction under Sections 30-3B-202 to 30-3B-204, inclusive, even though the child's principal residence after the relocation is outside this state.
      "(c) In a proceeding commenced to modify, interpret, or enforce a final decree under this article, where jurisdiction exists under this section or otherwise as provided by law and where only one person having joint custody, joint legal custody, or joint physical custody of a child continues to maintain a principal residence in this state, notwithstanding any law to the contrary, venue of all proceedings under this article is changed so that venue will lie either in the original circuit court rendering the final decree or in the circuit court of the county where that person having joint custody, joint legal custody, or joint physical custody has resided for a period of at least three consecutive years immediately preceding the commencement of an action under this article. The person having joint custody, joint legal custody, or joint physical custody who continues to maintain a principal residence in this state shall be able to choose the particular venue as herein provided, regardless of which party files the petition or other action."
      (Emphasis added.)


text:
    G.S. v. R.L.
    G.S. v. D.K.
    G.S. v. G.R.
    2160643 2160644 2160645
    Court of Civil Appeals of Alabama.
    February 23, 2018
    Cecilia A. Pope, Huntsville, for appellant G.S.
    Shannon Matthew Moore, Huntsville, for appellee R.L.
    Coby McEachern Boswell, Huntsville, for appellee D.K.
    Meteasa L. Collins, Legal Services Alabama, Inc., Huntsville, for appellee G.R.
   MOORE, Judge.

G.S. ("the mother"), the mother of S.L., M.K., and P.S. ("the children"), appeals from a judgment, entered by the Madison Juvenile Court ("the juvenile court") in three separate cases on May 10, 2017, transferring custody of S.L., M.K., and P.S. from the mother to R.L., D.K., and G.R., respectively.

Facts and Procedural Background

S.L. was born on November 14, 2011; M.K. was born on October 29, 2012; and P.S. was born on May 29, 2014. Since their births, the children had resided with the mother in Oak Ridge, Tennessee, until the children's maternal grandmother, G.R. ("the maternal grandmother"), on or about March 7, 2016, took the children to her residence in Huntsville, Alabama.

On March 14, 2016, the maternal grandmother filed in the juvenile court three separate, but almost identical, petitions seeking custody of each child on the basis of the children's alleged dependency as a result of their being exposed to drug abuse, neglected, and abandoned. The petition concerning S.L. was assigned case no. JU-16-281.01; the petition concerning M.K. was assigned case no. JU-16-282.01; and the petition concerning P.S. was assigned case no. JU-16-283.01. In each petition, the maternal grandmother alleged that the children had been residing with her for two months. The maternal grandmother further notified the juvenile court that a Tennessee court had previously opened cases and entered orders relating to the children, although the maternal grandmother did not specify the nature of those cases and orders.

Before any service was made on the mother or any other interested parties, the juvenile court awarded the maternal grandmother pendente lite custody of the children on May 6, 2016. R.L., who is a resident of Tennessee, and D.K., who is a resident of Kentucky, subsequently appeared before the juvenile court, asserting their paternity of S.L. and M.K., respectively. R.L. and D.K. filed answers and counterclaims denying the dependency of, and seeking custody of, S.L. and M.K., respectively. In their counterclaims, which were filed in 2017, R.L. and D.K. both pointed out that the children had been residing in Alabama with the maternal grandmother for more than six consecutive months and both purported to submit to the jurisdiction of the juvenile court to decide the question of the dependency and custody of S.L. and M.K.

The juvenile court consolidated the cases for a single trial, which commenced on March 16, 2017. On March 17, 2017, the juvenile court entered an order awarding pendente lite custody of S.L. to R.L. and a separate order awarding pendente lite custody of M.K. to D.K. After the trial was concluded on April 6, 2017, the juvenile court, on May 10, 2017, rendered a judgment, which was entered in all three cases, finding that S.L. and M.K. were not dependent but that a change of custody to their respective fathers would "promote the best interests of [S.L. and M.K.] and that the benefits to [S.L. and M.K.] of a change of custody outweigh[s] the inherent detriments." The juvenile court further found P.S. to be a dependent child and awarded custody of P.S. to the maternal grandmother. On May 12, 2017, the mother filed notices of appeal in all three cases. This court consolidated the appeals.

