Alimony—Contempt.

The parties were married for 35 years. The husband testified that he had inherited 2,484 shares of ExxonMobil Corporation stock from his mother in 1997. Those stocks were transferred into his name only and the dividends were reinvested. The husband further claimed that he had inherited $99,712 in cash from his mother, which he deposited into a certificate of deposit (“CD”). He continuously reinvested the money in the CD until 2008 when he withdrew all of the money ($133,312.25) and purchased ExxonMobil stock with it.

The husband also contended that he had inherited $23,000 in United States savings bonds from the mother and that he redeemed them in 2005. He placed the money in a money-market account held jointly in his and his wife’s names. The money was used to pay the parties’ joint tax liability. The husband also inherited money from his aunt. He received one check for $60,000 that he deposited and then used to purchase ExxonMobil stock. He deposited another $27,000 into his personal bank account and purchased more stock.

The dividend income from the stock was listed on the parties’ joint tax return. The total amount of taxes paid on the husband’s inherited assets was $32,253. The parties owned a residence worth $247,000 that was not encumbered by a mortgage. They had a joint money market account containing $210,000. The husband receives $1,678 per month in Social Security benefits, a monthly pension check in the amount of $363, and another pension check in the amount of $580 per month.

The wife receives $598 per month in Social Security benefits. The husband claimed that the wife had committed two acts of domestic violence toward him, including hitting him in the head with a plate. The wife claimed that the husband had threatened to kill her on numerous occasions and that he threw objects at her. According to her, he had abused her approximately once per month from the year 2000 until present. She admitted throwing the plate at him but stated that it was done in response to the husband’s constant emotional abuse. The wife testified that the husband’s ExxonMobil stock was worth$758,000.

Her monthly expenses were $2,845.74. The wife had a history of heart problems and had undergone a hip replacement. She anticipated having surgery on her foot in the future. The trial court awarded the husband 100 percent of his ExxonMobil stock and the marital residence. He was ordered to pay the wife $160,550 as her share of the equity in the residence. The wife was awarded $2,500 per month in periodic alimony and the money-market account was divided equally.

The husband was ordered to pay the wife’s attorney fees in the amount of $14,625. The husband appealed and the wife filed a cross-appeal. On initial appeal, the Court of Civil Appeals determined that the award of alimony was excessive. On September 22, 2011, the husband filed a motion requesting a hearing regarding the issues to be addressed as a result of the Court of Civil Appeals’ opinion.

On March 1, 2012, the court entered a judgment dividing the parties’ marital property and recalculating the husband’s alimony obligation. His alimony obligation was reduced to $1,310.59 per month. The provisions of the original property division remained the same except that the wife was awarded an additional $84,000. The husband appealed. Affirmed. The judgment of the trial court is due to be affirmed. Kreitzberg v. Kreitzberg

APPEAL & ERROR: Mandamus.

Veolia Environment SVC is a defendant in a workers’ compensation action Christopher Herring injured his knee while working for Veolia. On the first-report-of-injury form, the incident was described as having taken place while Herring “was climbing . . . on his truck to get a cart. He alleges that he hit his right knee on the lip of the packing blade.”

The form lists Veolia’s address as being in Lincoln County. Odis Moore, Veolia’s area safety manager, submitted an affidavit stating that Veolia’s principal place of business was in Talladega County and that all witnesses who were involved in this accident were working in Veolia’s Talladega County location.

Herring filed the action in Etowah County. Veolia filed a motion to dismiss or in the alternative, a motion to change venue under the forum non conveniens statute, Ala. Code 1975, § 6-3-21.1. The trial court denied Veolia’s motion and it filed a petition for writ of mandamus. Writ of mandamus denied.

Veolia argued that it was entitled to a writ of mandamus directing the Etowah County Circuit Court to transfer the action because it established that Talladega County would be a more convenient forum and that the interests of justice compelled transfer of the action under § 6-3-21.1. With regard to the convenience-of-the-parties prong, the “meager showing made by Veolia is insufficient to support a conclusion that the trial court abused its discretion in denying Veolia’s motion.”

