author: MOORE, Judge.

text:
    Cedric MCMILLIAN v. Beverly Cole MCMILLIAN
    2160760
    Court of Civil Appeals of Alabama.
    February 23, 2018 Certiorari Denied April 13, 2018
    Alabama Supreme Court 1170516
    Mary Lee Abele, Birmingham, for appellant.
    Anna L. Hart, Vestavia, for appellee.
   MOORE, Judge.

Cedric McMillian ("the husband") appeals from a judgment entered by the Bessemer Division of the Jefferson Circuit Court ("the trial court"), divorcing him from Beverly Cole McMillian ("the wife"). We affirm the trial court's judgment.

Procedural History

On October 20, 2014, the wife filed a complaint seeking a divorce from the husband. After a hearing and based upon the parties' agreement, the husband was ordered to pay pendente lite child support in the amount of $1,700 per month. On November 20, 2014, the husband answered the complaint. After a subsequent hearing, the husband was ordered to pay pendente lite alimony in the amount of $7,000 a month.

On July 7, 2015, the husband filed a motion to dismiss, asserting that the parties had reconciled. The wife filed an objection to the motion to dismiss, denying that the parties had reconciled. The husband's motion to dismiss was denied on March 2, 2016.

After a trial, the trial court entered a judgment on June 19, 2017, that, among other things, divorced the parties; divided the parties' property; and ordered the husband to pay child support in the amount of $1,000 per month, to pay periodic alimony in the amount of $4,000 per month, and to pay the wife a total of $100,000 in alimony in gross. The trial court entered an order on June 23, 2017, appointing a special master to oversee the division of property set forth in the divorce judgment. On June 22, 2017, the husband filed his notice of appeal.

Facts

The parties were married in 2006; two children were born of the marriage. The wife testified that, during the marriage, the husband had committed adultery multiple times and had been physically abusive.

The husband testified that, from 2006 until 2008, he had worked as a business manager for an automobile dealership earning between $90,000 and $100,000 annually and that he had paid most of the parties' monthly expenses. He testified that the automobile industry "pretty much collapsed" in 2008 and that the parties had struggled financially for a period. The wife testified that, in 2010, the parties purchased Majestic Memorials and Florals ("Majestic"), a headstone and floral business, and that she had worked at that business for one year before she left to manage Forest Grove Florist, a business owned by family friends. The husband admitted that the wife had worked for Majestic in the floral department but testified that she had worked there for only four months.

In January or February 2014, the parties purchased George Washington Carver Memorial Gardens, Inc. ("GWC"), a company that operated a cemetery and that, at that time, was involved in a bankruptcy proceeding. The wife testified that the parties had purchased GWC for $19,000; the husband, however, testified that they had purchased it for $18,000. The wife testified that the parties had paid $1,000 in earnest money and that, in order to fund the remaining amount owed on the purchase price of GWC, the parties had used $3,000 from the wife's income-tax-refund proceeds and $5,000 from the Majestic business checking account; she testified that the parties had sold two trucks, which, she said, "were included in the purchase of [GWC]," to pay the remainder of the purchase price, i.e., $10,000. The husband admitted that the wife had helped fund the purchase of GWC. The wife testified that she had worked for GWC managing the employees and the cemetery grounds and handling scheduling and payroll. She testified that she had worked for GWC for nine months, earning $8,000 per month, until the husband had terminated her employment during the pendency of the divorce proceedings. According to the wife, GWC had been very chaotic coming out of the bankruptcy proceedings so, she said, she had put all of her time into getting the business back in order. The husband admitted that the wife had handled the accounting for GWC, but, he said, she had done so for only three months.

The wife testified that the income from Majestic and GWC had been used to support the parties' household. The wife testified that, before the complaint for divorce was filed, the parties had lived in nice homes and had traveled. She testified that she had been able to get her hair and nails done and to have a housekeeper. She testified, however, that, after the divorce action was commenced, she had had to cut back on expenses.

The wife testified that she earns between $1,500 and $2,000 per month from Forest Grove Florist. She testified that the lease for the building that housed Forest Grove Florist had expired and that, as the manager of that business, she did not intend on renewing it because the business was not making enough money. She testified that, at the time of the trial, she was in the process of earning a bachelor of science degree in business administration and that she would complete her degree in one and a half semesters. The wife testified that the husband had not been consistent in paying his pendente lite support obligations and that he owed arrearages in the amount of $49,501.

The husband testified that, at the time of the trial, he was earning approximately $17,500 per month. He testified that he is renting a house for $2,600 per month and that the residence has two kitchens, seven bedrooms, a swimming pool, and a weight room. He testified that he visits Pearl River Resort, a casino, five times per month and that he had wagered over $250,000 there during the course of the divorce proceedings.

Douglas K. Uhler, an accountant and business-value analyst who testified on behalf of the wife, testified that, two weeks after the divorce complaint was filed in October 2014, the husband had formed McMillian Cemeteries, LLC. Uhler testified that, subsequently, on February 5, 2015, McMillian Cemeteries had purchased Zion Memorial Gardens Cemetery ("Zion Memorial") and New Grace Hill Cemetery for $130,000. He testified that, on November 12, 2015, McMillian Cemeteries had purchased the stock of Lincoln Memorial Cemetery for $50,000 and that, on February 16, 2017, McMillian Cemeteries had purchased Sunrise Memorial Gardens for $150,000. The husband testified that McMillian Cemeteries had subsequently sold New Grace Hill Cemetery to his mother, and it was undisputed that the wife had not objected to that sale.

According to Uhler's report, which was submitted as an exhibit at trial, considering the income approach to valuation, which he testified was the most solid approach to valuation for this case, he determined that the total capitalized value of GWC, Zion Memorial, New Grace Hill Cemetery, Lincoln Memorial, and Sunrise Memorial Gardens is $2,227,282. He broke the valuations down by business as follows: GWC-$582,586; Zion Memorial-$899,125; New Grace Hill Cemetery-$248,523; Lincoln Memorial-$331,365; and Sunrise Memorial Gardens-$165,682. Uhler also testified that, because he did not have enough information to determine Majestic's value using the income approach, he had, instead, determined Majestic's net equity to be $53,173.

David Hughett, an accountant hired by the husband, testified that he had valued the assets as follows: Zion Memorial-$224,438; Lincoln Memorial-negative $24,025; GWC-$205,776; and Majestic-$74,194.

Hughett did not testify as to a valuation of Sunrise Memorial Gardens because his valuation had been conducted before McMillian Cemeteries purchased that cemetery. Uhler criticized Hughett's valuation as not complying with the American Institute of Certified Public Accountants' Statement on Standards for Valuation Services.

Discussion

On appeal, the husband argues that the trial court erred by determining that the parties had not reconciled during the pendency of the divorce action. He also argues that the trial court erred by awarding the wife periodic alimony, specifically because, he says, the evidence indicated that the wife was cohabiting with her boyfriend. In the present case, however, the trial court's judgment did not make specific findings of fact on the issues of reconciliation and cohabitation, and the husband did not file a postjudgment motion challenging the sufficiency of the evidence. "[I]n a nonjury case in which the trial court makes no specific findings of fact, a party must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review." New Props., L.L.C. v. Stewart, 905 So.2d 797, 801-02 (Ala. 2004). Accordingly, we conclude that the husband's arguments regarding the sufficiency of the evidence on the issues of reconciliation and cohabitation are not preserved for appellate review.

The husband also argues that the trial court erred in dividing the parties' property and, based on arguments other than the wife's alleged cohabitation with her boyfriend, in awarding periodic alimony to the wife. The trial court's judgment included specific findings of fact on those issues; thus, those issues are preserved for this court's review. New Props., 905 So.2d at 801-02.

" '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, 429-30 (Ala. Civ. App. 2006)."

Walker v. Walker, 216 So.3d 1262, 1270-71 (Ala. Civ. App. 2016).

With regard to the division of property, the husband specifically argues that the trial court erred in determining that the parties' businesses, and the assets of the businesses, were marital property subject to division. Specifically, with regard to the cemeteries that were purchased by McMillian Cemeteries after the divorce action was commenced, the husband argues that the trial court should have considered those cemeteries to be his separate property because those cemeteries were acquired by him during the parties' separation.