Discussion

The maternal grandmother commenced the proceedings in the juvenile court by filing petitions indicating that the children had resided in Tennessee since their births but that they had been residing with her in her home in Huntsville for the preceding two months. That information should have triggered the juvenile court to investigate its jurisdiction over the petitions under the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), §§ 30-3B-101 et seq., Ala. Code 1975, which governs subject-matter jurisdiction over all child-custody proceedings, including dependency and modification proceedings. See Ala. Code 1975, § 30-3B-102(4).

The UCCJEA generally provides that an Alabama court may exercise jurisdiction over a child-custody proceeding only when Alabama is the home state of the child at issue. See J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 384-85 (Ala. Civ. App. 2013). Section 30-3B-102(7), Ala. Code 1975, defines "home state" as

"[t]he state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. ... A period of temporary absence of the child or any of the mentioned persons is part of the period."

The information in the petitions in these cases indicated that Tennessee, not Alabama, was the home state of the children at the time of the filing of the petitions. Accordingly, the juvenile court could not have exercised home-state jurisdiction but, rather, could have exercised jurisdiction only as otherwise authorized by the UCCJEA.

Under §§ 30-3B-201(a)(2) or (a)(3), an Alabama court without home-state jurisdiction can exercise jurisdiction over a child-custody proceeding if a court, or all courts, with home-state jurisdiction has declined to exercise jurisdiction on the ground that the Alabama court constitutes the more appropriate forum. The record in these cases does not contain any order from any Tennessee court declining to exercise its home-state jurisdiction over the children on the ground that the juvenile court constituted a more appropriate forum. Thus, the juvenile court did not have jurisdiction over the maternal grandmother's dependency petitions or R.L.'s and D.K.'s counterclaims seeking custody of S.L. and M.K., respectively, through this mechanism provided in the UCCJEA.

The UCCJEA also allows an Alabama court without home-state jurisdiction to exercise temporary emergency jurisdiction. Section 30-3B-204(a), Ala. Code 1975, provides:

"A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse."

In her petitions, the maternal grandmother alleged that she was keeping the children in Alabama because they were being subjected to abuse and neglect in the mother's home in Tennessee and because the mother had abandoned the children. The guardian ad litem for the children filed a motion summarizing statements made by the maternal grandmother that indicated that the maternal grandmother had removed the children from the home of the mother because the mother's house was unclean and because the mother and her paramour were not properly caring for the children. Based on that information, the juvenile court awarded the maternal grandmother pendente lite custody of the children.

However,

"[t]he temporary emergency jurisdiction that an Alabama court may exercise pursuant to § 30-3B-204 is 'extremely limited,' see M.B.L. [v. G.G.L.], 1 So.3d [1048] at 1051 [ (Ala. Civ. App. 2008) ], and an Alabama court must comply with the manner of exercising that jurisdiction set out in that section. LaRose v. LaRose, 71 So.3d 651, 657 (Ala. Civ. App. 2011)."

J.D., 121 So.3d at 385. Section 30-3B-204 provides that, upon making an emergency order for the protection of a child who is only temporarily in this state, an Alabama court must ascertain whether any previous custody determination has been made regarding the child at issue. If a previous enforceable child-custody determination has been entered by a court of another state, the juvenile court "shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order." § 30-3B-204(d).

The record in these cases shows no attempt by the juvenile court to comply with § 30-3B-204. Although the maternal grandmother had notified the juvenile court in her petitions that a previous child-custody determination regarding the children might have been made by a Tennessee court, the juvenile court did not contact that court to resolve the jurisdictional issue, as required by the UCCJEA, and did not limit the duration of its pendente lite custody award to the maternal grandmother. Even when the juvenile court learned at trial on March 16, 2017, that an Anderson County, Tennessee, court might have made a custody determination concerning S.L. and M.K., see note 4 infra, the juvenile court did not contact that court; instead, it asserted the power to modify any previous custody determination based on the theory that R.L. and D.K. had voluntarily submitted to its jurisdiction. Subject-matter jurisdiction over a child-custody proceeding, including a custody-modification action, cannot be conferred upon an Alabama court by an agreement of the parties. M.B.L. v. G.G.L., 1 So.3d 1048, 1051 (Ala. Civ. App. 2008) (citing Official Comment to Ala. Code 1975, § 30-3B-201 ).

