author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    R.K. and C.K. v. R.J.
    2000526.
    Court of Civil Appeals of Alabama.
    Sept. 6, 2002.

      Gregory M. Varner, Ashland, for appellants.
    Donald R. Hamlin, Ashland, for appel-lee.
   MURDOCK, Judge.

In July 2000, R.J. filed a petition in the Clay County Juvenile Court seeking custody of T.S.K, a minor child. Among other things, the petition alleged that in 1997, R.J. had been adjudicated the father of T.S.K. in a paternity proceeding brought by the child’s mother, K.K.; that the mother had formally relinquished custody of the child to C.K. and R.K. (the child’s maternal grandparents) in an August 1999 judicial proceeding of which R.J. had not received notice; and that under Ex parte Terry, 494 So.2d 628 (Ala.1986), he was entitled to custody of the child. The juvenile court awarded R.J. (hereinafter “the father”) and the maternal grandparents joint custody of the child pendente lite and vacated its previous judgment awarding custody of the child to the maternal grandparents.

After an ore tenus proceeding, the juvenile court entered a judgment awarding the father custody of the child and granting the mother visitation under the supervision of the maternal grandparents. In its judgment, the juvenile court stated its reasons for awarding custody of the child to the father:

“The father of the minor child is not an unfit person to have custody, nor has he voluntarily relinquished his right of custody of the minor child. See Ex parte D.J., 645 So.2d 303 (Ala.1994).
“While this Court respects and highly commends the maternal grandparents for their unselfish efforts in caring for the minor child, nevertheless, the father, having been determined not to be unfit, is entitled to custody as a matter of law, as against the maternal grandparents .... Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte D.J., supra.

(Emphasis added.)

The maternal grandparents appeal from the judgment awarding the father custody of the child. The mother has not appealed. This court’s review of the trial court’s judgment is governed by the following standard set forth by our Supreme Court:

“Appellate courts do not sit in judgment of disputed evidence that was presented ore tenus before the trial court.
“ ‘[0]ur standard of review is very limited in cases where the evidence is presented ore tenus. A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong, or unless an abuse of the trial court’s discretion is shown. To substitute our judgment for that of the trial court would be to reweigh the evidence. This Alabama law does not allow.’ ”

Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994) (citations omitted; quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993)). However, “[questions of law are not subject to the ore tenus standard of review,” Reed v. Board of Trustees for Alabama State University, 778 So.2d 791, 793 n. 2 (Ala.2000), and a trial court’s conclusions on legal issues carry no presumption of correctness on appeal. Ex parte Cash, 624 So.2d 576, 577 (Ala.1993).

In a child-custody case, the primary concern is the best interests and welfare of the child. E.g., McKinney v. Alabama Dep’t of Pensions & Sec., 475 So.2d 568 (Ala.Civ.App.1985); Price v. Price, 440 So.2d 1110 (Ala.Civ.App.1983); Dale v. Dale, 54 Ala.App. 505, 507, 310 So.2d 225, 227 (Ala.Civ.App.1975). Indeed, our law’s long-standing recognition of a presumption of custody in favor of a natural parent has always been premised upon the best interests of the child:

“The law devolves the custody of infant children upon their parents, not so much upon the ground of natural right in the latter, as because the interests of the children, and the good of the public, will, as a general rule, be thereby promoted. It is a fair presumption, that so long as children are under the control of their parents, they will be treated with affection, and their education and morals will be duly cared for.”

Striplin v. Ware, 36 Ala. 87, 89 (1860) (quoted with approval in Ex parte D.J., 645 So.2d 303, 305 (Ala.1994)).

It is on the basis of the principles reflected in Striplin v. Ware that our courts have articulated a “prima facie right” on the part of a natural parent to the custody of his or her child. As our Supreme Court explained in Ex parte Mathews, 428 So.2d 58, 59 (Ala.1983), this “prima facie right of a natural parent to the custody of his ... child, as against the right of custody in a nonparent, is grounded in the common law concept that this primary parental right ... is in the best interest ... of the child as a matter of law.” See generally Jackson v. Farmer, 247 Ala. 298, 300, 24 So.2d 130, 132 (1945) (recognizing that “the pri-ma facie right to the custody of a child is always in the parents over all other persons is well-nigh universally recognized,” “[b]ut it is equally well established that this prima facie right of the parent is not an absolute one, but that the question of prime importance is the welfare of the child, which becomes the ward of the court”).

It was thus toward the end of serving the best interests and welfare of the child that our Supreme Court stated in Ex parte Terry that the prima facie right of a natural parent to the custody of his or her child is such that “ ‘absent a showing of voluntary forfeiture of that right, ... [that right] can be overcome only by a finding ... that the parent seeking custody is guilty of such misconduct or neglect to a degree which renders that parent an unfit and improper person to be entrusted with the care and upbringing of the child in question.’ ” Ex parte Terry, 494 So.2d 628, 632 (Ala.1986) (quoting Ex parte Mathews, 428 So.2d at 59).

The “voluntary forfeiture” exception to a natural parent’s prima facie right to custody recognizes that a parent’s voluntary forfeiture of his or her child tends to rebut the presumption that the parent in question will best provide the love, care, security, and upbringing the child needs. Concomitantly, it is a reflection of the well-established principle that “ties of affection resulting from years of association between the child and its custodian” are relevant to a determination of the child’s best interests. See generally Dale v. Dale, 54 Ala.App. 505, 507, 310 So.2d 225, 227 (Ala.Civ.App.1975); McGrady v. Brown, 230 Ala. 484, 161 So. 475, 476 (1935) (“ ‘relinquishment of ... custody to another and continued acquiescence therein are matters to be considered by the court in determining the question of prime importance— the welfare of the child’ ”) (quoting Payne v. Payne, 218 Ala. 330, 331, 118 So. 575, 576 (1928)). As this court explained in Borsdorf v. Mills:

“To tear [a child] from his home and those he knows as his parents and the source of love, safety and security merely to give sanction to a principle of priority of right is unconscionable. The principle of priority of right of a parent to custody is founded upon the premise that because of a blood relation and instinct, such parent will better love and care for a child than one not so related. Such premise may be theoretically correct but practical experience has often proved it incorrect. The bonds of love between parent and child are not dependent upon blood relation and instinct, but may be forged as strongly in the crucible of day to day living. Out of the actual relationship of parent and child love grows. It is not merely a product of the biological function of conception and giving birth. To give paramount consideration to the principle of parental priority or ownership in custody decisions would often be an anathema to the best interest of the child.”

49 Ala.App. 658, 661-62, 275 So.2d 338, 341 (Ala.Civ.App.1973) (quoted in part with approval in Brill v. Johnson, 293 Ala. 435, 437, 304 So.2d 595, 597 (Ala.1974) (Bloodworth, J., concurring specially, and joined by five members of the Court)).

Our Supreme Court explained in Ex parte McLendon, 455 So.2d 863 (Ala.1984), that:

“A natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after a voluntary forfeiture of custody.”

455 So.2d at 865 (emphasis added). The McLendon court also recognized that a parent’s prima facie right to custody does not apply if the parent’s unfitness is reflected in a “decree removing custody from the natural parent and awarding it to a nonparent.” 455 So.2d at 865. Thus, if the natural parent has abandoned his child, or custody has been awarded to a nonparent, the question of what custodial arrangement thereafter will be in the child’s “best interest” is examined without a presumption in favor of the parent.

Further, where there has been a voluntary forfeiture of a child or a judgment awarding custody of the child to a nonparent, and the custodian has “ ‘acted upon’ ” his or her newfound custody “ ‘to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [he] can show that a change of the custody will materially promote [his] child’s welfare.’ ” 455 So.2d at 865 (quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1976)) (emphasis added). As the McLendon Court explained, this heightened burden of proof on the natural parent is based upon a “ ‘rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environment those roots necessary for the child’s healthy growth into adolescence and adulthood.’ ” 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

In the present case, the grandparents contend first that the juvenile court erred in giving the father the benefit of the parental presumption described in Terry. The grandparents argue that the father abandoned, or voluntarily forfeited, the child and therefore lost his prima facie right to custody. The grandparents further argue, in essence, that they have “acted upon” the father’s forfeiture “to the manifest interest and welfare of the child” in that they have provided a loving and secure home for the child. Thus, according to the grandparents, not only should the father not have the benefit of a Terry presumption, he should not be allowed to uproot the child without satisfying the heightened “material-promotion” standard established in Ex parte McLendon.

The record reveals that the father entered the United States Navy and left Alabama, after having been informed that he had impregnated the mother. The child was born out of wedlock in 1994, six months after the father entered the Navy. The mother and the child lived with the maternal grandparents sporadically for the first four years of the child’s life.

The mother brought a paternity action against the father in 1997. On May 8, 1997, R.J. was adjudged, by default, to be the biological father of the child. The trial court thereupon issued an order to the father’s employer requiring it to withhold monthly child-support payments from the father’s paychecks.

After being discharged from the Navy, the father entered civilian employment, but he continued to have no physical contact or relationship of any nature with the child. Nor did the father ever write a letter to the child, contact the child by telephone, or send a Christmas or birthday present. The father showed little or no interest in the child until February 2000.

