author: THOMAS, Judge.

text:
    T.C.M. and C.N.M. v. W.L.K.
    W.L.K. v. T.C.M. and C.N.M.
    2160032
    Court of Civil Appeals of Alabama.
    April 28, 2017 Rehearing Denied June 16, 2017 Certiorari Denied August 25, 2017
    Alabama Supreme Court 1160867
    Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope; and Bryant Andrew Whitmire, Jr., Birmingham, for appellants/cross-appellees T.C.M. and C.N.M.
    Richard L. Wyatt, Homewood; and Robert M. Echols, Jr., Birmingham, for appellee/cross-appellant W.L.K.
   THOMAS, Judge.

This is the eighth time these parties-W.L.K. ("the father") and T.C.M. and C.N.M. ("the prospective adoptive parents")-have appeared before this court seeking review of one or another court's orders respecting the custody of M.M. ("the child"). See Ex parte W.L.K., 175 So.3d 652 (Ala. Civ. App. 2015) (plurality opinion) (" W.L.K. I"); T.C.M. v. W.L.K. (No. 2130936, February 27, 2015), 206 So.3d 593 (Ala. Civ. App. 2015) (table) (appeal dismissed); Ex parte T.C.M. (No. 2140717, June 30, 2015), 212 So.3d 241 (Ala. Civ. App. 2015) (table) (petition denied); Ex parte W.L.K., 222 So.3d 357 (Ala. Civ. App. 2015) (" W.L.K. II") (ordering the Jefferson Probate Court to enter an order dismissing the adoption action in compliance with W.L.K. I ); T.C.M. v. W.L.K., 208 So.3d 39 (Ala. Civ. App. 2016) (" T.C.M. II") (determining that the Jefferson Juvenile Court could not enter a pickup order directing that the child be removed from the custody of the prospective adoptive parents); Ex parte T.C.M. (No. 2150935, September 16, 2016), 231 So. 3d 330 (Ala. Civ. App. 2016) (table) (petition dismissed as moot); and T.C.M. v. W.L.K., 237 So.3d 238 (Ala. Civ. App. 2017) (released today).

The Facts and Procedural History

The basic procedural history underlying these appeals was set out in W.L.K. I, 175 So.3d at 654-55 :

"[The father] and S.F. ('the mother') were involved in a relationship between April and July 2012; they lived together in the father's house in Middleburg, Florida, during that period. The mother became pregnant early in the relationship, and she and the father had begun preparing for the baby by purchasing baby items. However, the mother left the father in July 2012, and, after she broke into the father's house and stole several items, the father swore out a warrant against her. The mother was arrested, and, after that, the father lost contact with her. In December 2012, the father, who is in the United States Navy, contacted an attorney in the Judge Advocate General about his situation; that attorney referred the father to a nonmilitary attorney, who assisted the father by instituting a paternity and custody action in a Florida court in January 2013. The father registered with the putative father registry in Florida. The father attempted to locate the mother at nearby hospitals on January 18, 2013, the expected date of delivery. However, the father was unable to locate the mother.
"On January 9, 2013, the mother gave birth to [the child] in Montgomery, Alabama. The mother had consented to an adoption of the child by [the prospective adoptive parents], who were present at the birth and who took the child home from the hospital. On January 29, 2013, the prospective adoptive parents filed a petition to adopt the child in the Jefferson Probate Court.
"The father first learned of the birth of the child in Alabama on March 1, 2013. After he was served with an amended petition to adopt the child on March 25, 2013, and upon the advice of his Florida counsel, the father sought legal counsel in Alabama. He filed a contest to the adoption petition and a motion to dismiss the adoption petition on April 11, 2013.
"As required by Ala. Code 1975, § 26-10A-24(a), the probate court held a contested hearing on the father's contest to the adoption petition on September 26, 2013. At issue was whether the father had impliedly consented to the child's adoption pursuant to the theory of 'prebirth abandonment,' under which consent to an adoption may be implied based on abandonment if a father fails, 'with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.' Ala. Code 1975, § 26-10A-9(a)(1). After hearing the testimony of the father and T.C.M., the probate court entered an order on March 19, 2014, concluding that the father had not impliedly consented to the adoption and specifically rejecting the contention that the father's conduct had amounted to an abandonment of the mother during her pregnancy."

This court determined in W.L.K. I that the probate court had been required by Ala. Code 1975, § 26-10A-24(d), to dismiss the prospective adoptive parents' adoption petition after it had decided the father's adoption contest in his favor. 175 So.3d at 659. After the resolution of the father's first petition for the writ of mandamus in W.L.K. I, the probate court failed to enter a judgment dismissing the prospective adoptive parents' adoption petition, so the father filed a second petition for the writ of mandamus to compel the probate court to do so. W.L.K. II, 222 So. 3d at 358. This court ordered the probate court to enter a judgment awarding the prospective adoptive parents reimbursement for the costs of caring for the child in compliance with W.L.K. I and § 26-10A-24(d), id. at 360-, which the probate court did on October, 3, 2016, after the prospective adoptive parents' petition for the writ of certiorari in W.L.K. II was denied by the Alabama Supreme Court. See Ex parte T.C.M., 222 So. 3d 360 (Ala. 2016). The prospective adoptive parents have appealed the October 3, 2016, judgment, arguing that the probate court erred by not concluding that the father's consent to the adoption was irrevocably implied under Ala. Code 1975, § 26-10A-9(a)(5), by his failure to register with the Alabama Putative Father Registry, codified at Ala. Code 1975, § 26-10C-1, and that the evidence does not support the probate court's conclusion that the father did not abandon the child under § 26-10A-9(a)(1). The father has filed a cross-appeal of the probate court's October 3, 2016, judgment, seeking its reversal insofar as it assessed against him one-half of the $4,200 guardian ad litem fee and "all additional costs of court" related to the action.

In its judgment, the probate court recounted the history of the parents' brief relationship. The probate court found that the father and the mother had begun planning for the arrival of the child after they learned of the mother's pregnancy. The probate court found that the father was unaware of the mother's reasons for leaving the home they shared on July 5, 2012, but commented that the parties had had an argument about the mother's smoking during her pregnancy. The probate court recounted that the father had discovered that the mother had broken into the house and stolen some of his property and that, as a result, the mother was arrested.

The probate court found that the father had not had contact information for the mother after her arrest and that he had taken legal steps to safeguard his parental rights, including seeking advice from the Judge Advocate General, who referred him to a nonmilitary attorney, who instituted a paternity and custody action on the father's behalf. The probate court also found that the father had registered with the Florida Putative Father Registry. The probate court noted that the father had learned that the mother had been planning to have the child adopted by a couple from New York. In addition, the probate court found that the father, once he learned of the child's birth in Alabama and the pending adoption proceeding, had registered with the Alabama Putative Father Registry and had contacted the prospective adoptive parents to seek visitation with the child. Based on the testimony and documentary evidence, the probate court concluded that the father had not impliedly consented to the adoption of the child.

The Prospective Adoptive Parents' Appeal

The prospective adoptive parents first argue that the father's failure to timely register with the Alabama Putative Father Registry resulted in his irrevocable implied consent to the adoption under § 26-10A-9(a)(5) and Ala. Code 1975, § 26-10C-1(i), and, thus, that his consent to the adoption was not required under Ala. Code 1975, § 26-10A-7(a)(5). The prospective adoptive parents rely on the general rule that adoption statutes require strict adherence to their requirements. See Anderson v. Hetherinton, 560 So.2d 1078, 1079-80 (Ala. Civ. App. 1990). They further contend, without citation to authority, that "there is no provision ... for substantial compliance" with the Alabama Putative Father Registry.

The probate court did not expressly decide any issue related to the application of § 26-10A-7(a)(5), § 26-10A-9(a)(5), or § 26-10C-1 in its judgment. Instead, it appears that the probate court either determined that the father's registration with the Florida Putative Father Registry was substantial compliance with the requirement that the father register with the Alabama Putative Father Registry or that Florida law should control the determination of whether the father's consent was required, both of which potential legal bases were argued to the probate court. The prospective adoptive parents do not provide this court with caselaw or other legal authority regarding either of those potential bases for the probate court's judgment, and we are not required to do their research on those issues. See Legal Sys., Inc. v. Hoover, 619 So.2d 930, 932 (Ala. Civ. App. 1993) ("It is not the duty nor function of an appellate court to perform a party's legal research."). Accordingly, we will not further consider the issue whether the father's failure to timely register with the Alabama Putative Father Registry should be fatal to his contest of the adoption.