A juvenile court with only temporary emergency jurisdiction cannot adjudicate the dependency of a child unless and until it first complies with § 30-3B-204 by determining whether a previous enforceable child-custody determination has been made in the child's home state and by giving the home-state court an opportunity to assume its continuing, exclusive jurisdiction over the child. See J.D., supra. In these cases, the juvenile court purported to adjudicate the dependency of the children without first complying with § 30-3B-204. Compounding its error, the juvenile court determined that S.L. and M.K. were not dependent and then continued to assume jurisdiction to "modify" their custody rather than dismissing the cases. See, e.g., K.C.G. v. S.J.R., 46 So.3d 499, 501-02 (Ala. Civ. App. 2010) ("If a juvenile court determines that the child is not dependent, the court must dismiss the dependency petition".). Therefore, its final judgment awarding custody of S.L., M.K., and P.S. to R.L., D.K., and G.R., respectively, is void for lack of subject-matter jurisdiction. See J.D., supra.

A void judgment will not support an appeal.

A.L. v. Morgan Cty. Dep't of Human Res., 102 So.3d 394, 396 (Ala. Civ. App. 2012). Therefore, we dismiss the appeals in all three cases, albeit with instructions to the juvenile court to develop a record regarding whether the children had been the subjects of previous enforceable child-custody determinations, and, upon making that factual determination, to follow the letter and the spirit of § 30-3B-204 to determine the appropriate court to proceed further with each case. See J.D., 121 So.3d at 386.

Conclusion

We conclude that the juvenile court had authority to exercise its temporary emergency jurisdiction to address the custody of the children, but that it failed to comply with § 30-3B-204 and, therefore, acted beyond its temporary emergency jurisdiction by making dependency and custody determinations in its final judgment. We therefore dismiss the mother's appeals from the juvenile court's final judgment, albeit with instructions to the juvenile court to vacate the judgment, which was entered in each case. In compliance with this opinion, the juvenile court is ordered to exercise its temporary emergency jurisdiction in accordance with § 30-3B-204 and to make such orders as are necessary for the protection of the children pending resolution of the jurisdictional issue.

2160643-APPEAL DISMISSED WITH INSTRUCTIONS.

2160644-APPEAL DISMISSED WITH INSTRUCTIONS.

2160645-APPEAL DISMISSED WITH INSTRUCTIONS.

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

      Although the maternal grandmother did not use the word "dependency" in her petitions, she alleged facts that, if proven, would have supported a finding of dependency, and, therefore, she invoked the dependency jurisdiction of the juvenile court. See generally M.B. v. R.P., 3 So.3d 237, 245 (Ala. Civ. App. 2008).

      The evidence in the record indicates that the children had actually been visiting with the maternal grandmother for only approximately one week and that she had decided not to return the children to their home in Tennessee at the end of that visitation.

      Sections 30-3B-201(a)(2) and (a)(3) provide that a foreign court may determine that an Alabama court is the more appropriate forum either because the foreign court is an inconvenient forum, see § 30-3B-207, Ala. Code 1975, or because the party invoking the jurisdiction of the foreign court has committed unjustifiable conduct, see § 30-3B-208, Ala. Code 1975.

      The attorneys for R.L. and D.K. informed the juvenile court that an Anderson County, Tennessee, court had awarded the mother child support payable by R.L. and D.K. but that its child-support orders had been "extinguished." From that information, the juvenile court inferred that the mother had been awarded custody of the children, but the record does not contain any custody orders from the Anderson County, Tennessee, court. At any rate, the record does not contain any evidence that the Anderson County, Tennessee, court had declined to exercise any continuing exclusive jurisdiction it might have had over the custody of S.L. and M.K.

      Some information indicates that the father of P.S. had died before the dependency proceedings were commenced, but no testimony was presented regarding whether a child-custody determination had been made regarding P.S. before the death of his father.

      In their counterclaims, R.L. and D.K. assumed that the juvenile court had jurisdiction over their custody claims because the children had by then been residing in Alabama with the maternal grandmother for the previous six months. Under the UCCJEA, however, "home-state" jurisdiction is determined at the commencement of the proceeding, not later. See § 30-3B-102(7).


author: PER CURIAM.

text:
    Ex parte State of Alabama
    (In re STATE of Alabama v. Kentory Dashawn BROWN)
    CR-14-1076
    Court of Criminal Appeals of Alabama.
    September 1, 2017
    Daryl D. Bailey, dist. atty., Montgomery, for petitioner.
    Aylia McKee, chief public defender, and G. Nicholas Wallace, asst. public defender, Montgomery, for respondent.
   PER CURIAM.