The convenience of nonparty witnesses that are employees of one of the parties to the case does not weigh heavily in favor of a transfer. Ex parte Nichols, 757 So.2d 374, 379 (Ala. 1999). “The fact that the witnesses employed by Veolia . . . might be located closer to Talladega County or might be inconvenienced by having to travel to Etowah County, then does not entitle Veolia to a transfer of the action under the forum non-conveniens statute.”

With regard to the interests of justice prong, Veolia presented evidence indicating that its principal place of business is in Talladega County and that the accident giving rise to the action occurred in Talladega County. However, it failed to establish a “nexus” or connection between Herring’s action and the original forum is not strong enough to warrant burdening Herring’s chosen forum with the action. Accordingly, the petition for writ of mandamus is due to be denied. Ex parte Veolia Environmental SVC (Herring v. Veolia Environ- mental SVC),

Tommy Wiley, an employee of Bohannon Services, Inc. (“Bohannon”), suffered a work-related injury and filed a complaint for workers’ compensation benefits. A hearing was held on August 1, 2011, at which time counsel for both parties informed the trial court that a settlement had been reached. Both parties were to file a proposed settlement agreement and obtain approval from the trial court.

On September 20, Bohannon filed a motion to enforce the settlement agreement or to dismiss the action because Wiley had refused to sign the proposed settlement agreement submitted to the trial court. Wiley responded that he did not agree with portions of the proposed agreement and requested a hearing on the matter.

The court held a hearing on October 31 and on November 7 entered an order granting Bohannon’s motion to enforce the settlement agreement. Wiley filed a motion on December 6, alleging that he had discovered new evidence regarding his medical condition that rendered the settlement agreement unjust and seeking to have the agreement set aside.

On June 5, 2012, the trial court entered an order purporting to grant Wiley’s motion to set aside the settlement agreement provided he reimburse Bohannon for any settlement proceeds received and pay its attorney fees. Wiley filed a motion on August 29 seeking relief from the June 5 order. The trial court entered an order on September 11 finding that Wiley had failed to comply with the requirements of the June 5 order and enforcing the previous settlement agreement.

Wiley filed an appeal on October 22. Appeal dismissed. The Court agreed with Bohannon’s argument that Wiley’s appeal was untimely because his December 6, 2011, post-judgment motion was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P., on March 5, 2012, and thus his appeal, filed more than seven months later, was untimely.

The Court explained that a notice of appeal must be filed either within 42 days after a trial court has acted upon a timely filed postjudgment motion or within 42 days after such motion has been denied by operation of law pursuant to Rule 59.1. Wiley v. Bohannon Services, Inc.

Child Support—Alimony—Attorney Fees—Modification.

The parties signed a divorce settlement agreement on May 19, 2010. Pursuant to their agreement, the parties were awarded the joint legal and joint physical custody of their minor children.

The wife was awarded 30 percent of the husband’s military-retirement income as well as one-half of his IRA and 401(k). The wife was permitted to remain in the marital home for 90 days following the entry of the decree of divorce and thereafter, the husband was awarded all rights therein.

The husband was required to pay child support in the amount of $808 per month and alimony in the amount of $1,000 per month for five years. The divorce judgment noted that the child support guidelines had not been followed because the parties had agreed to a true joint-custody arrangement.

On October 1, 2010, three months after the entry of the divorce decree, the husband filed a petition for modification. He alleged that the wife had become gainfully employed and that her employment constituted a material change in circumstances warranting a recalculation of child support.

The wife filed an answer and counterclaim to modify the husband’s child-support obligation. The husband filed an amended petition seeking a reduction or termination of his periodic alimony obligation. The wife then requested an increase to her alimony award. After a hearing, the trial court increased the husband’s child support obligation to $1,496.70 per month and terminated his periodic-alimony obligation. The husband appealed and the wife cross-appealed. Affirmed in part; reversed in part.