We turn now to the prospective adoptive parents' argument that the evidence presented does not support the probate court's conclusion that the father did not abandon the child under § 26-10A-9(a)(1). The prospective adoptive parents contend that the evidence presented at trial established that the father "with reasonable knowledge of the pregnancy, [failed] to offer financial and/or emotional support for a period of six months prior to the birth." We first note that the probate court considered ore tenus evidence in making its decision and that, as a result, our standard of review requires that we give deference to that court's factual findings. Ex parte J.W.B., 933 So.2d 1081, 1087 (Ala. 2005).

" 'Where a probate court hears ore tenus evidence on a petition for adoption, its findings and conclusions based on that evidence are presumed to be correct.' K.P. v. G.C., 870 So.2d 751, 757 (Ala. Civ. App. 2003). The ore tenus presumption of correctness arises because the trial court is in a position to observe the demeanor and behavior of the witnesses and is thus able to evaluate whether their testimony is credible and truthful. Ex parte Fann, 810 So.2d 631, 633 (Ala. 2001) ; Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996).
The trial court is able to make personal observations of the witnesses, while an appellate court has the benefit only of a cold transcript of the proceedings."

Ex parte J.W.B., 933 So.2d at 1087.

Furthermore, we are not called on to determine whether there are facts in the record that, when viewed in the manner suggested by the prospective adoptive parents, would support a different judgment. See Miller v. Associated Gulf Land Corp., 941 So.2d 982, 990 (Ala. Civ. App. 2005). " 'Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court ....' " Ex parte R.T.S., 771 So.2d 475, 476 (Ala. 2000) (quoting Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala. 1996) ). " ' "To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow." ' " Ex parte R.T.S., 771 So.2d at 476 (quoting Ex parte Bryowsky, 676 So.2d at 1324, quoting in turn Phillips v. Phillips, 622 So.2d 410, 412 (Ala. Civ. App. 1993) ).

The father's testimony, when viewed most favorably to the facts the probate court found, supports the probate court's determination that the father did not act in such a manner as to have abandoned the child in the six months before the child's birth in January 2013. As the prospective adoptive parents suggest, there was some evidence indicating that the father knew where the mother was located and could have contacted her after her arrest for burglary. Although the father testified that his cellular telephone had "died" and that, as a result, he had lost the mother's contact information, he said that the mother's brother had sent him a text message on his cellular telephone about the mother, indicating that he may have had a method by which to reach the mother or her family. However, the father also testified that he had not known with certainty where the mother was at the time he reported the burglary. According to the father, the mother had told him that she was living in Jacksonville, Florida, and working at a restaurant; the father said that he contacted the restaurant and that he was told that she was not employed there. He said that he suspected, and reported to the law-enforcement officials investigating the burglary, that the mother might be living with her mother in Green Cove Springs, Florida. The father further testified that the law-enforcement officials had asked him about the mother's whereabouts more than once and that she had not been immediately arrested on the burglary charge, indicating that, in fact, the mother had not been residing with her mother or that she was otherwise difficult for law enforcement to locate.

The prospective adoptive parents also make much of the fact that the father had the mother served with process of the Florida paternity and custody action in February 2013. However, contrary to the prospective adoptive parents' assertion that the mother was served at her mother's residence, the information contained in the record indicates that the mother was served by a special process server at a warehouse store and not at the Green Cove Springs address that the father had for the mother's mother. The father testified that he had made several attempts to serve the mother before one was successful and that at least one process server was informed that the mother did not live at her mother's address. Thus, the whole of the evidence, when viewed in the light most favorable to the probate court's judgment, supports the conclusion that the father was unaware of the mother's exact whereabouts and could not have contacted her between August 2012 and January 2013.

According to the prospective adoptive parents, the father's failure to contact the mother while she was in jail and to offer to provide for her or to secure the welfare of the child is proof of abandonment. The father admitted that he had not contacted the mother while she was incarcerated. However, the record does not contain any evidence indicating the length of time the mother was incarcerated. The father testified that when he spoke to law-enforcement officials he mentioned that the mother was pregnant and indicated concern over the child's welfare; he said that they told him that it would be better for the child if the mother were in jail because she would not have the ability to abuse illegal drugs while there. The father also said that he had contacted the Florida Department of Children and Families about the child but that he had been informed that he could do nothing because the child had not been born and because he had not yet proven his paternity. The probate court could have believed the father's testimony that he had made appropriate inquiries regarding his ability to protect the welfare of the child but that he had been provided information indicating that he had no recourse before the child was born.

The probate court found that the father had contacted an attorney at the Judge Advocate General and that he had then been referred to a nonmilitary attorney. At that point, as the probate court recounted in its judgment, the father took the necessary steps to safeguard his legal rights as a father under Florida law. He sought to establish the child's paternity and to obtain custody of the child, and he timely registered with the Florida Putative Father Registry. Regarding his desire to be awarded custody of the child, the father said that the mother would not be a suitable parent, based on her drug use and other facts he had since learned about her, including her criminal history. The father testified that he had made inquiries at area hospitals around the expected date of the child's delivery to no avail. The evidence supports the conclusion that the father took steps indicating his interest in protecting the welfare of the child.

Admittedly, the father did not provide the mother financial or emotional assistance after she was arrested in late July or early August 2012 for burglarizing the father's house on July 14, 2012. Based on one view of the evidence, the father was not sure where the mother was residing. In addition, the testimony at trial indicated that the mother had left the father of her own accord; the evidence further suggests that she then lied to him about where she was residing and about having employment. The father testified that the mother had told him that she had left him so that she could "clear her mind because she was upset with [him]." He testified that he spoke with her on the telephone several times between the day she left, July 5, and the day before the burglary on July 14, 2012, and that she had vacillated between wanting to return to Middleburg and wanting to remain in, as far as the father knew, Jacksonville. The mother then burglarized the house, resulting in criminal charges against her. The testimony at trial suggested that law enforcement had had difficulty locating the mother and that, at least in January 2013, the mother was apparently not living with her mother at the only address the father had ever had for her.

The probate court could have concluded that the mother's conduct, and not that of the father, resulted in his inability to provide emotional or financial assistance to her. Based on the totality of the evidence before the probate court, we cannot conclude that its determination that the father did not impliedly consent to the adoption of the child under § 26-10A-9(a)(1) is not supported by the evidence. Accordingly, we affirm the judgment of the probate court insofar as it decided the adoption contest in favor of the father.

The Father's Cross-Appeal

As noted above, the father challenged the October 3, 2016, judgment insofar as it assessed against him one-half of the guardian ad litem fee and "all additional costs of court." Under § 26-10A-24, a probate court is required to impose certain costs on a contestant depending on the results of the contest:

"(h) Where there is a contested case hearing, if the adoption is denied, then the probate court or court of competent jurisdiction, unless just cause is shown otherwise by the contestant, shall issue an order for reimbursement to the petitioner or petitioners for adoption for all medical and living expenses incidental to the care and well-being of the minor child for the time the child resided with the petitioner or petitioners for adoption.
"(i) Where there is a contested hearing and the contest fails, then the probate court or court of competent jurisdiction, unless just cause is shown otherwise by the contestant, shall issue an order for reimbursement to the petitioner or petitioners for adoption for all legal costs incurred which are incidental to the contest."

The father argues that the imposition of one-half of the guardian ad litem fee and the other legal costs of the action is not authorized under § 26-10A-24 because his contest was successful. We first note that, under Ala. Code 1975, § 26-10A-22, and Rule 17(d), Ala. R. Civ. P., a guardian ad litem fee is to be assessed as a court cost. The father argues that the prevailing rule is that costs of litigation are awarded to, and not imposed upon, the prevailing party. See Rule 54(d), Ala. R. Civ. P. (stating that, unless a statute provides otherwise, "costs shall be allowed as of course to the prevailing party"); and Townsend v. Hogan, 73 So.3d 702, 706 (Ala. Civ. App. 2011) (quoting Ennis v. Kittle, 770 So.2d 1090, 1091 (Ala. Civ. App. 1999), quoting in turn Merchants Nat'l Bank v. Cowley, 265 Ala. 125, 135, 89 So.2d 616, 625 (1956) )("Notably, '[i]n civil litigation, "the usual rule is to tax the costs in favor of the prevailing party." ' "). Of course, both the assessment of the guardian ad litem fee and "the taxation of costs [are] matter[s] within the sound discretion of the trial court"; both decisions are reviewed only for an abuse of the trial court's discretion. Townsend, 73 So.3d at 706 ; see also Rule 54(d) (indicating that, although costs are typically allowed to the prevailing party, a trial court may direct otherwise).

