text:
    Amy Johnson RILEY v. Kristopher RILEY.
    2010707.
    Court of Civil Appeals of Alabama.
    Nov. 15, 2002.
    Rehearing Denied Jan. 10, 2008.

      Gladys H. Yelverton, Legal Services Corporation of Alabama, Dothan, for appellant.
    Samuel L. Adams, Dothan, for appellee.
   CRAWLEY, Judge.

This appeal arises from a judgment of the Houston Circuit Court modifying a custody determination, in which Amy Johnson Riley (“the mother”) and Kristopher Riley (“the father”) were awarded joint custody of Madison Riley (“the child”), their daughter.

The record reveals that the mother and the father were married in January 1998 and that the child was born in July 1998. The mother and the father separated in May 1999 and were divorced in October 1999. In its judgment of divorce, the trial court incorporated a settlement agreement entered into by the mother and the father under which, among other things, joint custody of the child was vested in the mother and the father, with the mother having physical custody and the father having weekend, holiday, and summer visitation.

In September 2000, the father filed his first petition to modify custody, averring that there had been a change in circumstances and that it was not in the best interests of the child to remain in the physical custody of the mother and that he should therefore be awarded physical custody of the child. However, that petition was dismissed in April 2001 “for lack of action.” In July 2001, the father filed a second petition seeking the same relief; the mother answered the petition and denied its material allegations. In November 2001, the father moved for an order granting him custody of the child pendente lite; that motion was accompanied by an affidavit executed by the child’s maternal grandfather in which he opined that the mother “tends to move her residence frequently” and that “it would be in the best interest” of the child to reside with the father because of a perceived “instability in [the motherj’s household.” The trial court then awarded physical custody of the child to the father (with visitation to the mother) pending a hearing on the father’s petition.

In February 2002, after denying an oral motion to dismiss the father’s petition to modify, the trial court received testimony from the parties at a hearing on the petition. The father testified to having worked for an employer named “Persian Gallery” for the five years preceding the hearing and to having remained in the home the parties had inhabited at the time of the divorce in 1999. The father also testified that at the time of the divorce, the mother and the child resided in an apartment with a female roommate, but that the mother had moved with the child into a residence with the mother’s boyfriend, Ashley Scarce, and that she had subsequently moved into a residence with the child’s maternal grandfather, from there into a house trailer adjacent to Scarce’s parents’ home, and then into a residence she shared with a man other than Scarce.

The father testified that he had sought custody of the child because the mother had been difficult to contact and because the child had indicated a reluctance to return to the mother’s home after visitation with the father. The father testified that he did not “approve” of the mother’s living with men to whom she was not married, opined that for the child to be “seeing mommy ... with different guys” “would be bad for” her, and stated that he had a problem with, the mother’s frequent changes of residence. However, on cross-examination, the father admitted that the mother had always provided a home for the child, that he could not say how the child had been affected by the mother’s moves, and that he knew of no harm- that had come to the child from the mother.

The mother, on examination by the father’s counsel, testified that she had lived in Headland for the six months before trial with the child and with two sons fathered by Scarce (i.e., the child’s half brothers), and with all three children and Scarce for six months before that. The mother admitted that she never married Scarce and testified that her father (i.e., the child’s maternal grandfather) had not liked Scarce and had disapproved of her having children out of wedlock. The mother also confirmed that Scarce and another boyfriend had had a physical altercation at a commercial establishment and that she had occásionally left the child in the care of a babysitter and in the care of Scarce’s mother. Although the mother admitted to having had financial problems and admitted that her trailer had been repossessed because she did not make the payments on the loan used to purchase the trailer, she testified that she had no problems paying her bills at the time of-trial.

On examination by her counsel, the mother testified that she had always' seen that' her children were well cared for, that she had not left the children with untrustworthy caretakers, and that her several moves had been undertaken so as to improve her situation. She described her current home as a three-bedroom, two-bathroom home that would afford the child a room of her own, and she testified that she was working for a local hospital on its night shift; she also testified that after the entry of the pendente lite custody order, on each occasion when the child was being returned to the father’s care after visitation with the mother, the child would begin crying. Finally, the mother testified that she could call upon her own mother and Scarce’s mother to help care for her children.

- After counsel had completed questioning the mother, the trial court asked the mother several questions. Among other things, the mother testified that the child’s half brothers were living with her; that she and Scarce had separated six months before the trial; that she had contacted the Department of Human Resources to assist her in obtaining child support from Scarce, who has not regularly paid such support; that she and Scarce had not entered into a common-law marriage and that she had not sought a divorce from Scarce; and that she had lived with Scarce when the child was between 16 months and 3 years of age. The trial court's examination then continued: ■

“THE COURT: Okay. And do you see anything wrong with that living arrangement?
“[The mother]: We should have been married, you know, legally, but, no.
“THE COURT: You don’t see anything wrong with it?
“[The mother]: [Scarce] loved [the child] just like his own.
“THE COURT: Ma’am, the question is, did you see anything wrong with living with a man that you were not married to with a young child in the house?
“[The mother]: I suppose so, yes, sir.”

After the mother had completed her testimony, but before the parties could call another witness, the trial court made the following. remarks:

“THE COURT: Well, I’m going to be truthful about it. I’ve heard enough. Anybody that is going to live with an unmarried man in front of their small daughter like this, y’all know how the Court feels about it. And, you know, I’ve never given custody back to any-' body in that situation. And I’m not going to do it now.
“And for you, ma’am, not to even think much about it, that further proves to me that you don’t need that kid. So the kid is — Mr. Riley, you can have custody of the child. That is just the way I feel about it, and have always felt about it.
“[Counsel for the mother]: Your Hon- or, just another thing. It make[s] no difference that the relationship is no longer—
“THE COURT: It just shows a pattern to me. Especially, what she feels about it, to me that she says she do[es]n’t think that it’s wrong or anything, it will probably continue with somebody else. I’m not going to have that child in a home somewhere with an unmarried man. I’m just not. And them not being married. I’m not going to have it. The child is three years old now. And who’s to say when she is four or five, which is probably going to be the case, she’s going to be living with another man somewhere, raising kids.
“[Counsel for the mother]: She said that she knew it was wrong.
“THE COURT: Then she came back and said something that indicated that— nope. I can’t have her have that child.”

After the trial court subsequently entered a judgment on the case action summary sheet awarding custody of the child to the father, the mother filed a motion, pursuant to Rule 59(e), Ala. R. Civ. P., to alter, amend, or vacate the judgment, contending, among other things, that the trial court had erred in “divining an irrebutta-ble presumption” that a mother is unfit to maintain custody if she cohabitates with a man to whom she is not married and in concluding that the father had met his burden, under Ex parte McLendon, 455 So.2d 863 (Ala.1984), of demonstrating that a change in custody will materially promote the best interests of the child and that the benefit to the child will more than offset the disruptive effect caused by the uprooting of the child. The mother also filed a motion, pursuant to Rule 52(b), Ala. R. Civ. P., for specific findings of fact, which she later renewed so as to request, in the alternative, that the parties be directed to submit proposed findings of fact and conclusions of law. The trial court denied the mother’s postjudgment motions, prompting the mother’s appeal to this court.

On appeal, the mother contends, among other things, that the trial court’s judgment is contrary to Wade v. Clark, 564 So.2d 982 (Ala.Civ.App.1990), in that the trial court changed custody of the child to the father based solely upon the mother’s indiscreet conduct.

As our Supreme Court noted in Ex parte J.M.F., 730 So.2d 1190 (Ala.1998), “[i]t is, of course, well established that a noncustodial parent seeking- a change of custody must show not only that he or she is fit to have custody, but that the change would materially promote the child’s best interests.” 730 So.2d at 1194 (citing Ex parte McLendon, supra). “This requires a showing that the positive good brought about by the modification would more than offset the inherently disruptive effect caused by uprooting the child.” 730 So.2d at 1194. Moreover, the Alabama Supreme Court has made clear that “a change of custody from one parent to another is not a decision to be made lightly; on the contrary, it may be made only where the evidence discloses an obvious and over whelming necessity for change.” Ex parte Peppers, 708 So.2d 299, 302 (Ala.1997).

Although the trial court’s written order does not include factual findings or conclusions of law, the basis of the trial court’s decision to modify its previous award of custody is set forth at length in its oral remarks during its February 2002 hearing. A review of those remarks indicates that the trial court granted the change in custody because the mother, during the time she had physical custody of the child, had admittedly lived with a man who was not her husband.

In Wade, supra, this court considered an appeal brought by a child’s mother from a judgment modifying the divorce judgment so as to transfer custody of the child to the father. In that case, the father had sought the change in custody on the ground that the mother was, at the time of the petition, living with a man who was not her husband; at trial,' the mother “admitted to such living arrangements.” 564 So.2d at 983. This court reversed the judgment changing custody, reasoning as follows:

“Evidence of ‘indiscreet’ conduct may be considered as a factor in custody modification actions; however, custody will not be modified where the party seeking the change fails to establish a substantial detriment[al] effect on the welfare of the child as a result of the ‘indiscreet’ conduct. Here, the record is devoid of any evidence that tends to show that the mother’s activities were in any way detrimental to [the child]. The record is similarly devoid of any evidence tending to show that a change in custody would ‘materially promote’ [the childj’s best interest and welfare.
“The father had the burden of showing that the mother’s living arrangements had a detrimental effect on the child and that transferring custody to him would ‘materially promote’ the welfare and best interests of the child. This he failed to do.
“Where evidence is heard ore tenus by a trial court, the court’s findings will not be disturbed unless plainly and palpably wrong. Here, the evidence simply does not warrant a change in custody. We find, therefore, that the trial court erred in transferring custody from the mother to the father.”

564 So.2d at 983 (citations omitted); cf. Ex parte J.M.F., 730 So.2d at 1194 (stating, after noting the McLendon standard, that “[w]here a parent seeks a change of custody based solely upon the heterosexual misconduct of the custodial parent, our law requires that there be an additional showing that the misconduct has a detrimental effect upon the child”).