"A party's ' "separate estate" is that property over which [he or] she exercises exclusive control and from which the [spouse] ... derives no benefit by reason of the marital relationship.' Gartman v. Gartman, 376 So.2d 711, 713 (Ala. Civ. App. 1978). The separate estate of the parties in a divorce proceeding includes property owned prior to the marriage and property received by gift or inheritance during the marriage. § 30-2-51(a), Ala. Code 1975. Although marital property generally includes property purchased or otherwise accumulated by the parties during the marriage, it may also include the property acquired before the marriage or received by gift or inheritance during the marriage when it is used, or income from it is used, regularly for the common benefit of the parties during their marriage. See § 30-2-51(a), Ala. Code 1975."

Nichols v. Nichols, 824 So.2d 797, 802 (Ala. Civ. App. 2001).

The husband cites no authority holding that property accumulated during the pendency of a divorce proceeding but before the entry of a judgment divorcing the parties must be considered the separate property of the purchasing spouse. Indeed, many courts of other jurisdictions have specifically held to the contrary. See, e.g., Lynnes v. Lynnes, 747 N.W.2d 93, 99 (N.D. 2008) ("Assets accumulated after separation but prior to the divorce are included in the marital estate."); Byington v. Byington, 224 Mich. App. 103, 113-14, 568 N.W.2d 141, 145-46 (1997) (holding that property acquired during parties' separation is not excluded as marital property but that "the court may properly consider manifestations of intent to lead separate lives when apportioning the marital estate"); and O'Neal v. O'Neal, 55 Ark. App. 57, 58-59, 929 S.W.2d 725, 726 (1996) (holding that "assets acquired after separation and prior to divorce are marital property" but that an advance on compensation paid during the marriage but earned after the divorce was not marital property). But see O'Connell v. O'Connell, 889 N.E.2d 1, 11 (Ind. Ct. App. 2008) ("Generally, property acquired after the final separation is excluded from the marital estate.").

Based on Alabama law concerning the distinction between marital property and separate property, as well as the holdings from other jurisdictions, we conclude that property acquired during the parties' separation is not automatically excluded from the marital estate. Instead, such property may be considered by the trial court and apportioned according to the trial court's discretion considering the particular facts and circumstances of the case. Walker, 216 So.3d at 1270-71.

In the present case, the trial court heard evidence indicating that the parties had purchased two businesses before the complaint for a divorce was filed: Majestic and GWC. The wife testified that she had worked for Majestic and that she had contributed financially to and had worked for GWC. She further testified that the income derived from both of those businesses had been used to support the parties' household. Indeed, the wife earned $8,000 per month when she was for working for GWC. After the complaint for a divorce was filed, the husband terminated the wife's employment with GWC, leaving her with only her income from Forest Grove Florist, which she testified was between $1,500 and $2,000 per month. Moreover, during the pendency of the divorce action, while having sole access to the income from Majestic and GWC, the husband failed to fully meet his alimony and child-support obligations, accumulating arrearages totaling almost $50,000. Meanwhile, the husband used the income from the businesses to rent a large home, to take regular gambling trips, and to form a company that purchased several cemeteries that he sought to shelter from division in the divorce action. We conclude that, given the facts of this case, the trial court could have determined that allowing the husband to convert income derived from the businesses purchased and established by the parties to fund the purchase of other businesses and assets while he ignored his support obligations would be inequitable.

Also, with regard to GWC, the cemetery business purchased during the parties' marriage, the husband argues that the wife made minimal contributions to that business. We note, however, that, with regard to GWC, the evidence indicated that the wife had contributed to the initial purchase of that business. Furthermore, the wife testified that she had worked for GWC for nine months earning $8,000 per month until the husband had terminated her employment during the pendency of the divorce action. Although the husband attempted to minimize the wife's contributions to GWC, the wife testified that she had spent all of her time working to bring GWC, which she described as a chaotic business that had been purchased out of a bankruptcy proceeding, back into order.

" ' " '[W]hen a trial court hears ore tenus testimony, its findings on disputed facts are presumed correct and its judgment based on those findings will not be reversed unless the judgment is palpably erroneous or manifestly unjust.' Philpot v. State, 843 So.2d 122, 125 (Ala. 2002). ' "The presumption of correctness, however, is rebuttable and may be overcome where there is insufficient evidence presented to the trial court to sustain its judgment." ' Waltman v. Rowell, 913 So.2d 1083, 1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.2d 77, 79 (Ala. 1985) )."
" ' Fadalla v. Fadalla, 929 So.2d 429, 433 (Ala. 2005).' "

Sullivan v. Sullivan, 211 So.3d 836, 839 (Ala. Civ. App. 2016) (quoting Weeks v. Weeks, 27 So.3d 526, 529 (Ala. Civ. App. 2008) ). Because the trial court could have properly believed the wife's testimony indicating that she had contributed to the purchase of and running of GWC, we do not agree with the husband's argument on this point.

With regard to the award of periodic alimony, the husband specifically argues that the award of alimony was not necessary for the wife to achieve the standard of living the parties enjoyed during the marriage. He argues that, during most of the marriage, the parties had maintained a modest standard of living. The evidence indicated, however, that for nine months in 2014, the wife had earned $8,000 per month from GWC. The wife testified that the parties had lived in nice homes and had traveled and that she had been able to have a housekeeper and to have her hair and nails done. She testified that, after the divorce complaint was filed, she had had to cut back on her expenses. The evidence indicated that the husband, on the other hand, had continued to enjoy a high standard of living, living in a large home, traveling frequently, and gambling large amounts of money.

Even considering that the wife was awarded an income-producing asset, Zion Memorial, we note that the husband testified that the wife had worked only in the accounting and floral parts of the businesses. On the other hand, he testified that there is no aspect of running a cemetery that he does not understand and that he does not even have to hire grave diggers for the cemeteries. Therefore, the trial court could have concluded that the wife would not be able to run Zion Cemetery as efficiently by herself to earn as high of a net income as the parties would have been able to earn using their joint efforts and, thus, that she would need periodic alimony to supplement her income. The trial court could have also considered the wife's testimony indicating that the husband had committed adultery multiple times during the marriage and had physically abused her, which testimony the trial court specifically found credible in its judgment.

Considering the facts and circumstances of this case as discussed above, see Walker, 216 So.3d at 1270-71, we cannot conclude that the trial court exceeded its discretion in dividing the parties' property and in awarding periodic alimony to the wife. Therefore, the trial court's judgment is affirmed.

AFFIRMED.

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

      The parties thereafter notified this court that the wife had filed a postjudgment motion on July 14, 2017. The husband's notice of appeal was held in abeyance pending the disposition of that motion. See Rule 4(a)(5), Ala. R. App. P.

      We note that these amounts actually total $2,227,281.


source: Caselaw Access Project

license: Public Domain

text:
    Richard E. WEITH v. Lydia Dianne WEITH
    2160693
    Court of Civil Appeals of Alabama.
    April 13, 2018
    W. Gregory Hughes, Mobile, for appellant.
    Stephen P. Johnson of Brackin, McGriff & Johnson, P.C., Foley, for appellee.
   MOORE, Judge.

Richard E. Weith ("the husband") appeals from a judgment entered by the Baldwin Circuit Court ("the trial court") divorcing him from Lydia Dianne Weith ("the wife") to the extent that it divided the parties' property. We dismiss the appeal.

Facts and Procedural History

On April 21, 2015, the wife filed a complaint seeking a divorce from the husband. The wife alleged, among other things:

"The [wife] is a bona fide resident citizen of Baldwin County, Alabama, and has been such for over six months preceding the filing of this complaint. The [husband] is a resident citizen of the State of Missouri. The [husband] has numerous contacts with the State of Alabama and owns a one-half interest in a home located in Lillian, Baldwin County, Alabama. The remaining one-half interest in said home is owned by the [wife]."

On May 21, 2015, the husband answered the complaint, admitting that jurisdiction was proper in the trial court.

At the trial, the wife testified that the parties had met in 1999, that they had entered into a relationship, and that, in 2000, she had moved in with the husband, who was living in a house that he owned in Missouri ("the Missouri house"). According to the wife, she had moved out of the Missouri house in 2005 and the parties had remained separated from then until 2007, at which time she moved back in with the husband, who was still living in the Missouri house. The parties were married on April 27, 2012, and, thereafter, they continued to live in the Missouri house together.

The wife testified that she had retired from her employment on July 30, 2013, and that the husband had planned to retire two years after her retirement. The wife testified that, at some point during the marriage, the parties had begun discussing purchasing a "secondary home" in Alabama. According to the wife, the parties had intended on staying in Missouri during the summer months and traveling to Alabama during the winter months.