The father first argues that the guardian ad litem fee has no reasonable basis appearing of record and that the probate court's assessment of a $4,200 total guardian ad litem fee is therefore an abuse of discretion. Rule 17(d) requires that trial court "ascertain a reasonable fee or compensation to be allowed and paid to [a] guardian ad litem for services rendered," but the rule does not provide any guidance on how a fee is to be established. We have recently applied the principles applicable to a trial court's assessment of an attorney fee to the assessment of a guardian ad litem fee. Roberts v. Roberts, 189 So.3d 79, 84-85 (Ala. Civ. App. 2015). Thus, a trial court assessing a guardian ad litem fee should consider such factors as

"(1) the nature and value of the subject matter of the employment; (2) the learning, skill, and labor requisite to its proper discharge; (3) the time consumed; (4) the professional experience and reputation of the attorney; (5) the weight of his responsibilities; ... (10) the fee customarily charged in the locality for similar legal services; (11) the likelihood that a particular employment may preclude other employment; and (12) the time limitations imposed by the client or by the circumstances."

Van Schaack v. AmSouth Bank, N.A., 530 So.2d 740, 749 (Ala. 1988).

Although the father admits that "when a trial court makes an award of attorney fees, it 'is not required to set forth a detailed analysis of all the applicable factors considered by it in exercising its discretion in establishing a reasonable attorney fee,' " Roberts, 189 So.3d at 85 (quoting Diamond Concrete & Slabs, LLC v. Andalusia-Opp Airport Auth., 181 So.3d 1071, 1076 (Ala. Civ. App. 2015) ), he contends that the probate court's failure to articulate in the judgment the basis for the guardian ad litem fee prevents "meaningful appellate review" of that fee. Indeed, our supreme court has indicated that "a trial court's order regarding an attorney fee must allow for meaningful appellate review by articulating the decisions made, the reasons supporting those decisions, and how [the trial court] calculated the attorney fee." Pharmacia Corp. v. McGowan, 915 So.2d 549, 553 (Ala. 2004). However, as was the case in Roberts, the record in the present case contains an affidavit from the guardian ad litem, who states that she had provided 21 hours of service in the case and that her hourly rate was $200, which rate, she stated, was reasonable in Jefferson and Shelby Counties. To be sure, the guardian ad litem's affidavit does not contain an itemization of services as did the affidavit in Roberts, see 189 So.3d at 85 ; however, she does state that her services included participating in a best-interest hearing, participating in a hearing on the costs due to the prospective adoptive parents, and receipt and review of multiple briefs during the pendency of the proceedings, most, if not all, of which the probate court was of no doubt aware. The father does not argue that $200 per hour is not a reasonable fee, and he does not specifically challenge the time the guardian ad litem expended other than to comment that the guardian ad litem did not telephone or visit with the father at any time during the pendency of this matter and to accuse the prospective adoptive parents of intentionally extending the pendency of the proceedings. Thus, we cannot conclude that the probate court's award of a $4,200 total guardian ad litem fee was an abuse of the probate court's discretion.

The father next asserts that the probate court's imposition of costs and one-half of the guardian ad litem fee upon him is, in this particular case, punitive, unjust, and an abuse of the probate court's discretion. Although he admits that Rule 54(d) permits a trial court to direct that costs be borne by the prevailing party, he contends that "if the court directs [that the prevailing party bear the costs], there must be good and articulated reasons" for that direction. However, as our supreme court has explained, Rule 54(d)"does not so require." Ex parte Osborn, 375 So.2d 467, 469 (Ala. 1979). Furthermore, "we will not reverse unless it appears from the record, after indulging all fair intendments in favor of the ruling, that the taxation of costs was unjust and unfair." City of Birmingham v. City of Fairfield, 396 So.2d 692, 697 (Ala. 1981) (citing Walden v. Walden, 277 Ala. 459, 171 So.2d 851 (1965) ). The appellate courts of this state have seldom reversed an allocation of costs among the parties, and the father has not asserted a sufficient basis for finding that the imposition upon him of costs and one-half of the guardian ad litem fee is unjust or unfair in this case. We therefore affirm the probate court's judgment insofar as it set the guardian ad litem's total fee and insofar as it assessed against the father one-half of that fee and the additional costs of court.

Conclusion

We have considered and rejected the arguments of the prospective adoptive parents in support of their contention that the probate court incorrectly determined that the father did not impliedly consent to the adoption of the child. We have also considered and rejected the father's arguments that the probate court erred in assessing the guardian ad litem fee and in ordering that he be responsible for one-half of that fee and for the additional costs of court. The October 3, 2016, judgment of the probate court is therefore affirmed in its entirety.

APPEAL-AFFIRMED.

CROSS-APPEAL-AFFIRMED

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

      We note that the father states in his issue statement for his cross-appeal that he challenges the probate court's failure to disallow "excessive child care costs" requested by the prospective adoptive parents in their motion for reimbursement filed pursuant to § 26-10A-24(h). In the conclusion of his argument on his cross-appeal, the father states that "the taxing of reimbursement for expenses for caring for the child" was an abuse of discretion. The probate court's judgment complies with § 26-10A-24(h) and this court's directives in W.L.K. I and W.L.K. II, because a probate court is generally required to order a successful contestant in an adoption proceeding to reimburse the adoption petitioners for "all medical and living expenses incidental to the care and well-being of the minor child for the time the child resided with [them]." § 26-10A-24(h). A probate court may, if just cause is demonstrated, award a lesser amount than that claimed by the adoption petitioners, and, based on our review of the judgment, the probate court in the present case disallowed several of the claimed expenses, including those described as babysitting and child-care costs, awarding the prospective adoptive parents $25,331.85 instead of the more than $41,000 they requested in their motion for reimbursement. Because the father's brief does not contain a developed argument related to the failure of the probate court to disallow the challenged child-care costs, we consider this argument to have been abandoned by the father. See Braxton v. Stewart, 539 So.2d 284, 286 (Ala. Civ. App. 1988) (citing Ex parte Riley, 464 So.2d 92 (Ala. 1985) ) ("An appeals court will consider only those issues properly delineated as such, and no matter will be considered on appeal unless presented and argued in brief.").

      For examples of those rare cases involving the reversal of an allocation of costs, see Dozier v. Payne, 244 Ala. 476, 478, 14 So.2d 376, 378-79 (1943), and Frawley v. U.S. Steel Min. Co., 496 So.2d 731 (Ala. 1986).


source: Caselaw Access Project

author: THOMPSON, Presiding Judge.

license: Public Domain

text:
    R.S. v. B.C.
    2160462
    Court of Civil Appeals of Alabama.
    September 8, 2017
    Amy C. Marshall, Enterprise, for appellant.
    James H. Tarbox of Marsh & Cotter, LLP, Enterprise, for appellee.
   THOMPSON, Presiding Judge.

On September 12, 2016, B.C. ("the aunt") filed a petition in the Coffee Juvenile Court ("the juvenile court") seeking to have W.C. ("the child") declared dependent and seeking an award of custody of the child. In that petition, the aunt alleged that the child's father was incarcerated and that the child's mother, R.S. ("the mother"), had exposed the child to violence and was financially unable to provide for him. The aunt also filed a separate petition seeking an award of emergency custody of the child.

On September 13, 2016, the juvenile court conducted a hearing on the aunt's request for an award of emergency custody. During that hearing, the parties testified that the mother and the child had moved from Miami, Florida, to Alabama on July 22, 2016. Their testimony also referenced a Florida court action pertaining to the child, who is 17 years old, that resulted in the child's being removed from the mother's custody. The parties provided no specific information about that action; it is not clear whether it was in the nature of a delinquency action or a dependency action.

On September 13, 2016, the juvenile court entered an emergency order awarding the aunt pendente lite custody of the child. The juvenile court scheduled a dependency hearing that was ultimately conducted on February 7, 2017. The mother failed to appear at the dependency hearing. None of the evidence presented at the dependency hearing provided additional information concerning the Florida court action pertaining to the child.