In this case, the trial court left no doubt about its opinion that “[a]nybody that is going to live with an unmarried man in front of [a] small daughter” was not entitled to retain custody, stating that it had “never given custody back to anybody in that situation” and that it would not do so in this case. However, Alabama law does not permit a trial court to abruptly terminate a custody hearing and uproot a child based solely upon a finding that the child’s custodial parent is cohabitating, or has cohabitated, with a member of the opposite sex to whom the custodial parent is not married. Simply put, “living with someone of the opposite sex without the benefit of marriage” “is not evidence of a substantial detrimental effect on a child in the absence of any proof of harm to the child.” Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (emphasis added). Here, the father, although disapproving of the mother’s personal life, could not demonstrate any adverse effects upon the child and admitted that he knew of no harm to the child caused by the mother’s activities.

Although we are mindful of the strong presumption in favor of the correctness of custody judgments (see, e.g., Wade, supra), we must conclude, based upon Alabama caselaw and the record in this case, that the trial court plainly and palpably erred in changing custody of the child based upon a finding that the mother had lived with a man out of wedlock. Because the current evidentiary record does not reveal “an obvious and overwhelming necessity” that custody of the child be changed from the mother to the father (Ex parte Peppers, supra), we must reverse the judgment of the trial court and remand for further proceedings consistent with Wade and Ex parte J.M.F.

REVERSED AND REMANDED.

YATES, P.J., and PITTMAN, J„ concur.

THOMPSON and MURDOCK, JJ., dissent.


source: Caselaw Access Project

author: YATES, Presiding Judge. PER CURIAM. CRAWLEY, Judge, THOMPSON, Judge, MURDOCK, Judge, YATES, Presiding Judge,

license: Public Domain

text:
    Salvador OSORIO v. K & D ERECTORS, INC., et al. Gonzalez Law Firm, L.L.C. v. Salvador Osorio and K & D Erectors, Inc.
    2010756 and 2010813.
    Court of Civil Appeals of Alabama.
    May 2, 2003.
    Order Overruling Rehearing Sept. 12, 2003.

      Neil Taylor, Jr., Russellville, for Salvador T. Osorio.
    George M. Vaughn of Paden & Paden, Birmingham, for 'Gonzalez Law Firm, L.L.C.
    Keith J. Pflaum and Kathryn L. Har-man of Porterfield, Harper & Mills, P.A., Birmingham, for K & D Erectors, Inc.
   YATES, Presiding Judge.

Salvador Osorio sued his employer, K & D Erectors, Inc., on May 24, 2000, in the Shelby Circuit Court seeking to recover workers’ compensation benefits for injuries he sustained during the course of his employment with K & D. The complaint was filed on behalf of Osorio by Marco Gonzalez of the Gonzalez Law Firm, L.L.C. The complaint was not verified and no application to employ an attorney was filed.

Osorio also sued K & D in the Colbert Circuit Court on November 28, 2000, seeking to recover workers’ compensation benefits for the work-related injuries made the basis of the Shelby County action. This complaint was filed on behalf of Oso-rio by attorney Neil Taylor, Jr. This complaint was verified and was accompanied by an application to employ Taylor as Oso-rio’s attorney, which the trial court granted.

Osorio filed a document entitled “Declaration of Attorney Authorization” in the Shelby Circuit Court on December 7, 2000, stating that Taylor was his “exclusive and only” attorney and that neither Gonzalez nor any member of the Gonzalez Law Firm was authorized to represent him. Gonzalez and the Gonzalez Law Firm, on December 12, 2000, filed, in the Shelby Circuit Court, a claim and lien for legal services pursuant to § 34-3-61, Ala.Code 1975, upon all proceeds received by Osorio as a result of his action seeking recovery for his on-the-job injuries suffered while employed by K & D. Gonzalez sought a 15% attorney fee and the reimbursement of expenses he had incurred while he represented Osorio. On December 18, 2000, Osorio’s sister, Minerva T. Osorio, filed an affidavit in response to Gonzalez’s claim for an attorney fee. On January 30, 2001, Gonzalez filed an application to employ an attorney seeking to represent Osorio in the Shelby County workers’ compensation action, and an addendum to the claim for an attorney fee.

On December 18, 2000, Osorio filed in the Colbert Circuit Court a motion for attendant-care expenses, alleging that as a result of his workplace accident he was blind, his left leg was partially paralyzed, and he had no use of his left arm and that he was in need of attendant care. On December 20, 2000, Osorio moved to have the Shelby County action transferred to Colbert County. This motion was denied. Subsequently, on February 15, 2001, Oso-rio moved to have the Colbert County action transferred to Shelby County. On February 21, 2001, Osorio filed in the Shelby Circuit Court the motion seeking attendant-care expenses. The Colbert County action was transferred to Shelby County on March 1, 2001; the cases were consolidated for purposes of discovery and trial.

Following an ore tenus proceeding, the trial court, on December 28, 2001, entered an order finding Osorio to be permanently and totally disabled; denying Osorio’s request for attendant-care expenses or additional home-care expenses for in-home health-care professionals; awarding Taylor an attorney fee of 8% from Osorio’s recovery; and denying Gonzalez’s claim for an attorney fee. Both Osorio and the Gonzalez Law Firm appeal following the denial of their postjudgment motions.

This case is governed by the 1992 Workers’ Compensation Act. This Act provides that an appellate court’s review of the standard of proof and its consideration óf other legal issues shall be without a presumption of correctness. § 25 — 5—81(e)(1), Ala.Code 1975. It further provides that when an appellate court reviews a trial court’s findings of fact, the judgment entered on those findings will not be reversed if the findings are supported by substantial evidence. § 25 — 5—81(e)(2). Our supreme court “has defined the term ‘substantial evidence,’ as it is used in § 12-21-12(d), to mean ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to-be proved.’ ” Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996), quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). This court has also concluded: “The new Act did not alter the rule that this court does not weigh the evidence before the trial court.” Edwards v. Jesse Stutts, Inc., 655 So.2d 1012, 1014 (Ala.Civ.App.1995).

Osorio’s Claim for Attendant-Care Expenses

Osorio was employed by K & D as a construction worker. On December 14, 1998, Osorio fell approximately 30 feet from a roof and suffered a severe closed-head injury. Osorio suffered numerous other injuries, including the loss of the use of his left arm; partial paralysis of his left foot; and multiple fractures of the skull, transverse, process, and right ribs. He was rendered legally blind and deaf in his right ear, and he suffered severe cognitive and language deficits because of the fall. It is- undisputed that Osorio was rendered permanently and totally disabled as a result of his workplace accident.

Osorio lives with family members who help care for him; his family members assist him in grooming, personal hygiene, preparing food, bathing, arid dressing. Osorio argues that his family is entitled to receive $400 per week in attendant-care expenses from K & D as reimbursement for caring for'him. K & D argues that the Workers’ Compensation Act does not require the payment of such expenses.

The trial court specifically found that the Act does not provide for the payment of attendant-care expenses to an employee's family for assistance with the employee’s daily living. Section 25-5-77(a), Ala. Code 1975, provides, in part:

“[T]he employer ... shall pay the actual cost of the repair, refitting, or replacement of artificial members damaged as the result of an accident arising out of and in the course of employment, and the employer ... shall pay ... reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident.”

Section 25-5-77(a), Ala.Code 1975, also requires the employer to reimburse hospitals, ambulatory surgical centers, licensed outpátient rehabilitation facilities, and accredited diagnostic facilities for treatment provided or services rendered to the employee.

In Ex parte City of Guntersville, 728 So.2d 611 (Ala.1998), the employee, a policeman, was rendered a paraplegic after being shot in the back while on duty. The employee purchased a van and requested the City to reimburse him for the purchase price of the van. - The City agreed to install a wheelchair lift, but refused to reimburse the employee for the full purchase price of the van. The issue as outlined by the supreme court was whether § 25-5-77(a), Ala.Code 1975, required the City to furnish the disabled .employee with a van. In determining that the City was not required to reimburse the employee for the purchase price of the van, our supreme court stated:

“Our workers’ compensation system was designed to provide limited, but guaranteed, benefits to employees injured on the job. In addition to those benefits, employers are required to pay for medical and rehabilitative treatment. However, we hold that those benefits do not include the purchase price of a motor vehicle. Put simply, a motor vehicle is not a device that, in and of itself, can serve tó improve a disabled claimant’s condition.' Its only use is to improve the claimant’s independent functioning. While human concern would cause one to wish that a disabled person would reach the maximum possible level of independent functioning, we believe that allowing reimbursement for such costs as are claimed in this case would stretch the workers’ compensation statute beyond its intended meaning.”

Id, at 616-17.

Based on our supreme court’s interpretation of § 25-5-77(a), Ala.Code 1975, in Ex parte City of Guntersville, we are compelled to hold that that provision does not require an employer to provide attendant-care expenses to the family of a permanently and totally disabled employee for assisting the employee in his daily functioning. Like the van in Ex parte City of Guntersville, the attendant care provided by Osorio’s family, while it aids his independent functioning, will not serve to improve his physical or mental condition.

Minnesota, the state upon which Alabama’s Workers’ Compensation Act is modeled, specifically provides for the payment of nursing services provided by the family members of a permanently and totally disabled employee. See MinnStat., § 176.35(l)(b) (2000). Alabama’s Act, however, contains no such provision. A similar provision would provide a great service to the employee and his or her family. It is the duty of our Legislature to change the existing law as it sees fit in order to provide for the payment of attendant-care expenses in situations such as the one presented by the facts of this case. Accordingly, we conclude that the trial court did not err in denying Osorio’s claim for attendant care expenses.

Gonzalez’s Claim for an Attorney Fee

Gonzalez was hired in February 1999 to represent Osorio in his workers’ compensation claim against K & D, and he filed an unverified complaint on behalf of Osorio. No application to employ an attorney was filed at the time and approved by the court. Gonzalez performed various services for Osorio, including negotiating a settlement of the workers’ compensation claim with K & D. Subsequently, Osorio dismissed Gonzalez and hired Taylor to represent him in the workers’ compensation action. Gonzalez then filed, pursuant to § 34-3-61, Ala.Code 1975, his claim and lien for legal services rendered, seeking an attorney fee of 15%.