The father testified at trial that he had another child living in Clay County, the mother of whom was a woman other than K.K. The father testified that he had visited that child at least twice a year during the last two to three years. He stated that once or twice, while otherwise visiting in Alabama, he went to one of K.K.’s former residences in an effort to locate her. He admitted on cross-examination that he knew some of K.K.’s family living in Clay County. He also admitted that he could not remember the locations of the residences at which he had “looked” for K.K. and the child, and that he had not looked in the local telephone directory for information. Although child-support payments were being withheld from the father’s paycheck pursuant to a court order, the father made no effort during this time to inquire as to the address to which those payments were being sent. Nor did the father make any other efforts to locate his child following K.K’s successful 1997 paternity suit against him.

The mother and the child moved into the maternal grandparents’ home on a permanent basis in April 1998. In May 1999, the mother relinquished exclusive physical custody of the child to the maternal grandparents. The maternal grandparents thereafter filed a custody petition and in August 1999 were awarded custody of the child by the trial court.

In February 2000, the mother located the father by conducting an Internet search and contacted him to determine his interest in visiting with the child. Until that time, the child, who by then was approximately six years old, had never seen nor spoken with the father. As a result of the mother’s initiation of contact with the father, the child has visited with the father at his home in Texas on two occasions for several weeks.

The trial court appointed a guardian ad litem who reported to the court, among other things, that the child had formed a “significant bond” with his maternal grandparents. The guardian ad litem recommended that the child, who suffered from severe psychological and behavioral problems, be placed in the custody of the maternal grandparents and that the father be awarded liberal visitation rights. In its judgment, the trial court stated that it “respect[ed] and highly commend[ed] the maternal grandparents for their unselfish efforts in caring for the minor child.”

The grandparents asserted that the father’s conduct in failing to contact the mother and the child for approximately, six years, until the commencement of this litigation, constituted a “voluntary forfeiture.” The trial court rejected that argument. Even as it commended the efforts of the grandparents in raising the child, the court expressly relied upon Ex parte D.J. to conclude as a matter of law that the father had not voluntarily relinquished custody of the child. The court stated that the father, “having been determined not to be unfit, is entitled to custody as a matter of law, as against the maternal grandparents .... Ex parte Terry, 494 So.2d 628 (Ala.1986); Ex parte D.J., supra.

In Ex parte D.J., although the father of an illegitimate child knew of the child’s existence and had abandoned the child, our Supreme Court held that there had been no “voluntary forfeiture” for purposes of the natural father’s presumptive claim to custody. The court reasoned that during the years the father had forfeited physical custody of the child, he had taken no steps to be adjudicated as the child’s father and, therefore, could successfully assert that he had no legal right to custody of the child during that time. Without such a right, the D.J. court further reasoned, there could be no “voluntary forfeiture.” 645 So.2d at 306-07.

The trial court in the present case awarded custody of the child to the father as a matter of law based on a coupling of the holdings in Ex parte Terry and Ex parte D.J. Because it had found the father not to be “unfit,” the trial court considered itself to be bound by Terry’s presumption in favor of the natural father unless it found there to have been a voluntary forfeiture. Because the father’s paternity, though undisputed, had not been adjudicated during part of the six years in question, the trial court considered that it was foreclosed by Ex parte D.J. from making a finding of voluntary forfeiture.

We note a tension between our Supreme Court’s holding in Ex parte D.J. and the principles reflected in Borsdorf and the other cases discussed above. We also note that these latter principles are likewise reflected in federal constitutional jurisprudence.

In Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983), the United States Supreme Court began its analysis by explaining that state law “almost universally” expresses an appropriate preference for the formal family, but that in some cases the United States Supreme Court has held that the federal constitution provides even greater protection for certain formal family relationships:

“In some cases, however, this Court has held that the Federal Constitution supersedes state law and provides even greater protection for certain formal family relationships: In those cases, as in the state cases, the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed. Thus, the ‘liberty’ of parents to control the education of their children that was vindicated in Meyer v. Nebraska, 262 U.S. 390[, 43 S.Ct. 625, 67 L.Ed. 1042] (1923), and Pierce v. Society of Sisters, 268 U.S. 510[, 45 S.Ct. 571, 69 L.Ed. 1070] (1925), was described as a ‘right, coupled with the high duty, to recognize and prepare [the child] for additional obligations.’ Id., at 535[, 45 S.Ct. 571]. The linkage between parental duty and parental right was stressed again in Prince v. Massachusetts, 321 U.S. 158, 166[, 64 S.Ct. 438, 88 L.Ed. 645] (1944), when the Court declared it a cardinal principal ‘that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Ibid. In these cases the Court has found that the relationship of love and duty in a recognized family unit is an interest in liberty entitled to constitutional protection. See also Moore v. City of East Cleveland, 431 U.S. 494[, 97 S.Ct. 1932, 52 L.Ed.2d 531] (1977) (plurality opinion).”

Id. at 257-58, 103 S.Ct. 2985.

Accordingly, the United States Supreme Court recognized in Lehr that “ ‘[p]arental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring.’ ” Lehr, 463 U.S. at 260, 103 S.Ct. 2985 (quoting Caban v. Mohammed, 441 U.S. 380, 397, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979)). As the Lehr Court noted,

“Commentators have emphasized the constitutional importance of the distinction between an inchoate and a fully developed relationship. See Comment, 46 Brooklyn L.Rev. 95, 115-116 (1979) (‘the unwed father’s interest springs not from his biological tie with his illegitimate child, but rather, from the relationship he has established with and the responsibility he has shouldered for his child’); Note, 58 Neb.L.Rev. 610, 617 (1979) (‘a putative father’s failure to show a substantial interest in his child’s welfare and to employ methods provided by state law for solidifying his parental rights ... will remove from him the full constitutional protection afforded the parental rights of other classes of parents’); Note, 29 Emory L.J. 833, 854 (1980) (‘an unwed father’s rights in his child do not spring solely from the biological fact of his parentage, but rather from his willingness to admit his paternity and express some tangible interest in the child’).”

Lehr, 463 U.S. at 261, n. 17, 103 S.Ct. 2985. The Court therefore further recognized that an unwed father’s demonstration of commitment to his child is determinative of his due-process rights:

“When an unwed father demonstrates a full commitment to the responsibilities of parenthood by ‘com[ing] forward to participate in the rearing of his child,’ Caban [v. Mohammed], 441 U.S. [380,] 392[, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) ], his interest in personal contact with his child acquires substantial protection under the Due Process Clause. At that point it may be said that he ‘actfs] as a father toward his children.’ Id., at 389, n. 7[, 99 S.Ct. 1760], But the mere existence of a biological link does not merit equivalent constitutional protection. The actions of judges neither create nor sever genetic bonds. ‘[T]he importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in “promot[ing] a way of life” through the instruction of children ... as well as from the fact of blood relationship.’ Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844[, 97 S.Ct. 2094, 2109-2110, 53 L.Ed.2d 14] (1977) (quoting Wisconsin v. Yoder, 406 U.S. 205, 231—233[, 92 S.Ct. 1526, 32 L.Ed.2d 15] (1972)).”

Lehr, 463 U.S. at 261, 103 S.Ct. 2985 (emphasis added; footnote omitted).

Conversely, when an unwed father fails to “come forward,” he will not acquire substantial constitutional protection:

“The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child’s development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child’s best interests lie.”

Lehr, 463 U.S. at 262, 103 S.Ct. 2985 (footnote omitted). See also M.V.S. v. V.M.D., 776 So.2d 142, 146 (Ala.Civ.App.1999) (relying on Lehr for the proposition that a biological father must have a “substantial relationship” with a child in order to have a constitutional right to withhold consent to that child’s adoption).

Here, the unwed father clearly did not step forward when he could have. The courts of this State therefore are under no obligation to accord the father full United States Constitutional protection of his parental rights. In the eyes of federal jurisprudence, providing such protection would be inconsistent with the best interests of the child, given the father’s lack of any substantial relationship with the child.

The State of Alabama, however, may be free to make a different judgment as to what would be in the best interests of children who have been abandoned by their biological fathers. The State may decide, insofar as state law is concerned, that the physical abandonment of a child by an unwed, biological father (in contrast to such father’s abandonment of adjudicated paternity rights), should not prevent such a father from being on an equal presumptive footing with a fit, custodial mother — and on better footing than all other parties, regardless of their historical relationships with the children — if and when such a father’s paternity is eventually adjudicated. Indeed, Ex parte D.J. appears to do that. There is therefore an unavoidable tension between the holding of Ex parte D.J. and the principles reflected in Lehr and the state authorities other than Ex parte D.J. discussed above.

Nonetheless, this court, as was the trial court, is bound by the holding of Ex parte D.J. However, that holding is not disposi-tive in the present case. The paternity of the father in this case did not remain unadjudicated throughout the entire time he continued his forfeiture of the child.

R.J. was adjudicated as the father of the child in 1997, more than three years before he petitioned for custody. Ex parte D.J. does not foreclose a finding that a man who has been adjudicated to be the father of a child has, by his post-adjudication neglect of a child, voluntarily forfeited his custodial rights. The juvenile court’s conclusion that the father did not abandon the child “as a matter of law” is therefore incorrect as to the period between 1997 and the filing of the father’s July 2000 custody petition.

Moreover, there was substantial evidence in this case indicating that the father, following his 1997 adjudication as the father of the child, made scarcely any effort to contact the child or the child’s family, and that the father was a complete stranger to the child until the mother found the father in February 2000 and initiated contact with him. Indeed, because there is no substantial evidence to the contrary, we conclude that the father did voluntarily forfeit custody of his child after his 1997 adjudication and that the maternal grandparents accepted custody of the child during this same period and acted on such custody to the manifest interest and welfare of the child. We therefore must reverse the judgment of the juvenile court and remand the cause for that court to determine whether the father met the McLendon burden of proving that a transfer of custody to him at this juncture would materially promote the best interests of the child.