On February 7, 2017, the juvenile court entered a judgment finding the child to be dependent and awarding custody of him to the aunt. The mother filed a postjudgment motion, and the juvenile court denied that motion. The mother timely appealed.

Neither party has addressed the jurisdiction of the Alabama courts to consider the aunt's dependency action. The Alabama Juvenile Justice Act, § 12-15-101 et seq., Ala. Code 1975, governs dependency actions. However, the Uniform Child Custody Jurisdiction and Enforcement Act ("the UCCJEA"), § 30-3B-101 et seq., Ala. Code 1975, governs the jurisdiction of circuit courts and juvenile courts to consider a "child custody proceeding." A child-custody proceeding governed by the UCCJEA includes not only an action between parents seeking custody determination but also, among other things, a dependency action. M.B. v. B.B., 244 So.3d 128, 131 (Ala. Civ. App. 2017) ; J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d 381, 384 (Ala. Civ. App. 2013). Thus, in order to properly exercise subject-matter jurisdiction over the aunt's action seeking to have the child declared dependent and seeking an award of custody of the child, the juvenile court had to comply with the jurisdictional requirements of the UCCJEA.

In order to make a custody determination incident to a dependency determination, a juvenile court must have jurisdiction to make an initial custody determination under the UCCJEA. M.B. v. B.B., 244 So.3d at 131 ; J.D. v. Lauderdale Cty. Dep't of Human Res., supra. In setting forth the requirements for a court to have jurisdiction to make an initial custody determination, the UCCJEA provides, in pertinent part:

"(a) Except as otherwise provided in Section 30-3B-204, [Ala. Code 1975,] a court of this state has jurisdiction to make an initial child custody determination only if:
"(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
"(2) A court of another state does not have jurisdiction under subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 30-3B-207 or 30-3B-208, [Ala. Code 1975,] and:
"a. The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
"b. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;
"(3) All courts having jurisdiction under subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 30-3B-207 or 30-3B-208 ; or
"(4) No court of any other state would have jurisdiction under the criteria specified in subdivision (1), (2), or (3).
"(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
"(c) Physical presence of a child is not necessary or sufficient to make a child custody determination."

§ 30-3B-201, Ala. Code 1975.

"We note that the term 'home state' is also defined under § 30-3B-102(7)[, Ala. Code 1975,] of the UCCJEA as:
" 'The 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. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of the child or any of the mentioned persons is part of the period.'
"In Ex parte Siderius, 144 So.3d 319, 324-25 (Ala. 2013), our supreme court noted that of the two definitions of 'home state' in the UCCJEA, i.e., the one set forth in § 30-3B-102(7) and the one set forth in § 30-3B-201(a)(1), the definition set forth in § 30-3B-201(a)(1) is broader. The court then concluded that 'we resolve the apparent conflict between the two sections, in keeping with the purposes of the UCCJEA, by applying the construction that finds the existence of a home state, rather than the one that finds that the children had no home state.' Id. at 325."

M.B. v. B.B., 244 So.3d at 131-32.

In this case, the child moved to Alabama on July 22, 2016, or not quite two months before the initiation of the aunt's dependency action. Therefore, under the UCCJEA, it does not appear that Alabama can be said to be the child's home state. Further, the record indicates that there existed a court action in Florida pertaining to the child, and it is not clear whether that action had been resolved and whether the Florida court might have maintained continuing jurisdiction over the child under the UCCJEA. The record contains no indication that the parties or the juvenile court addressed the issue of jurisdiction under the UCCJEA in the dependency action; the parties did not present evidence regarding the child's home state, the earlier Florida court action, or whether the Florida court needed to, or did, decline to exercise jurisdiction over the child.

We note that the juvenile court had jurisdiction to enter its emergency pendente lite custody order. See § 30-3B-204, Ala. Code 1975; and J.D. v. Lauderdale Cty. Dep't of Human Res., 121 So.3d at 385. However, emergency jurisdiction is limited, and such emergency jurisdiction does not provide a juvenile court with jurisdiction to make a dependency determination and a custody award incident to that determination. M.B. v. B.B., 244 So.3d at 132-33 ; J.D. v. Lauderdale Cty. Dep't of Human Res., supra.

The record does not contain sufficient evidence from which this court can determine whether the Alabama courts have jurisdiction over the dependency action. Accordingly, we reverse the judgment and remand the cause for the juvenile court to make a determination, based upon the receipt of additional evidence, if necessary, whether it may exercise jurisdiction over the dependency action under the UCCJEA. M.B. v. B.B., supra.

REVERSED AND REMANDED.

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


author: MOORE, Judge.

text:
    M.G. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES
    2160297, 2160298, 2160299
    Court of Civil Appeals of Alabama.
    September 8, 2017
    E. Patrick Hill, Huntsville, for appellant.
    Submitted on appellant's brief only.
   MOORE, Judge.

M.G. ("the mother") appeals from separate judgments of the Madison Juvenile Court ("the juvenile court") finding her children, J.P. and Ja.P. ("the children"), dependent and divesting her of their custody. We reverse the juvenile court's judgments.

Facts and Procedural History

On February 18, 2016, A.F. ("the paternal grandmother") filed a petition seeking custody of J.P.; that case was assigned case no. JU-16-181.01. A guardian ad litem was appointed to represent J.P. The mother filed an answer to the paternal grandmother's petition. On April 28, 2016, J.P.'s guardian ad litem filed a motion requesting that the juvenile court enter an order placing custody of J.P. and his sibling, Ja.P., with their paternal grandparents. The mother filed a motion seeking the appointment of a guardian ad litem to represent her because, according to the motion, the mother was 17 years old; on May 9, 2016, the juvenile court entered an order appointing a guardian ad litem to represent the mother. Meanwhile, on May 4, 2016, the Madison County Department of Human Resources ("DHR") filed a petition in the juvenile court, asserting that J.P. was dependent; that petition was assigned case no. JU-16-181.02. On May 5, 2016, DHR filed a petition in the juvenile court, asserting that Ja.P. was dependent; that petition was assigned case no. JU-16-447.01. The juvenile court entered a single order in case no. JU-16-181.02 and in case no. JU-16-447.01, appointing the same guardian ad litem for the children as had been appointed to represent J.P. in case no. JU-16-181.01 and appointing the same guardian ad litem for the mother as had been appointed to represent her in case no. JU-16-181.01.

On June 7, 2016, the juvenile court entered separate judgments in all three cases, finding the children dependent and vesting DHR with protective supervision of the children. On September 26, 2016, an order was entered in all three cases, setting them for a final hearing on November 7, 2016. The juvenile court entered an order in all three cases on November 7, 2016, resetting the final hearing for December 13, 2016. On December 6, 2016, the juvenile court entered an order in all three cases, resetting the final hearing for December 12, 2016. The mother was not present at the December 12, 2016, hearing, but she was represented by counsel. The mother's counsel indicated at the December 12, 2016, hearing that the hearing had been continued from November 7, 2016, because the mother had arrived late to the proceeding. Also at the December 12, 2016, hearing, counsel for DHR, counsel for the paternal grandmother, counsel for the children's father, the mother's guardian ad litem, and the children's guardian ad litem stipulated to a permanency plan, pursuant to which custody of J.P. would be transferred to the paternal grandmother and custody of Ja.P. would be transferred to D.F. ("the paternal great-grandmother"). The mother's counsel objected to the stipulations regarding the permanency plan on behalf of the mother. No evidence was offered by any party, and the hearing was concluded.

Following the hearing on December 12, 2016, the juvenile court entered a single judgment on December 28, 2016, in case nos. JU-16-181.01 and JU-16-181.02, concluding that J.P. remained dependent, denying the mother's objection to the permanency plan regarding relative placement, and vesting legal and physical custody of J.P. in the paternal grandmother. On that same date, the juvenile court entered a separate judgment in case no. JU-16-447.01, concluding that Ja.P. remained dependent, denying the mother's objection to the permanency plan regarding relative placement, and vesting legal and physical custody of Ja.P. in the paternal great-grandmother. The mother filed a single motion to alter, amend, or vacate the juvenile court's judgments entered in all three cases. Following a hearing, the juvenile court entered separate orders in all three cases on January 17, 2017, denying the mother's postjudgment motion. The mother timely filed separate notices of appeal to this court.