Section 25-5-88, Ala.Code 1975, provides that litigation of a disputed workers’ compensation claim begins with the filing of a verified complaint. Section 25-5-90, Ala.Code 1975, provides, in part:'

“(a) Unless otherwise provided in this chapter, no part of the compensation payable under this article and Article'4 of this chapter shall be paid to an attorney for the plaintiff for legal services, unless upon the application of the plaintiff, the judge shall order or approve of the employment of an attorney by the plaintiff.”

. Gonzalez began this litigation by filing an unverified complaint in Osorio’s name without any application by Osorio requesting Gonzalez’s employment and without the Shelby Circuit Court’s ever ordering or approving the employment of Gonzalez by Osorio. Gonzalez did file an application for employment of an attorney; however, he did not do- so until Osorio had filed a document, stating that Gonzalez and his firm were not authorized to act on his behalf. Accordingly, we conclude that the trial court did not err in denying Gonzalez’s claim and lien for legal services and his request for an attorney fee.

The Award of a 3% Attorney Fee to Taylor

Osorio contends that Taylor is entitled to an attorney fee of 15% rather than the 3% awarded by the trial court. Section 25-5-90(a), Ala.Code 1975, provides, in part: . , ,

“[T]he judge, upon the hearing of the Complaint for compensation, either by law or by settlement, shall fix the fee of the attorney for the plaintiff for his or her legal services and the manner of its payment, but the fee shall not exceed 15 percent of the compensation awarded or paid.”

The trial, court has broad discretion in awarding an attorney fee- in a workers’ compensation case so long as the award does not exceed 15% of the compensation awarded or paid. Merico, Ina v. Sparks, 567 So.2d 315 (Ala.Civ.App.1990).

In awarding Taylor an attorney fee of 3%, the trial court stated:

“(1) All of the testimony and medical evidence presented in this case indicates that soon after the plaintiffs accident it became obvious that he was very seriously injured, and in fact, the defendant, after having negotiated with Mr. Gonzalez, had acknowledged that the plaintiff was permanently disabled and was entitled to receive the maximum benefits under the Workers’ Compensation laws before Mr. Taylor had ever filed the litigation on behalf of the plaintiff in Colbert County, and before he began representing the plaintiff in the Shelby County case which had been filed by Mr. Gonzalez.
“(2) The only new issues which Mr. Taylor asserted on behalf of the plaintiff after he became attorney of record for the plaintiff were the claims for ‘attendant care expenses’ and claims for ‘additional home care expenses by health care professionals,’ and the plaintiff has not prevailed on such claims.... The assertion of said claims, in the opinion of the Court, had no sound legal basis and resulted in unnecessary prolonged litigation and needless expenses.
“However, the Court has no evidence that said claims asserted by Mr. Taylor ... were made for an improper purpose; further, the Court does recognize that the legal services which Mr. Taylor provided for the plaintiff in reaching an overall conclusion in this litigation is of value to the plaintiff and that Mr. Taylor has paid, or became obligated to pay, certain expenses in presenting the evidence which he presented.”

After reviewing the record, we conclude that the trial court did not abuse its discretion in awarding Taylor an attorney fee of 8%.

Osorio also requests an additional fee of 15% on behalf of Taylor. To the extent that Osorio seeks a fee beyond that provided for by § 25-5-90(a), Ala.Code 1975, that request is denied.

AFFIRMED.

CRAWLEY and PITTMAN, JJ., concur.

THOMPSON and MURDOCK, JJ., concur in the result.

On Application for Rehearing

PER CURIAM.

APPLICATION OVERRULED.

PITTMAN, J., concurs.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur specially.

YATES, P.J., dissents.

CRAWLEY, Judge,

concurring specially.

Like Presiding Judge Yates, I believe that our Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), makes an employer liable for the reasonably necessary attendant-care services that a family member provides to an injured worker. I agree with her analysis of the Act and the regulations adopted pursuant to the Act.

However, I concur with the court’s decision to overrule the application for rehearing in this case because Salvador Osorio failed to establish by the testimony of an authorized treating physician that the attendant care he was receiving was reasonably necessary medical treatment or attention. See § 25-5-77(a), Ala.Code 1975; Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002).

“In applying § 25-5-77(a), [Ala.Code 1975,] this court has held that where there is no evidence that a medical charge is reasonable, there is no basis for awarding judgment on the charge, because the reasonableness of medical charges is not a matter of common knowledge. Lowe v. Walters, 491 So.2d 962 (Ala.Civ.App.1986).”

Alverson v. Fontaine Fifth Wheel Co., 586 So.2d 216, 217 (Ala.Civ.App.1991).

THOMPSON, Judge,

concurring specially.

This court’s opinion on original submission was released on May 2, 2003; on May 16, 2003, Salvador Osorio timely filed an application for rehearing. In that application for rehearing, Osorio asserted arguments and cited authorities almost identical' to those contained in his original brief on appeal. More than four weeks later, on June 16, 2003, Osorio filed a “supplemental [application] for rehearing,” in which, for the first time in an argument totaling one-half page in length, he cited Rule 480-5-5-.30(3)(c), Ala. Admin. Code (Dep’t of Indus. Relations). The next day, June 17, 2003, K & D Erectors, Inc., filed a motion to strike the June 16, 2003, “supplemental [application] for rehearing.” In that motion, K & D asserted that Osorio had failed to make the argument pertaining to Rule 480-5-5-.30(3)(c) before the trial court, before this court on original submission, and before this court in a properly filed Rule 40, Ala. R.App. P., application for rehearing. A review of the record confirms K & D’s assertion that Osorio failed to assert at any time before he filed the “supplemental [application] for rehearing” an argument pertaining to Rule 480-5-5-.30(3)(c).

In its motion to strike, K & D cited Johnson v. Stewart, 854 So.2d 544, 552 (Ala.2002) (opinion on rehearing), in which our supreme court stated:

“The purpose of an application for rehearing is not to cure deficiencies in a party’s earlier brief. Indeed, ... ‘[t]he well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.’ Water Works & Sewer Bd. of the City of Selma v. Randolph, 833 So.2d 604, 608 (Ala.2002) (opinion on rehearing).”-

See also Improved Benevolent & Protective Order of the Elks of the World v. Moss, 855 So.2d 1107 (Ala.Civ.App.2003) (a party may not raise a new argument in a brief on application for rehearing); Millar v. Wayne’s Pest Control, 804 So.2d 213 (Ala.Civ.App.2001) (this court may not consider arguments not raised before the trial court or raised for the first time in a brief submitted on application for rehearing).

Also, this court may not hold the trial court in error based on theories or arguments that the appellant did not present to the trial court, or, for that matter, to the appellate court on original submission. McLemore v. Fleming, 604 So.2d 353 (Ala.1992); Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (our supreme court noted the “long-standing, well established rule that [in order to secure a reversal] the appellant has an affirmative duty of showing error upon the record”).

I am not unsympathetic to Osorio’s situation. However, given the arguments he advanced before the trial court and before this court on appeal, I conclude that this court’s opinion on original submission _ is correct. Given the foregoing, I also conclude that Osorio’s application for rehearing should be overruled; therefore, I concur in the overruling of the application for rehearing.

MURDOCK, Judge,

concurring specially.

In their special writings, Presiding Judge Yates and Judge Crawley both reference note 4 of this court’s opinion in Ex parte Southeast Alabama Medical Center, 835 So.2d 1042, 1046 (Ala.Civ.App.2002), an opinion which I authored. That note begins with the statement: “In most cases, an employee will not have a right to medical treatment not recommended by either the initial or second authorized physician.” This statement served as context for the subsequent statement in note 4 of that opinion: “Likewise, in most cases, an employer will not have the right to refuse to pay for a medical treatment recommended by an authorized physician.”

The issue in Ex parte Southeast Alabama Medical Center was which of two physician-recommended courses of treatment would be followed. The above-quoted passages were part of a predicate for the discussion in Ex parte Southeast Alabama Medical Center of whether the employer was required to pay for a physician-recommended medical treatment (in that case, a surgery) that had been prescribed by the employer-authorized treating physician when a second physician (retained by the employer to advise it regarding the employee’s claim) recommended a different course of treatment.

The disputed issue in the present case is sufficiently different than the issue to which note 4 (and the accompanying text) of our opinion in Ex parte Southeast Alabama Medical Center, 835 So.2d at 1046, was directed that I do not find that note apposite in the present case. On the basis of the particular record presented in this case, however, I remain of the opinion that the result reached by this court on original submission was correct. I therefore concur in overruling the application for rehearing.

YATES, Presiding Judge,

dissenting.

Because I have reconsidered my earlier position regarding the issue of attendant-care expenses, I must respectfully dissent from the overruling of the application for rehearing as it relates to that issue.

As stated in the opinion on original submission released on May 2, 2003, Salvador Osorio was severely injured when he fell approximately 30 feet from a roof during the course of his employment. He suffered a severe closed-head injury as well as numerous other injuries. As a result of the fall, Osorio was rendered legally blind and deaf in his right ear, and he suffered cognitive and language deficits. Osorio additionally suffered the loss of the use of his left arm and partial paralysis of his left foot. It is undisputed that Osorio was rendered permanently and totally disabled as a result of his workplace accident.

Osorio lives with family members who help care for him; his family members assist him with grooming, personal hygiene, preparing food, bathing, and dressing. Osorio contends that his family is entitled to receive $400 per week in attendant-care expenses from his employer, K & D Erectors, Inc., as reimbursement for caring for him. K & D argues that the Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975 (“the Act”), does not require the payment of such expenses. The trial court specifically found that the Act does not provide for the payment of attendant-care expenses to an employee’s family for assistance with the employee’s daily living.

I note the well-settled rule of law that the Act must be liberally construed in order to accomplish its beneficent purpose and that all doubts must be resolved in favor of the employee. Bethea v. Bruno’s, Inc., 741 So.2d 1090 (Ala.Civ.App.1999). Section 25-5-77(a), Ala.Code 1975, provides, in part:

“[T]he employer ... shall pay the actual cost of the repair, refitting, or replacement of artificial members damaged as the result of an accident arising out of and in the course of employment, and the employer ... shall pay ... reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus as the result of an accident.”

