source: Caselaw Access Project

author: PITTMAN, Judge. CRAWLEY, Judge,

license: Public Domain

text:
    Barbara Ann COKER v. PENFIELD CHAIR COMPANY, INC.
    2000806.
    Court of Civil Appeals of Alabama.
    March 8, 2002.
    Rehearing Denied May 31, 2002.

      Jim Pino of Jim Pino & Associates, P.C., Pelham, for appellant.
    T. Randall Lyons and Neil M.B. Rowe of Nix, Holtsford, Gilliland, Lyons & Higgins, P.C., Montgomery, for appellee.
   PITTMAN, Judge.

On October 11, 2000, Barbara Ann Coker sued Penfield Furniture Company, Inc. (“the company”), alleging that the company was liable under the doctrine of respon-deat superior for personal injuries Coker received in a motor-vehicle accident. Coker stated that the accident occurred when the vehicle she was driving was struck from behind by a vehicle owned by the company and operated by a company employee, Gayle Penfield Kirby.

The company filed a motion for a summary judgment on January 3, 2001, stating that there were no genuine issues of material fact and that the company was entitled to a judgment as a matter of law. In the motion and supporting documents the company argued that it was entitled to a summary judgment because Kirby was not acting within the line and scope of her employment when the accident occurred. On March 7, 2001, Coker filed a response to the company’s motion. In her motion Coker argued that an employee’s use of a vehicle owned by an employer creates an administrative presumption of agency and that Kirby’s continued use of the vehicle amounted to company policy; alternatively, Coker argues that by allowing Kirby to continue using the vehicle for personal trips after the accident, the company ratified her actions.

On March 15, 2001, the trial court granted the company’s summary-judgment motion. Coker appealed to the Alabama Supreme Court, which transferred the case to this court, pursuant to § 12-2-7(6), Ala. Code 1975.

In reviewing a summary judgment, this Court must apply the same standard that the trial court applied. Rule 56, Ala. R. Civ. P., establishes a two-part standard for granting a summary judgment. The trial court must determine (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). Furthermore, to defeat a properly supported motion for a summary judgment, the nonmovant must present “substantial evidence” of his claim. § 12-21-12, Ala.Code 1975. Substantial evidence is “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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In determining whether substantial evidence exists to defeat a summary-judgment motion, a court must view the evidence in a light most favorable to the nonmoving party, See Goodwin v. City of Fultondale, 706 So.2d 766 (Ala.Civ.App.1997); Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999).

It was undisputed that the vehicle Kirby was driving at the time of the accident was leased by the company and that Kirby was an employee of the company. Alabama law is well settled:

“ ‘To recover for damages for injuries sustained in an automobile accident against the driver’s employer upon a theory of respondeat superior, it is incumbent'upon plaintiff to prove that the collision occurred while the driver was within the scope of his employment, and happened while he was in the accomplishment of objectives within the line of his duties.’ ”

Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 48 (Ala.1995), quoting Perdue v. Mitchell, 373 So.2d 650, 653 (Ala.1979).

The evidence in this case indicates that Kirby’s operation of the company vehicle was not related to her obligations or duties as an employee of the company. In fact, the record is clear that the vehicle was provided to Kirby not pursuant to her employment, but as a condition of a settlement entered into in regard to her divorce from David Penfield, the company owner. Further, Kirby stated in her affidavit that when the accident occurred she was running personal errands and that the day of the accident was not a workday for her.

Coker correctly states that Kirby’s use of a company vehicle gives rise to an administrative presumption that her use of the vehicle was in the scope of her employment. See Durbin v. B.W. Capps & Son, Inc., 522 So.2d 766 (Ala.1988). However, “ ‘ “[t]he liability of a corporation for the torts of its employees, whether agent or servant, is grounded upon the principle of ‘respondeat superior,’ not the principles of agency.” ’ ” Autrey v. Blue Cross & Blue Shield of Alabama, 481 So.2d 345, 347 (Ala.1985) (quoting National States Ins. Co. v. Jones, 393 So.2d 1361, 1367 (Ala.1980), quoting in turn, Old Southern Life Ins. Co. v. McConnell, 52 Ala.App. 589, 296 So.2d 183, 186 (1974)). Once agency or scope of employment are rebutted, the administrative presumption no longer makes agency or scope of employment a fact question. See Durbin, 522 So.2d at 768. The company demonstrated that the vehicle operated by Kirby was not leased for business use, but instead was leased to satisfy a divorce agreement.