On September 26, 2014, the parties bought a house in Lillian, Alabama ("the Lillian house"). The Lillian house was titled in both parties' names. The wife testified that, although she had not considered divorcing the husband at that time, she had taken steps to establish residency in Alabama, such as obtaining an Alabama driver's license, in order to procure less costly insurance and to pay lower taxes on the Lillian house. According to the wife, the parties had agreed that the wife would alternate months between the Lillian house and the Missouri house until she got the Lillian house "ready." She testified that she had planned to spend at least half her time at the Lillian house.

The wife testified that, in April 2015, she had been staying at the Lillian house and working on getting the house ready. According to the wife, she and the husband had planned for the husband to come to the Lillian house later that month for their anniversary. However, according to the wife, the husband had telephoned her in early April and had told her to "get [her] ass back [to Missouri] now." She testified that the husband had wanted her to travel back to Missouri to make some arrangements for their dog, but, she said, she did not think it made sense for her to travel back to Missouri just to return to Alabama for their anniversary later that month. According to the wife, the husband had telephoned her a second time and had told her not to come back to Missouri, that he was going to see an attorney, and that she should also see an attorney because, he had said, "this is just not working." The wife testified that she had traveled back to Missouri and that, upon arriving at the Missouri house, had found that all the door locks had been changed. She testified that, because the husband had changed the locks, she had known he was serious about filing for a divorce, so, she said, she had filed for a divorce in the trial court before the husband could file. She testified that she "became residency [sic] at that time." She also testified, however, that she had been "a Baldwin County resident for six months immediately preceding the filing of [the] complaint for divorce."

During the trial, the husband's attorney pointed out to the trial court that it appeared that the trial court lacked subject-matter jurisdiction because the wife had not intended to reside in Alabama until immediately before she filed her divorce complaint. The trial court overruled the husband's objection regarding the lack of subject-matter jurisdiction.

On February 22, 2017, the trial court entered a judgment that, among other things, purported to divorce the parties and to divide the parties' property. On March 17, 2017, the husband filed a "Motion to Alter, Amend or Vacate" the judgment; that motion was denied on May 4, 2017. On June 1, 2017, the husband filed his notice of appeal.

Discussion

Although neither party raises the issue whether the trial court had jurisdiction to enter the divorce judgment in light of § 30-2-5, Ala. Code 1975, this court ordered the parties to file letter briefs on that issue. See D.C.S. v. L.B., 84 So.3d 954, 957 (Ala. Civ. App. 2011) (" ' "[T]his Court is duty bound to notice ex mero motu the absence of subject-matter jurisdiction." ' " (quoting Baldwin Cty. v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003), quoting in turn Stamps v. Jefferson Cty. Bd. of Educ., 642 So.2d 941, 945 n.2 (Ala. 1994) ) ). Both parties submitted briefs.

Section 30-2-5 provides that, "[w]hen the defendant [in a divorce action] is a nonresident, the other party to the marriage must have been a bona fide resident of this state for six months next before the filing of the complaint, which must be alleged in the complaint and proved." "If the residency requirements set forth in § 30-2-5 are not met, the trial court lacks jurisdiction over the divorce action." Alsaikhan v. Alakel, 173 So.3d 925, 927 (Ala. Civ. App. 2015). "The parties cannot by agreement confer jurisdiction." Hilley v. Hilley, 275 Ala. 617, 619, 157 So.2d 215, 218 (1963).

"It is well settled that, for the purposes of § 30-2-5, residence is equivalent to domicile. Ex parte Ferguson, 15 So.3d 520, 522 (Ala. Civ. App. 2008) ; Skieff v. Cole-Skieff, 884 So.2d 880, 883 (Ala. Civ. App. 2003) ; Livermore v. Livermore, 822 So.2d 437, 442 (Ala. Civ. App. 2001) ; and Webster v. Webster, 517 So.2d 5, 7 (Ala. Civ. App. 1987).
" ' " 'Domicile is defined as residence at a particular place accompanied by an intention to stay there permanently, or for an indefinite length of time.' Nora v. Nora, 494 So.2d 16, 17 (Ala. 1986). A person's domicile continues until a new one is acquired. Id." '
" Ex parte Ferguson, 15 So.3d at 522 (quoting Fuller v. Fuller, 991 So.2d 285, 290 (Ala. Civ. App. 2008) ). Black's Law Dictionary 592 (10th ed. 2014) defines 'domicile' as '[t]he place at which a person has been physically present and that the person regards as home; a person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.' This court has noted that when a person lives in one location, his or her intent to return to another location is of primary importance in determining the issue of the person's domicile. Livermore v. Livermore, 822 So.2d at 442 (citing Andrews v. Andrews, 697 So.2d 54, 56 (Ala. Civ. App. 1997), and Jacobs v. Ryals, 401 So.2d 776, 778 (Ala. 1981) ).
"With regard to principles governing the concept of domicile, our supreme court has stated:
" ' "[A] domicile, once acquired, is presumed to exist until a new one has been gained 'facto et animo' ... And in order to displace the former, original domicile by the acquisition of one of choice, actual residence and intent to remain at the new one must concur. 'Domicile of choice is entirely a question of residence and intention, or, as it is frequently put, of factum and animus.' ...
" ' "A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus manendi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question....
" ' "... As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact....
" ' "One who asserts a change of domicile has the burden of establishing it.... And 'where facts are conflicting, the presumption is strongly in favor of an original, or former domicile, as against an acquired one,' etc. ..." '
" Jacobs v. Ryals, 401 So.2d at 778 (quoting Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 513-14 (1945) )."

Alsaikhan, 173 So.3d at 928.

In Hamilton v. Hamilton, 12 So.3d 1236 (Ala. Civ. App. 2009), this court considered whether the wife in that case was domiciled in Alabama for purposes of § 30-2-5. This court stated that the evidence indicated that the wife and the parties' daughter had moved from Georgia to Alabama and that the wife had filed for a divorce from the husband approximately 11 months after moving to Alabama.

"Upon relocating, the wife and the daughter began residing in a vacation home that is owned by the husband. The wife testified that the husband had not objected to her relocating or to her bringing the child with her. The wife also testified that, since she and the daughter had relocated in June 2007, she had enrolled the daughter in school, she had been issued an Alabama driver's license, she had been issued an Alabama motor-vehicle tag, she had registered to vote, and she had purchased a retail clothing business ...."

12 So.3d at 1238. This court concluded that the wife in Hamilton had presented "substantial evidence indicating that she intended to stay in Alabama permanently or, at the very least, for an indefinite length of time." 12 So.3d at 1239.

The present case, however, is distinguishable from Hamilton. In this case, the wife testified that she had obtained an Alabama driver's license after the parties purchased the Lillian house in order to procure less costly insurance and to pay lower taxes on the Lillian house. She testified that the parties had agreed that she would spend alternating months in Missouri and Alabama in order for her to get the Lillian house ready. She further testified that, while she was in Alabama during the month of April, the husband had informed her that he wanted a divorce. Thereafter, the wife returned to Missouri and discovered that the husband had changed the locks on the doors of the Missouri house, which prompted the wife to travel back to Alabama and file for a divorce. The evidence in this case, unlike the evidence in Hamilton, indicates that the wife had not intended to stay in Alabama permanently or for an indefinite length of time for the requisite period; instead, her own testimony indicates that she had intended to return to Missouri up until the month that she filed for a divorce.

"When a person with capacity to acquire a domicil of choice has more than one dwelling place, his domicil is in the earlier dwelling place unless the second dwelling place is his principal home." Restatement (Second) of Conflict of Laws § 20 (1971). In Galva Foundry Co. v. Heiden, 924 F.2d 729, 730 (7th Cir. 1991), the United States Court of Appeals for the Seventh Circuit held that, when a party owns residences in two states, that party may not simply change his or her domicile "by changing his [or her] voter registration or his [or her] driver's license, in order to take advantage of changes in tax law or to opt in or out of federal diversity jurisdiction." Furthermore, in Happy Camper Management, LLC v. Ament, Civil No. 15-927 WJ/GBW, June 16, 2016 (D. N.M. 2016) (not selected for publication), the United States District Court for the District of New Mexico held that the fact that the parties in that case owned a vacation home in New Mexico did not negate their "intent to be domiciled in California."