Section 25-5-77(a), Ala.Code 1975, also requires an employer to reimburse hospitals, ambulatory surgical centers, licensed outpatient rehabilitation facilities, and accredr ited diagnostic facilities for treatment provided or services rendered to an employee injured in an on-the-job accident. Section 25-5-1(14), Ala.Code 1975, defines “medical” as: “All services, treatment, or equipment provided by a provider.” Section 25-5-1(13), Ala.Code. 1975, states that a “provider” is

“[a] medical clinic, pharmacist, dentist, chiropractor, psychologist, podiatrist, physical therapist, pharmaceutical supply company, rehabilitation service, or other person or entity providing treatment, service, or equipment, or person or entity providing facilities at which the employee receives treatment.”

(Emphasis added.) Section 25-5-77(a) makes it clear that our Legislature intended to make an employer liable for the “reasonably necessary medical ... attention” that a worker injured in an on-the-job accident requires as a result of that accident. Section 25-5-1(13) makes it equally clear that “medical” attention is not limited to the services of a physician. The services provided by “other person[s] or entities] providing treatment [or] service” are also included.

Further, Rule 480-5-5-.30, Ala. Admin. Code, adopted by the Workers’ Compensation Division of the Alabama Department of Industrial Relations and entitled “Home Health Care Service,” states, in pertinent:

“(3) Payment may be made for authorized services to the following provider types, subject to the following guide- • lines:
“(c) Authorized services by nonprofessional family members are reimbursable up to eight (8) hours in any '24-hour period.
“(e) Family members and other persons who are not trained professional nursing personnel may receive payment in the amount of the current minimum wage if the following requirements have been satisfied:
“1. The attendant has received . adequate instruction from the authorized treating provider regarding the services to be provided in the home;
“2. The services provided must be beyond the scope of the normal household duties and must be in the nature of services ordinarily rendered by trained professional personnel in hospitals or nursing homes; and
“3. The medical necessity justification shall be sufficient to identify the nature and approximate value of the services provided.”

Under the expansive definition of “medical” attention afforded by a “provider” and based on Rule 480-5-5-.30, Ala. Admin. Code, I conclude that the attendant-care services provided by a family member who assists an injured employee (in this case, an employee who is blind, partially deaf, brain-damaged, and partially paralyzed as the result of an on-the-job accident) with eating, bathing, dressing, grooming, and using the toilet are covered by the Act.

■The opinion on original submission relied upon Ex parte City of Guntersville, 728 So.2d 611 (Ala.1998), in holding that the attendant-care expenses sought by Osorio are not provided for by the Act. I find the facts of Ex parte City of Gunters- ville to be distinguishable from the facts of this case. In Ex parte City of Gunters-ville, the employee, a policeman, was rendered a paraplegic after being shot in the back while on duty. The employee purchased a van and requested that the City reimburse him for the purchase price of the van. The City agreed to install a wheelchair lift for the van, but it refused to reimburse the employee for the full purchase price of the van. The issue as outlined by the supreme court was whether § 25-5-77(a), Ala.Code 1975, required the City to furnish the disabled employee with a van. In determining that the City was not required to reimburse the employee for the purchase price of the van, our supreme court stated:

“Our workers’ compensation system was designed to provide limited, but guaranteed, benefits to employees injured on the job. In addition to those benefits, employers are required to pay for medical and rehabilitative treatment. However, we hold that those benefits do not include the purchase price of a motor vehicle. Put simply, a motor vehicle is not a device that, in and of itself, can serve to improve a disabled claimant’s condition. Its only use is to improve the claimant’s independent functioning. While human concern would cause one to wish that a disabled person would reach the maximum possible level of independent functioning, we believe that allowing reimbursement for such costs as are claimed in this case would stretch the workers’ compensation statute beyond its intended meaning.”

728 So.2d at 616-17. The assistance sought in this case — assistance with eating, bathing, dressing, grooming, and using the toilet — is much more basic and is aimed at improving (or preventing the deterioration of) the employee’s physical condition, not with merely promoting his independent functioning. The employee in Ex parte City of Guntersville would be no worse off physically if he were not provided the van and wheelchair lift; however, Osorio’s physical condition would deteriorate if he was not provided the attendant-care services that his family members provide.

Because I believe the Act provides for the relief sought by Osorio, the next issue to be determined is whether Osorio is entitled to receive reimbursement for his attendant-care expenses in this particular case. In most cases an employee will not be entitled to “reasonably necessary medical ... treatment [or] attention” unless recommended by an authorized treating physician. See § 25-5-77(a), Ala.Code 1975; Ex parte Southeast Alabama Med. Ctr., 835 So.2d 1042, 1046 n. 4 (Ala.Civ.App.2002). In this case, Osorio failed to establish by the testimony of an authorized treating physician that the attendant care he receives is reasonably necessary medical treatment or attention. Ordinarily, the failure to establish the need for medical treatment or attention by the testimony of an authorized physician would defeat a claim for such treatment. However, I conclude in this case that to deny Osorio reimbursement for such basic care as feeding, dressing, grooming, and using the toilet, where the evidence overwhelmingly demonstrates that Osorio needs the attendant care, would be to defeat the overall beneficent purpose of the Act. Further, an analogy could be made between this case and those cases in which the courts have recognized an exception to the general rule that requires expert medical testimony in medical-malpractice cases. Our supreme court has recognized that certain circumstances exist that make the requirement of expert medical testimony unnecessary — i.e., when a sponge is left in a body following surgery, when a surgeon operates on the wrong limb, or when a call for assistance is completely ignored for an unreasonable period of time. See Ex parte HealthSouth Corp., 851 So.2d 38 (Ala.2002). The circumstances of this case indicate that testimony from an authorized treating physician that the attendant care for Osorio is reasonably necessary medical treatment or attention is unnecessary; it is clear from the evidence that such care is necessary. Accordingly, I conclude that Osorio is entitled to the relief sought; therefore, I must respectfully dissent from the overruling of the application for rehearing.

      . Only the Gonzalez Law Firm appealed from • the trial court’s judgment. Marco Gonzalez is referred to only in his capacity as a member of the Gonzalez Law Firm.

      . On April 26, 2002, the trial court entered an order specifically denying Gonzalez's claim and lien for legal services filed pursuant to § 34-3-61, Ala.Code 1975.

      . Section 34-3-61, Ala.Code 1975, provides, in part:
      "(a) Attorneys-at-law shall have a lien on all papers and money of their clients in their possession for services rendered to them, in reference thereto, and may retain such papers until said claims are satisfied, and may apply such money to the satisfaction of said claims.
      "(b) Upon actions and judgments for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy said action or judgment, until the lien or claim of the attorney for his fees is fully satisfied; and attorneys-at-law shall have the same right and power over action or .judgment to enforce their liens as their clients had or may have for the amount due thereon to them.”


author: CRAWLEY, Judge.

text:
    Theron P. NELSON v. John L. PIKE and Red Bear, Inc., d/b/a Red Bear Meats.
    2000863.
    Court of Civil Appeals of Alabama.
    May 23, 2003.

      Arthur R. Medley of Bullard & Bullard, L.L.C., Dothan, for appellant.
    Submitted on appellant’s brief only.
   CRAWLEY, Judge.

Theron P. Nelson appeals from a judgment entered on a jury verdict in favor of him and against John L. Pike and Red Bear, Inc., d/b/a Red Bear Meats (Pike and Red Bear, Inc., are hereinafter collectively referred to as “Red Bear Meats”). Nelson asserts that the trial court erred by failing to instruct the jury on punitive damages and by denying his motion for a new trial. We reverse and remand.

Nelson had entered into an agreement to transport approximately 800 cases of poultry products from Albertville to Miami, Florida. While his driver was in Montgomery, the tractor and the trailer containing the poultry products were stolen. Red Bear Meats purchased, at a highly discounted rate of $5 per case, approximately 360 cases of the poultry products from Curtis Smith, a frequent customer of Red Bear Meats, who allegedly represented that the poultry products were salvaged meat from an accident. Red Bear Meats sold 245 of the 360 cases to another store in Hayneville for $12 per case. After locating the tractor and the trailer, a detective from the Montgomery Police Department discovered the poultry products at Red Bear Meats.

Nelson subsequently sued Red Bear Meats seeking damages for conversion. After a jury trial, a verdict was returned in favor of Nelson for $3,250. Nelson filed a motion for additur or for a new trial; that motion was denied by the trial court. Nelson filed a notice of appeal to this court. The appeal was stayed pending Red Bear Meat’s bankruptcy proceedings, and this court later reinvested the trial court with jurisdiction in order for it to enter a judgment on the jury’s verdict. The trial court did not comply with this court’s order by entering a judgment on the jury’s verdict and returning the cause to this court within 14 days of this court’s reinvesting it with jurisdiction; therefore, this court dismissed Nelson’s appeal. The trial court then filed a response, with a judgment entered on the verdict, stating that it had not received the order from this court reinvesting it with jurisdiction. Nelson then filed a motion to reinstate his appeal, which this court granted.

On appeal, Nelson contends that the trial court erred by failing to instruct the jury on punitive damages; he contends that he is entitled to recover punitive damages because his claims are based on an intentional tort. Nelson also alleges that the trial court erred by failing to grant his motion for a new trial, contending that the verdict was inadequate.

I. Jury Instruction as to Punitive Damages

“It is a basic tenet of Alabama law that ‘a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, ... and the [trial] court’s failure to give those instructions is reversible error.’ Alabama Farm Bureau Mut. Ins. Service, Inc. v. Jericho Plantation, Inc., 481 So.2d 343, 344 (Ala.1985). (Citations omitted.) ‘It is the duty of the trial judge to educate the jury on the law of the case.’ Grayco Resources, Inc. v. Poole, 500 So.2d 1030, 1033 (Ala.1986). As the Court in Grayco observed:
“ ‘It is the inescapable duty of the trial judge to instruct the jurors fully and correctly on the applicable law of the case, and to guide, direct and assist them toward an intelligent understanding of, the legal and factual issues involved in their search for the truth.’
“Id. (Citations omitted.)
“Our standard for reviewing the trial court’s instructions is plain. ‘In reviewing instructions to determine if they correctly set forth the applicable law, [this Court] must read and consider the charge as a whole.’ Grayco, 500 So.2d at 1033. (Citations omitted.) The law is clear that the refusal of a requested charge is not error where the trial court’s oral charge ‘substantially and fairly’ covers the same principles as the requested charge. Rule 51, Ala. R. Civ. P.; Hamilton Auto Parts, Inc. v. Rea, 580 So.2d 1328 (Ala.1991). Rule 51 provides in pertinent part:
“ ‘The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties.’ ”

Volkswagen of America, Inc. v. Marinelli, 628 So.2d 378, 384-85 (Ala.1993).