Because the company rebutted the administrative presumption and established that Kirby’s use of the vehicle was not connected with her duties as an employee of the company, there was no genuine issue of material fact to be decided by a trier of fact. Thus, the trial court correctly granted the company’s motion for a summary judgment.

AFFIRMED.

THOMPSON and MURDOCK, JJ., concur.

YATES, P.J., and CRAWLEY, J., dissent.

CRAWLEY, Judge,

dissenting.

I must respectfully dissent from the majority’s affirmance of the summary judgment for Penfield Chair Company, Inc. (the “company”). I conclude, based upon my consideration of Pryor v. Brown & Root USA Inc., 674 So.2d 45 (Ala.1995), that a question of fact existed concerning whether the company condoned Gayle Penfield Kirby’s personal use of the vehicle so that her use of the vehicle was within the scope of her employment or authority.

David Penfield and Gayle Penfield Kirby were the co-owners of the company until 1998, when they divorced. Penfield was apparently awarded sole ownership of the company in the divorce judgment. As part of the agreement incorporated in the divorce judgment, the company was to continue to employ Kirby as a salaried employee until December 31, 2008. According to Penfield, as part of Kirby’s compensation and to satisfy the divorce judgment’s requirement that he provide his wife a leased sport-utility vehicle, the company, not Penfield, leased a Jeep Grand Cherokee for Kirby’s personal use. Kirby was driving this vehicle when she collided with Coker’s vehicle.

Kirby states in her affidavit that she was not engaged in any business for the company at the time of the collision; she was on a personal errand. In fact, Kirby testified that she was seldom engaged in any business for the company. Although as a general practice company-owned vehicles like delivery trucks were returned to the company’s premises at the end of the workday, the company had no written policy regarding personal use of company-owned vehicles. Kirby was never reprimanded for her personal use of the vehicle.

In order to prevail against the company under the theory of respondeat superior, Coker must prove that the accident occurred while Kirby was within the scope of her employment. Pryor v. Brown & Root USA, Inc., 674 So.2d at 48. Generally, “[u]se of a vehicle owned[] by an employer creates an ‘administrative presumption’ of agency and a presumption that the employee was acting within the scope of his employment, as that concept is used in the law of respondeat superior liability, but this ‘administrative presumption’ is not in itself evidence.” Id. Instead, the presumption, once engaged, “ ‘ “impose[s] upon the defendant the burden of showing that the driver was not his agent, or that, if he was, he was not acting within the scope of his authority or in the course of his employment.” ’ ” Id. at 48-49 (quoting Durbin v. B.W. Capps & Son, Inc., 522 So.2d 766, 767 (Ala.1988), quoting in turn Tullis v. Blue, 216 Ala. 577, 578, 114 So. 185, 187 (1927)).

The facts in Pryor are similar to those in the present case. Brown & Root had provided its employee, Jeff Dealy, with a company-owned vehicle. Pryor, 674 So.2d at 46-47. Dealy drove that vehicle for both employment-related and personal transportation needs. Id. at 49. In fact, Dealy used the vehicle as his sole means of transportation. Id. at 50. He had never been reprimanded for his personal use of the vehicle. Id. at 49.

One Sunday afternoon, after he had completed his workday, Dealy drove to meet friends and to go sailing on a lake. Id. at 47. That evening he was returning home when he ran a stop sign and collided with a vehicle driven by Willie Mae Pryor, injuring Pryor. Id. Although he had been drinking, Dealy passed a sobriety test at the scene and was found not to be intoxicated. Id.