Causation.

On September 30, 2010, Russell Threadgill (“the employee”) filed a workers’ compensation action against East, Inc. He alleged that he had injured his spine, leg, arm, and shoulder in an accident arising out of and in the course of his employment on April 20, 2010, and that he had re-injured his shoulder and ankle due to a second accident on April 26, 2010.

Ultimately, the court entered an order on July 19, 2012, finding that the employer was only liable for the lumbar injury sustained by the employee on April 20, 2010, and not for any claimed injuries allegedly resulting from the April 26, 2010, accident. The employee appealed. The Court of Civil Appeals noted that the April 26, 2010, order did not address the benefits to which the employee claimed that he was entitled; it was not a final judgment.

However, the Court elected to treat the appeal as a petition for writ of mandamus in order to promote the purposes of the Workers’ Compensation Act and ensure that the interests of the employee were protected. Writ of mandamus granted in part and denied in part. (1) The employee argued that the trial court improperly denied his claim that was based on the April 26, 2010, accident. He contended that on that date, he had fallen at work while convalescing from his April 20, 2010, back injury, thereby injuring his left ankle and right shoulder.

The court determined that the employee had rolled his ankle as he was exiting the workshop but that the employment did not cause him to roll his ankle. Thus, the trial court determined that the employee was not entitled to compensation for injuries to his ankle, neck, arm, or shoulder. Substantial evidence exists to support the trial court’s factual findings.

The wife of the employee testified that the employee had fallen before. The employee admitted that he had not stepped on anything slippery. The trial court did not err by holding that the employment conditions did not legally cause the fall but that the employee fell after taking an awkward step. (2) The employee also argued that the trial court erred in attributing his right-shoulder injury to the April 26, 2010, fall. A medical record placed into evidence showed that the employee had complained of right-shoulder pain on April 23, 2010. He later complained of increasing pain in his shoulder after the April 26, 2010, fall. “Assuming that the April 20, 2010, accident originally injured the employee’s right shoulder, a reinjury or aggravation of that injury would itself be compensable if it was brought on by the employee’s engaging in an activity that is customary in light of his condition, even if that activity did not directly arise out of the employment.”

The trial court erred in denying benefits for the employee’s shoulder injury on the ground that the employee did not prove that the April 26, 2010, fall arose from his employment. Ex parte Threadgill (Threadgill v. East, Inc.)

Sex Offense.

S.J. was suffering from breast cancer and sent her daughter, J.H., to live with Cornelius Surratt (“Surratt”) and Chiquitta Surratt. Surratt was the assistant basketball coach at Beauregard High School where J.H. played basketball. In March 2010, J.H. started receiving text messages from Surratt about a girl that Surratt claimed to “really like.” Later that month, Surratt told J.H. that she was the girl to whom he was referring in his text message. He also told J.H. that he and Chiquitta were no longer having sex and he asked her for her assistance with his erectile dysfunction. J.H. initially refused but gave into his demands. Surratt made a pallet on the floor and “tried to stick his penis in [J.H.] but it didn’t work.”

A few weeks later, Surratt told J.H. that she could earn extra money by joining an organization of which Surratt was a member. Surratt told J.H. that she would be paid $200 every other week but that in order to join the organization, she would have to have sex with him. J.H. and Surratt had sex in Surratt’s vehicle. J.H. was 15 years old. J.H. started receiving e-mail messages from “Boris” and “a girl named Ta-ta.” Boris and Ta-ta were J.H.’s contacts with the organization. Boris and Ta-ta told J.H. to recruit another person to join and when she failed to do so, they expressed displeasure through e-mail. Surratt told J.H. that Ta-ta wanted J.H. to be punished and that her punishment was to have sex with him. Surratt and J.H. again had sex on the back of Surratt’s vehicle.

In another e-mail, Boris told J.H. that she and Surratt would have to make a video recording of them having sex. They did so. J.H. turned 16 years old on May 4, 2010. In June 2010, J.H. asked to be released from the organization. Surratt told her she would have to undergo “sexual punishment” in order to leave the organization. J.H. engaged in another sexual act with Surratt.