Nelson’s complaint sought an award of punitive damages. A review of the record also discloses that the following requested jury instruction on punitive damages was filed by Nelson:

“PLAINTIFF’S REQUESTED ■ CHARGEb
“Ladies and gentlemen of the jury, as the trier of fact, if you are reasonably satisfied from the evidence that the conversion by [Red Bear Meats] was willful or the result of a trespass under the circumstances of insult or malice, you may, in-your discretion, also award punitive damages.”

The trial judge did not mark on the instruction whether it would be given or was refused.

The trial judge instructed the jury, in pertinent part, as follows:

“Ladies and gentlemen, as; you know, this case comes to us by way of a complaint. In this complaint the piaintiff alleges the cause of action called conversion. Mr. Nelson’s claim is one for conversion. This is what the law says about conversion.
“Conversion is the appropriation or taking of the personal property of one person by another to his own use and benefit, or the destruction of one’s personal property by another, or the exercise of dominion and control by another over personal property to the exclusion or in defiance of the owner’s rights,
“... Nelson contends that the defendant took, destroyed, or exercised control over his shipment of frozen food products.
“The measure of damage[s] for conversion of personal property is the value of the shipment of the frozen products as of the date of the conversion with the interest at the rate of six .percent per annum from the date of the conversion.
“The burden of proof upon this case is upon the plaintiff to reasonably satisfy you from the evidence of the material allegations of his complaint. Measure of damages for damage . to personal property is the difference between the reasonable market value of the property immediately before its damage and the reasonable market value immediately after it is damaged.
“In other words, if you find for the plaintiff in this case, you should determine from the evidence the reasonable market value of the frozen chicken products before they were converted or damaged and then determine from the evidence the reasonable market value of the frozen chicken products immediately after they were recovered in their damaged condition. The difference or amount of the loss in value as found by you would be the measure of damages.
“The law states that a conversion is what is known as an intentional tort. Because it is an intentional tort, the defendants are not allowed to claim that ... Nelson assumed the risk. Such argument by the defense is not based upon the law. Accordingly, you cannot find that ... Nelson assumed any risk in this case. On the contrary, the law is that persons dealing with personal property or exercising control over the personal property of another do so at their own peril. The personal property in this case was the frozen chicken. When [Red Bear Meats] accepted the frozen chicken products and exercised control over them, [it] did so at [its] own peril. A mistake of law or fact is no defense.
“[Red Bear Meats’] receipt of the frozen chicken products from anyone who had no right to part with or dispose of such property and thereafter exercising dominion over it constituted conversion. Even if you believe that [Red Bear Meats] lacked knowledge of the owner’s rights or that [it] acted in good faith, that would not prevent such action from constituting conversion.”

After instructing the jury, the following objection was made by Nelson’s counsel:

“Your Honor, we object to your not giving the instruction on punitive damages. I believe the evidence showed the jury could find that there was some sort of malice, willfulness, oppression, [or] fraud in this matter in the way the frozen products were obtained, and that would support a punitive damages award.”

The trial court provided no further instructions to the jury as a result of Nelson’s objection. Nelson also raised this issue in his motion for a new trial, which the trial court denied.

In Chrysler Credit Corporation v. Turner, 553 So.2d 64, 67 (Ala.1989), our supreme court observed:

“ ‘ “It is clear [that] punitive damages may be awarded in an action for conversion, even though not alleged in the complaint, where the evidence justifies such [an] award.... Such punitive damages are justified when the evidence discloses the conversion to have been committed in known violation of law and of [the] owner’s rights, with circumstances of insult, or contumely, or malice. In the presence of such evidence, punitive damages are for the discretion of the jury.” ’
“Roberson v. Ammons, 477 So.2d 957, 960-61 (Ala.1985) (citations omit-tedXquoting Carolina Casualty Ins. Co. v. Tisdale, 46 Ala.App. 50, 57, 237 So.2d 855, 859-60, cert. denied, 286 Ala. 741, 237 So.2d 861 (1970)). ‘The conversion committed in known violation of the law and of plaintiffs’ rights is itself legal insult, contumely, or malice sufficient to justify an award of punitive damages.’ Roberson, supra, at 961; see also Ray Hughes Chevrolet, Inc. v. Gordon, 294 Ala. 638, 320 So.2d 652 (1975). ‘The award of punitive damages is within the sound discretion of the jury, considering all attendant circumstances.... The jury’s award is to punish the wrongdoer based upon the enormity of the wrong to the plaintiff, as well as the necessity to prevent similar wrongs from being committed in the future.’ Roberson, at 961.”

Upon reviewing the trial court’s instructions in light of the law as it applies to the availability of punitive damages in conversion actions, -we conclude that the instructions provided were incomplete and that the jury should have been allowed the opportunity to determine whether punitive damages were appropriate in light of the evidence presented. Accordingly, we conclude that Nelson is entitled to a new trial as a result of the trial court’s incomplete instructions. See Industrial Techs., Inc. v. Jacobs Bank, 872 So.2d 819, 826 (Ala. 2003)(“the remedy for a trial court’s having given an improper jury instruction is a new trial ”).

II. Inadequacy of Damages

Alternatively, we also conclude that Nelson is entitled to a new trial because the amount of the jury’s verdict was inadequate as a matter of law. The evidence presented at trial was that the complete load of poultry products — 800 cases — -was valued at $37,066.66. It was undisputed that Red Bear Meats took possession of approximately 360 cases. There was further testimony that Nelson had paid his insurance company a $2,500 deductible in order to cover his loss and that he had paid $750 to a refrigerated-transport company to pick up the cases from Red Bear Meats and from the store in Hayneville that had purchased the poultry products from Red Bear Meats. The total of those two amounts — the $2,500 deductible payment and the $750 transport costs — was the exact amount awarded by the jury— $3,250. Whether the jury determined Nelson’s damages based solely on Nelson’s out-of-pocket expenses cannot be eon-firmed by the record on appeal; however, the jury’s award is clearly inconsistent with the trial court’s instructions as.to how the jury was to assess Nelson’s damages for conversion. Accordingly, we conclude that the amount of the jury’s verdict was assessed in a manner contrary to that in which the jury was instructed by the trial court and that a new trial is also due to be granted on this ground.

The trial court’s judgment on the jury’s verdict is reversed and the cause is remanded in order for it to conduct a new trial.

REVERSED AND REMANDED.

YATES, P.J., and THOMPSON and MURDOCK, JJ., concur.

PITTMAN, J., concurs in the result..

      . Although Nelson did not .raise this issue on appeal, we note that had the jury reduced its award to Nelson based on the fact that his loss was covered by insurance, such an award would violate the collateral source rule. See Mitchell v. Moore, 406 So.2d 347, 351 (Ala. 1981)(" 'The collateral source doctrine ... provides that damages recoverable for a wrong are not diminished because the injured party has been wholly or partially indemnified or compensated for his loss by insurance effected by him and to which the wrongdoer did not contribute.' " (quoting Powell v. Brady, 30 Colo.App. 406, 414, 496 P.2d 328, 332-33 (1972))).


author: THOMPSON, Judge.

text:
    Marcia L. Adams WRIGHT v. Terry Tyrone WRIGHT.
    2020589.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.
    Rehearing Denied Dec. 12, 2003.

      Melinda Lee Maddox, Brewton, for appellant.
    Submitted on appellant’s brief only.
   THOMPSON, Judge.

On September 20, 2001, Terry Tyrone Wright (“the husband”) filed a complaint in the Escambia Circuit Court seeking a divorce from Marcia L. Adams Wright (“the wife”). During the parties’ relationship but before the parties’ marriage, the wife gave birth to a child. In his complaint for divorce, the husband, among other things, sought to establish his paternity of the child. The husband requested in his complaint that, should he be found to be the biological father of the child, the court award custody of the child to the wife. The husband also asked that the trial court set child support pursuant to the child-support guidelines.

On October 15, 2001, the wife answered and counterclaimed for divorce. In her counterclaim, the wife sought, among other things, custody of the child and child support. On October 31, 2001, the husband filed a motion to conduct genetic testing. The trial court granted that motion on December 4, 2001. On March 1, 2002, a DNA test identified the husband as the child’s biological father.

Following an ore tenus hearing on December 18, 2002, the trial court entered a judgment on February 6, 2003, divorcing the parties and dividing the marital property. In its February 6, 2003, judgment, the trial court declined to address any of the issues relating to the parties’ minor child, including custody and child support. The trial court reasoned that it did not have jurisdiction over the child because, it stated, “[s]aid child was conceived and born prior to the marriage of the parties, therefore, [the] child was not born of the marriage.” The trial court concluded that the juvenile court was the proper court to consider the issues relating to the parties’ child. The wife filed a postjudgment motion on February 19, 2003, in which she asked the trial court to adjudicate the issues of custody and support of the parties’ minor child. The trial court denied the wife’s postjudgment motion, and the wife subsequently appeáled. The husband did not file a brief in this court.

The wife’s sole contention on appeal is that the trial court erred by refusing to rule on matters of child custody and support. Although the wife has not addressed whether this court may consider this appeal, matters of jurisdiction are of such importance that a court may consider them ex mero motu. Bacadam Outdoor Adver., Inc. v. Kennard, 721 So.2d 226 (Ala.Civ.App.l998)(citing Nunn v. Baker, 518 So.2d 711 (Ala.1987), and Wallace v. Tee Jays Mfg. Co., 689 So.2d 210 (Ala.Civ. App.1997)). A final judgment is one “that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.” Bean v. Craig, 557 So.2d 1249, 1253 (Ala.1990). See also-McCollough v. Bell, 611 So.2d 383, 385 (Ala.Civ.App.l992)(“Any decision, order, or [judgment] of the trial court which puts an end to the proceedings between the parties to a cause in that court is final and may be reviewed on appeal.”).