In the present case, the wife unequivocally testified that she had obtained an Alabama driver's license for the sole purpose of taking advantage of lower taxes and less expensive insurance on the Lillian house. The fact that the parties had purchased the Lillian house as a vacation home did not negate the wife's intent to return to the Missouri house. Furthermore, although the wife testified that she had been a resident of Alabama for six months preceding the filing of the complaint for a divorce, our supreme court has held that "[t]he mere statement of the [wife] that she is a resident of the State of Alabama and has been such 'for the length of time required by law' is insufficient to meet the jurisdictional requirement that the [wife] be domiciled in this state, the [husband] not being shown to be domiciled here." Volin v. Volin, 272 Ala. 85, 87, 128 So.2d 490, 491 (1961).

As stated previously, " ' "intention to return is usually of controlling importance in the determination of the whole question," ' " Alsaikhan, 173 So.3d at 928 ; here, the wife's own testimony indicates that she had intended to return to Missouri up until the month that she filed for a divorce. We, therefore, cannot conclude that the wife overcame the presumption in favor of her original Missouri domicile. Id. Accordingly, we conclude that the wife failed to prove the residency requirement set forth in § 30-2-5. "A judgment rendered without proof of this requirement is void for want of subject matter jurisdiction." Chavis v. Chavis, 394 So.2d 54, 55 (Ala. Civ. App. 1981). Because a void judgment will not support an appeal, we dismiss the appeal, albeit with instructions to the trial court to set aside its void divorce judgment. See, e.g., Paulk v. Paulk, 249 So.3d 521 (Ala. Civ. App. 2017).

The requests for attorney fees filed by both the husband and the wife are denied.

APPEAL DISMISSED WITH INSTRUCTIONS.

Thompson, P.J., and Donaldson, J., concur.

Pittman and Thomas, JJ., recuse themselves.


author: DONALDSON, Judge.

text:
    Maria VASA v. Vasundhara VASA
    2161015
    Court of Civil Appeals of Alabama.
    April 13, 2018
    William Kent Upshaw of Comer & Upshaw, LLP, Birmingham, for appellant.
    Everett W. Wess, Birmingham, for appellee.
   DONALDSON, Judge.

Maria Vasa appeals from an order of the Jefferson Circuit Court ("the trial court") granting a motion filed by Vasundhara Vasa ("the former wife") pursuant to Rule 60(b), Ala. R. Civ. P., and vacating a judgment. We conclude that the order granting the Rule 60(b) motion was interlocutory and, thus, that we do not have jurisdiction over the appeal. Accordingly, we dismiss the appeal.

Background and Procedural History

Stanley Vasa ("the husband") and the former wife were divorced by a judgment of the trial court on May 27, 2005 ("the divorce judgment"). Pursuant to the divorce judgment, the husband was ordered to pay alimony to the former wife in the amount of $700 per month "until the death of either party, the [former wife]'s remarriage, or the commencement of her receipt of her portion of the [husband]'s pension (defined benefit) plan as provided for hereinbelow, whichever shall occur first." The divorce judgment provided that the former wife was to receive 50% of the husband's pension plan and 401(k) Employee Savings Plan. The divorce judgment ordered that the valuation of the former wife's interest in the husband's pension plan was to be determined as of the date of the judgment. The divorce judgment also provided that the husband was to

"provide, unencumbered, a policy of life insurance upon his life in the face amount of [$200,000] for so long as he has a periodic alimony obligation to the [former wife]. The [husband] shall name the [former wife] irrevocable beneficiary thereof and shall furnish a copy of said policy and beneficiary designation to the [former wife] within thirty (30) days of the date [of the divorce judgment] and at reasonable intervals thereafter."

In December 2010, the husband filed a complaint to modify the divorce judgment, naming the former wife as the defendant. The proceeding was assigned case number DR-14-547.01 ("the .01 case"). The husband alleged that he had been diagnosed with a chronic illness and that he could no longer afford alimony payments of $700 per month to the former wife or the premium on the life-insurance policy and that based on that change in circumstances, the divorce judgment should be modified. The former wife answered and counterclaimed, seeking a finding of contempt against the husband for his failure to maintain the life-insurance policy and his failure to comply with other provisions of the divorce judgment.

On August 8, 2011, the trial court entered an order denying the husband's requested relief and finding him in contempt for failing to make alimony payments, failing to provide proof of life insurance to the former wife, and failing to comply with other portions of the divorce judgment.

On May 13, 2013, the former wife filed a "petition for rule nisi," seeking a finding of contempt against the husband. The proceeding was assigned case number DR-14-547.02 ("the .02 case"). The former wife alleged that the husband had failed to pay alimony to her as required by the divorce judgment and that he owed her $2,800 in unpaid alimony. The former wife also alleged that the husband no longer had life insurance as required by the divorce judgment.

On June 14, 2013, the former wife filed a motion in the .02 case seeking to join Maria Vasa, who was the husband's wife at the time of the motion, as a necessary party. In her motion, the former wife alleged that Maria was the attorney-in-fact for the former husband pursuant to a power of attorney, and that Maria had participated in the husband's decision to stop making payments on the life insurance policy required by the divorce judgment. The former wife further alleged that the husband was suffering from diminished mental capacity, and that Maria, in her capacity as the husband's attorney-in-fact, was a necessary party. On that same day, the former wife filed a motion for a temporary restraining order, seeking to enjoin the husband and Maria from "selling, hiding, transferring, damaging, disposing or gifting any of [the husband]'s assets, and [enjoining Maria] from leaving the country." The trial court set the former wife's motions for a hearing.

On June 26, 2013, the husband filed an answer and a petition to modify the divorce judgment in response to the former wife's petition for contempt. The husband alleged in his answer that all outstanding alimony payments had been paid to the former wife and that he would continue to make such payments "so long as required by the [divorce judgment] or until such time as [the trial court] directs otherwise." The husband alleged that "[t]he temporary failure to make current alimony payments was due to a statement in the Summary Plan Description for his Pension Plan that stated [the former wife] would begin receiving her pension benefits whenever [the husband] began receiving his." The husband also alleged that he continued to maintain a life-insurance policy, listing the former wife as a beneficiary, in an amount sufficient to comply with the divorce judgment.

In his "counter petition to modify or in the alternative for clarification of prior order," the husband alleged that he had remarried, that he suffered from a terminal illness, and that he had elected to retire early and begin receiving payments from his pension plan. The husband alleged that his current expenses exceeded his income and that he had filed a petition under Chapter 7 of the Bankruptcy Code and had received a discharge. The husband attached to his counterpetition a copy of his budget as submitted to the bankruptcy court. The husband alleged that, based upon his age, the former wife's age, and the expected alimony owed to her under the divorce judgment, maintaining a $200,000 life-insurance policy was no longer justified. The husband alleged that a dispute existed "as to whether the life insurance policy which [he] is required to maintain until his alimony obligation ceases[ ] was intended to offset alimony arrearages that might exist at his death or were to compensate [the former wife] for future alimony payments." The husband alleged that if "[the former wife were] to receive both the life insurance benefits at [the husband]'s death and then commence receiving pension payments she would be unjustly enriched." The husband requested, as relief, that, on certain conditions, the trial court terminate his obligation to maintain a policy of life insurance and that the trial court clarify that the life-insurance provision of the divorce judgment was intended to serve only as security for any alimony arrearages owed to the former wife at the time of his death.

In response to the former wife's motion for a temporary restraining order, the husband alleged that, in January 2013, he had retired and had begun receiving his benefits under his pension plan. The husband alleged that, pursuant to the "plan summary" of his pension plan, the former wife was to begin receiving her portion of payments under the plan "by the time [his] benefit payments begin." The husband alleged that, based on the terms of the plan and the divorce judgment, the former wife should have begun receiving her benefit payments in January 2013 and that, as a result, his obligation to make alimony payments and maintain life insurance under the divorce judgment had terminated. The husband admitted that he had stopped paying alimony and maintaining the life-insurance policy but that, upon being notified of the .02 case, he had reinstated the life-insurance policy and had paid the outstanding alimony arrearage. The husband further alleged that, since his discharge in bankruptcy, he and Maria no longer had any assets to sell, hide, or transfer, thus, he said, making the temporary restraining order unnecessary.

After a hearing on July 9, 2013, the trial court entered an order stating, in pertinent part:

"1. That the [husband], anyone subject to his control, and [Maria] are hereby prohibited from selling, hiding, transferring, damaging, disposing, or gifting any of the [husband]'s assets.
"2. That [the former wife]'s Motion to Join Necessary Party is hereby GRANTED and [Maria] is hereby added as a third party in [the .02 case].
"3. All other requests are DENIED."

Maria filed an answer on July 30, 2013, adopting all of the husband's previous pleadings, including his claims against the former wife regarding the life insurance, and alleging that the husband no longer had an obligation to maintain life insurance for the benefit of the former wife or to make alimony payments.