J.H. began telling her friends about what was happening to her but she refused to contact the police. J.H.’s friends told people at the high school. The Department of Human Resources (“DHR”) was contacted and J.H. admit- ted that she and Surratt had been having sex. J.H. also told her mother what had happened to her. Tammy Booth, an investigator with the Lee County Sheriff’s office, testified that Surratt first denied having sex with J.H. but later gave a statement claiming to have had “consensual” sex with J.H. “about three times.” He claimed that all sexual activity took place after J.H.’s 16th birthday.

Surratt was found guilty of second-degree rape. He appealed. Affirmed. The fact that Surratt presented evidence to the contrary, the weight of the evidence and the credibility of the witnesses is a matter left to the jury. The judgment of the trial court is due to be affirmed. Surratt v. State of Alabama

Search & Seizure.

Howard Sisson, a special agent with the Office of the Alabama Attorney General, approached Judge Thomas Young with an application for a search warrant to be executed at Quincy’s 777 Casino at Victoryland (“the casino”). Sisson presented a detailed affidavit based on video recordings of the machines in the casino by several undercover agents. He concluded that each machine observed met the definition of a slot machine and gambling device as set out in the criminal statute Ala. Code 1975, Section 13A-12-20.

Judge Young denied the State’s application for a search warrant, stating that the Supreme Court’s decision in Barber v. Cornerstone, 42 So.3d 65 (Ala. 2009), setting out a test for what constitutes legal bingo games, was not clear enough to assist him in determining whether the machines were legal or not. He also stated that there was a conflict between two law enforcement agencies because the sheriff of Macon County had certified the machines as legal. The State filed a petition for a writ of mandamus with the Court of Criminal Appeals, which denied the State’s petition.

The State then petitioned the Supreme Court for a writ of mandamus. Writ of mandamus issued. The Court acknowledged that mandamus is an extraordinary remedy, but noted that when a trial court has acted without lawful authority, the State has been afforded mandamus relief.

The Court pointed out that the question of what the criminal statute does or does not prohibit is a legal question for a judge to decide, regardless of how many different opinions might be presented to him. The Court then opined that, contrary to Judge Young’s conclusion, the test set out in Cornerstone, supra, was more than clear enough to serve as a guide in measuring the facts of this case.

The Court found that Judge Young also incorrectly concluded that the local constitutional amendment allowed the sheriff to determine the nature of bingo. The Court explained that the question of what the constitution means by the term “bingo” is a purely legal question that must be decided by the courts. The Court also found fault with Judge Young’s contention that the State should have pursued a warrantless seizure, noting that even if it had been constitutionally permissible, the preference is for the regulation of searches via the warrant process, which provides an added measure of protection to officers against liability for wrongful seizure.

The Court further found that the games depicted in the surveillance video and described in the affidavit in support of the application for the warrant did not reasonably resemble the game of “bingo.” “Based on the foregoing, we agree with the State that Judge Young exceeded his discretion in denying the requested search warrant. The State was entitled to an order directing Judge Young to grant the warrant application and issue the requested warrant.” Ex parte State of Alabama

Burglary.

Curtis Sanders was convicted of third-degree burglary and sentenced to 46 months in prison. His sentence was suspended and he was placed on probation for two years. Prior to trial, Sanders filed a motion to dismiss the indictment, alleging that the structure that was the subject of the burglary charge did not constitute a building for purposes of the burglary statute. The motion was denied. Roderick Turner testified that he owned a house located in Birmingham. He moved out of the house in 2006 because it needed repairs. He continued to store furniture, personal items, and building supplies in the house. Turner maintained the yard and paid property taxes on the house. All three exterior doors to the house were locked. On the day of the offense, Turner received a telephone call from a neighbor and then he telephoned the police. Sanders was in custody when he arrived there and the front door was open.