The District Attorney for the 15th Judicial Circuit filed this petition for a writ of mandamus requesting that this Court direct Montgomery District Judge W. Troy Massey and Johnny Hardwick, Presiding Judge of the Montgomery Circuit Court, to rescind their orders effectively granting Kentory Dashawn Brown's discovery request. We deny the petition.

On or about March 24, 2015, Brown was charged with third-degree burglary and second-degree theft of property. On March 25, 2015, Brown filed in the district court a motion requesting the appointment of an attorney, a preliminary hearing, and a bond hearing. On April 13, 2015, Brown moved for the State to turn over all discovery permitted by Rule 16.1, Ala. R. Crim. P. The motion was granted the same day.

On April 17, 2015, the case was called for a preliminary hearing in the district court. Brown moved for a continuance, citing as the reason that the State had failed to provide the requested discovery. The district court continued the case until May 1, 2015. On May 1, 2015, before the preliminary hearing, Brown again requested the discovery. In refusing to produce the requested discovery, the State argued 1) that the case was under active investigation and that nothing had been turned over to the district attorney's office by the Montgomery Police Department, 2) that the demand for discovery was premature because no indictment had been issued, and 3) that the district court had limited jurisdiction in felony criminal cases and, not being the trial court, could not order discovery. The preliminary hearing went forward. Probable cause was found, and both cases were bound over to the Montgomery County grand jury.

On May 4, 2015, the district court ordered the State to turn over discovery within seven days of the date of its order. On May 7, 2015, the State filed a motion to reconsider and a motion for stay.

On May 11, 2015, the State filed a petition for a writ of mandamus with the presiding judge for the Montgomery Circuit Court, requesting that the circuit court determine that the district court had exceeded its authority in ordering the State to produce discovery and order the district court to rescind its order requiring the State to produce discovery. On May 13, 2015, the circuit court denied the State's petition and ordered that the discovery be turned over when available.

On May 19, 2015, the State filed with this Court a petition for a writ of mandamus and a motion to stay the proceedings. On May 20, 2015, this Court stayed the proceedings below.

The State argues that the district court exceeded its authority when it ordered the State to produce the requested discovery. The State contends that, in a non-capital case, the district court has authority only to accept a guilty plea and to hold preliminary hearings. The State further argues that there is no trial for which to prepare unless and until a grand jury issues an indictment, State ex rel. Baxley v. Strawbridge, 52 Ala.App. 685, 296 So.2d 779, 781 (1974) (holding that except on a plea of guilty, all prosecutions for a felony, except those under military law, must begin with an indictment), which had not yet happened when the district court issued its discovery order. The State also contends that discovery before the issuance of an indictment may impede active investigations by the police or other agencies. To support its argument, the State points to § 12-21-3.1(d), Ala. Code 1975, for the proposition that "[d]iscovery orders prior to the disposition of the criminal matter under investigation are not favored and should be granted only upon a showing that the party seeking discovery has substantial need of the materials and is unable, without substantial hardship, to obtain the substantial equivalent by other means." This Code section, however, relates to the subpoena of law-enforcement officers and investigative reports.

The State relies on a capital case, Drinkard v. State, 777 So.2d 225, 257 (Ala. Crim. App. 1998), rev'd in part on other grounds, 777 So.2d 295, 296 (Ala. 2000) (opinion on application for rehearing), for the proposition that a district court does not have the authority to function as the trial court. Brown argues that the State's reliance on Drinkard is misplaced. Drinkard involves a capital-murder case in which Drinkard filed a motion in the district court requesting a preliminary hearing and permission to examine the crime scene. The district court granted the motion for a preliminary hearing but denied the motion to examine the crime scene because that it lacked subject-matter jurisdiction over the motion. Drinkard filed a motion in limine in the circuit court to exclude the State from introducing any evidence obtained from the crime scene and to preclude any State witnesses from testifying about the evidence found at the victim's residence because Drinkard was unable to test, view, or identify items located at the crime scene. The circuit court denied Drinkard's motion in limine. On appeal of that issue, this Court held that the district court did not have jurisdiction to rule on Drinkard's motion to view the crime scene because the circuit court has exclusive jurisdiction of all felony prosecutions punishable by the sentence of death, citing § 12-12-32, Ala. Code 1975, and Rule 2.2(a), Ala. R. Crim. P. Drinkard, 777 So.2d at 257.