On August 14, 2013, a suggestion of death of the husband was filed pursuant to Rule 25, Ala. R. Civ. P.

On January 13, 2014, Maria (hereinafter referred to as "the widow") filed a motion to dismiss the .02 case. She argued that she had been joined as a party to the proceedings only to protect against a transfer of the husband's assets while the litigation was pending, that the husband had died, and that the trial court "may have lost jurisdiction" after the husband's death. The trial court granted the widow's motion on January 16, 2014. The former wife filed a "motion for reconsideration" on January 20, 2014, asserting that the life insurance proceeds of the husband's policy were still at issue. The former wife argued that, by dismissing the case, the widow was now free to dispose of the life-insurance proceeds to which the former wife may have a claim pursuant to the divorce judgment. On February 10, 2014, the trial court granted the former wife's motion and reinstated the .02 case.

In June 2014, the attorneys for the former wife were permitted to withdraw as her counsel. On July 24, 2015, the trial court entered a judgment in the .02 case ("the 2015 judgment"), which stated:

"This matter was called for trial on June 24, 2015. The only parties appearing at the call of the docket were [the widow] and her attorney.... [The former wife] had previously discharged her attorney[,] but notice of the trial was sent to her at the address that she had previously given the Court in her filings.
"Remaining before the Court is a counter petition filed by the [husband], which was adopted and repled by [the widow], [the husband]'s present wife, after the [former wife] added her to the present action. In the counter petition [the husband and widow] ask that the Court interpret and clarify a provision in the original divorce decree which required [the husband] to maintain a policy of life insurance naming [the former wife] as a beneficiary, so long as he had a continuing alimony obligation to her. The Decree required that the policy have a $200,000 death benefit. At the death of her husband ... [the widow] was a co-beneficiary of that policy. The [divorce judgment] was based upon a Memorandum Settlement Agreement submitted to the Court by the Parties.
"....
"....
"At the time of their divorce in May 2005, [the husband] was eligible to begin drawing retirement payments from the Southern Company Benefit Annuity. Under the [Qualified Domestic Relations Order], as an Alternate Payee, [the former wife] would have had the same right. In 2005 however, [the former wife]'s potential annuity payments would have been only $371.37 per month or approximately one half of her $700.00 per month alimony payment. By waiting until January 1, 2015, to begin receiving those payments, they would increase to $744.79 per month-or $44.49 more than her alimony payment.
"Did the Parties intend that [the former wife] could keep the entire $200,000 life insurance death benefit if [the husband] died before January 1, 2015, or was the insurance meant to only cover any loss in alimony that might occur between his death and January [1], 2015? Because the decree is capable of two interpretations, the Court finds the Decree to be ambiguous.
"Had [the husband] lived beyond January [1], 2015, it is clear that he could have requested that his alimony obligation be terminated. [The former wife] was not free to ignore such a revenue source in order to place a continued financial burden on her former husband. This would have been consistent with their having made the obligation to pay alimony contingent upon the receipt of pension payments.
"The insurance obligation was clearly intended to protect [the former wife] from a loss of support due to his premature death. [The former wife] was therefore at risk from 2005 until 2015. After 2015 however, that risk was gone. She could, and would have had to, completely replace the lost alimony by taking the deferred annuity payments by that date.
"A reasonable interpretation of the insurance provision is therefore, that it was to serve as protection against any loss in alimony payments that [the former wife] might sustain due to [the husband]'s death before January 2015. An interpretation that the parties intended that [the former wife] be allowed to receive both the full amount of the life insurance and also the monthly annuity payments after her husband's death would result in a windfall to [the former wife] and would be unreasonable. Conversely, allowing [the former wife] to receive the full $200,000 insurance death benefit while still having the ability to fully cover her loss by taking annuity payments in excess of the lost support payments, would inflict a severe penalty upon the [husband] and against his surviving widow....
"[The husband] died on July 29, 2013. Therefore it would have taken seventeen months until [the former wife] could completely replace her lost support payments with the pension payments. Accordingly, her interest in the proceeds of the life insurance policy death benefit would have been Eleven Thousand Nine Hundred Dollars ($11,900).
"Accordingly, it is hereby ORDERED, ADJUDGED, and DECREED as follows:
"FIRST: the Court finds that the original Divorce Decree in this matter was reasonably susceptible to more that one meaning and is therefore ambiguous as a matter of law.
"SECOND: The Court finds that the intent of the parties as reflected in the Final Judgment of Divorce in this case, was to protect [the former wife] against any loss of support payments that might exist between the date of [the husband]'s actual death and January 1, 2015, when her annuity payments would exceed her lost support payments. [The former wife] would have had no claim to the proceeds of that policy for any greater amount. The Court finds that amount to be Eleven Thousand Nine Hundred Dollars ($11,900).
"THIRD: Judgment by default is entered against the [former wife] on her Petition for Rule Nisi and in favor of [the husband and the widow]. The Court finds no violation by [the husband] with respect to any provision of the Decree.
"....
"This concludes all matters with respect to this divorce proceeding."

(Footnote omitted.)

On March 21, 2016, the former wife filed a motion for relief from the 2015 judgment pursuant to Rule 60(b)(4), Ala. R. Civ. P., seeking to vacate the 2015 judgment. In her motion, the former wife asserted that the trial court had lacked subject-matter jurisdiction to enter the 2015 judgment because the husband and the widow had not paid a filing fee for their counterpetitions, because there had not been a motion to substitute a proper party for the husband after the husband's death, and because the former wife did not receive notice of the June 24, 2015, hearing. The former wife further asserted that she had been sued by the widow in the Jefferson Circuit Court. The widow filed a motion in opposition to the former wife's motion for relief from the 2015 judgment.

The trial court conducted a hearing on March 28, 2017. It is unclear whether any testimony was taken, and no transcripts of that hearing appear in the record on appeal. On April 28, 2017, the trial court entered a judgment granting the former wife's Rule 60(b)(4) motion ("the 2017 judgment"), stating in pertinent part:

"That the [husband] ... and the Third Party, [the widow], failed to pay a filing fee nor were there Affidavits of Substantial hardship filed for consideration of waiver of court costs."

In the 2017 judgment, the trial court ordered:

"1. [The former wife]'s Motion for 60(b) Relief is hereby granted.
"2. Paragraph 'Second' [of the 2015 judgment] is void for lack of subject-matter jurisdiction and is therefore set aside pursuant to Rule 60(b)(4).
"3. The [husband]'s Petition to Modify is hereby dismissed for failure to substitute parties within six (6) months pursuant to Rule 25 [, Ala. R. Civ. P.] and for lack of subject-matter jurisdiction due to non-payment of filing fee."

On May 30, 2017, the widow filed a motion to alter, amend, or vacate the 2017 judgment "or in the alternative for re-entry of original order." In her motion, the widow asserted that the failure to pay a filing fee was not fatal to her claims. She further asserted that, although failing to substitute a party for the husband pursuant to Rule 25, Ala. R. Civ. P., "may have put an end as to [the former wife's] claims against him, the jurisdiction continued as to [the widow]." The widow also argued that the trial court had the inherent authority to interpret its own orders. On August 14, 2017, the trial court denied the widow's motion after a hearing at which no testimony was taken.

The widow filed her notice of appeal to this court on September 5, 2017. This court has jurisdiction pursuant to § 12-3-10, Ala. Code 1975. No representative of the husband or his estate has appealed from the 2017 judgment.

Discussion

The widow challenges the trial court's granting of the former wife's motion for relief from the 2017 judgment, filed pursuant to Rule 60(b)(4), Ala. R. Civ. P. The widow asserts on appeal that the trial court should not have set aside the 2015 judgment based on the purported absence of a filing fee for the husband's and the widow's counterpetitions. The widow also asserts that the trial court should not have dismissed her counterpetition pursuant to Rule 25, Ala. R. Civ. P.

Before addressing the widow's arguments, we must first determine if the 2017 judgment granting the former wife's Rule 60(b) motion will support an appeal.

" 'The grant of a Rule 60(b) motion is generally treated as interlocutory and not appealable.' Ex parte Short, 434 So.2d 728, 730 (Ala. 1983). However, the rule barring appellate review of an order granting Rule 60(b) relief is not absolute; where such an order bears sufficient indicia of finality to warrant a conclusion that it constitutes a 'final judgment,' pursuant to § 12-22-2, Ala. Code 1975, it is appealable. E.g., Littlefield v. Cupps, 371 So.2d 51, 52 (Ala. Civ. App. 1979) (order granting relief from void judgment under Rule 60(b)(4) for want of jurisdiction finally disposed of case and was immediately appealable); and Sanders v. Blue Cross-Blue Shield of Alabama, Inc., 368 So.2d 8, 9 (Ala. 1979) (order granting Rule 60(b) motion so as to allow a second action to be filed on movant's contract claims was appealable)."