The City of Birmingham had placed a notice of condemnation on the house. There were large holes in the roof and Turner had not been to the house for approximately a month. A police officer testified that he was called to the scene of the incident and when he arrived, the front door was unlocked and the back door was open. He heard voices inside and when he entered the house, Sanders and another man were holding some household items. Sanders was arrested. A representative of the City who was in charge of condemnation records explained that the house was irreparable but that it had not yet been condemned because Turner had not been notified. After notification, the owner has 30 days to respond as to whether repairs will be made. If no response is received, the matter goes to the city council for condemnation in 35-40 days.

Affirmed. Ala. Code 1975, § 13A-7-1(2), defines “building” as “any structure which may be entered and utilized by persons for business, public use, lodging or the storage of goods. . . .” “Here, the house, although in disrepair, was still being used for storage when Sanders unlawfully entered the building and began looking through the property inside for items that he wanted.” His conviction and sentence are due to be affirmed. Sanders v. State of Alabama

Claims.

Emma Jackson and Matthew Jackson, Sr. (“Matthew, Sr.”) produced 10 children: Ethel Jackson Williams, John Jackson, Matthew Jackson, Jr., Willie Jackson, James Jackson, Leon Jackson, Dorothy Jackson Hinson, Clifford Jackson, Horace Jackson, and Annie Belle Jackson. Emma and Matthew Sr. owned 158 acres of real property in Lowndes County. In 1968, they conveyed 3.288 acres to their daughter Annie, who built a house on the property.

In 1978 or 1979, Annie’s house burned and a new house was constructed. Matthew Sr. died intestate and Emma went to live with Annie at her new house. Emma died intestate in 2002. Annie died intestate in 2007, survived by one child, Alfred Jackson.

In July 2008, Alfred was appointed as the administrator of Annie’s estate. On June 4, 2009, the nine surviving Jackson siblings filed a complaint for declaratory and injunctive relief. They named Alfred as the defendant. The complaint alleged that Annie’s house was not located on the property that had been conveyed to her by Emma and Matthew Sr. The complaint further alleged that Annie had executed a holographic will that had manifested her intent that the house be used and enjoyed by the heirs of Emma and Matthew, Sr. as “a family home house.” The siblings sought a declaration that the heirs of Emma and Matthew Sr. jointly owned the house and an order enjoining Alfred from prohibiting or restricting their access to the house.

On June 24, 2009, the trial court entered an order denying the declaratory and in- junctive relief and stating that “all other issues are reserved for future consideration of the court, including those raised in the defendant’s motion to dismiss.” Alfred’s motion to dismiss sought dismissal of the siblings’ claims to person- al property in the house based on their failure to file any claims against Annie’s estate within the time allowed by Ala. Code 1975, § 43-2-350.

Alfred also filed a motion for summary judgment contending that the claim was barred by the doctrine of laches, or by the 20-year rule of repose. Alfred attached an affidavit from the Lowndes of the transcript, the parties clearly litigated matters other than the location of Annie’s house at the hearing. Matters not contained in the pleadings were tried by the consent of the parties. The case was sent to mediation in May 2010. On August 10, 2010, the parties agreed to settle all issues except those relating to the Mercedes-Benz automobile.

On September 7, 2011, the trial court conducted a final hearing. The parties agreed that the only remaining issues were (a) the ownership of the personal property in Annie’s house and whether Alfred had breached the mediation agreement with respect to that property and (b) whether anyone other than Alfred had an interest in the Mercedes-Benz automobile.

On November 28, 2011, the trial court entered a judgment that stated that the issue of the location and ownership of Annie’s house was moot because the siblings had agreed to purchase Alfred’s interest in said property and that the sale was completed in 2010. It determined that Alfred was entitled to all interest in the Mercedes-Benz and that all property remaining in Annie’s house was the property of the siblings.