The mother's appellate counsel filed, as to all three of the mother's appeals, a "no-merit" brief and a motion to withdraw, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and in accordance with J.K. v. Lee County Department of Human Resources, 668 So.2d 813 (Ala. Civ. App. 1995). The mother's counsel indicated that he had attempted to serve the mother with the motion and accompanying brief in accordance with Anders and J.K. but that those attempts had been unsuccessful. The mother did not provide this court with any issues to be considered on appeal. On July 19, 2017, this court entered an order directing the mother's counsel to file a supplemental brief addressing whether clear and convincing evidence had been presented to support the juvenile court's findings of dependency. See Ala. Code 1975, § 12-15-310(b), and L.F. v. Cullman Cty. Dep't of Human Res., 175 So.3d 183 (Ala. Civ. App. 2015). The mother's counsel filed a supplemental brief, and DHR filed a letter indicating its intent to not file a reply brief.

Standard of Review

A judgment adjudicating a child as dependent must be supported by clear and convincing evidence. See Ala. Code 1975, § 12-15-310(b). " 'Clear and convincing evidence' is ' "[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion." ' " C.O. v. Jefferson Cty. Dep't of Human Res., 206 So.3d 621, 627 (Ala. Civ. App. 2016) (quoting L.M. v. D.D.F., 840 So.2d 171, 179 (Ala. Civ. App. 2002), quoting in turn Ala. Code 1975, § 6-11-20(b)(4) ).

" '[T]he evidence necessary for appellate affirmance of a judgment based on a factual finding in the context of a case in which the ultimate standard for a factual decision by the trial court is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly ... establish the fact sought to be proved.'
" KGS Steel[, Inc. v. McInish,] 47 So.3d [749] at 761 [ (Ala. Civ. App. 2006) ].
"To analogize the test set out ... by Judge Prettyman [in Curley v. United States, 160 F.2d 229, 232-33 (D.C. Cir. 1947),] for trial courts ruling on motions for a summary judgment in civil cases to which a clear-and-convincing-evidence standard of proof applies, 'the judge must view the evidence presented through the prism of the substantive evidentiary burden'; thus, the appellate court must also look through a prism to determine whether there was substantial evidence before the trial court to support a factual finding, based upon the trial court's weighing of the evidence, that would 'produce in the mind [of the trial court] a firm conviction as to each element of the claim and a high probability as to the correctness of the conclusion.' "

Ex parte McInish, 47 So.3d 767, 778 (Ala. 2008).

Analysis

The mother argues in her supplemental brief to this court that DHR and the paternal grandmother failed to prove by clear and convincing evidence that the children remained dependent at the time of the December 12, 2016, hearing and that, as a result, the juvenile court erred in transferring custody of the children to the paternal grandmother and the paternal great-grandmother.

Section 12-15-310, Ala. Code 1975, provides, in pertinent part:

"(a) An adjudicatory hearing is a hearing at which evidence is presented for a juvenile court to determine if a child is dependent. At the commencement of the hearing, if the parties are not represented by counsel, they shall be informed of the specific allegations in the petition. The parties shall be permitted to admit or deny the allegations prior to the taking of testimony.
"(b) If the allegations are denied by the parties or if they fail to respond, the juvenile court shall proceed to hear evidence on the petition. The juvenile court shall record its findings on whether the child is dependent. If the juvenile court finds that the allegations in the petition have not been proven by clear and convincing evidence, the juvenile court shall dismiss the petition."

Section 12-15-311, Ala. Code 1975, provides, in pertinent part:

"(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that a child is dependent, the juvenile court may proceed immediately, in the absence of objection showing good cause or at a postponed hearing, to make proper disposition of the case."

At the December 12, 2016, hearing, the juvenile court confirmed at the outset that the mother was objecting to the permanency plan vesting custody of the children with the paternal grandmother and the paternal great-grandmother and closing the cases. Inherent in that plan is a determination that the children remained dependent. In her postjudgment motion filed in all three cases, the mother asserted that she was a proper person to parent the children and that the juvenile court had erred in transferring custody of the children to the paternal grandmother and the paternal great-grandmother pursuant to the permanency plan. At the hearing on the mother's postjudgment motion, the mother was again not present. Her attorney argued on her behalf, however, that she had met the requirements placed upon her by DHR, and the mother's attorney sought an evidentiary hearing. Thus, the mother properly preserved for this court's consideration the juvenile court's findings that each child remained dependent and its transfer of custody of the children to the paternal grandmother and the paternal great-grandmother in the absence of clear and convincing evidence to support its judgment.

We note that, according to the juvenile court's June 7, 2016, judgments, the mother had stipulated to the children's dependency at a May 20, 2016, hearing. That stipulation did not, however, excuse the requirement that an evidentiary hearing be conducted on the issue of dependency at the December 12, 2016, hearing, given the mother's objection to the permanency plan to which the others who were present at the hearing stipulated. See, e.g., M.P.G. v. Jefferson Cty. Dep't of Human Res., 215 So.3d 1096, 1101 (Ala. Civ. App. 2016) ("[W]e fail to see how [the mother's] stipulation that the child was dependent as to her on June 12, 2015, would preclude the mother from contending in November 2015 that she had rehabilitated herself and that the child should be returned to her custody.").

In L.F. v. Cullman County Department of Human Resources, 175 So.3d 183 (Ala. Civ. App. 2015), this court reversed judgments adjudicating the children in that case dependent because, we held, the judgments were unsupported by any evidence. Specifically, this court determined that, in the absence of any stipulation as to dependency, the juvenile court in that case could find the children dependent only based on clear and convincing evidence. Id. at 185. Because the record contained no evidence of the children's dependency, this court reversed the juvenile court's judgments. Id. at 185-86. In the present case, like in L.F., no evidence was presented by any party at the hearing conducted on December 12, 2016. In accordance with § 12-15-310 and § 12-15-311, the mother objected to the permanency plan stipulated to by counsel for DHR and others that were present at that hearing. Thus, the juvenile court was required to proceed with an evidentiary hearing before finding the children dependent. See L.F., supra. This court noted in L.F. that court reports contained in the record had not been formally submitted into evidence and, thus, that the mother in that case had not been afforded the opportunity to object to their consideration. 175 So.3d at 185. Similarly, in the present case, any reports or other documents contained in the record on appeal were not admitted into evidence at any time; accordingly, they may not be considered in support of the juvenile court's findings of dependency. Id. Any argument made on behalf of DHR by DHR's counsel at the December 12, 2016, hearing also was not evidence of the children's dependency. See L.F., 175 So.3d at 185 (" 'The unsworn statements, factual assertions, and arguments of counsel are not evidence.' " (quoting Ex parte Russell, 911 So.2d 719, 725 (Ala. Civ. App. 2005) )).

Because the juvenile court's judgments adjudicating the children dependent and transferring custody of the children were entered without clear and convincing evidence of the children's continued dependency, we reverse the juvenile court's judgments, and we remand the cases for further proceedings consistent with this opinion.

2160297-REVERSED AND REMANDED WITH INSTRUCTIONS.

2160298-REVERSED AND REMANDED WITH INSTRUCTIONS.

2160299-REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      Although DHR's letter indicates its intent to not file an appellee's brief, it also states, among other things, that the record "reflects that the [juvenile] court did not receive any evidence regarding the suitability of either prospective custodian to care for the dependent children," that "Alabama law requires that such evidence be presented to and considered by the trial court before the transfer of custody of [a] dependent child may properly occur," and that "the trial court had no evidence upon which to base a transfer of custody to relatives."


text:
    STATE DEPARTMENT OF REVENUE and Vernon Barnett, in his official capacity as Commissioner of the State Department of Revenue v. COCA-COLA REFRESHMENTS, U.S.A., INC., f/k/a Coca-Cola Enterprises, Inc., et al.
    2160412
    Court of Civil Appeals of Alabama.
    September 8, 2017
    Kelley Askew Gillikin and Craig Allan Banks, asst. counsel, State of Alabama Department of Revenue, for appellants.
    Christopher R. Grissom, James E. Long, Jr., and Marc James Ayers of Bradley Arant Boult Cummings LLP, Birmingham, for appellees.
   THOMPSON, Presiding Judge.