The dissent takes the position that the custody award in this case affected only the natural father’s right to custody vis-a-vis the mother. This is true insofar as it goes. However, it is not the custody award that causes the father in this case to lose his presumptive custodial right as against someone other than the mother, it is the father’s conduct — -his abandonment of his child. The father never stepped forward as the child’s father. He never attempted to obtain any visitation rights; he never made any contact with the child until the mother finally contacted him just before this litigation began. While there was a court-ordered garnishment of child support from the father’s wages after he defaulted in a 1997 paternity suit, the father’s complete absence from his child’s life otherwise continued as fully as before that paternity suit.

The period after the paternity suit might be viewed differently had the father come into court in 1997 and accepted his responsibilities as to the child and sought visitation rights, and then fulfilled those responsibilities and exercised those rights so as to establish a relationship with his child. Had he done so, the father would now be in a position to argue that he had stepped forward and fulfilled his parental role by acting as the child’s parent to the extent circumstances allowed. But he did not do this. He rejected this role. He thus abandoned his child. He did so indefinitely, without any manifest concern or regard for where or with whom the child was living or how the child was fairing. It is this general abandonment from and after 1997 that constitutes a voluntary forfeiture and deprives the father of the prima facie right to custody he otherwise would enjoy as the natural parent. See Ex parte Mathews, 428 So.2d 58 (Ala.1983); Ex parte Terry, 494 So.2d 628 (Ala.1986); Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (Ala.Civ.App.1973). See also Lehr, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983). See generally Ala.Code 1975, § 26-18-3(1) (defining “abandonment” for purposes of Alabama’s Child Protection Act).

The dissent relies in part upon Ex parte Berryhill, 410 So.2d 416 (Ala.1982). In Ex parte Berryhill, a child’s father had lost custody to the child’s mother in a prior custody determination that had been made without any finding that the father was unfit. The Supreme Court held that in a subsequent custody determination, the father would remain entitled.to a custodial presumption against third parties, subject to the outcome of a determination on remand as to whether the father was unfit. The Berryhill court, however, did not address the concept of an abandonment or a “voluntary forfeiture” as a potential separate ground for the loss by a parent of his or her prima facie custodial right.

The Court of Civil Appeals’ decision in Berryhill v. Berryhill, 410 So.2d 413 (Ala.Civ.App.1981), was reversed, and the case was remanded, because the Supreme Court simply concluded that this court had applied the wrong legal standard regarding the parent’s fitness. Specifically, the Supreme Court was concerned that this court, rather than respecting the prima facie right of the natural parent by merely inquiring as to whether the natural parent was fit, had gone a step further and had erroneously inquired into who, as between the natural parent and the nonparent, was “the fittest of the two for custody of the child.” Ex parte Berryhill, 410 So.2d at 417 (emphasis added).

The Supreme Court’s decision in Ex parte Berryhill was not inconsistent with the principle that a parent who abandons his child loses his prima facie right to the custody of that child. The Supreme Court neither disapproved of Borsdorf nor disparaged the concerns expressed in that opinion. Indeed, the same concerns expressed by this court in Borsdorf underlie the principle recognized in Ex parte Terry, Ex parte McLendon, and Ex parte Mathews, all of which were decided after Ex parte Berryhill, that voluntary forfeiture does cause a parent to lose his or her presumptive right to custody. Rather, the opinion in Ex parte Berryhill was merely focused upon whether this court had mistakenly considered whether the natural father was the fittest of the two parents seeking custody, instead of simply whether the natural father was fit. The issue of abandonment, or voluntary forfeiture, as a separate ground for a natural parent’s loss of his prima facie right to custody was not addressed in Ex parte Berryhill. For that matter, nothing in Ex parte Berryhill prevented the abandonment of the child from being considered on remand as evidence of the father’s “unfitness.” Moreover, Supreme Court decisions subsequent to Ex parte Berryhill repeatedly have recognized that unfitness and voluntary forfeiture constitute two separate, albeit related, grounds for loss of the parental presumption of custody. See, e.g., Ex parte R.C.L., 627 So.2d 920, 921 (Ala.1993) (treating “voluntary forfeiture of custody” and “pri- or decree removing custody from the natural parent and awarding it to a nonparent” as two separate and independent grounds recognized by Ex parte McLendon for overcoming the prima facie right of a natural parent to custody of his or her child); Ex parte Terry; Ex parte McLendon; Ex parte Mathews.

Citing Ex parte, Terry, 494 So.2d 628, 632 (Ala.1986), the dissent also states that “the contest [Ijere] is not between the [father] and a person to whom [the father] has transferred [custody by fair agreement] or [by a prior judgment].” “Accordingly,” the dissent states, “under Terry, the father does not have to meet the McLendon standard to ‘reclaim’ custody as against the grandparents.”

Because McLendon was a case in which there was a prior judgment based upon a “fair agreement” of the parties to transfer custody of a child to another, the McLen-don court stated:

“The correct standard in this case is:

“ ‘Where a parent has transferred to another [whether it be a non-parent or the other parent], the custody of h[er] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote h[er] child’s welfare.’ ”

455 So.2d at 865 (emphasis added); quoting Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947). djfie McLendon standard has not been limited, however, merely to cases in which the custody arrangement being challenged is the result of a “fair agreement.” As we have noted, the McLendon court, itself, explained: “A natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a nonparent. Ex parte Mathews, 428 So.2d 58 (Ala.1983).” 455 So.2d at 865 (emphasis added) (cited with approval in Ex parte Terry). See also, e.g., Ex parte R.C.L.

Ex parte Terry was not a case in which the father had voluntarily forfeited custody as did the father in the present case. Instead, in Terry, a prior divorce judgment had placed physical custody of the child with its mother. Within just “a few months” of the mother’s subsequent transfer of physical custody of the child to the grandparents, the father stepped forward to seek custody and assert his role as the natural parent. In the context of these facts, it is noteworthy that, immediately before the Terry opinion’s quotation of the “fair agreement” language of Ex parte McLendon, the Supreme Court also stated that

“neither of the conditions to the nonap-plication of the presumption in favor of a parent, which this Court enumerated in Ex parte McLendon, occurred in the present case: Petitioner did not voluntarily forfeit custody, nor did the prior decree award custody to a nonparent, as was the case in Ex parte McLendon.”

Ex party Terry, 494 So.2d at 632 (first emphasis added).

In light of the foregoing, the judgment of the juvenile court is reversed, and this case is remanded for a determination by the trial court based upon the record before it as to whether the father satisfied the McLendon standard by proving that a transfer of custody to him would materially promote the interest and welfare of the child.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON and PITTMAN, JJ., concur.

YATES, P.J., concurs in the result.

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent. The majority holds that the father has voluntarily relinquished custody of his child and that, in order to reclaim custody, he must meet the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard. I disagree. In fact, it appears from the record that the father lost his parental presumption vis-a-vis the mother when she was awarded custody in the paternity judgment. However, the “contest [here] is not between the [father] and a person to whom [the father] has transferred [custody] ... by fair agreement [or by prior judgment].” Ex parte Terry, 494 So.2d 628, 632 (Ala.1986) (internal quotations and citation omitted). Accordingly, under Terry, the father does not have to meet the McLendon standard to “reclaim” custody as against the grandparents. Similarly, Ex parte Berryhill, 410 So.2d 416 (Ala.1982), the facts of which are quite similar to the present case, stands for the proposition that when a father is not awarded custody of a child, he is still given the benefit of the parental presumption against third parties, provided he is not found unfit.

I also believe that Ex parte D.J., 645 So.2d 303 (Ala.1994), requires that the trial court’s judgment be affirmed. The D.J. court found that “application of the parental presumption in [cases like this one] promotes the sound policy of encouraging fathers to fulfill their paternal roles.” Ex parte D.J., 645 So.2d at 306. The father in this case, once he discovered the mother’s unfitness, chose to assume his paternal role. I must dissent from the majority’s reversal of the trial court’s application of the principles espoused by our supreme court in Ex parte D.J., Ex parte Terry, and Ex parte Berryhill.

      . This court has jurisdiction to hear the appeal because the juvenile court has certified the record as adequate for appellate review. See Rule 28(A), Ala. R. Juv. P.

      . We do not directly rely upon Borsdorf for the result reached in this case. We do, however, quote from Borsdorf because it is a case that well articulates principles relating to the relative importance of stability in a child's environment and the child’s relationships with those who have cared for and loved it, in comparison to a child's biological ties with a natural parent when the latter has made himself a stranger to the child — principles that inform subsequent decisions of our Supreme Court.

      . It is the latter ground, i.e., a prior decree removing custody from the natural parent, upon which the mother's superior right to custody was lost in McLendon. McLendon, 455 So.2d at 865.

      . Thus, in order to overcome the McLendon presumption in favor of the new custodian, the natural parent must prove that " '[t]he positive good [to be] brought about by the modification [of custody will] more than offset the inherently disruptive effect caused by uprooting the child.’ ” Ex parte McLendon, 455 So.2d at 865 (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

      . In contrast, the record reflects that when the child inquired about his father, the mother was able to quickly locate the father by using the Internet.

      . As has been noted, this custody award was vacated by the trial court in July 2000 after the father filed his petition for custody.