In its February 6, 2003, judgment, the trial court declined to rule on the issues of child custody and support that were raised by the wife and the husband in their respective pleadings. However, the trial court ordered a paternity test, the results of which identified the husband as the biological father of the child. We note that it is the general rule that a court of equity, vested with jurisdiction in a particular case, proceed to resolve all issues placed before it and “settle all the equities between the parties.” .Creel v. Creel, 342 So.2d 793, 794 (Ala.Civ.App.1977); cf. Ex parte Handley, 460 So.2d 167, 169 (Ala.l984)(“ ‘Equity delights to do justice, and not by halves.’ ”) (quoting Moore v. Moore, 255 Ala. 393, 401, 51 So.2d 683, 690 (1951)). Given that the trial court ordered the paternity test and considering the subsequent paternity determination in the parties’ divorce action, the resolution of the issues of child custody and support would logically follow. See generally Floyd v. Floyd, 701 So.2d 1151 (Ala.Civ. App.1997).

The February 6, 2003, judgment of the trial court did not adjudicate the issues of child custody and support raised by both parties in their pleadings before the court. “An order is generally not final unless it disposes of all claims or the rights and liabilities.-of all parties.”- Carlisle v. Carlisle, 768 So.2d 976, ' 977 (Ala.Civ.App.2000)(citing Rule 54(b), Ala. R. Civ. P., and Ex parte Harris, 506 So.2d 1003, 1004 (Ada.Civ.App.1987)). We conclude that the trial court’s February 6, 2003, judgment failed to adjudicate all of the issues properly before that court and, therefore, was a nonfinal judgment that will not support the wife’s appeal. This court must dismiss an appeal from a nonfi-nal judgment. Bacadam Outdoor Adver., Inc. v. Kennard, supra.

The wife’s request for an attorney fee on appeal is denied.

APPEAL DISMISSED.

YATES, P.J., and CRAWLEY, PITTMAN, and MURDOCK, JJ., concur.


text:
    Jeffery L. NAUDITT v. Regina M. Nauditt HADDOCK. Regina M. Nauditt Haddock v. Jeffery L. Nauditt.
    2020579.
    Court of Civil Appeals of Alabama.
    Dec. 5, 2003.

      Michael L. Weathers, Florence, for appellant/cross-appellee Jeffery L.' Nauditt.
    Lindsey Mussleman Davis of Holt, Mus-sleman, Holt & Morgan, Florence, for ap-pellee/cross-appellant Regina M. Nauditt Haddock.
   CRAWLEY, Judge.

Jeffery L. Nauditt (“the father”) and Regina M. Nauditt Haddock (“the mother”) were divorced in 1998. Pursuant to their divorce judgment, they shared joint custody of their three sons, alternating physical custody each week. In July 2002, the mother remarried. Around that same time, the children spoke with their father about their desire to live full-time with him. The father filed a petition to modify custody, seeking sole physical custody, in August 2002. After a trial, the trial court entered a judgment stating:

“[T]his Court concludes that the recommendations of the Northwest Alabama Children’s Advocacy Center are reasonable and offer an adjustment in the time that each parent can spend with the children.
“The evidence presented shows that the children are well adjusted, well behaved, doing excellent work in school, and giving the appearance of thriving; all of this, in spite of the fact that the parents can’t seem to communicate or work well together for the betterment of their children.”

The judgment adopted the recommendations of the Northwest Alabama Children’s Advocacy Center. The report from the Northwest Alabama Children’s Advocacy Center stated, in part:

“1. No changes to the joint custody arrangement will be made, as no significant issues were presented that would fall under the guidelines of significant changes that would warrant a change in custody.
“2. A modification as to the current visitation situation as follows: the children would reside with the mother every other Thursday, Friday, Saturday, and Sunday. We are recommending that standard visitation guidelines be followed regarding holidays, birthdays, etc. This would allow the children to be with the mother approximately 1/3 of the time and with the father approximately 2/3 of the time. This is taking into consideration all issues presented by all parties involved.”

Both parents appeal from this judgment. The father argues that the trial court erred in not modifying child support despite the fact that, he says, he is, in essence, thé sole physical custodian of the children. He also argues that the record does not contain the appropriate child-support forms, which, he says, necessitates a reversal. The mother argues that the trial court erred by modifying the “visitation” provisions of the prior custody judgment because, she says, the father failed to prove a material change in circumstances warranting such a modification. We affirm the judgment.

The mother asserts that the father’s arguments on appeal are without merit. She says that the father did not request a modification of child support until he filed his postjudgment motion and that, because of that fact, the modification of child support was not an issue before the trial court. The mother is correct. The father’s petition to modify custody alleges that the children expressed a desire to live with him “all of the time” and that he desired that the children live with him “all of the time.” The petition sought sole physical custody of the children. The petition does not contain a reference to child support. Interestingly, the mother’s answer and counterpetition does request a modification in the amount of child support, in addition to requesting that the trial court award her sole physical custody. At trial, however, the only issue tried was custody, and the testimony and evidence admitted pertained only to that issue. In fact, when the trial court questioned the parties regarding the issues to be tried, the only issue mentioned was child custody-

This court has reversed judgments modifying a child-support obligation “[wjhere there is no pleading, either written or oral, seeking modification of the amount of child support, and the issue is not tried by consent of the parties, expressly or impliedly.” State ex rel. Vickers v. Vickers, 684 So.2d 1327, 1329 (Ala.Civ.App.1996); see also State ex rel. Thompson v. Thompson, 586 So.2d 7, 8 (Ala.Civ.App.1991); and Roberson v. Roberson, 558 So.2d 946, 947 (Ala. Civ.App.1990). Based on the absence of any testimony or evidence of either party’s income and on the exchange between the trial court and counsel for the parties at the opening of the trial, it is apparent that the mother did not pursue her request for a modification of child support at trial. If the trial court had entered a judgment modifying the father’s existing child-support obligation, this court would have reversed it if the mother had appealed and argued the law set forth above. Accordingly, despite the husband’s arguments and his postjudgment submission of evidence relevant to the issue of child support, we cannot reverse the trial court for its failure to modify child support when neither party requested such relief at trial.

The mother’s argument on appeal is more complex. She argues in the first instance, in response to the husband’s characterization of the trial court’s judgment as one granting him sole physical custody, that the trial court’s judgment does not truly modify the prior judgment under which the parties were granted joint custody but that it instead only modifies the “visitation” provisions of that judgment. She bases this assertion on the trial judge’s statements at trial and on the language in the judgment indicating that the parties’ situation had not changed significantly and that the joint-custody arrangement had worked out well and produced well-adjusted children. In addition, she points to the language contained in the report from the Northwest Alabama Children’s Advocacy Center, which the trial court adopted in its judgment. That report, as quoted above, indicates that the Center did not recommend a change in the joint-custody arrangement; rather, it urged a change in the “visitation” provisions of the judgment, providing that the mother would have physical custody of the children approximately one-third of the time, while the father would have physical custody two-thirds of the time.

Despite the institution of a joint-custody statute in 1997, see Ala.Code 1975, § 30-3-150 et seq., the bench and bar have not consistently used the appropriate terminology in drafting custody judgments. As we have commented before, the new terms— joint custody, joint legal custody, joint physical custody, sole legal custody, and sole physical custody — are the proper terms to describe the various forms of custody. Although, as a practical matter, this court can easily determine that a judgment granting the parties “joint custody,” but giving primary physical custody to the mother is in essence an award of joint legal custody to the parties with a grant of sole physical custody to the mother, see, e.g., Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999), the interchanging of the various terms serves to perpetuate the handling of joint-custody cases under case-law predating the adoption of our joint-custody statute.

In this case, which involves a true joint-custody arrangement where the parents share both joint legal custody and joint physical custody, see Ala.Code 1975, § 30-3-151(1), we must determine whether a change in the length of one parent’s period of physical custody is a change of custody, if it is a change in visitation, or if it is neither of those options. Our joint-custody statute does not expressly answer this question. However, the statute does provide that when one parent is awarded sole physical custody, that parent is favored over the other and the noncustodial parent is awarded “rights of visitation.” Ala.Code 1975, § 30-3-151(5). Conversely, the statute provides that when both parents share joint physical custody, one parent is not favored over the other, the parents are both assured of “frequent and substantial contact” with the children, and physical custody periods need not be of equal durations of time. Ala.Code 1975, § 30-3-151(3). Therefore, in a joint-physical-custody arrangement, each parent has something more than mere “visitation” during their period of actual physical custody. Thus, we conclude that the parents in the present case each had custodial rights and neither had mere visitation rights.

However, such a conclusion does not solve the ultimate issue in this case. The mother argues that the trial court’s modification of the custodial provisions of the divorce judgment should be reversed. We must still determine how we are to review the trial court’s change in the custodial provisions of the divorce judgment— as a change in custody or as a change in visitation. We conclude that, in general, a change in the amount of time a joint custodial parent will exercise his or her custodial rights (referred to hereinafter as a parent’s “custodial period”) is more akin to a change in visitation rights than a change in custody.

Alabama courts have long held that a trial court has broad discretion in determining visitation rights. Skipper v. Skipper, 280 Ala. 506, 508, 195 So.2d 797, 799 (1967); Long v. Long, 781 So.2d 225, 226 (Ala.Civ.App.2000); and Sullivan v. Sullivan, 631 So.2d 1028, 1029 (Ala.Civ. App.1993). The trial court is entrusted to balance the rights of the parents with the child’s best interests to fashion a visitation award that is tailored to the specific facts and circumstances of the individual case. A visitation award may only be modified if there is a showing of changed circumstances warranting such a modification. Long, 781 So.2d at 227. A visitation award will not be reversed unless the trial court has abused its discretion. Id. at 226. We will henceforth use the same standard in determining whether a trial court’s modification of a parent’s custodial period under a joint-physical-custody arrangement is appropriate.