Wal-Mart Stores, Inc. v. Pitts, 900 So.2d 1240, 1244 (Ala. Civ. App. 2004). Because, as explained below, the trial court's granting of the former wife's motion for relief from the 2015 judgment pursuant to Rule 60(b)(4) leaves claims to be adjudicated, the 2017 judgment is interlocutory and will not support an appeal.

In the 2017 judgment, the trial court recognized that the widow had filed claims against the former wife in the .02 case. The trial court purported to vacate certain relief that had been granted on the husband's and widow's counterpetitions, but it then stated that "[t]he [husband]'s Petition to Modify is hereby dismissed for failure to substitute parties within six (6) months pursuant to Rule 25 and for lack of subject-matter jurisdiction due to non-payment of a filing fee." There is no mention of the disposition of the widow's claims against the former wife. The discussion in paragraph 3 of the 2017 judgment regarding the failure to substitute a party under Rule 25, Ala. R. Civ. P., is not applicable to the widow's claims, because it is undisputed that the widow is still living. Accordingly, the 2017 judgment vacated certain relief that had been granted on the counterpetitions, but it did not resolve the claims pending between the widow and the former wife. This court has said that

" ' " '[i]t is a well-established rule that, with limited exceptions, an appeal will lie only from a final judgment which determines the issues before the court and ascertains and declares the rights of the parties involved.' " Powell v. Powell, 718 So.2d 80, 82 (Ala. Civ. App. 1998), quoting Taylor v. Taylor, 398 So.2d 267, 269 (Ala. 1981). "A ruling that relates to fewer than all the parties in a case, or that determines fewer than all the claims, is ordinarily not final as to any of the parties or as to any of the claims." Powell, at 82. See Rule 54(b), Ala. R. Civ. P. "A 'final judgment is a "terminal decision which demonstrates there has been a complete adjudication of all matters in controversy between the litigants." ' " Powell, at 82, quoting Dees v. State, 563 So.2d 1059, 1061 (Ala. Civ. App. 1990). "The question whether an order appealed from is final is jurisdictional, and the reviewing court, on a determination that the order is not final, has a duty to dismiss the case on its own motion." Powell, at 82.' "

Saunders v. Ingram, 236 So.3d 104, 110 (Ala. Civ. App. 2017) (quoting Hinson v. Hinson, 745 So.2d 280, 281 (Ala. Civ. App. 1999) ).

The widow also argues in her appellate brief that the trial court's granting of the former wife's Rule 60(b)(4) motion for failure to substitute a proper party, after the husband's death, pursuant to Rule 25 is due to be reversed. However, because we are dismissing the appeal on the basis that it has been taken from a nonfinal judgment, it is unnecessary for us to resolve this issue.

Conclusion

Because the 2017 judgment did not resolve the pending claim between the former wife and the widow, the appeal is dismissed as having been taken from a nonfinal judgment.

APPEAL DISMISSED.

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

Thomas, J., concurs in the result, without writing.

      It appears from the record that the husband died on July 29, 2013.

      We express no opinion on the merits of the widow's claims or on whether she may proceed with the claims following the death of the husband.

      Because we conclude that the 2017 judgment dismissed the husband's counterpetition but did not adjudicate the pending claims between the widow and the former wife, resulting in a nonfinal judgment, we do not address the widow's argument regarding whether the nonpayment of a filing fee for her counterpetition is a jurisdictional defect. But see Landry v. Landry, 182 So.3d 553 (Ala. Civ. App. 2014) (holding that failure to collect a filing fee on a counterclaim did not deprive the trial court of jurisdiction over the counterclaim).


author: THOMAS, Judge.

text:
    EX PARTE J.S.
    (In re: S.S. v. J.S.)
    2170567
    Court of Civil Appeals of Alabama.
    April 13, 2018
    Charles A. Langley of Holder, Moore, Lawrence & Langley, P.C., Fayette, for petitioner.
    Amanda Mulkey of Smith & Staggs, L.L.P., Tuscaloosa, for respondent.
   THOMAS, Judge.

On March 15, 2018, the Lamar Juvenile Court ("the juvenile court") entered an order ("the visitation order") awarding S.S. ("the paternal grandmother") "pendente lite" visitation with G.A. ("the child"), who is the subject of a dependency action commenced in December 2017 by the paternal grandmother. The juvenile court held a hearing regarding emergency or temporary custody of the child in December 2017, after which it entered an order leaving the child in the custody of J.S. ("the mother"), with supervision by the Lamar County Department of Human Resources ("DHR"), pending an adjudicatory trial on the dependency petition. The juvenile court set the adjudicatory trial to decide the child's dependency for February 28, 2018, but the mother moved to continue that trial. The paternal grandmother objected to the continuance and, in a motion, sought pendente lite visitation with the child. The juvenile court continued the adjudicatory trial, but, over the objection of the mother, it set a hearing for March 15, 2018, to address the paternal grandmother's request for pendente lite visitation. After the March 15, 2018, hearing, the juvenile court entered the visitation order, in which it awarded the paternal grandmother a one-hour visit with the child on March 16, 2018, and a four-hour unsupervised visit with the child on March 28, 2018.

The mother has filed a petition for the writ of mandamus, challenging the visitation order because, she says, the juvenile court lacks jurisdiction to award the paternal grandmother visitation at this point in the dependency action. She says that, because the child has not yet been found dependent, the juvenile court cannot use its power under Ala. Code 1975, § 12-15-314(a)(4), to award the paternal grandmother visitation. The paternal grandmother contends that this action is not a grandparent-visitation action but a dependency action. She relies on § 12-15-314(a)(4) and L.T. v. J.D., 109 So.3d 652, 657 (Ala. Civ. App. 2012), to support her argument that the juvenile court's visitation order is a proper exercise of the juvenile court's discretion in a dependency action to make such orders as it determines are in the best interest of the child.

We begin our review by noting that

"an appellate court will grant a petition for a writ of mandamus only when '(1) the petitioner has a clear legal right to the relief sought; (2) the respondent has an imperative duty to perform and has refused to do so; (3) the petitioner has no other adequate remedy; and (4) this Court's jurisdiction is properly invoked.' "

Ex parte A.D.W., 192 So.3d 405, 407 (Ala. Civ. App. 2015) (quoting Ex parte Flint Constr. Co., 775 So.2d 805, 808 (Ala. 2000) ).

As noted above, the juvenile court entered an order in December 2017. That order stated that "[the child] shall remain in the custody of [the] mother ... under the protective supervision of ... DHR." The paternal grandmother seizes upon the juvenile court's use of the term "protective supervision" in the December 2017 order. "Protective supervision" is defined in Ala. Code 1975, § 12-15-301(10), as "[a] legal status created by order of the juvenile court following an adjudication of depen dency whereby a child is placed with a parent or other person subject to supervision by the Department of Human Resources." (Emphasis added.) Contending that this court must assume that the juvenile court made those findings that are necessary to support its judgment, see A.E.T. v. Limestone Cty. Dep't of Human Res., 49 So.3d 1212, 1216 (Ala. Civ. App. 2010), the paternal grandmother argues that, based on its requiring protective supervision of the mother's custody, the juvenile court made an implied finding of "probable cause for dependency" in the December 2017 order. Based on that premise, she then makes the following argument:

"Making an implied finding of probable cause, the [juvenile] court in this matter ordered a restricted 'protective supervision' custody to the mother and reserved the issue of visitation. If the court has the authority to make a restricted 'protective supervision' custody order upon a finding of probable cause for dependency but prior to adjudication, it also has the authority to make other orders that are in the child's best interests upon a finding of probable cause for dependency."