      . Compare D.C. v. C.O., 721 So.2d 195 (Ala.Civ.App.1998) (upholding trial court finding of the natural father's unfitness based upon the father’s abandonment, or forfeiture of actual physical custody, of the child, for a period of seven years, even though the father was not adjudicated to be the father of that child during the period of forfeiture).

      . In addition, to the extent that one objective of the law is to encourage fathers to step forward and to act as such, it would not seem that extending custodial protection to a biological father after he has abandoned his child for a period of years would provide the right incentive for the father with respect to whether he will abandon the child in the first place.

      . Nothing would appear to prevent an unwed, biological father who has abandoned his child from seeking an adjudication of his paternity at the same time he decides to seek custody of that child.

      . As noted, Ex parte D.J. focuses on the existence, or abandonment, of legal rights by a biological father of a child born out of wedlock, rather than the abandonment of a relationship or actual physical custody that occurs when a father absents himself from his child’s life for an extended period. The adverse impact to a child of a relational or physical abandonment by the child’s father would appear to be the same regardless of whether the father was formally adjudicated as the child's father before absenting himself from his child’s life. Likewise, the potential trauma to a child of severing the child's relationship with those with whom, in the wake of an abandonment by his father, the child has long since formed deep emotional and psychological bonds and sending the child to live with a man who is a stranger to the child, would appear to be the same regardless of whether the man to whom custody is to be transferred was formally adjudicated to be the biological father before he abandoned the child or just prior to the contemplated custody transfer.
      Even within the context of a focus on the legal rights of an unwed father, however, it may be noted that the reasoning in Ex parte D.J., itself, was premised upon the " 'strong presumption in Alabama, which has not been modified or abolished either judicially or legislatively, that the mother of a child born out of wedlock has a superior right of custody over all other persons,’ ” 645 So.2d at 307, and that this presumption pertains to the primary physical custody of the child. Thus, even when a child is born out of wedlock, a biological father generally still has a right to bring an action to confirm his paternity of the child, see Ala.Code 1975, § 26-17-1 et seq., and, even if primary custody of the child is maintained with the mother, seek the right to visit or otherwise begin a relationship with the child. Cf. Lehr v. Robertson, 463 U.S. at 261, n. 17, 103 S.Ct. 2985 (noting with approval a commentator's statement that " 'a putative father’s failure to show a substantial interest in his child’s welfare and to employ methods provided by state law for solidifying his parental rights ... will remove from him the full constitutional protection afforded the parental rights of other classes of parents' ” (emphasis added)).

      . Citing D.C. v. C.O., the maternal grandparents also argue that the acts and omissions of the father during the first six years of the child’s life demonstrate his "unfitness” under Ex parte Terry. The father responds by emphasizing evidence of his current fitness, including his role as a father in the family he now maintains in Texas. The grandparents’ argument, in essence, is that the father's actions demonstrate his unfitness to be the father of the particular child at issue in this case. See, e.g., D.C. v. C.O., 721 So.2d at 198-99. We need not reach this issue in light of our conclusions regarding the father’s voluntary forfeiture of the custody of the child.

      . This is not a case where a parent, acting out of love and concern for his child, turned over custody of the child to another for a temporary period for the sake of the child’s welfare. This court and our Supreme Court have refused to discourage temporary custodial arrangements during necessitous times. See, e.g., Ex parte Couch, 521 So.2d 987 (Ala.1988); Curl v. Curl, 526 So.2d 26 (Ala.Civ.App.1988); M.D.K. v. V.M., 647 So.2d 764 (Ala.Civ.App.1994).

      . The Supreme Court’s conclusion in Berry-hill that the Court of Civil Appeals had applied the wrong legal standard was, in part, a function of "[t]he references of the Court of Civil Appeals to the father's age and present financial condition,” which the Supreme Court held did not establish that the natural father was "unfit or unsuited” to receive custody of the child. 410 So.2d at 417. The Supreme Court emphasized the nature of its concern over the legal standard applied by the Court of Civil Appeals by heavily relying upon Ex parte Sullivan, 407 So.2d 559 (Ala.1981), a case in which the Supreme Court concluded “that the probate judge did not observe [the] presumption, which under our law favors the natural parent.” 407 So.2d at 564. Indeed, in Ex parte Sullivan, "[t]he entire record [wrongly] focuse[d] on the relative affluence of the [third parties] as compared to that of the natural [parent].” Id. Likewise, the Supreme Court in Ex parte Berryhill also relied upon Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910 (1955), a case in which the lower court was reversed with the admonition that:
      ‘Merely because some other person may be more fit should not be a basis for defeating the parent’s natural right. If without finding the parent unfit the general conclusion is reached that the best interests of the child require that a stranger be his custodian, the necessary hypothesis is that although the parent was fit, the court decided someone else was more fit. That means that the state acting through its courts may completely eliminate all parental rights.’ ”

        Griggs v. Barnes, 262 Ala. at 364, 78 So.2d at 917 (emphasis added; quoting Guardianship of Smith, 255 P.2d 761, 762 (Cal.1953)).

      . See, e.g., D.C. v. C.O., supra.

      . We take care not to construe the Supreme Court’s opinion in Ex parte Berryhill in such a manner as to attribute to that court consideration and rejection of principles that not only were not discussed in that opinion, but that were articulated in cases decided after Berry-hill. While it is true that, in Berryhill, the father had not seen his son for four years before the trial court's judgment, as noted, neither this court nor the Supreme Court addressed the issue of "voluntary forfeiture” as an independent ground for the loss of a natural parent's prima facie right to custody. The focus of the Supreme Court in Ex parte Berryhill was on correcting the lower court’s use of a comparative-fitness standard rather than an absolute standard. Moreover, it was during the following year that the Supreme Court, in Ex parte Mathews, 428 So.2d 58 (Ala.1983), articulated as two separate exceptions to the paternal-custody presumption the twin concepts of unfitness and voluntary forfeiture.


source: Caselaw Access Project

author: THOMPSON, Judge. CRAWLEY, Judge,

license: Public Domain

text:
    Vincent J. AMARO v. Brenda M. AMARO.
    2010429.
    Court of Civil Appeals of Alabama.
    Sept. 13, 2002.

      Albert L. Jordan and Michael L. Jackson of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellant.
    Grady R. Edmondson, Mobile, for appel-lee.
   THOMPSON, Judge.

Brenda M. Amaro (“the mother”) and Vincent J. Amaro (“the father”) were divorced by a November 25, 1987, judgment of the trial court (“the divorce judgment”). The divorce judgment, among other things, awarded the mother custody of the parties’ two minor children (hereinafter collectively referred to as “the children”); awarded the father reasonable visitation; ordered the father to pay child.support of $650 per month; ordered the father to provide medical insurance for the benefit of the minor children; and ordered the parties to divide equally the children’s medical expenses that were not covered by medical insurance. On August 25, 1993, October 28, 1993, and April 9, 1997, the trial court modified the divorce judgment; however, those modifications are not relevant to the issues raised in this appeal.

On May 26, 1999, the mother petitioned the trial court for a modification of child support, seeking postminority support for the parties’ oldest child who had reached the age of majority and seeking an award of child support for the minor child consistent with Rule 32, Ala. R. Jud. Admin. The mother also filed a motion for a rule nisi, asserting that the father had failed to pay child support and medical expenses pursuant to the terms of the divorce judgment. The father filed a motion to dismiss and a motion for a summary judgment; the trial court denied both of those motions.

On December 14, 2001, the trial court entered an order in which it found the father in contempt for failing to pay child support pursuant to the terms of the divorce judgment; ordered the father to pay a child-support arrearage of $8,142.18; ordered the father to pay $499 per month in child support for the parties’ minor child; ordered the father to pay $200 per month in postminority support for the parties’ oldest child; ordered the father to pay the first $200 of “any extraordinary medical, dental, or other health related expenses incurred on behalf of the children” that were not covered by insurance; ordered the parties to share equally the medical, dental, and health-related expenses in excess of $200 not covered by insurance; and ordered the father to pay the mother an attorney fee of $2,500. On January 24, 2002, the father appealed. On that same date, the father filed a motion to stay the trial court’s judgment pending the outcome of this appeal; the trial court denied that motion on January 30, 2002.

Where a trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). This “presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App.1999). In addition, when the trial court’s judgment does not make specific findings of fact, this court must assume that the trial court made those findings of fact necessary to support its judgment. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996). This court is not permitted to reweigh the evidence on appeal and substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000).

The mother testified that she was employed by the Mobile County public school system, earning $39,000 per year. The mother stated that she had worked part-time during three months of 2000 at both a Harco Drugs store and a Wal-Mart discount store. According to the mother, she earned approximately $1,000 for the three months she worked at Harco Drugs, but she could not recall what she had earned when she worked at Wal-Mart. The mother testified that she had not performed any part-time work during 2001. The father is self-employed. The father testified that he owned and operated Rhino Industries, a demolition contracting company.

Both parties had remarried at the time of the hearing in this matter. The father testified that he paid $300 per month for health insurance for himself and his current family. The father testified that the parties’ son was covered under that policy. The father stated that he maintained a separate policy for their daughter at a cost of $35 per month.

The mother testified that the father had not paid his portion of the children’s medical bills that were not covered by insur-anee. The mother testified that she had paid all of the bills and that she had mailed the receipts and bills to the father for reimbursement. The mother stated that the father had reimbursed her for some of the children’s medical expenses for the period 1996 to 2001. The record contains a summary prepared by the mother of the bills that the father had not paid. That summary shows that from 1996 to 2001, the father owed a total of $1,288.30 in unreimbursed medical expenses.