The Jackson siblings appealed. Affirmed in part; reversed in part. (1) The siblings challenged the trial court’s award of the Mercedes-Benz automobile to Alfred. They argued that the evidence showed that Annie’s brother, John Jackson, had loaned Annie $6,000 for a down payment on the automobile; that during her lifetime Annie acknowledged her obligation to repay the loan and that after Annie’s death, her sister, Ethel Williams, had made the monthly payments on Annie’s installment loan. Even if the evidence proved such facts, “the trial court’s judgment as to this issue is due to be affirmed on the ground that neither John Jackson nor Ethel Williams filed a claim against Annie’s estate pursuant to the nonclaims statute, § 43-2-350, supra.” That statute requires all claims against an estate to be filed within six months after the grant of letters or within five months after the date of the first publication of the notice, whichever is the later to occur. Accordingly, that portion of the trial court’s judgment awarding those two items to Alfred is due to be reversed. The remainder of the court’s decision is due to be affirmed. Williams et al. v. Jackson

Causation.

Thomas C. Dodson (“the employee”) sued Johns & Kirksey, Inc. (“the employer”), a metal-roofing and general contractor, alleging that he had suffered a cumulative-trauma injury arising out of and in the course of his employment. Specifically, he alleged that on November 4, 1996, he had sustained an injury to his lower back while lifting a piece of structural steel in the course of his employment. He alleged that the injury he sustained had been surgically repaired by Rick McKenzie, M.D., on November 7, 1996, and that he had reached a settlement regarding the amount of compensation benefits to which he was entitled that left open the amount of medical benefits that he was due.

The employee alleged that he had returned to work for the employer and had performed his full duties and that thereafter, he had suffered cumulative-trauma injuries to his back and right leg as a result of performing manual labor in the course of his employment. The case was set for trial on February 29, 2010, for a hearing on the sole issue of whether the employee had sustained a compensable injury.

The employer filed a motion to strike a portion of the deposition of Dr. McKenzie. The trial court admitted the deposition into evidence in its entirety. After the trial, the court entered an order determining that the employee had sustained a cumulative-trauma injury that was compensable. It awarded him medical benefits pursuant to Ala. Code 1975, § 25-5-77, but it deferred the adjudication of the issue of whether the employee was entitled to permanent-disability benefits under Ala. Code 1975, § 25-5-57, until the employee had reached maximum medical improvement.

The Court denied the motion to strike a portion of Dr. McKenzie’s deposition and it awarded the employee costs in the amount of $1,811. The employer filed a petition for writ of mandamus. Writ of mandamus denied. (1) The employer initially indicated that its mandamus petition should be treated as an appeal because the trial court’s order constituted a final judgment.

In this case, the court’s order expressly deferred the adjudication of the issue whether the employee was entitled to permanent-disability benefits. Therefore, the court’s order was not a final judgment that will support an appeal. It is, however, subject to mandamus review. (2) The employer argued that the employee had failed to provide clear and convincing evidence that he had sustained a compensable cumulative-trauma injury. The court determined in its judgment that the employee had to perform “a significant amount of manual labor” and that his performance of that manual labor had exposed him to a danger or risk of sustaining a cumulative-trauma injury that was materially in excess of that to which people are normally exposed in their everyday lives. The employee testified that he had spent approximately 60 percent of his time at work performing manual labor from 2005 through February 2010.

One of the employer’s subcontractors testified at trial that he had worked on a general-contracting job with the employee for six weeks in 2008 and that the employee had spent approximately 75 percent to 80 percent of his time on that job performing manual labor. This evidence was disputed by the owners of the company. “[W]e conclude that the trial court, based on its weighing of the competing evidence, reasonably could have determined that the employee had performed a substantial amount of manual labor in the course of his employment with the employer from 2005 through February 2010” and that the performance of that manual labor had exposed him to a danger or risk materially in excess of that to which people are normally exposed in their everyday lives. With regard to medical causation, the employee’s medical records indicated that the manual labor performed by the employee had contributed to the degeneration of his disk at L5-S1.

The petition for writ of mandamus is due to be denied. Ex parte Johns & Kirksey, Inc., (Dodson v. Johns & Kirksey, Inc.),