The flaw in the paternal grandmother's reasoning is the fact that, in December 2017, the juvenile court lacked authority to order "protective supervision" in the present case. The parties and the juvenile court recognize that the juvenile court has not yet adjudicated the child dependent. However, both § 12-15-301(10) and § 12-15-314(a)(2) require that a finding of dependency precede or accompany an award of protective supervision. Thus, we cannot agree with the paternal grandmother that the juvenile court's use of the term "protective supervision" in its December 2017 order somehow expands its authority to order protective supervision despite having not yet adjudicated the child dependent. Such a conclusion is not possible in light of the language in both § 12-15-301(10) and § 12-15-314(a)(2). Instead, we are more inclined to agree with the mother that the juvenile court's December 2017 order is consistent with the authority granted the juvenile court under Ala. Code 1975, § 12-15-309(a), which permits the juvenile court to release a child to the custody of a parent if shelter care is not required for the child and to impose certain conditions as warranted by the circumstances, including placing "the child under the supervision of [DHR]." § 12-15-309(a)(1). Reading the juvenile court's December 2017 order in that manner preserves its efficacy and is consistent with the requirement that a juvenile court order "protective supervision" only after a determination of dependency.

The paternal grandmother's argument that the juvenile court can award visitation to third parties like the paternal grandmother under § 12-15-314(a)(4) based upon "probable cause for dependency" also fails. Section 12-15-314(a)(4) allows the juvenile court to "[m]ake any other order as the juvenile court in its discretion shall deem to be for the welfare and best interests of the child." However, a juvenile court may exercise that power only after a child has been found dependent: "If a child is found to be dependent, the juvenile court may make any of the following orders of disposition." § 12-15-314(a) (emphasis added). Our decision in L.T. does not assist the paternal grandmother, because the child in that case had been adjudicated dependent, which triggered the authority of the juvenile court in that case to make an award of visitation. L.T., 109 So.3d at 657.

The juvenile court lacks the authority to award the paternal grandmother visitation at this stage of the dependency action. The juvenile court's visitation order, insofar as it awards such visitation, is void. Accordingly, we grant the mother's petition and order the juvenile court to vacate the visitation order.

PETITION GRANTED; WRIT ISSUED.

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

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

      Upon the mother's motion, we stayed the visitation order pending further order of this court.

      The paternal grandmother insists that her request for visitation is not a request for grandparent visitation under Alabama's most recent grandparent-visitation statute, codified at Ala. Code 1975, § 30-3-4.2. Thus, we will not consider the mother's argument that, although the juvenile court might have had jurisdiction to award the paternal grandmother pendente lite visitation under Ala. Code 1975, § 30-3-4.2(o ), see M.G.D. v. C.B., 203 So.3d 855, 857 (Ala. Civ. App. 2016), it did not make the requisite written findings to support such an order. See Ala. Code 1975, § 30-3-4.2(f) (requiring written findings to support a court's rulings in a grandparent-visitation case). We will also save for another day the mother's invitation to "revisit M.G.D. v. C.B., 203 So.3d 855 (Ala. Civ. App. 2016), and other cases holding that a motion [for] or the mention of grandparent visitation rights vests a juvenile court with jurisdiction over grandparent-visitation rights"; the mother contends that that "line of cases allows the petitioner grandparent and trial court to disregard Alabama Code 1975, § 30-3-4.2(l )," which requires notice of a grandparent-visitation action be given to all other grandparents of the child. Any determination whether the juvenile court has jurisdiction to consider the paternal grandmother's request for visitation under § 30-3-4.2(b), which outlines the circumstances under which a grandparent may commence an action or intervene to seek visitation, will await another day.


text:
    EMBU, INC. v. TALLAPOOSA COUNTY COMMISSION
    2161014
    Court of Civil Appeals of Alabama.
    April 20, 2018
    William H. Turner, Montgomery, for appellant.
    Thomas A. Radney of Radney, Radney & Jackson, LLC, Alexander City, for appellee.
   THOMAS, Judge.

EMBU, Inc. ("EMBU"), appeals from a judgment of the Montgomery Circuit Court in favor of the Tallapoosa County Commission ("the county commission"). Because the circuit court's judgment is void, we dismiss the appeal.

Background

On December 8, 2016, EMBU initiated an action in the circuit court via a pleading that it styled a "petition for writ of certiorari and for declaratory judgment" against the county commission, five county commissioners individually, the Alabama Alcoholic Beverage Control Board ("the ABC Board"), and three members of the ABC Board individually. EMBU specifically sought a "declaratory judgment and injunctive relief" under § 6-6-220 et seq., Ala. Code 1975, "and certiorari relief pursuant to," among other authority, Black v. Pike County Commission, 360 So.2d 303 (Ala. 1978).

In relevant part, EMBU alleged in its petition that it was the owner and operator of a convenience store and fuel station located in Tallassee and that the ABC Board had previously granted it a liquor license but had also, the next day, "rescinded and revoked" the liquor license after the county commission denied approval of the liquor license. EMBU alleged that the county commission's denial of approval for its liquor license was unconstitutional as being, among other things, arbitrary and capricious. In light of its allegations, EMBU's petition asked for specific relief, as set out in relevant portions of two counts: (1) A declaratory judgment "vacating and setting aside the denial of [its] liquor license," ordering the ABC Board to issue a liquor license to EMBU, and enjoining the county commission "and its officers" from interfering with EMBU's right to a liquor license; and (2) the issuance of "a writ of certiorari ... finding that the denial of [EMBU]'s liquor license was arbitrary, capricious[,] and unreasonable, in violation of applicable and well settled caselaw" and setting aside the county commission's decision. EMBU later filed an amended petition, to which it attached an affidavit of one of its officers in support of its allegations.

The county commission and the county commissioners answered EMBU's complaint and generally denied its allegations. The ABC Board and the ABC Board members also filed an answer, in which they specifically denied several of EMBU's allegations and, in the same pleading, moved to dismiss EMBU's claims against them based on, among other things, assertions that the ABC Board members were immune from liability and that the ABC Board lacked authority to issue EMBU a liquor license without the county commission's approval, citing as support § 28-3A-23(d), Ala. Code 1975 ("Each retail liquor license application must be approved ... by the county commission if the retailer is located in the county and outside the limits of the municipality before the board shall have authority to grant the license.").

On February 22, 2017, the circuit court entered an order indicating that it had conducted a hearing regarding a "motion for emergency relief" that had been filed by EMBU. In its order, the circuit court denied EMBU's motion, granted the ABC Board's and the ABC Board members' motion to dismiss, and granted an oral motion that had been asserted at the hearing to dismiss EMBU's claims against the county commissioners. Thus, after the entry of the circuit court's February 22, 2017, order, the only defendant remaining in EMBU's action was the county commission.

The circuit court conducted an evidentiary hearing regarding EMBU's petition on May 2, 2017. On July 31, 2017, the circuit court entered a judgment that provided, in its entirety: "Based on the evidence presented, this Court finds in favor of the Defendants and against the Plaintiff as to all issues in this case." EMBU filed a timely notice of appeal on September 12, 2017. This court transferred the appeal to the Alabama Supreme Court for lack of subject-matter jurisdiction. Our supreme court transferred the appeal to this court, pursuant to § 12-2-7(6), Ala. Code 1975. See Minesaha, Inc. v. Town of Webb, 236 So.3d 890, 894 (Ala. Civ. App. 2017).

Analysis

As noted above, the circuit court dismissed all the defendants named in EMBU's petition, except the county commission, and EMBU does not challenge the circuit court's dismissal of those defendants on appeal. We will not, therefore, consider the circuit court's dismissal of those parties. Ex parte Riley, 464 So.2d 92, 94 (Ala. 1985). Effectively, the relief sought by EMBU in the circuit court was distilled to a review of the county commission's denial of approval for its liquor license. On appeal, EMBU essentially argues that the circuit court's judgment should be reversed because, it says, the county commission's decision was arbitrary and capricious. The county commission disagrees.

In order to evaluate EMBU's argument, we must first determine the nature of the circuit court's review of the county commission's decision. As noted above, EMBU styled its pleading in the circuit court as a "petition for writ of certiorari and for declaratory judgment." It also specifically asked the circuit court to issue a writ of certiorari and set aside the county commission's decision. " 'Where there is no statutory right of direct appeal from a local government's decision to deny an application for a liquor license, the only proper method of judicial review is by the common-law writ of certiorari.' " Minesaha, 236 So.3d at 894 (quoting Phase II, LLC v. City of Huntsville, 952 So.2d 1115, 1119 n.3 (Ala. 2006) ). EMBU has not provided, and we have not discovered, a statutory right of direct appeal from the county commission's denial of approval for a liquor license. We therefore conclude that the circuit court's review of the county commission's decision was by way of a petition for the common-law writ of certiorari.