The father testified that he had paid some of the children’s medical bills between 1996 and 2001. The father submitted a letter written by him and addressed to the mother stating that he had enclosed a check in the amount of $22.44 for medical reimbursements in the amount of $222.44 submitted by the mother. The letter indicates that the father asserted that the daughter had received a tax refund, that he estimated that the amount of that refund was approximately $200, that he should be given the refund; thus, he says, he was offsetting the amount of medical reimbursements by $200 until he received the refund or a copy of the daughter’s tax return demonstrating that the refund was for a different amount. The father also submitted a list of medical expenses in the amount of $573.15 that he asserts he paid directly to the children’s health-care providers during 1998 and 1999; however, most of that amount does not appear on the mother’s list of unreimbursed medical expenses. The father’s list includes check numbers for some of the amounts he asserts he paid by check; however, the father testified that he did not submit any checks to document the amounts shown on his summary.

The mother testified that the father reduced his monthly child-support payment to $325 when the daughter turned 19 in October 1999. According to the mother, the father did not notify her of the reason for reducing his child-support payments. The mother testified that the father had not paid any child support since June 2001; the mother testified that the father’s total child-support arrearage at the time of the hearing in this matter was $11,766.18. The mother testified that the trial court had issued a previous order on August 25, 1993, finding the father in contempt for failing to pay child support.

The father admitted that he reduced his child-support payments from $650 per month to $325 per month when the daughter, the parties’ oldest child, turned 19. According to the father, he thought that he was no longer obligated to pay child support for the daughter when she reached the age of majority. When asked whether the trial court had reduced his child-support obligation to $325 per month, the father stated “it hasn’t been lowered yet.” The father testified that he was financially unable to pay child support after June 2001, and that, thus, he had failed to make any payments since that time. The father testified that he thought his child-support obligation should be modified; however, the father admitted that he had not filed a motion requesting that the trial court reduce his child-support obligation.

The father testified that he and his current wife filed separate tax returns. According to the father, his federal income tax return for the year 2000 showed that he had earned $22,135 in gross income; the father estimated that he would earn the same amount in 2001. The father testified that he had received gross receipts from Rhino Industries of $60,425 in 2000. The father stated that in addition to owning and operating Rhino Industries, he owned five parcels of property; those properties had billboards located on them and he leased the billboards to advertisers. The father testified that in 2000 he had received $25,659 in rental income from the billboards. The father stated that he also owned a parcel of commercial property and a parcel of residential property on which a house was located. The father testified that he owned two vehicles, a backhoe, stock in Books-A-Million, Inc.; Norfolk Southern Railway Company, Inc.; and Hilton Hotels Corporation, and that he had savings and certificates of deposit totaling $20,000 to $25,000 and an individual retirement account. The father’s tax return shows that he earned $1,386 in interest income in 2000.

The father testified that he owned his own home and that he had paid off the mortgage on that home in 1999. According to the father, he took out a second mortgage on his house in 1999. The father stated that he estimated that the amount of the second mortgage was $200,000 and that his monthly mortgage payment was $1,600. When questioned as to whether he could sell his stock or cash in his certificates of deposit to pay his child support, the father stated that the value of his stock was down, that he would incur a loss if he sold the stock, and that he would incur a penalty if he cashed his certificates of deposit before they matured. The father testified that he could cash in his individual retirement account “in the case of an emergency.”

The father testified that since 1999 he had also owned an advertising and consulting business and operated a booth in an antique mall; however, the father could not recall his earnings from those businesses. The father testified that he took the daughter on a trip to Washington, D.C. in October 2001. According to the father, he purchased the airplane tickets, and paid for the hotel room and all of the expenses of the trip. However, the father testified that he was financially unable to pay his October 2001 child-support obligation.

At the time of the hearing in this matter, the daughter was 21 years old and the son was 17 years old; the daughter turned 19 in October 1999. The mother testified that the daughter attended Jacksonville State University. The mother stated that the daughter had a full-tuition scholarship and that she had maintained an A to a B + average in her studies. The father testified that he provided the daughter with health insurance and car insurance; and that he had assisted the daughter financially since she began college. The father testified that he sent the daughter $600 in the summer of 1999 and that he was not sure, but he thought he sent his daughter $100 to $150 per month during the summer of 2001. According to the mother, she had provided the daughter approximately $1,200 in order to assist her in paying for her room, board, books, and fees. The mother testified that the daughter provided for the remainder of her expenses by taking out a student loan in the amount of $9,000.

The father asserts that the trial court erred in failing to order child support in compliance with Rule 32, Ala. R. Jud. Admin. The father also asserts that the trial court erred in calculating his monthly gross income, in increasing his child-support obligation, and in increasing his obligation for the son’s medical expenses.

“Modification of child support is a matter that rests within the sound discretion of the trial court; the court’s judgment on that matter will not be reversed absent an abuse of discretion or unless the judgment is plainly or palpably wrong. Child support may be modified on a showing of materially changed circumstances. Because child support is for the benefit of the minor child, the best interest of the child is the controlling consideration in an action for the modification of child support.”

Arnett v. Arnett, 812 So.2d 1246, 1249 (Ala.Civ.App.2001) (citations omitted). See also Beavers v. Beavers, 717 So.2d 373 (Ala.Civ.App.1997).

If the combination of the parties’ incomes is within the amounts specified in the child-support schedule of Rule 32(A) and (C), Ala. R. Jud. Admin., there is a rebuttable presumption that the amount of child support determined by application of the Child Support Guidelines is the correct amount of child support to be awarded. Rule 32(A), Ala. R. Jud. Admin.

“[T]his court has consistently held that the application of Rule 32 is mandatory in child-support actions filed on or after October 9, 1989. A trial court may deviate from the child-support guidelines in determining a child-support amount; however, any deviation is improper if it is not justified in writing. In Martin v. Martin, 637 So.2d 901, 902 (Ala.Civ.App.1994), this court issued the following directive:
“ “We hold, therefore, that the word “shall” in Rule 32(E), Ala. R. Jud. Admin., mandates the filing of a standardized Child Support Guidelines Form and a Child Support Obligation Income Statement!Affidavit Form.’
“Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable. When the court determines that application of the guidelines would be manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. When Rule 32(E) has not been complied with and child support is made an issue on appeal, this court may reverse the judgment of the trial court and remand the case for further proceedings in compliance with Rule 32.”

Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000) (citations omitted) (emphasis added).

Pursuant to the terms of the trial court’s December 14, 2001, judgment, the father was ordered to pay $499 per month in child support for the parties’ remaining minor child. The trial court stated that its award of child support was calculated in compliance with Rule 32, Ala. R. Jud. Admin. In the original record as certified to this court on appeal, there were only two Child Support Guidelines Forms, one prepared by the mother and one prepared by the father, neither of those forms recommended a child-support obligation of $499 per month. The transcript, however, indicated that the court based its award of child support on a CS-42 form other than the two filed by the parties; that CS-42 form was not in the record before this court. Therefore, pursuant to Rule 10(f), Ala. RApp. P., this court, on its own initiative, ordered that the omission be corrected by supplementing the record with the CS-42 form relied on by the trial court. The clerk of the Mobile Circuit Court transmitted the missing CS-42 form to this court, and it is now a part of the record on appeal.

The trial court’s CS-42 form shows a child-support obligation of $499 per month. The trial court’s CS^2 form states that the mother’s monthly gross income was $3,250 and that the father’s monthly gross income was $4,798. The trial court’s CS-42 form states that, based on the testimony presented at the November 26, 2001, hearing, the father’s income as shown on his CS-42 form was understated. Although the father testified that his gross income in 2000 was $22,135, the record contained evidence indicating that the father derived income from many sources and that $22,135 did not adequately represent the father’s annual gross income. Therefore, this court concludes that the trial court did not err in imputing income to the father or in ordering the father to pay a child-support obligation of $499 per month. See Arnett v. Arnett, supra.

The father next asserts that the trial court erred in calculating his child-support arrearage and that the trial court’s calculation is contrary to the evidence. First, the father asserts that he owed no arrearage because, he says, the divorce judgment permitted him unilaterally to reduce his child support obligation when the daughter reached age 19. Second, the father asserts that he is unable to determine the manner in which the trial court reached its arrearage award. A trial court’s award of child support may not be unilaterally reduced absent language in the divorce judgment permitting the reduction or consent from the court to the reduction. Phillippi v. State ex rel. Burke, 589 So.2d 1303 (Ala.Civ.App.1991). “The determination of a child-support ar-rearage and the allowance of credits toward an arrearage are within the discretion of the trial court. Absent a showing of an abuse of discretion, the trial court’s judgment will not be reversed.” Abel v. Abel, 824 So.2d 767, 768 (Ala.Civ.App.2001) (citations omitted). “The award or denial of a credit against an arrearage is within the sound discretion of the trial court and will not be reversed absent a showing of plain and palpable abuse.” Phillippi v. State ex rel. Burke, 589 So.2d 1303, 1304 (Ala.Civ.App.1991).