Brown argues that the Alabama Rules of Criminal Procedure support discovery in preliminary hearings conducted in district court. Brown argues that the rule and the statute should be construed to allow discovery pursuant to the plain meaning rule of construction, citing Ex parte Ward, 957 So.2d 449, 452 (Ala. 2006). Brown points out that Rule 2.2(a), Ala. R. Crim. P., based on § 12-12-32(b), Ala. Code 1975, gives the district court and the circuit court concurrent jurisdiction to accept guilty pleas and to impose sentences and to hold preliminary hearings over all felony cases except capital cases. Thus, according to Brown, the rule impliedly vests a district court with the authority to perform functions in felony trials that are not capital cases. Brown contends that, in felony cases before a district court, defense counsel would require access to pretrial discovery in order to know whether a guilty plea or a plea to a lesser charge would be the best resolution for the defendant. Proceeding to a guilty plea without discovery, Brown argues, would constitute malpractice in most cases.

Brown points out that the State does not identify any clear authority that forbids discovery in a non-capital felony case pending in the district court. The State cites Smith v. State, 112 So.3d 1108, 1135 (Ala. Crim. App. 2012) (a case in which the petitioner sought postconviction relief following a capital-murder conviction and death sentence), for the general proposition that discovery matters are within the sound discretion of the trial court, i.e., the circuit court. Brown does not disagree with that proposition but points out that the structure of Rule 2.2 clearly permits a district court to function as a supporting court in the administration of justice where it is so designated by its judicial circuit. And, Brown argues, under the plain-meaning rule, a district court may perform all non-trial functions in non-capital felony cases pursuant to Rule 2.2(a). See Ex parte Ward, 957 So.2d at 452 ("In determining the meaning of a statute or court rule, this Court looks first to the plain meaning of the words as they are written.").

Brown notes that the Committee Comments to Rule 5.1, Ala. R. Crim. P., discuss the history of preliminary hearings and how the process developed so that a defendant would not languish in jail on an unjustifiable complaint. The Comments state that, if the district attorney decides to put on more than the bare minimum hearsay presentation of proof, the preliminary hearing may also serve the function of providing discovery for the defendant. The Comments also state that, where an indictment is returned before the preliminary hearing, thus denying the defendant a right to discovery via the preliminary hearing, there are rules that provide the defendant with formal methods of discovery designed to eliminate trial "by ambush." Brown points out that whether the State will put on more than the "bare minimum hearsay" is unknowable to defense counsel prior to the moment the testimony is presented. Brown contends that because the Comments clearly envision discovery in a preliminary hearing, the district court should be able to manage the proceedings before it and to compel discovery.

Brown contends that Rule 16, Ala. R. Crim. P., "Discovery," is relevant to the issue before this Court in that nothing in Rule 16 limits its applicability only to circuit courts. Brown argues that the various sections of Rule 16 that address discovery by the defendant, discovery by the State, a continuing duty to disclose, protective orders, relief for noncompliance, and depositions do not limit the applicability of Rule 16 to circuit courts. Further, Brown points out language in the Committee Comments to Rule 16.1 approving the trend toward greater discovery for the accused. Brown also points to Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), in which the Supreme Court of the United States held: "The inability of the indigent accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the Alabama preliminary hearing is a 'critical stage' of the State's criminal process at which the accused is 'as much entitled to such aid (of counsel) ... as at the trial itself.' Powell v. Alabama, 287 U.S. [45,] 57, 53 S.Ct. [55,] 60 [77 L.Ed. 158 (1923) ]." 399 U.S. at 9-10, 90 S.Ct. 1999. In order for the assistance of counsel at the preliminary hearing to be meaningful, argues Brown, discovery must be permitted at the preliminary hearing.

Lastly, Brown asserts that this Court should deny the petition based upon the goal of uniformity in the implementation of the Alabama Rules of Criminal Procedure and the fact that, in numerous judicial circuits in Alabama, pre-indictment discovery is routinely provided to defense counsel.