The State Department of Revenue ("the department") and Vernon Barnett, in his official capacity as the commissioner of the department, appeal from a judgment of the Montgomery Circuit Court. The circuit court's judgment upheld a decision of the department's administrative-law judge ("the ALJ") regarding an income-tax refund that Coca-Cola Refreshments, U.S.A., Inc., formerly known as Coca-Cola Enterprises, Inc. ("CCE"), and two of its subsidiaries, Roddy Coca-Cola Bottling Company, Inc. ("Roddy"), and Vending Holding Company ("VHC"), had sought from the department. (CCE, Roddy, and VHC are hereinafter referred to collectively as "the taxpayers.")

The facts in this matter are not disputed. CCE, a Delaware corporation, did business in Alabama at all times relevant to this appeal. Roddy, a Tennessee corporation, operated a soft-drink bottling and distribution facility in Montgomery. In November 1998, Roddy became an indirect wholly owned subsidiary of CCE. VHC, a Georgia corporation, also did business in Alabama at all times relevant to this appeal. VHC has been a wholly owned subsidiary of CCE since CCE acquired it in 1992.

All three entities-CCE, Roddy, and VHC-were required to file corporate tax returns and pay corporate income taxes in Alabama. As the ALJ explained in his decision, before the 1999 tax year, § 40-18-39, Ala. Code 1975, required all corporations subject to Alabama income tax to file separate-entity returns. However, in 1998, the Alabama Legislature amended that statute by enacting Act No. 98-502, Ala. Acts 1998 ("the 1998 Act"). Pursuant to the 1998 Act, for the first time, a group of affiliated corporations in Alabama could elect to file a consolidated Alabama tax return if that group also filed a consolidated federal tax return, provided that at least one member of the group was subject to Alabama corporate taxes. § 40-18-39(c)(1). Such a group of corporations is known as an Alabama affiliated group ("AAG"). At that time, by definition, an AAG included all members of its federal consolidated group. Under the 1998 Act, an AAG that elected to file a consolidated return was to be treated as though it was a single taxpayer for the purpose of determining the AAG's taxable income or losses. § 40-18-39(c)(3). As the ALJ stated, "the deductions and losses, including [net operating loss] carryovers, attributable to one group member could be applied to offset the income of the other group members in computing the group's net taxable income or loss."

Section 40-18-39 was amended again by Act No. 2001-1089, Ala. Acts 2001 ("the 2001 Act"). The amendment became effective beginning with the 2002 tax year. Under the 2001 Act, the definition of an AAG was modified to limit the members of the group to only those members of a federal consolidated group that had a nexus with and were subject to Alabama's corporate income tax. § 40-18-39(b)(1). In addition, under the 2001 Act, the AAG was no longer to be treated as a single taxpayer; each member of an AAG that elects to file a consolidated return now must compute its Alabama taxable income or loss separately. § 40-18-39(c)(5). The 2001 Act also limited the allocation of net operating loss ("NOL") in a consolidated return as follows:

"(h) If, in a taxable year before the corporation became a member of an Alabama affiliated group that has elected to file an Alabama consolidated return, the corporation incurred a net operating loss, the deductibility of the loss on the Alabama consolidated return shall be limited to only the amount necessary to reduce to zero the Alabama taxable income, calculated on a separate return basis, of the corporation that incurred the net operating loss. Except as provided in the preceding sentence, the separate return limitation year ('SRLY') rules contained in 26 U.S.C. § 1502 shall apply."

§ 40-18-39(h).

The taxpayers each filed separate corporate income-tax returns in years they were required to file Alabama returns until 2007. On its returns for calendar years 1992 through 2002 and calendar year 2004, CCE reported total Alabama NOLs of $10,249,031. CCE was permitted to carry forward its NOLs and deduct them in later years. Although CCE and VHC were members of an affiliated group and filed federal consolidated tax returns for calendar years 1992 through 2007, and although Roddy was included in that federal affiliated group from 1998 through 2007, the taxpayers elected to file an Alabama consolidated corporate income-tax return for the first time in 2007.

As required by § 40-18-39(c)(5), the taxpayers prepared and submitted separate "pro forma" returns to submit with their 2007 Alabama consolidated return. On their individual forms, CCE reported a 2007 Alabama taxable loss in the amount of $989,933; VHC reported a 2007 Alabama taxable loss in the amount of $37,342; and Roddy reported 2007 Alabama taxable income in the amount of $11,371,206. On their consolidated return, the taxpayers reported their aggregate taxable income as $10,343,871. They then deducted CCE's Alabama NOL of $10,249,031, which it had carried forward from previous years, for a consolidated taxable income in the amount of $94,840. Because of certain credits and tax payments that had already been made, the taxpayers, on their 2007 consolidated return, requested a refund of Alabama corporate income tax in the amount of $978,934.

The department reviewed the taxpayers' 2007 Alabama consolidated return. In an adjustment notice dated April 16, 2009, the department disallowed the entire NOL deduction on the ground that "[t]here are no consolidated net operating losses to be utilized by the Alabama Affiliated Group as 12/31/2007 is the first tax year that the taxpayer has filed an Alabama consolidated return." After disallowing the NOL deduction, the department recalculated the refund due the taxpayers. Based on its calculation, the department issued the taxpayers a 2007 refund in the amount of $318,882.37.

On June 26, 2009, the taxpayers appealed the department's adjustment based on the disallowance of the NOL to the department's administrative-law division. The ALJ analyzed the words and terms used in the applicable statutes governing the filing of an Alabama consolidated return and determined that the NOLs for 1992 through 1998 could not be used on the AAG's 2007 consolidated return because, he found, CCE had negative taxable income "in that year." However, the ALJ ruled that the NOLs from 1999 through 2002 and 2004 could be allowed as group NOLs on the 2007 consolidated return because CCE was a member of an AAG in those loss years.

Both the taxpayers and the department and one of Barnett's predecessors as commissioner of the department appealed to the circuit court from the ALJ's decision. The taxpayers initially challenged the ALJ's determination that the NOLs incurred by CCE in the separate filing years 1992 through 1998 could not be deducted on the 2007 Alabama consolidated return. The department and its commissioner challenged the ALJ's determination that the taxpayers were entitled to deduct the NOLs from 1999 through 2002 and 2004 on the 2007 Alabama consolidated return.

The circuit court referred the matter to a special master. After considering the record from the proceedings before the administrative-law division and the briefs and arguments of the parties, the special master submitted his findings of fact and conclusions of law to the circuit court on February 17, 2016. The special master, like the ALJ, analyzed the relevant statutes and reached the same conclusions as the ALJ. The special master determined that

" § 40-18-39 must be construed as allowing Alabama affiliated group members to share NOL carryovers on an Alabama consolidated return, but only if the § 40-18-39(h) limitation does not apply. The subsection (h) limitation applies if an NOL was incurred by a group member in a year before the member became a member of the Alabama affiliated group. Because an Alabama affiliated group did not exist before 1999, all NOLs incurred before 1999 are subject to the subsection (h) limitation. If, however, the loss was incurred in 1999 or later, and the corporation that incurred the loss was a group member in the loss year, the subsection (h) limitation does not apply, even if the Alabama affiliated group did not file an Alabama consolidated return in the loss year.
"In conclusion, the Court holds [that] CCE, Roddy, and VHC were all members of an 'Alabama affiliated group' for the years 1999 through 2007 and are entitled to file a consolidated return in 2007. Further, they are entitled to report the Alabama Net Operating Losses for the years 1999 through 2002 and 2004."

The special master recommended that the department recompute the amount the taxpayers were due as a tax refund based on his conclusions.

The taxpayers dropped their challenge regarding the decision that they could not claim NOLs before 1999 and urged the circuit court to adopt the special master's report in full. The department and its commissioner continued their challenge to the decision that the taxpayers could report the NOLs from 1999 to 2002 and 2004 on the 2007 Alabama consolidated return. On February 20, 2017, the circuit court entered a judgment adopting the special master's report in full. The department and Barnett filed a timely notice of appeal to this court.