Our review of the divorce judgment reveals no language providing for the unilateral reduction by the father of his child-support obligation upon the daughter’s reaching the age of majority. Further, at the November 26, 2001, hearing, the father stated that he felt his child-support obligation should be reduced; however, the father never filed a motion with the trial court requesting such relief. The mother asserted that the father owed a child-support arrearage of $11,766.18. The trial court ordered the father to pay an arrear-age of $8,142.18. The father testified that he had provided the daughter $600 in the summer of 1999 and, although he stated he was unsure as to the exact amount, the father stated that he thought he had sent the daughter $100 to $150 per month during the summer of 2001. It appears from the record that if the trial court erred in its calculation, it did so to the father’s benefit. The mother did not appeal the trial court’s arrearage award. Thus, this court cannot say that the trial court abused its discretion in ordering the father to pay a child-support arrearage in the amount of $8,142.18. See Abel v. Abel, supra.

The father also asserts that the trial court erred in holding him in contempt for fading to pay child support. The father does not dispute that he failed to make the court-ordered child-support payments. Rather, the father asserts that he assumed that he could reduce his child-support payments when the daughter reached the age of majority, and that, after June 2001, he was financially unable to make those payments. In its December 14, 2001, order, the trial court found the father in contempt for his failure to pay child support; however, the trial court found that the father could purge himself of that contempt by complying with the trial court’s future orders.

The determination of whether a party is in contempt for failing to pay his support obligation is a matter within the sound discretion of the trial court. Stack v. Stack, 646 So.2d 51 (Ala.Civ.App.1994). The trial court’s finding of contempt based on ore tenus evidence will not be reversed absent a determination that that finding is plainly or palpably wrong. Id. A party’s inability to pay a child-support or an alimony obligation is a defense to contempt. Cook v. Cook, 578 So.2d 1354 (Ala.Civ.App.1991). The court will not condone a parent’s unilateral decision to reduce his or her child-support obligation absent language in the divorce judgment permitting such a reduction or consent from the court to such a reduction. Phillippi v. State ex rel. Burke, supra.

As stated above, this court’s review of the divorce judgment reveals no language granting the father the ability to unilaterally reduce his child-support obligation upon the oldest child’s reaching the age of majority. Further, the father testified that he had not paid child support since June 2001. In addition, the father testified that he owned his own home; that he had $20,000 to $25,000 in savings; that he had stock investments; that he owned two vehicles; and that he owned several parcels of property. When a trial court awards child support, that award is solely for the benefit of the parties’ children. This court does not look lightly on a parent’s refusal to pay that obligation as a means of frustrating his or her former spouse, especially when the result of that behavior is to penalize the children. Further, this court notes that this is not the first time the trial court has found the father in contempt for failing to pay his child-support obligation. Thus, this court cannot say that the trial court abused its discretion in finding the father in contempt. See Stack v. Stack, supra; Phillippi v. State ex rel. Burke, supra.

The father also argues that the trial court erred in ordering him to pay postminority support for the daughter in an amount in excess of her college expenses. Following the presentation of ore tenus evidence, the trial court’s judgment regarding postminority college support is entitled to a presumption of correctness, and that judgment will not be reversed absent a showing that the trial court abused its discretion or that its determination is plainly and palpably wrong. Smith v. Terry, 820 So.2d 839, 840 (Ala.Civ.App.2001).

“In Alabama, the general rule is that a trial court has no jurisdiction to require a parent to provide support for a child who has reached the age of majority. However, there are exceptions to the general rule. The first exception is where the noncustodial parent has agreed to provide support for the child past the age of majority. Another exception is that a parent may be required to provide postminority support where the adult child is so mentally or physically disabled that he cannot support himself or herself. Last, a parent may be required to provide postminority support when application for postminority educational support is made before the child reaches the age of majority.
“The Supreme Court of Alabama set out certain factors for the trial court to consider when ruling on a petition for postminority support. [Ex parte Bayliss, 550 So.2d 986 (Ala.1989),] clearly specifies those factors that shall, and those that may, be considered by the trial court when it is deciding whether to order support for postminority college education. In an award of postminority educational support for a child of divorced parents, the trial court ‘ “shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.” ’ The court suggested that trial courts also should consider ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’ The trial court must also determine if the noncustodial parent has ‘sufficient estate, earning capacity, or income to provide financial assistance without undue hardship.’ Undue hardship does not imply the absence of personal sacrifice, because many parents sacrifice to send their children to college.
“Following Bayliss, [supra,] this court has held that the trial court must set reasonable limitations on the parent’s responsibility for postminority education support, because a failure to do so may impose an undue hardship on the paying parent. These limitations include (1) limiting the support to a reasonable period, (2) requiring the child to maintain at least a ‘C’ average, and (3) requiring that the child be enrolled as a full-time student.
“This court has further held that without legal evidence as to the amounts required for books and tuition or for actual costs of room and board, we cannot determine whether the sums a parent is required to pay for postminority educational support would cause him undue hardship. Furthermore, when the judgment of the trial court has the potential to allow the child to prolong his undergraduate studies well beyond four years, by not requiring the child to take a minimum number of courses each session and by not limiting the number of courses that the child can withdraw from each semester, it will not be upheld. This court has also held that a reasonable limitation would include limiting the expenses to be paid by a parent to a particular college or institution.”

Penney v. Penney, 785 So.2d 376, 378-79 (Ala.Civ.App.2000) (citations omitted) (first emphasis original; second emphasis added). See also Smith v. Terry, 820 So.2d 839, 841 (Ala.Civ.App.2001).

It is undisputed that in this case the application for postminority educational support was made before the daughter reached the age of majority. The record indicates that the parties presented evidence regarding their financial resources, and that evidence indicated that the father had the ability to pay postminority support. However, the trial court heard no evidence concerning the expenses the daughter would incur in completing her education, except that she received a full-tuition scholarship; that she had taken out a $9,000 student loan; and that both parents had provided her with various amounts during her schooling.

In Thrasher v. Wilburn, 574 So.2d 839 (Ala.Civ.App.1990), this court held that the trial court committed reversible error when it failed to take “evidence on the reasonable necessaries, including room and board, for the child to attend college after reaching majority.” Thrasher v. Wilburn, 574 So.2d at 841. The trial court did not take evidence regarding the reasonable and necessary expenses the daughter will incur in attending college. Without such evidence, this court must conclude that the trial court erred in ordering the father to pay $200 per month in postminority support. See Penney v. Penney, supra.

The father also asserts that the trial court erred in ordering him to provide health insurance for the daughter because she had reached the age of majority-

“The general rule regarding child support from a non-custodial parent is that the child is entitled to support only until the age of majority. Whitten v. Whitten, 592 So.2d 183, 185 (Ala.1991). However, our supreme court has recognized two exceptions to this general rule: payment of post-minority support for a physically and/or mentally disabled child, see Ex parte Brewington, 445 So.2d 294 (Ala.1983); and payment for educational support where application is made before the child reaches age 19. See Ex parte Bayliss, 550 So.2d 986 (Ala.1989)....
“This court has held that absent Brewington factors, a trial court has no authority to require that a noncustodial parent provide health insurance beyond the age of majority. Barnes v. State ex rel. Barnes, 653 So.2d 310 (Ala.Civ.App.1994).”

Luce v. Luce, 681 So.2d 613, 616 (Ala.Civ.App.1996). See also Gage v. Cochran, 111 So.2d 720 (Ala.Civ.App.2000); Self v. Self, 685 So.2d 732 (Ala.Civ.App.1996) (citing Ex parte Brewington, 445 So.2d 294 (Ala.1983)); Hayes v. Hayes, 620 So.2d 49 (Ala.Civ.App.1993). The trial court’s December 14, 2001, judgment orders the father to maintain health insurance coverage for the daughter. Therefore, the trial court erred in ordering the father to maintain health insurance for the daughter’s benefit. See Gage v. Cochran, supra.

The father argues that the trial court erred in ordering him to pay the mother an attorney fee. The trial court’s award of attorney fee in a modification case is within the sound discretion of the trial court and that award will not be reversed absent an abuse of discretion. Amie v. Conrey, 801 So.2d 841 (Ala.Civ.App.2001). The court considers several factors in determining whether to award an attorney fee and the amount of the award, including “the earning capacity of the parties, the results of the litigation, and the financial circumstances of the parties.” Amie v. Conrey, 801 So.2d at 847.

Given the facts of this case, this court concludes that the trial court did not err in ordering the father to pay the mother an attorney fee in the amount of $2,500.

The portion of the trial court’s December 14, 2001, judgment ordering the father to pay child support of $499 per month, ordering the father to pay a child-support arrearage of 8,142.18, finding of the father in contempt, and awarding the mother an attorney fee is affirmed. The portion of the trial court’s December 14, 2001, judgment ordering the father to pay $200 per month in postminority support and ordering the father to provide health insurance for the daughter is reversed, and the cause is remanded for the trial court to take evidence of the reasonable and necessary expenses, including room and board, for the daughter’s college attendance.

The appellee’s request for an attorney fee is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

YATES, P.J., and PITTMAN, J., concur.

CRAWLEY, J., concurs specially.

CRAWLEY, Judge,

concurring specially.

This court holds that, because the trial court heard no evidence of the reasonable and necessary expenses that the daughter will incur in attending college, the cause must be remanded “to take evidence of’ those expenses. 843 So.2d at 798. I concur. I write separately only to clarify my position with respect to this court’s reversal of that part of the trial court’s judgment that orders the father to maintain health insurance for the college-bound daughter.