This Court has held: " 'In determining the meaning of a statute or a court rule, this Court looks first to the plain meaning of the words as they are written.' Ex parte Ward, 957 So.2d 449, 452 (Ala. 2006)." W.B.S. v. State, 192 So.3d 417, 419 (Ala. Crim. App. 2015). " 'As an intermediate appellate court, this Court may interpret and apply the existing rules of procedure, but it may not rewrite them.' Ankrom v. State, 152 So.3d 373, 391-92 (Ala. Crim. App. 2011) (Welch, J., dissenting)." 192 So.3d at 420 (emphasis omitted). In Alabama, district courts and circuit courts exercise concurrent jurisdiction to receive guilty pleas in prosecutions of offenses defined by law as felonies not punishable by a sentence of death. Further, district courts and circuit courts have jurisdiction to hold preliminary hearings in prosecutions of felonies not punishable by a sentence of death. See § 12-12-32(b), Ala. Code 1975, and Rule 2.2(a), Ala. R. Crim. P. Nothing in the plain language of § 12-12-32(b) or Rule 2.2(a), Ala. R. Crim. P., bars discovery by Brown. There is a section in Rule 16.1 that bars discovery of certain types of matters, i.e., internal State documents made by the prosecutor or by law-enforcement agents in connection with the investigation or prosecution of the case or statements made by State witnesses or prospective State witnesses. See Rule 16.1(e), Ala. R. Crim. P. Here, the circuit court's order granting discovery does not allow the discovery of such material.

Although the State attempts to argue that district courts are limited solely to receiving pleas of guilty in felony cases and to holding preliminary hearings in prosecutions for felonies not involving a sentence of death, to so strictly limit the scope of the district court's jurisdiction in conducting such matters flies in the face of the district court's authority to function as a court whose jurisdiction is concurrent with the circuit court. Both courts, for example, may appoint counsel and may determine indigency of the defendant. See Rules 6.1 and 6.3, Ala. R. Crim. P.

It is well established that " '[d]iscovery matters are within the sound discretion of the trial judge. ... The court's judgment on these matters will not be reversed absent a clear abuse of discretion and proof of prejudice resulting from the abuse.' " Smith v. State, 112 So.3d 1108, 1136 (Ala. Crim. App. 2012) (quoting Belisle v. State, 11 So.3d 256, 277 (Ala. Crim. App. 2007) ). Although there is no authority for discovery in the preliminary hearing stage, Rowland v. State, 460 So.2d 282, 284 (Ala. Crim. App. 1984), there is also no prohibition. The material that the district court and the circuit court ordered produced is permitted by Rule 16.1. It is well established that " '[a] writ of mandamus will issue to compel the exercise of a trial court's discretion, but it will not issue to control or to review a court's exercise of its discretion unless an abuse of discretion is shown.' " Ex parte Alfa Mut. Ins. Co., 212 So.3d 915, 918 (Ala. 2016) (quoting Ex parte Yarbrough, 788 So.2d 128, 132 (Ala. 2000) ).

Based on the above considerations, there was no abuse of discretion by the district court in its May 4, 2015, discovery order or by the circuit court in its May 13, 2015, discovery order. Although the right to discovery is not unlimited, the discovery ordered in this case is within the guidelines of Rule 16.1, Ala. R. Crim. P., and is proper. Additionally, it should be noted that the circuit court in its May 13, 2015, order, gave the State the option of filing specific objections to discovery requests on a document-by-document basis.

In order to obtain mandamus relief, the petitioner must establish (1) a clear legal right to the relief sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) no adequate remedy at law; and (4) the properly invoked jurisdiction of the reviewing court. See State v. Williams, 679 So.2d 275, 276 (Ala. Crim. App. 1996) (citing Ex parte Department of Human Resources, 620 So.2d 619, 620 (Ala. 1993) ). The State has failed to meet this heavy burden. Accordingly, this petition for a writ of mandamus is denied.

PETITION DENIED.

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

      This petition initially named Judge Eugene Reese as a respondent. Judge Reese, however, has retired since this petition was filed, and Judge Hardwick was selected by his peers as presiding judge of the Montgomery Circuit Court. Therefore, Judge Hardwick has been substituted as a respondent.