Although Pryor conceded that Dealy was on a personal errand at the time of the accident, id. at 48, she argued that there still existed a question whether Dealy was acting in the scope of his employment because, she argued', Brown & Root had condoned his use of the car as his sole means of personal transportation in violation of company policy permitting only the nominal personal use of company vehicles. Id. at 48-49. The supreme court agreed, stating that “additional evidence bearing on the issue whether Dealy was acting in the line and scope of his authority” existed. Id. at 49. In reversing the summary judgment, the court relied on “the fact that Dealy was using the Brown & Root vehicle as his sole personal vehicle, with the knowledge of ... his supervisor, [which] supports an inference that his use of the vehicle was within the line and scope of his employment.” Id. at 50. The court also compared the case with the decision in Williams v. Hughes Moving & Storage Co., 578 So.2d 1281 (Ala.1991), which also involved the question whether an employee’s personal use of a company-owned vehicle in violation of company policy would expose the company to liability for the employee’s negligence.

In Williams, Henry Birt, an employee of Hughes Moving & Storage Company, drove one of the company’s trucks in the performance of his duties. Williams, 578 So.2d at 1282. Birt, in violation of company policy requiring that the trucks be left on the company’s premises at the close of the workday, took the truck home with him on a Friday night. Id. Birt had violated that policy before by taking a truck home at the end of the workday and had not been disciplined. Id. When it was parked in Birt’s yard, the truck rolled into the street, striking an oncoming vehicle driven by Robert L. Williams. Id.

The trial court, upon the company’s motion, directed a verdict for the company, and Williams appealed. Id. at 1283. On appeal, Williams argued the trial court erred by directing a verdict for the company because he had presented evidence that, when coupled with the administrative presumption of agency, was sufficient to create a jury question on the issue whether Birt was acting in the line and scope of his employment. Id. The company argued that it had rebutted the administrative presumption of agency because Birt could not have been acting within the line and scope of his employment or within his authority when he violated company policy. Id.

According to our supreme court, the fact that Birt had violated company policy was not alone determinative of his status at the time of the accident. Id. at 1283. The court noted that the policy was specifically not enforced against Birt on the other occasions he had driven the truck home, thus indicating that the company condoned Birt’s driving the truck home. Id. at 1282, 1285. Therefore, the court reversed the judgment, concluding that the issue whether Birt was acting in the line and scope of his employment for purposes of a respon-deat superior analysis should be submitted to the jury. Id. at 1285.

The trial court in the present case entered a summary judgment for the company, apparently finding that the company had effectively rebutted the administrative presumption of agency by presenting evidence that Kirby was not acting within her authority or in the line and scope of h’er employment when the accident occurred. I agree with Coker, however, that the evidence indicating that the company not only condoned Kirby’s nearly exclusive personal use of a company-owned vehicle, but in fact leased the vehicle for her for such use, supports an inference, as was the case in Pryor, that the use of the vehicle was in the line and scope of Kirby’s employment or within her authority. The company failed to present evidence sufficient to clearly rebut the administrative presumption — that is, it failed to present evidence “eliminatfingj any question as to whether [Kirby] was acting within the scope of her employment or authority.” Williams, 578 So.2d at 1285. Therefore, I would reverse the summary judgment.

YATES, P.J., concurs.

      . The company does not dispute that the company owned the leased vehicle for purposes of the application of the administrative presumption of agency.


author: PITTMAN, Judge. MURDOCK, Judge,

text:
    Donna F. Miller CORNELIUS v. Larry MILLER, individually and as executor of the estate of Billy Wayne Miller; and Randy Miller.
    2000855.
    Court of Civil Appeals of Alabama.
    April 5, 2002.
    Rehearing Denied June 7, 2002.

      Ralph K. Strawn, Jr., of Henslee, Robertson & Strawn, L.L.C., Gadsden, for appellant.
    Louis B. Lusk of Lusk & Lusk, Gunters-ville, for appellees.
   PITTMAN, Judge.