I presume that this court contemplates that, once the evidence of “reasonable and necessary expenses the daughter will incur in attending college,” 843 So.2d at 797, is heard, the trial court will enter an appropriate postminority-support order. In my opinion, health insurance for the benefit of the daughter is a “reasonable and necessary expense” that can be included in the postminority support order. See Smith v. Smith, 836 So.2d 893, 897 (Ala.Civ.App.2002); Payne v. Williams, 678 So.2d 1118, 1122 (Ala.Civ.App.1996) (affirming a trial court’s judgment relieving a father of the obligation to pay his daughter’s health-insurance expenses because the father was currently unemployed, but recognizing that the trial court “could well have decided that the father’s duty to pay [health insurance costs as a part of] post-minority support should be based on the father’s ability to earn rather than his actual income”).

      . The record indicates that the father had offset the mother's request for reimbursement by his payments directly to the children’s health-care providers on other occasions. However, the record does not indicate, and the father does not present evidence regarding, whether the mother paid amounts directly to the health-care providers on those occasions.


author: COBB, Judge.

text:
    Triona Ann CARTER v. STATE.
    CR-98-1976.
    Court of Criminal Appeals of Alabama.
    June 30, 2000.
    Rehearing Denied Aug. 18, 2000.

      J. William Cole, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Andy Scott Poole, asst. atty. gen., for ap-pellee.
   COBB, Judge.

The appellant, Triona Ann Carter, was convicted of murder and manslaughter, violations of §§ 13A-6-2 and 13A-6-3, Ala. Code 1975, respectively. Carter was sentenced to life in prison on the murder conviction and to 20 years in prison on the manslaughter conviction.

This case involves convoluted facts and conflicting evidence. At trial, the appellant’s entire theory of defense was self-defense and she requested a jury charge on self-defense. The trial court refused that jury charge. Consequently, the primary issue of this appeal is whether the trial court should have granted the appellant’s request for instructions on self-defense.

On November 28, 1996, Tamiko Smith, Sheri Baker, Marcus Cephus, and Smith’s infant daughter went to see a movie at a local theater in Birmingham. When the movie ended, Smith’s group got into an altercation in the theater parking lot with Carter, her boyfriend Trevas Bell, and her friend Artimese Johnson.

As Smith approached the exit of the parking lot, she noticed that Bell was tailgating her car. Bell was so close to Smith’s car that when she slowed at a speed bump in the lot, Bell’s car hit the bumper of Smith’s car. At that point, Smith and Cephus got out of Smith’s car and asked if there was a problem. Bell and the passengers in his car, Triona Carter and Artimese Johnson, got out of Bell’s car. Conflicting evidence was presented at trial with regard to what happened after the parties in the two vehicles got out of their cars.

However, it is uncontradicted that Carter and Baker exchanged words. Carter and Baker were involved in an altercation several months prior to this incident. On that occasion, Carter was attacked and beaten by unknown individuals carrying baseball bats; Baker had allegedly aided the attackers by letting one of them use her telephone to make a phone call. In the present case, when Carter confronted her, Baker denied being involved in the attack and Cephus intervened on Baker’s behalf. The appellant’s evidence showed that Cephus, who was 5T0” tall and weighed 232 pounds, attempted to push Carter, who was 5’ tall, weighed 99 pounds, and was pregnant at the time of the incident. When Bell saw Cephus move toward Carter, he punched Cephus in the head. At that point, a fist fight began between Bell and Cephus.

After Bell punched him, Cephus tackled Bell to the ground and began throwing punches at Bell. While the two men were fighting on the ground, Carter walked up behind Cephus and punched him in the back in an attempt to get him off Bell. In response, Cephus got up and punched Carter in the face. The force of the blow knocked Carter to the ground and left her dazed. When she hit the ground, Carter noticed a 9mm pistol lying approximately one foot away from her. Carter grabbed the gun and began firing the gun rapidly. As a result, Carter shot and killed Cephus and her companion Artimese Johnson, and she shot and wounded her boyfriend Bell. Carter was subsequently arrested and charged with capital murder for killing two persons by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala.Code 1975. After a two-day trial, Carter was convicted of manslaughter with respect to Cephus and murder with respect to Johnson.

On appeal, Carter contends that the trial court erred in denying her requested jury instructions on self-defense. Section 13A-3-23(a) states, in pertinent part:

“(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:
“(1) Using or about to use unlawful deadly physical force ...
“(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety:
“(1) Byretreating
“(c) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force if:
“(1) With intent to cause physical injury or death to another person, he provoked the use of unlawful physical force by such other person; or
“(2) He was the initial aggressor,except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force.... ”

Like the case at hand, the appellant in King v. State, 478 So.2d 318 (Ala.Cr.App.1985), killed an unarmed person but contended at trial that he acted in self-defense and that he was therefore entitled to a self-defense charge. In that case, King stabbed the victim (Williams) after having threatened to “get him.” Evidence indicated that before the stabbing incident, Williams provoked a fight with King over King’s fiancee.

A short time after this incident King went home, armed himself with a butcher knife, and returned to the same neighborhood where he had been confronted by Williams. King met Williams and his fiancee when he returned. When an argument arose between King and his fiancee, Williams intervened and pushed King. A shoving match ensued between King and Williams. Then, King pulled out the butcher knife and stabbed Williams who died as a result of the stabbing. King never saw Williams with any weapon and did not know if Williams had a weapon when he stabbed him.

In King, this court stated the general rule regarding a trial court’s duty to instruct on the law of the case:

“‘[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.’ Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). If there is ‘any evidence, however slight, tending to support’ that the defendant acted in self-defense, the issue should be submitted to the jury. King v. State, 71 Ala. 1, 4 (1881). In most cases, the issue of self-defense is one of ultimate fact solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. 190 (1892), however ‘unsatisfactory and inconclusive to the judicial mind’ the evidence of self-defense may appear. Burns v. State, 229 Ala. 68, 70, 155 So. 561, 562 (1934).”

478 So.2d at 319. See also Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991); and Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978).

In determining whether there is sufficient evidence to instruct a jury on self-defense, we must view the evidence in the light most favorable to the defendant. See Eubanks v. State, 611 So.2d 448, 449 (Ala.Crim.App.1992); King v. State, 478 So.2d at 319; Chavers v. State, 361 So.2d at 1106; Ex parte Pettway, 594 So.2d at 1200; Toler v. State, 623 So.2d 408, 411 (Ala.Crim.App.1993); and Coon v. State, 494 So.2d 184, 186 (Ala.Crim.App.1986). If there is the slightest evidence tending to prove a hostile act that could reasonably be interpreted as placing Carter in apparent imminent danger to life or grievous bodily harm at the time of the shooting, the issue of self-defense becomes a question for the jury. See Ex parte Pettway, 594 So.2d at 1200.

The evidence favorable to Carter showed that Cephus and Smith were the first people to exit a vehicle before the shooting. Both Smith and Cephus were seen “fumbling” under the car seats as if they were looking for something. When Cephus and Smith got out of their car, they walked toward the front of Bell’s car and at that point Bell, Carter, and Johnson got of their car. Cephus and Smith began yelling at Carter and her companions and an argument quickly ensued between Bell and Cephus. Cephus then attempted to assault Carter, and Bell intervened on her behalf and a fight ensued. Thus, according to the evidence presented by Carter, Cephus and Smith were the aggressors and the instigators of the fight.

While Bell was lying on the ground being punched by Cephus, Carter attempted to help him by hitting Cephus in the back. Cephus then punched Carter in the face and knocked her to the ground. Carter, who was pregnant at the time, testified that when Cephus hit her she was afraid for her own safety and for the safety of her unborn child. Like the appellant in King, Carter never saw Cephus with a weapon but she testified that because Ce-phus had been fumbling under the seat she did not know whether he had a weapon. Carter, like King, used deadly physical force to repel an assault by hand.

Generally, an assault with the hand or fist under ordinary circumstances will not justify the use of deadly force; however, there are exceptions to the general rule. King, 478 So.2d at 320-21. “There are times when exceptional and unusual circumstances may justify the use of a deadly weapon against an unarmed man, ... ‘such as great disparity between the parties in the matter of physical power or other peculiar conditions.’ ” King, 478 So.2d at 321 (quoting Willingham v. State, 262 Ala. 550, 80 So.2d 280 (1955)); George v. State, 145 Ala. 41, 40 So. 961 (1906); Dilburn v. State, 16 Ala.App. 371, 77 So. 983 (1918). “When the assailant is a larger and more powerful man than the defendant and the latter is unable to resist his attack, such inability to resist may give rise to an apprehension of danger which, if reasonably entertained, may justify killing the assailant even though he is unarmed.” F. Wharton, Criminal Law § 127 (15th ed.1994).

Cephus outweighed Carter by approximately 138 pounds and he was nearly a foot taller than she was. There was clearly a great disparity in size and physical power between Cephus and Carter at the time Carter was punched in the face. Also, because Carter was pregnant at the time she was punched, and given the fact that Carter was unsure whether Cephus had a weapon, we believe that a jury question was presented as to whether Carter believed that her life or the life of her unborn child was in imminent danger. “The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. The court determines what the rules are, but it is for the jury to determine whether the standard has been met in the particular case.” King, 478 So.2d at 321 (quoting R. Perkins and R. Boyce, Criminal Law 1116 (3d ed.1982)).

With regard to the duty to retreat, Carter presented sufficient evidence to present a jury question as to whether it reasonably appeared, or whether Carter knew, that she could avoid using deadly physical force by retreating. Some circumstantial evidence was presented that suggested that the gun Carter used to shoot Cephus belonged to Cephus.