"Although neither party has raised an issue regarding this court's jurisdiction, 'jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.' " Baker v. Baker, 25 So.3d 470, 472 (Ala. Civ. App. 2009) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala. 1987) ). See also Rule 2(a)(1), Ala. R. App. P. Moreover, " '[a] judgment entered by a court lacking subject-matter jurisdiction is absolutely void and will not support an appeal; an appellate court must dismiss an attempted appeal from such a void judgment.' Vann v. Cook, 989 So.2d 556, 559 (Ala. Civ. App. 2008)." MPQ, Inc. v. Birmingham Realty Co., 78 So.3d 391, 394 (Ala. 2011). We therefore consider whether the circuit court could properly exercise subject-matter jurisdiction over the county commission's decision via a petition for the common-law writ of certiorari.

"Certiorari at common law was an original writ issued out of a superior, to an inferior court, to bring up the record and determine, from an inspection thereof, whether the judgment of the inferior court was erroneous or without authority." Ex parte Hennies, 33 Ala. App. 377, 379, 34 So.2d 22, 23 (1948). We have also explained that "[t]he common-law writ of certiorari is a remedial writ invoking the ' "supervisory power of a superior over an inferior legal tribunal." ' ... [T]he court entertaining a petition for a common-law writ of certiorari must be a court of superior jurisdiction to the inferior tribunal at issue." G.W. v. Dale Cty. Dep't of Human Res., 939 So.2d 931, 934-35 (Ala. Civ. App. 2006) (quoting City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 252, 82 So. 519, 520 (1919) ).

In G.W., 939 So.2d at 935, we relied on, among other cases, Ex parte Alabama Textile Products Corp., 242 Ala. 609, 7 So.2d 303 (1942), in holding that judicial review of the actions of a department of statewide jurisdiction via a petition for the common-law writ of certiorari can be conducted only by the circuit court of the county in which the department's principal office is located. In Ex parte Alabama Textile, 242 Ala. at 613, 7 So.2d at 306, our supreme court discussed certiorari review and recognized that it had previously "sustained the power of a circuit court to review by certiorari the ruling of a state board or commission ... when the circuit court doing so had original jurisdiction in the county where such board or commission had its principal place of business." Our supreme court held, among other things, that the Montgomery Circuit Court has jurisdiction over remedial writs regarding the actions of a state agency sitting in Montgomery County and specifically noted: "[W]e do doubt such authority of the circuit court of a county in which [the state agency] did not sit, to hear the matter in controversy." Id.

In Ex parte Alabama Textile, the supreme court cited, among other cases, Dunbar v. Frazer, 78 Ala. 529 (1885). In Dunbar, the supreme court considered the following issue:

"[W]hether the Circuit Court held in the county of Montgomery has jurisdiction to grant a peremptory mandamus, to compel the judge of probate of Lee county to issue to appellant a license to retail liquors in the latter county, the two counties being in different judicial circuits."

78 Ala. at 530. In so doing, it reasoned, in relevant part:

"The distinction between jurisdiction of the subject-matter, and the exercise of the jurisdiction, must be observed. While the jurisdiction of the subject-matter is co-extensive with the State, the territorial limits in which it may be exercised is left for legislative creation and regulation. ...
"The Circuit Court possesses appellate and supervisory jurisdiction, but not by reason of its distinctive organization, nor of any inherent power; neither is the constitution its source. It is of statutory creation. If the Circuit Court of Montgomery county has authority to grant the mandamus petitioned, it must be derived from section 657 of the Code [the precursor to § 12-11-30, Ala. Code 1975 ], which provides, that the Circuit Court has authority 'to exercise a general superintendence of all inferior jurisdictions.' ...
"... When a county is organized, its boundaries fixed, and a Circuit Court is constituted to be held therein, the limits within which such Circuit Court may exercise its jurisdiction are prescribed, in accordance with the provisions of the constitution. Any judgment rendered, or judicial proceedings had, at a time and place other than authorized by law, are void.- Garlick v. Dunn, 42 Ala. 404[, 405 (1858) ]. If the legislature confers appellate and supervisory power on the Circuit Court in addition to the constitutional grant, it is reasonable to infer, if not otherwise expressed, that the intention is, the exercise of such authority shall be confined within the same limits which restrict the exercise of the original jurisdiction-that is, the exercise of the two jurisdictions shall be co-extensive.
"The inferior jurisdictions, ordinarily, are circumscribed and localized. The county officers, without express authority, can do no official act without the county. Their judgments to be reviewed on appeal are rendered, and the acts to be commanded by mandamus are done, in the county. The judgments and orders of the supervising court are to be enforced in the county, and by its officers. The cause of action, if we may so term it, arises and is located in the county. The official acts of the officers, subject to supervision, are not transitory, and do not follow their persons. The general superintendency of such inferior jurisdictions is also local in its nature. The authority is 'to exercise a general superintendence;' and the statute should be construed as vesting the authority exclusively in the Circuit Court which by the constitution and the statutes is empowered to exercise exclusive jurisdiction of cases in the county in which such inferior jurisdiction is located; otherwise, there would be a Circuit Court having exclusive original jurisdiction of cases, and with other Circuit Courts concurrent supervisory jurisdiction of inferior courts in the same territory."

78 Ala. at 530-32.

We find our supreme court's reasoning in Dunbar applicable here. Although Dunbar involved a petition for the writ of mandamus, a petition for the common-law writ of certiorari also calls upon a circuit court to exercise supervisory jurisdiction over decisions made by an inferior tribunal. See G.W., 939 So.2d at 934-35. Moreover, the analyses set out in Ex parte Alabama Textile and G.W., both of which discussed certiorari review, indicate that the reasoning of Dunbar supported the determinations reached in those cases. We therefore hold that a circuit court cannot exercise supervisory jurisdiction over a local government's denial of approval for a liquor license via a petition for the common-law writ of certiorari when the local government is located in a county that is outside the territorial limits of the circuit court.

The circuit court is located in Montgomery County. The county commission is located in Tallapoosa County. The Montgomery Circuit Court could not exercise supervisory jurisdiction over the Tallapoosa County Commission, based on its denial of approval for EMBU's liquor license, via EMBU's petition for the common-law writ of certiorari. The circuit court's judgment is therefore void, and we dismiss EMBU's appeal. See G.W., 939 So.2d at 935-36.

APPEAL DISMISSED.

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

      Whether the scope of the circuit court's review was proper is not at issue in this appeal. See Phillips v. City of Citronelle, 961 So.2d 827, 831 n.3 (Ala. Civ. App. 2007) (acknowledging the tension existing in the state of the law regarding the proper scope of judicial review in certiorari proceedings).

      EMBU filed its notice of appeal 43 days after the circuit court entered its judgment, which, ordinarily, would make it untimely. See Rule 4(a)(1), Ala. R. App. P. On the 42d day, however, the circuit court entered an order pursuant to Rule 5, Ala. R. Jud. Admin., closing the office of the circuit court as a result of emergency weather conditions. EMBU's notice of appeal was therefore timely. See Rule 5(D), Ala. R. Jud. Admin.; see also Rule 6(a), Ala. R. Civ. P.

      In a circuit court's review by way of a petition for the common-law writ of certiorari, " '[t]he only matter to be determined is the quashing, or affirmation, of the proceedings brought up for review.' " Fox v. City of Huntsville, 9 So.3d 1229, 1234 (Ala. 2008) (quoting Jefferson Cty. v. Berkshire Dev. Corp., 277 Ala. 170, 173, 168 So.2d 13, 16 (1964) ).

      As we noted in Minesaha, 236 So.3d at 896, § 6-6-640 through § 6-6-642, Ala. Code 1975, provide the appropriate procedure to be followed in circuit courts regarding petitions for remedial writs. Among other things, those provisions require that petitions for remedial writs be accompanied by an affidavit, although that requirement is not jurisdictional. See Ex parte Collins, 84 So.3d 48, 53 (Ala. 2010). As noted above, EMBU attached an affidavit of one of its officers to its amended petition.

      We note that § 28-1-6(a)(1)b. and (b)(1)b. and § 28-1-7(b), Ala. Code 1975, provide for circumstances in which the ABC Board can issue a license after approval has been denied by the governing bodies of class 1, class 2, and class 4 municipalities, respectively, and reflect similar reasoning to that set out here. Subsections (a)(1)b. and (b)(1)b. of § 28-1-6 require a showing that, among other things, the decision "has been set aside by order of the circuit court of the county in which the site is situated." (Emphasis added.) Section 28-1-7(b) requires a showing that, among other things, the decision "has been set aside by order of the circuit court of the county in which the municipality is situated." (Emphasis added.)