The issues presented on appeal were well argued by the parties in their respective briefs. The key issue on appeal is whether the limitation on the use of NOLs set forth in § 40-18-39(h), that is,

"[i]f, in a taxable year before the corporation became a member of an Alabama affiliated group that has elected to file an Alabama consolidated return, the corporation incurred a net operating loss, the deductibility of the loss on the Alabama consolidated return shall be limited to only the amount necessary to reduce to zero the Alabama taxable income, calculated on a separate return basis, of the corporation that incurred the net operating loss,"

applies in this case. For reasons explained more fully later in this opinion, the department and Barnett argue that it does apply, therefore precluding the taxpayers from reporting on their 2007 Alabama consolidated return the NOLs that CCE had incurred from 1999 through 2002 and in 2004 and that CCE was attempting to carry forward.

"Our standard of review is de novo: 'Because the issues presented by [this appeal] concern only questions of law involving statutory construction, the standard of review is de novo. See Taylor v. Cox, 710 So.2d 406 (Ala. 1998).' Whitehurst v. Baker, 959 So.2d 69, 70 (Ala. 2006)." Ex parte Birmingham Bd. of Educ., 45 So.3d 764, 767 (Ala. 2009) ; see also Page v. Southern Care, Inc., 219 So.3d 660, 664 (Ala. Civ. App. 2016) ("The construction of a statute ... involves a question of law that this court reviews de novo without a presumption of correctness.").

In the context of applying the rules of statutory construction in a tax matter, this court has written:

" 'Certain rules of statutory construction will guide us in deciding this case:
" ' "The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala. 1985) ; League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). If possible, the intent of the legislature should be gathered from the language of the statute itself. Advertiser Co. v. Hobbie, supra ; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala. 1978). If the statute is ambiguous or uncertain, the court may consider conditions which might arise under the provisions of the statute and examine results that will flow from giving the language in question one particular meaning rather than another. Studdard v. South Central Bell Telephone Co., 356 So.2d 139 (Ala. 1978) ; League of Women Voters v. Renfro, supra."
" ' Clark v. Houston County Comm'n, 507 So.2d 902, 903-04 (Ala. 1987). In deciding between alternative meanings to be given to an ambiguous or uncertain statutory provision, we will not only consider the results that flow from assigning one meaning over another, but will also presume that the legislature intended a rational result, see State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 66 So.2d 726 (1953) ; Crowley v. Bass, 445 So.2d 902 (Ala. 1984) (dictum); 2A N. Singer, Sutherland Statutory Construction § 45.12 (Sands 4th ed. 1984), one that advances the legislative purpose in adopting the legislation, see Mobile County Republican Executive Committee v. Mandeville, 363 So.2d 754 (Ala. 1978), that is "workable and fair," State v. Calumet & Hecla Consol. Copper Co., supra ; Ex parte Hayes, 405 So.2d 366 (Ala. 1981), and that is consistent with related statutory provisions, see Tate v. Teague, 431 So.2d 1222 (Ala. 1983) (" 'The intention of the Legislature may be determined by examining the statute as a whole' ") (quoting and adopting the trial court's conclusions of law).'
" John Deere Co. v. Gamble, 523 So.2d 95, 99-100 (Ala. 1988). We note 'the long-standing axiom that, where the language of a taxing statute is reasonably capable of two constructions, the most favorable to the taxpayer must be adopted.' Norandal USA, Inc. v. State Dep't of Revenue, 545 So.2d 792, 793 (Ala. Civ. App. 1989)."

Alabama Dep't of Revenue v. American Equity Inv. Life Ins. Co., 169 So.3d 1069, 1071-72 (Ala. Civ. App. 2015).

However, the department and Barnett cite Ex parte Kimberly-Clark Corp., 503 So.2d 304, 306 (Ala. 1987), for the proposition that,

" 'when interpreting a taxation statute, exemptions and deductions must be strictly construed against a taxpayer and in favor of the taxing authority. State v. Hunt Oil Company, 49 Ala.App. 445, 273 So.2d 207, cert. denied [290 Ala. 371], 273 So.2d 214 (Ala. 1972) ; State v. Zewen, 270 Ala. 52, 116 So.2d 373 (1959).' "

(Quoting White v. Kimberly-Clarke Corp., 503 So.2d 296, 298 (Ala. Civ. App. 1986).) Because the ultimate issue is whether the AAG is entitled to deduct NOLs incurred before an Alabama consolidated return had been filed, we conclude that, under the circumstances of this case, § 40-18-39(h), the statute that places a limitation on the NOL deduction, must be construed in favor of the department. Furthermore,

" '[i]t is well established that in interpreting a statute, a court accepts an administrative interpretation of the statute by the agency charged with its administration, if that interpretation is reasonable. Ex parte State Dep't of Revenue, [683 So.2d 980 (Ala. 1996) ] (citing Alabama Metallurgical Corp. v. Alabama Pub. Serv. Comm'n, 441 So.2d 565 (Ala. 1983) ). Absent a compelling reason not to do so, a court will give great weight to an agency's interpretations of a statute and will consider them persuasive. Ex parte State Dep't of Revenue, supra (citing Moody v. Ingram, 361 So.2d 513 (Ala. 1978) ).'
" State v. Pettaway, 794 So.2d 1153, 1157 (Ala. Civ. App. 2001). However, as established above, when the Department's interpretation conflicts with the applicable statute, the Department's regulation cannot stand."

Alabama Dep't of Revenue v. Jim Beam Brands Co., 11 So.3d 858, 866 (Ala. Civ. App. 2008). Moreover,

"[a]lthough the interpretation of a statute by an administrative agency that is charged with enforcement of the statute is persuasive, Alabama Dep't of Revenue v. Jim Beam Brands Co., 11 So.3d 858, 866 (Ala. Civ. App. 2008), that interpretation is not binding on this court. Britnell v. Alabama State Bd. of Educ., 386 So.2d 1148, 1149 (Ala. Civ. App. 1980)."

State Dep't of Revenue v. Omni Studio, LLC, So.3d 367, 375 (Ala. Civ. App. 2016).

The department and Barnett contend that, since the enactment of the 2001 Act, an NOL incurred during years in which a corporation filed a separate return cannot be used to create a loss that can be reported on an Alabama consolidated return and shared by members of the AAG. They also argue that, by definition, an AAG cannot exist until a consolidated return is filed. Therefore, they reason, any NOLs incurred and reported in a separate return, that is, before the AAG elected to file an Alabama consolidated return, cannot be used as a deduction that is carried forward for use by all the members of the AAG. Instead, the department and Barnett assert, § 40-18-39(h) limits the deductibility of such an NOL to "only the amount necessary to reduce to zero the Alabama taxable income, calculated on a separate return basis, of the corporation that incurred the net operating loss." Accordingly, the department and Barnett contend that CCE did not become a member of an AAG until 2007, the first year in which the AAG elected to file an Alabama consolidated return, and that, therefore, the NOLs CCE incurred in the years 1999 through 2002 and 2004 can be used only to reduce CCE's own Alabama corporate income to zero. The NOL deduction cannot be taken by other members of the AAG on the 2007 consolidated return, according to the department and Barnett.

The department and Barnett contend that an AAG cannot exist until it files an Alabama consolidated return. An "Alabama affiliated group" is defined in § 40-18-39(b)(1) as

"a group of corporations, each member of which is subject to tax under Section 40-18-31[,Ala. Code 1975,] and Public Law 86-272 ( 15 U.S.C. §§ 381 - 384 ), which are members of an affiliated group as defined in 26 U.S.C. § 1504 and which affiliated group files a federal consolidated corporate income tax return, each member of which:
"a. Has the same taxable year;
"b. Is a member of the group for the entire taxable year or was a member of the group for a portion of the taxable year if the member was subject to Section 40-18-31 during the entire portion of the taxable year during which it was not a member of the federal consolidated group;
"c. Apportions Alabama taxable income or loss separately for each corporation;
"d. Allocates taxable income or loss separately for each corporation in accordance with Section 40-27-1, Article IV[, Ala. Code 1975];
"e. Computes apportionable income or loss utilizing separate apportionment factors for each corporation in accordance with Section 40-27-1, Article IV; and
"f. Combines and reports taxable income or loss computed in accordance with paragraphs c through e of this subsection on a single return for the Alabama affiliated group;
"and which includes all members of the affiliated group included on the federal consolidated income tax return that are eligible under this section to be included in the Alabama affiliated group ...."

The department and Barnett assert that, among other prerequisites that the 2001 Act added for the formation of an AAG, subsection f. requires that a group of corporations now must "[c]ombine[ ] and report[ ] taxable income or loss computed in accordance with paragraphs c through e of this subsection on a single return for the Alabama affiliated group" to meet the definition of an AAG. Until the AAG elects to file its first Alabama consolidated return, the department and Barnett say, no AAG exists.