For example, Bell and Carter testified that the gun used to kill Cephus did not belong to either of them and that they did not have any weapons in their possession at the time of the altercation. In addition, they both testified that they saw Cephus fumbling under his seat as if he were looking for a weapon, and Carter testified that when Cephus knocked her down she saw the gun lying on the pavement next to her. Carter clearly raised a theory, through circumstantial evidence, that during Cephus’s assault of her he dropped his gun and that she shot him before he could use the gun, assault her further by hand, or both. See e.g. Howard v. State, 420 So.2d 828 (Ala.Crim.App.1982) (a jury question was presented as to whether it reasonably appeared that the defendant could avoid using deadly force by retreating, where the defendant attempted to shoot the victim at his place of business). We hold that, under the facts of this case, the issue of self-defense should have been presented to the jury.

The self-defense issue in the case involving Cephus, was also crucial in the case involving Johnson. The State applied the doctrine of transferred intent to Carter’s killing of Johnson. Specifically, the State argues that Carter fired the pistol intending to kill Cephus and, in doing so, she killed Cephus and Johnson. See Appel-lee’s brief p. 14; see also Mordica v. State, 618 So.2d 301 (Fla.Dist.Ct.App.1993) (the doctrine of transferred intent applied when the defendant kicked the intended victim and inadvertently kicked an unintended victim); Harvey v. State, 111 Md.App. 401, 681 A.2d 628 (1996) (the doctrine of transferred intent is applicable whenever an unintended victim is shot and killed; it makes no difference whether the intended victim was also shot and killed).

When self-defense is a viable defense to a charge against a defendant, it also operates to excuse the injury or death of an unintended victim injured while the defendant was defending himself. See V.M. v. State, 766 So.2d 280 (Fla.Dist.Ct.App.2000); State v. Abeyta, 120 N.M. 233, 243, 901 P.2d 164, 174 (1995). Because the jury was not instructed on self-defense, the judgments of the circuit court are reversed and both causes are remanded for new trials. In light of our disposition of this issue, there is no need to address Carter’s other contention of error.

REVERSED AND REMANDED.

LONG, P.J., and McMILLAN, BASCHAB, and FRY, JJ., concur.

      . The evidence adduced at trial showed that the gun did not belong to Carter. Circumstantial evidence showed that the gun could have fallen from Cephus or Bell during the fight. However, Bell testified that the gun did not belong to him and that he did not know where the gun came from; this testimony was not rebutted by the State.


author: MOORE, Chief Justice. WOODALL, Justice

text:
    Ex parte State of Alabama. (In re Triona Ann CARTER v. STATE.)
    1992225.
    Supreme Court of Alabama.
    May 25, 2001.
    William H. Pryor, Jr., atty. gen., and Andy S. Poole, asst. atty. gen., for petitioner.

      J. William Cole of Luker, Cole & Associates, L.L.C., Birmingham, for respondent.
   MOORE, Chief Justice.

On November 4, 1998, in the Jefferson County Circuit Court, a jury convicted Triona Ann Carter of intentional murder in the death of Artimese Johnson and of manslaughter in the death of Marcus Ce-phus. Carter was sentenced to life in prison for the intentional murder and to 20 years in prison for the manslaughter. The trial court had refused Ms. Carter’s requested jury instruction on self-defense. The Court of Criminal Appeals reversed both convictions, holding that the trial court should have instructed the jury on the law of self-defense. Carter v. State, 843 So.2d 798 (Ala.Crim.App.2000). We granted the State’s petition for certiorari review. We reverse the judgment of the Court of Criminal Appeals.

On November 28, 1996, Marcus Cephus, Tamiko Smith, Smith’s infant daughter, and Sheri Baker went to a movie at a Birmingham theater. (R. 31.) As they were leaving the parking lot after the movie, the adults became involved in an altercation with Triona Carter, Trevas Bell, and Artimese Johnson. Bell’s automobile bumped Smith’s automobile; Smith then exited her car. Carter, Bell, and Johnson exited Bell’s car. (R. 33-34.) According to Bell, Smith then returned to her car and “started fumbling under the seat and looking behind the seat.” (R. 233.) At that point, Cephus exited Smith’s car. Carter and Baker — who was still in Smith’s car— began to argue about an altercation they had engaged in several months earlier.

The evidence indicated that Cephus, intervening on behalf of Ms. Baker, attempted to shove Carter (R. 35); that Bell then punched Cephus in the head, causing a fight between these two men; and that Cephus returned to his feet and tackled Bell. At trial, Bell described this fight as a “confrontation on the ground,” and he stated: “We just primarily was rolling, he never did, I don’t think he ever did hit me.” (R. 234-35.) According to Smith, while Cephus and Bell were on the ground, Carter approached and punched Cephus in the back. Smith said that Cephus then stood up and punched Carter in the face, knocking her to the ground. (R. 35.)

Cephus was a 5'10", 232-pound male. Carter was a 5'0", 99-pound pregnant female. Carter testified that she noticed a 9mm pistol lying next to her on the ground. (R. 266.) She testified that she picked up this pistol and began firing it repeatedly. (R. 76.) As a result, Carter killed Marcus Cephus and her friend Ar-timese Johnson. She also wounded her boyfriend, Trevas Bell. The evidence at trial showed that this gun did not belong to Carter. Circumstantial evidence indicated that it could have fallen from Cephus or Bell during their fight. Bell testified that the gun was not his; the State did not rebut this assertion.

Carter asked the trial judge to charge the jury on self-defense. The State contested the self-defense charge proposed by Carter, arguing that the evidence presented did not support such an instruction. Section 13A-3-23, Ala.Code 1975, provides that one is justified in using deadly force if he or she is in actual or apparent peril of death or serious bodily harm; is not at fault in causing that peril; and is not able to retreat safely.

In King v. State, 478 So.2d 318, 319 (Ala.Crim.App.1985), the Court of Criminal Appeals stated:

“In determining whether to charge the jury on self-defense, ‘evidence most favorable to the defendant should be considered and if there is the slightest evidence ... which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury.”

See Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). See also Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978), and Toler v. State, 623 So.2d 408, 411 (Ala.Crim.App.1993).

Carter contends that she was entitled to have the trial court charge the jury on the affirmative defense of self-defense.

Professor Gamble has written:

“As a general rule, the accused is not entitled to have a claim of self-defense submitted to the jury if the undisputed evidence shows clearly any of the following: that the accused was not in actual or apparent imminent peril, that the accused was able to retreat, or that the accused was at fault.”
“In the absence of evidence warranting a finding both that the accused was in actual or apparent imminent peril and was unable to retreat, it is assumed that the accused was not in such peril and was able to retreat. It necessarily follows that the accused has the burden of producing evidence warranting both of such findings and the discharge of that burden is one of the conditions precedent to being entitled to have the accused’s claim of self-defense submitted to the jury.”

Charles W. Gamble, McElroy’s Alabama Evidence, § 457.02(5)(a) and (b) (5th ed.1996). (Emphasis added.) Based on the evidence appearing in the record, we must conclude that Carter was not at risk of death or serious bodily injury. We must conclude that Bell was not at risk of death or serious bodily injury. Even if we accepted Carter’s argument that Cephus’s actions caused her to have an honest and reasonable fear of substantial peril to her unborn child or to herself, and even if we accepted her argument that she was not at fault in causing the confrontation, nevertheless we must conclude that the evidence indicates she clearly had the ability to retreat and thus to escape any danger. In Crymes v. State, 630 So.2d 120, 125 (Ala.Crim.App.1993), the Court of Criminal Appeals held that “the [defendant’s] failure to retreat [barred] him from claiming self-defense.” See also Craig v. State, 719 So.2d 274 (Ala.Crim.App.1998). Bell, who was rolling on the ground with Cephus, was not in danger of death or serious bodily injury. Carter thus had no right under the provisions of § 13A-3-23(a) to use deadly force on his behalf.

The Court of Criminal Appeals analogized Carter’s predicament to that of the defendant in King. The facts in King, however, were fundamentally different, because in that case King had been threatened by, and was engaged in a fight with, the victim. King was on the front porch of a residence when the victim began to charge toward him aggressively, precluding a retreat. In this case, Carter fired the pistol when she was no longer involved in the fight. Carter, who at that point was a safe distance behind Cephus and was not in any danger, then chose to shoot Cephus in the back. The evidence showed that Carter could have retreated from the scene, at any time and in any direction. The evidence further showed that Bell was not in mortal danger. Therefore, even if the trial court accepted Carter’s version of the facts, it still would have concluded that she did not have the right to use deadly force against Cephus or Johnson.

The trial court properly denied the instruction on self-defense. Even construing the evidence in the light most favorable to Carter, we find no evidence indicating that she was entitled to a charge on this affirmative defense under the provisions of § 13A-3-23. The trial court’s ruling was consistent with § 13A-3-23 and with controlling precedent.

The judgment of the Court of Criminal Appeals is reversed, and the case is remanded for an order or proceedings consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, HARWOOD, and STUART, JJ., concur.

WOODALL, J., dissents.

WOODALL, Justice

(dissenting).

The Court of Criminal Appeals, in a unanimous decision, held that the trial court erred in failing to instruct the jury on self-defense. Carter v. State, 843 So.2d 798 (Ala.Crim.App.2000). Judge Cobb’s opinion is well-reasoned, and its analysis is sound. Therefore, I adopt the opinion of the Court of Criminal Appeals as my dissent.