The mother argues that the father failed to demonstrate changed circumstances that warranted a modification of her custodial period. The impetus behind the father’s filing of his petition for modification was the mother’s remarriage and the children’s subsequent problems adjusting to their newly blended family. The mother says that the children were experiencing “growing pains” as a result of her remarriage but that the children were not so drastically affected as to require a change in her custodial period. Although written in the context of a custody modification, the following statement of law has equal pertinence here: “The remarriage of one or both of the parties is not in and of itself such a material change of circumstances as to justify modification, but it is nevertheless a factor to be considered by the trial court.” Sherrod v. Sherrod, 361 So.2d 17,19 (Ala.Civ.App.1978).

The mother also argues that the trial court and the Northwest Alabama Children’s Advocacy Center, upon whose report the trial court based its judgment, placed too much emphasis on the desire of the children to live with their father. The mother correctly points out that the wishes of children involved in a custody dispute are not determinative. See Smith ■ v. Smith, 470 So.2d 1252, 1254 (Ala.Civ.App. 1985); Hayes v. Hayes, 512 So.2d.119, 121 (Ala.Civ.App.1987); and Sherrod, 361 So.2d at; 19. However, a trial court can and should consider the children’s wishes as one of a myriad of factors when making its decision. Smith, 470 So.2d at 1254; Hayes, 512 So.2d at 121; Sherrod, 361 So.2d at 19.

Although the mother is correct in noting that her remarriage, in and of itself, and the children’s wishes, standing alone, should not be considered as material changes in circumstances warranting a change in her custodial period, both of those factors, combined with other evidence at trial, could have, in the trial court’s estimation, indicated a change in circumstances sufficient to warrant a modification. As the.Sherrod court explained, “[t]he trial court in reaching a determination on whether these and other factors justify a modification ... must consider and weigh them with the principle always in mind that the best interests and welfare of the child are of paramount importance.” Sherrod, 361 So.2d at 19. The trial court was presented with a report from the Northwest Alabama Children’s Advocacy Center indicating that the children felt that their mother was not meeting their emotional , needs and that the mother, on parenting tests conducted during the assessment, demonstrated “a lack of awareness of addressing the feelings of the [children] in various situations.” The children indicated that they felt that their mother was more concerned about the feelings of their stepsiblings and that they felt like “strangers” in their new home.

The trial court could have determined that the children felt unsupported by their mother, who was more focused on her new marriage and assimilating to her new stepchildren than on her children’s reaction to her remarriage. The trial court’s adoption of the Northwest Alabama Children’s Advocacy Center’s recommendation in its entirety, which included counseling to improve communication between the mother and the children, supports a conclusion that the trial court considered and weighed the combination of the mother’s remarriage, the children’s feelings of emotional abandonment, and the children’s wishes to spend more time living with the father and that it determined that the best interest of the children, at this time and under these circumstances, were served by a change in the parents’ custodial periods. The trial court then adjusted the custodial period of each parent under the joint-custody arrangement based upon the recommendation of the Northwest Alabama Children’s Advocacy Center. We cannot say that the trial court’s modification of the parents’ custodial periods is an abuse of the trial court’s discretion in this case. Therefore, we affirm the trial court’s modification of the parents’ custodial periods.

AFFIRMED.

YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur in the result, without writing.


author: SHAW, Judge.

text:
    Bobby Bernard RANDER v. STATE of Alabama.
    CR-01-2361.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.

      Glenn L. Davidson, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Marc A. Starrett, asst. atty. gen., for ap-pellee. : '
   SHAW, Judge.

Bobby Bernard Rander appeals from the trial-court’s order revoking his probation. ■ ■

On April 19, 2000, Rander pleaded guilty to two counts of possession of cocaine and was sentenced to 10 years’ imprisonment for each conviction, those sentences to run concurrently. The sentences were split and Rander was1 ordered to serve one year in confinement followed by five years on probation.

On July 3, 2002, Willie Shavers, Ran-der’s probation officer, filed a delinquency report alleging that Rander had violated the terms and conditions of his probation when he was arrested for a new offense, specifically, possession of a controlled substance. After a revocation hearing on August 1, 2002, the trial court revoked Ran-der’s probation.

I.

On appeal, Rander contends that there.was insufficient evidence to warrant revoking his probation. However, this issue was never presented to the trial court. In Evans v. State, 794 So.2d 1234 (Ala. Crim.App.2000), this Court stated:

“Even constitutional issues must be properly preserved for appellate review. Brown v. State, 705 So.2d 871, 875 (Ala. Crim.App.1997).
“ ‘The general rules of preservation apply to probation revocation hearings. Puckett v. State, 680 So.2d 980, 983 (Ala.Crim.App.1996), citing Taylor v. State, 600 So.2d 1080, 1081 (Ala. Crim.App.1992). This court “has recognized, in probation revocation proceedings, only two exceptions to the general rule that issues not presented to the trial court are waived on appeal: (1) the requirement that there be an adequate written order of revocation ..., and (2) the requirement that a revocation hearing actually be held.” Puckett, 680 So.2d at 983.’
“Owens v. State, 728 So.2d 673, 680 (Ala. Crim.App.1998). Additionally, as noted earlier, this Court recently held in Law [v. State, 778 So.2d 249 (Ala.Crim.App. 2000),] that a defendant can also raise for the first time-on appeal that the trial court erred in failing to advise him of his right to request an attorney during probation revocation proceedings. 778 So.2d at 250.”

794 So.2d at 1236-37. Rander’s challenge to the sufficiency of the evidence does not fall within one of the exceptions to the general rules of preservation that have been recognized in probation revocation proceedings. Thus, because Rander did not raise this claim in the trial court, it was not properly preserved for review.

II.

Rander also contends that the trial court’s written order revoking his probation was deficient. Although Rander did not object to the adequacy of the trial court’s order, it is well settled that “the adequacy of a written order of revocation can be raised for the first time on appeal.” Durr v. State, 807 So.2d 595, 595 (Ala.Crim.App.2001), citing Owens v. State, 728 So.2d 673, 680 (Ala.Crim.App.1998).

“ ‘In accordance with Gagnon v. Scarpetti, 411 U.S. 778 ... (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295 (Ala.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323, 1324 (Ala.Cr.App.1994).”

Chenault v. State, 777 So.2d 314, 316-17 (Ala.Crim.App.2000).

Rander contends, and the State agrees, that the trial court’s order contains what appears to be a clerical error with respect to the evidence presented at the revocation hearing. In its order, the trial court stated that it relied, in part, on the testimony of “Probation Officer John Brantley” in revoking Rander’s probation. (C. 35.) However, John Brantley never testified at Rander’s revocation hearing; probation officer Willie Shavers testified at the hearing. Therefore, this case must be remanded for the trial court to clarify the evidence it relied on in revoking Rander’s probation.

Furthermore, we note that after stating the evidence upon which it relied in revoking Rander’s probation, the trial court stated that it was “reasonably satisfied from said evidence and testimony that the defendant did violate the terms and conditions of his probation by failing to comply with the terms as ordered by the court.” (C. 35-36.) It is clear from the revocation proceedings as well as from the evidence recited in the revocation order that the trial court was revoking Rander’s probation because Rander had violated the terms and conditions of his probation by committing the new offense of possession of a controlled substance; however, the trial court did not clearly state in its written order that that was the reason for revoking probation. Therefore, the trial court should amend the written order of revocation to clearly reflect the reason for revoking Rander’s probation.

Based on Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), we remand this cause for the trial court to amend its written order of revocation to more clearly specify the reason for revoking Rander’s probation, and to clarify the evidence it relied on in doing so. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., concurs in the result.


text:
    Darrell Wayne PATE v. STATE of Alabama.
    CR-02-0719.
    Court of Criminal Appeals of Alabama.
    May 30, 2003.
    Darlene Eason, Haleyville, for appellant.
    William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.
   SHAW, Judge.

Darrell Wayne Pate appeals the trial court’s order revoking his probation.

Pate raises only one issue on appeal: he argues that the trial court’s written revocation order was deficient under Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), because, he says, the court failed to state the reasons for revoking his probation and the evidence it relied on in doing so.

“ ‘In accordance with Gagnon v. Scar-pelli, 411 U.S. 778 ... (1973), Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), before probation can be revoked, an Alabama trial court must provide a written order stating the evidence and the reasons relied upon to revoke probation.’ Trice v. State, 707 So.2d 294, 295- (AIa.Crim.App.1997). ‘These requirements offer the probationer some protection from an abuse of discretion by the trial court, aid an appellate court in reviewing a revocation, and prevent future revocations based on the same conduct.’ T.H.B. v. State, 649 So.2d 1323,1324 (Ala.Cr.App.1994).”

Chenault v. State, 111 So.2d 314, 316-17 (Ala.Crim.App.2000).

In its order, the trial court stated:

“This cause coming on to be heard on the motion of the State to revoke the defendant’s probation, upon the stipulations of the State and defense, State’s Exhibit R, the record made this date and May 18, 2001, and the testimony of witnesses Mark Carroll, Wayne Maddux, and Kim Norris, upon consideration of the foregoing, the court finds that no measure short of confinement will avoid depreciating the seriousness ■ of the claimed grounds of violation, now upon consideration of the foregoing, it is ordered and adjudged that the court is reasonably satisfied that the defendant has violated the conditions of his probation in that he has committed the offense of harassment and that he has failed to avoid injurious and vicious habits, separately and severally, and the defendant’s probation heretofore granted is ordered revoked, and the sentence heretofore imposed is ordered executed.”

(C. 16.) The trial court’s order properly stated the reasons, for revoking Pate’s probation — that he had' committed the new offense of harassment and that he had failed to avoid injurious and vicious habits. Therefore, Pate’s argument in this regard is meritless.