The ALJ, the special master, and the circuit court all rejected the department and Barnett's interpretation. We first note that

" '[i]t is well established that " '[s]ections of the Code dealing with the same subject matter are in pari mate ria . As a general rule, such statutes should be construed together to ascertain the meaning and intent of each.' " New Joy Young Restaurant, Inc. v. State Dep't of Revenue, 667 So.2d 1384 (Ala. Civ. App. 1995) (quoting Locke v. Wheat, 350 So.2d 451, 453 (Ala. 1977) ). Finally, "[this court] recognize[s] that a statute should be construed, if possible, to give effect to every section thereof, and that the legislature should not be deemed to have done a vain and useless thing." State of Alabama Home Builders Licensure Bd. v. Sowell, 699 So.2d 214 (Ala. Civ. App. 1997).'
" State v. Amerada Hess Corp., 788 So.2d 179, 183-84 (Ala. Civ. App. 2000)."

Shoals Mill Dev., Ltd. v. Shelby Cty. Bd. of Equalization, 238 So.3d 1253, 1255 (Ala. Civ. App. 2017).

In his report, the special master noted that § 40-18-39(b)(1), defining an AAG, "does not set as a condition or requirement that an 'election must first be filed' " before an AAG comes into existence. He also reviewed other statutes and concluded:

"The Court interprets this 'election' to be the election to actually file the return. ... Additionally, in the Code of Alabama § 40-18-39(b)(2) and (c), the language of the sections assumes that an 'Alabama affiliated group' is making the elections. Therefore, if an 'Alabama affiliated group' is making the 'election' it follows that the 'Alabama affiliated group' must exist prior to making the 'election.' "

Section 40-18-39(b)(2) defines an "Alabama consolidated return" as "an Alabama corporation income tax return filed by or on behalf of the members of an Alabama affiliated group in accordance with this section, pursuant to an election made under subsection (c) below." (Emphasis added.) Additionally, § 40-18-39(c)(1) provides that an AAG "filing or required to file a federal consolidated income tax return may elect to file an Alabama consolidated return for the same taxable year. However, under no circumstances may the Department of Revenue compel a taxpayer to file an Alabama consolidated return if the taxpayer has not so elected." Section 40-18-39(c)(8) provides, in pertinent part, that "[a]n Alabama affiliated group that has made an Alabama consolidated return election ... shall be assessed an annual fee for the privilege of filing an Alabama consolidated return." As the taxpayers and the forums that have previously heard this matter determined, if the filing of an Alabama consolidated return was required before a group of corporations could be considered an AAG, then the field of operation of those provisions would be unduly limited.

We agree with the circuit court's conclusion that § 40-18-39(b)(1) f., which states that an AAG "[c]ombines and reports taxable income or loss computed in accordance with paragraphs c through e of this subsection on a single return for the Alabama affiliated group," does not state a prerequisite to the formation of an AAG. Instead, we conclude subsection (b)(1)f. describes how an AAG is to prepare an Alabama consolidated return and does not govern the determination whether an AAG exists.

The department and Barnett also contend that § 40-18-39(h) prohibits the members of an AAG from sharing NOLs on an Alabama consolidated return if those NOLs were not first reported on a consolidated return, that is, if a NOL was first reported in a separate-entity return, it cannot subsequently be used as a NOL reported in an Alabama consolidated filing. Again, each of the forums that have considered this matter have rejected the department and Barnett's argument.

In support of their contention that an AAG cannot apply a NOL if the group did not file an Alabama consolidated return in the year the loss was incurred, the department and Barnett cite § 40-18-39(h), which currently provides

"[i]f, in a taxable year before the corporation became a member of an Alabama affiliated group that has elected to file an Alabama consolidated return, the corporation incurred a net operating loss, the deductibility of the loss on the Alabama consolidated return shall be limited to only the amount necessary to reduce to zero the Alabama taxable income, calculated on a separate return basis, of the corporation that incurred the net operating loss. Except as provided in the preceding sentence, the separate return limitation year ('SRLY') rules contained in 26 U.S.C. § 1502 shall apply."

(Emphasis added.) As the ALJ explained in his decision allowing the taxpayers to apply the NOLs at issue in the 2007 Alabama consolidated return, the federal separate return limitation year ("SRLY") rules

"limit a federal consolidated group's use of a group member's prior NOLs under certain circumstances. Specifically, the SRLY rules provide that an NOL incurred by a group member in a separate return limitation year, i.e., a year before the corporation that incurred the loss became a group member, can only be used on a consolidated return to reduce the loss corporation's income to zero. The balance of the NOL, if any, cannot be applied to reduce the current year income of the other group members."

The department and Barnett's contention is that the limitation codified in § 40-18-39(h) prevents any loss sustained by a corporation before its AAG has elected to file an Alabama consolidated return from being shared by the other members of the AAG. The department and Barnett argue that the phrase "that has elected to file an Alabama consolidated return" refers to a consolidated return filed in the year the loss was incurred. Therefore, the department and Barnett reason, CCE's NOLs incurred before the taxpayers elected to file their first Alabama consolidated return in 2007 cannot be applied to reduce the taxable incomes of the other entities in the AAG's 2007 Alabama consolidated return.

Even giving deference to the department and Barnett's reading of § 40-18-39(h), we cannot agree that that statute precludes members of the AAG from sharing CCE's NOLs on the 2007 return. Instead, we agree with the reasoning set forth in the special master's report, which the circuit court adopted and which was shared by the ALJ, stating:

"This Court agrees with the ALJ that the phrase 'that has elected to file an Alabama consolidated return' must be referring to the current year consolidated return on which the NOL is claimed, and not the return for the prior loss year. The Legislature's use of the word 'has' is key. When § 40-18-39(h) refers to 'an Alabama affiliated group that has elected to file an Alabama consolidated return,' it must be referring to the present or current year filing of such a return. The Department's argument would be correct only if the Legislature had used the past tense 'had' instead of 'has.'
" Section 40-18-39(h) further provides that 'the deductibility of the loss on the Alabama consolidated return shall be limited ...'. By using the phrase 'the Alabama consolidated return,' the Legislature was referring to a specific return, which must be the previously referenced Alabama consolidated return which the affiliated group 'has elected to file,' i.e., the current year consolidated return on which the group claimed the NOL carryover.
"Act 2001-1089 did not change the first part of § 40-18-39(h), as originally enacted by Act 98-502. 'If, in a taxable year before the corporation became a member of an Alabama affiliated group that has elected to file an Alabama consolidated return, the corporation incurred a net operating loss, the deductibility of the loss on the Alabama consolidated return shall be limited.'
"The above language identifies the NOLs that are subject to the limitation, i.e., those NOLs incurred by a group member in a year before the loss corporation became a member of the group. The limitation does not apply if the corporation that incurred the loss was a group member in the loss year, even if the group did not file an Alabama consolidated return in the loss year."

Moreover, § 40-18-39(c)(8) affords benefits to AAGs who have paid a scheduled fee "for the privilege of filing an Alabama consolidated return." It is counterintuitive to think that the legislature intended to assess a fee to grant AAGs "the privilege of filing an Alabama consolidated return" but then not allow them to have the benefits of making such an election. Here, each member of the AAG had been part of the AAG since at least 1999. Therefore, we conclude that the limitation in § 40-18-39(h) did not bar the other members of the AAG from deducting CCE's NOLs from the years 1999 through 2002 and 2004 from the group's income on its 2007 Alabama consolidated return.

The department and Barnett failed to demonstrate that the circuit court erred in upholding the decision of the ALJ allowing CCE, Roddy, and VHC, as members of an AAG, to report CCE's NOLs for the years 1999 through 2002 and 2004 on the taxpayers' 2007 Alabama consolidated return. Accordingly, the judgment is due to be affirmed.

AFFIRMED.

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

      Our calculations indicate that the taxpayers had an aggregate taxable income of $10,343,931. However, in this opinion we have set forth the figures that the parties set forth and relied on in making subsequent calculations.

      The department and Barnett point out in their appellate brief that the Alabama Legislature abolished the department's administrative-law division and created the Alabama Tax Tribunal, an executive-branch agency independent of the department, on October 1, 2014. Act No. 2014-146, Ala. Acts 2014.