However, the order fails to sufficiently state the evidence upon which the trial court relied in revoking Pate’s probation. Although the trial court stated in its order that it was relying on the testimony of Mark Carroll, Wayne Maddux, and Kim Norris, it did not state the substance of that testimony. In addition, although the court referred to a stipulation by the State and the defense and State’s Exhibit R, it did not state the substance of the stipulation or identify the exhibit. Thus, the order did not sufficiently state the evidence the trial court relied on in revoking Pate’s probation. See, e.g., Murphy v. State, 856 So.2d 949, 951 (Ala.Crim.App.2003)(“Although in its order revoking Murphy’s probation the circuit court named the people who testified at the probation-revocation hearing, it did not state to any extent the substance of that testimony.... Therefore, the order is insufficient.”); Holden v. State, 820 So.2d 158, 162 (Ala.Crim.App.2001)(“the trial court’s order, stating only that it relied on ‘the evidence presented by the State at the defendant’s probation revocation hearing,’ was not adequate”); and Norwood v. State, 804 So.2d 1164, 1166-67 (Ala.Crim.App.2001) (“Because the trial judge’s order states only that he relied on the testimony of A1 Dowdy and Felicia Thomas, the order is insufficient, and we must remand the cause so that the court can specify the evidence on which it relied.”).

Therefore, based on Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), and Wyatt v. State, 608 So.2d 762 (Ala.1992), we must remand this cause for the trial court to prepare a written statement of the evidence it relied on in revoking Pate’s probation. The trial court shall take the necessary action to see that the circuit clerk makes due return to this Court at the earliest possible time within 35 days of the release of this opinion.

REMANDED WITH DIRECTIONS.

McMILLAN, P.J., and COBB and WISE, JJ., concur. BASCHAB, J., concurs in the result.


author: SHAW, Judge!

text:
    Rodrick O’Neal INGRAM v. STATE of Alabama.
    CR-02-0359.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 22, 2003.
    Scott C. Shimer, Florence, for appellant.
    Rodrick Ingram, pro se.
    Submitted on appellant’s brief only.
   SHAW, Judge!

In May 2002, Rodrick O’Neal Ingram was indicted for robbery in the first degree and assault in the second degree. On August 22, 2002, pursuant to a plea agreement with the State, Ingram pleaded guilty to robbery in the second degree and assault in the second degree.. On October 10, 2002, he was sentenced, in accordance with the plea agreement, to 20 years’ imprisonment for the robbery conviction and to 10 years’ imprisonment for the assault conviction; the sentences were to run consecutively. Ingram did not expressly reserve the right to appeal any issues before he entered his guilty plea. However, at the conclusion of the sentencing hearing, Ingram orally moved to withdraw his guilty plea. The trial court denied the motion.

After reviewing the record, we conclude that this appeal is due to be dismissed because Ingram did not properly invoke his limited right to appeal. In Williams v. State, 854 So.2d 625 (Ala. Crim.App.2003), this Court examined the recent amendments to Rule 14.4, Ala. R.Crim.P., and Rule 26.9, Ala.R.Crim.P., with respect to a defendant’s right to appeal a guilty-plea conviction. We said:

“Williams pleaded guilty on August 19, 2002, pursuant to Rule 14.4, Ala. R.Crim.P., a rule amended effective August 1, 2002, to read as follows:
“ ‘(a) Colloquy with Defendant. In all minor misdemeanor cases, the execution of a form similar to Form C-44B will be sufficient and no colloquy shall be required. In all other cases, except where the defendant is a corporation or an association, the court shall not accept a plea of guilty without first addressing the defendant personally in the presence of counsel in open court for the purposes of:
“ ‘(1) Ascertaining that the defendant has a full understanding of what a plea of guilty means and its consequences, by informing the defendant of and determining that the defendant understands:
“ ‘(i) The nature of the charge and the material elements of the offense to which the plea is offered;
“ ‘(ii) The mandatory minimum penalty, if any, and the maximum possible penalty provided by law, including any enhanced sentencing provisions;
“ ‘(hi) If applicable, the fact that the sentence may run consecutively to or concurrently with another sentence or sentences;
“ ‘(iv) The fact that the defendant has the right to plead not guilty, not guilty by reason of mental disease or defect, or both not guilty and not guilty by reason of mental disease or defect, and to persist in such a plea if it has already been made, or to plead guilty;
“ ‘(v) The fact that the defendant has the right to remain silent and may not be compelled to testify or give evidence against himself or herself, but has the right, if the defendant wishes to do so, to testify on his or her own behalf;
“ ‘(vi) The fact that, by entering a plea of guilty, the defendant waives the right to trial by jury, the right to confront witnesses against him or her, the right to cross-examine witnesses or have them cross-examined in the defendant’s presence, the right to testify and present evidence and witnesses on the defendant’s own behalf, and the right to have the aid of compulsory process in securing the attendance of witnesses;
“ ‘(vii) The fact that, if the plea of guilty is accepted by the court, there will not be a further trial on the issue of the defendant’s guilt; and
“ ‘(viii) The fact that there is no right to appeal unless the defendant has, before entering the plea of guilty, expressly reserved the right to appeal with respect to a particular issue or issues, in which event appellate review shall be limited to a determination of the issue or issues so reserved.’ “(Emphasis added [in Williams].)
“The August 2002 amendment of Rule 14.4 dramatically- affected appellate review of a guilty plea proceeding. Before the recent revision of Rule 14.4, subsection (e)(5) of Rule 2.2, Ala.R.Crim.P., which was also amended effective August 1, 2002, specifically stated that a defendant had a right to appeal a guilty plea. When Rule 14.4 was amended, Rule 2.2 was also amended to delete any reference to a defendant’s right to appeal a guilty plea.
“According to Rule 14.4(a)(l)(viii), Ala. R.Crim.P., the only way to appeal from a guilty plea proceeding is to reserve the right to appeal a certain issue before pleading guilty. However, we note that Rule 26.9(b), Ala.R.Crim.P., was also amended in August 2002. This rule now states:
“ ‘(b) Pronouncement of Sentence. In pronouncing sentence, the court shall:
“ ‘(4) Inform the defendant as to the defendant’s right to appeal; provided, however, in cases in which the defendant has entered a plea of guilty, the court shall advise the defendant of his or her right to appeal only in those cases in which the defendant (i) has entered a plea of guilty, but before entering the plea of guilty has expressly reserved his or her right to appeal with respect to a particular issue or issues, or (ii) has timely filed a motion to withdraw the plea of guilty and the motion has been denied, either by order of the court or by operation of law.’
“(Emphasis added [in Williams].) Rule 26.9(b)(4)(ii) appears to add a right to appeal the denial of a motion to withdraw a guilty plea — a right that is not specifically recognized ' ■ in Rule 14.4(a)(l)(viii) — the rule that specifically addresses guilty plea proceedings.
“As previously noted, Rule 2.2(e), Ala. R.CrinxP., has been amended to eliminate "the absolute right to appeal a judgment entered in a guilty plea proceeding. Although Rules 14.4(a)(l)(viii) and 26.9(b)(4) now provide a limited right to appeal, Williams failed to reserve any issue for appellate review before he entered his guilty plea, and he did not file a motion to withdraw his guilty plea. Consequently, Williams cannot proceed with this appeal because he has failed to invoke the limited right to appeal recognized in the rules as recently amended.”

854 So.2d at 626-27 (footnote omitted).

Pursuant to Rule 14.4(a)(l)(viii) and Rule 26.9(b), a defendant may appeal a guilty-plea conviction if: (1) the defendant “expressly reserved the right to appeal with respect to a particular issue or issues” before entry of the plea, Rule 14.4(a)(l)(viii), or (2) the defendant “has timely filed a motion to withdraw the plea of guilty and the motion has been denied,” Rule 26.9(b)(4)(ii). The question in this case is whether an oral motion to withdraw a guilty plea is sufficient to invoke the limited right to appeal pursuant to Rule 26.9(b). We hold that it is not.

“We start with the basic premise that words used in court rules must be given their plain meaning.” Nieto v. State, 842 So.2d 748, 749 (Ala.Crim.App.2002). “[W]hen interpreting' a rule of procedure, we must give the wording of the rule its plain meaning.” J.W. v. State, 751 So.2d 529, 531 (Ala.Crim.App.1999). To invoke the ' right to appeal under Rule 26.9(b)(4)(ii), a defendant must have “timely filed ”, a motion to withdraw his or her guilty plea. (Emphasis added.) “File” is defined in Black’s Law Dictionary 628 (6th ed.1996), in part, as “[t]o deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place.” (Emphasis added.) By stating that the motion to withdraw must be “filed,” the plain language of Rule 26.9(b)(4)(ii) requires that a motion to withdraw the plea be in writing in order to invoke the limited right to appeal. See, e.g., Pendley v. State, 36 Ala.App. 169, 171, 58 So.2d 811, 812 (1951)(interpreting the term “filed” in § 276, Title 7, Ala.Code 1940, relating to motions for a new trial, to require that a motion for a new trial be in writing).

Because Ingram did not expressly reserve the right to appeal any issues before he entered his plea and because he did not file a written motion to withdraw his plea, he failed to invoke his limited right to appeal. Therefore, this appeal is due to be, and is hereby, dismissed.

APPEAL DISMISSED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

      . The'first-degree-robbery indictment alleged that Ingram committed the crime with another person, Raymond Remor Ingram (his brother); thus, it included the lesser offense of second-degree robbery. Therefore, the trial court had jurisdiction to accept Ingram's plea to second-degree robbery based on the indictment for first-degree robbery. See Ex parte Cole, 842 So.2d 605 (Ala.2002).

      . "File” is defined in Black’s Law Dictionary 642 (7th ed.1999), as "[t]o deliver a legal document to the court clerk or record custodian for placement into the official record.”

      . Of course, invoking the limited right to appeal a guilty-plea conviction, governed by newly amended Rules 14.4(a)(1)(viii) and 26.9(b)(4)(ii), is quite different than preserving an issue for review. In Humphrey v. State, 686 So.2d 560 (Ala.Crim.App.1996), and Ingram v. State, 552 So.2d 169 (Ala.Crim.App.1989), this Court addressed issues, and even reversed the conviction in Humphrey, raised in an oral motion to withdraw a guilty plea. However, both Humphrey and Ingram were decided before the amendments to Rules 2.2, 14.4, and 26.9. At the time Humphrey and Ingram were decided, there was an absolute right to appeal a guilty-plea conviction and there was no question in either of those cases that the appeals had been properly perfected and were properly before this Court. Humphrey and Ingram stand only for the proposition that an oral motion to withdraw a plea will preserve an issue for appellate review under the general laws of preservation once an appeal has been properly perfected; they are not controlling on whether the now limited right to appeal a guilty-plea conviction has been properly invoked.