Donna F. Miller Cornelius appeals from a summary judgment for Larry Miller and Randy Miller (“the Millers”) and Larry Miller, as executor of the estate of Billy Wayne Miller, in her action to quiet title. In December 1998 Cornelius and Billy each owned an undivided half-interest in the real property on which their mother’s home was located, subject to a life estate retained by their mother. According to the affidavit of Anne Thrasher Mitchell, she, the mother and Cornelius traveled to Billy’s home where Cornelius paid Billy $21,700 cash. Then Billy and the mother signed a document agreeing to convey Billy’s interest in the family property to Cornelius. (C. 22-23, 30.) The agreement, dated December 18,1998, reads:

“I Faye Cornelius payed [sic] my brother Billy Wayne Miller 21700.00 for cash twenty one thousand seven hunder [sic] dollor [sic] for his half of my daddy and mother’s] house and I will see after my mother as long as I can. Deed to be made after our mothers [sic] death.”

(C. 29; Supp. C. 6.)

According to Mitchell, Cornelius moved into her mother’s house and cared for her mother until her mother’s death. Billy died in March 1999; his will was admitted to probate on May 14, 1999. Cornelius did not file a claim during the six-month period allowed for filing claims against the brother’s estate. Following her mother’s death, Cornelius asked Larry Miller, Billy’s son and the executor of Billy’s estate, to deed the property to her pursuant to the agreement. Larry refused and Cornelius filed this action to quiet title on October 5, 2000.

The reason for entering the summary judgment for the Millers and the sole issue on appeal is whether the nonclaims statute, § 43-2-350, Ala.Code 1975, which bars claims against an estate that are not presented within six months of the grant of letters testamentary, applies to bar Cornelius’s action seeking to quiet title to the family property.

The Alabama nonclaims statute provides that “[a]ll claims against the estate of a decedent ... whether due or to become dúe” must be filed within the six-month time period or be “forever barred.” See § 43 — 2—350(b), Ala.Code 1975. Alabama caselaw recognizes two exceptions to this statute: “contingent claims” and “claims of title.” The long-standing rule that claims of title do not fall under the nonclaims statute is based on the principle that claims of title are not claims against the estate. This is because “the right to recover is based upon the fact that the property claimed does not belong to the estate.” Locke’s Executor v. Palmer, 26 Ala. 312, 325 (1855). Thus, once Billy accepted the cash and signed the agreement, he no longer had an interest in the property unless Cornelius did not keep her part of the agreement, that is, unless she failed to live on the property and take care of their mother until her death. Billy’s half-interest passed to Cornelius and thus was not part of his estate when he died.

The agreement specifically conveys Billy’s half-interest in his mother’s property to Cornelius for the consideration of $21,700 in cash and Cornelius’s promise to care for their mother until her death. Cornelius relies on our supreme court’s decision in Wadsworth v. Hannah, 431 So.2d 1186 (Ala.1983), for the proposition that actions to quiet title or to convey real property are not barred by the nonclaims statute. See also Crowley v. Bass, 445 So.2d 902 (Ala.1984); Williams v. Williams, 438 So.2d 735 (Ala.1983). In Wadsworth our supreme court concluded (1) that neither legal nor equitable claims of title are barred by the Alabama non-claims statute and (2) that courts reviewing equitable claims treat as done that which ought to have been done to effectuate the intentions of the parties. See Wadsworth v. Hannah, 431 So.2d at 1188-89. The unresolved question in the trial court below was whether Billy (and his heirs) might retain the money and take advantage of the services provided by Cornelius and keep the property interest as well. See Williams v, Phillips Petroleum Co., 453 F.Supp. 967, 976 (S.D.Ala.1978).

It is clear from the pleadings that Cornelius paid Billy $21,700 and agreed to take care of their mother in exchange for Billy’s half-interest in the family property. The fact that a deed transferring his interest was not to be made until their mother’s death does not turn this action into a simple contract claim that, like a tort claim, is barred by the nonclaims statute. Our supreme court in Wadsworth specifically addressed this situation and concluded that the nonclaims statute is inapplicable to disputes over title to property. Therefore, we must reverse the trial court’s summary judgment for the Millers and remand this cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

MURDOCK, Judge,

concurring in the result.

I write separately from the main opinion in this case to note that I am not in agreement with several of the statements in that opinion. With respect to the effect of the agreement between the brother and Cornelius and the state of affairs at the time they entered into that agreement, I would note that a contract to convey title and an actual conveyance of title are two different things. See Crowley v. Bass, 445 So.2d 902, 904 (Ala.1984) (citing Shaffer v. Reed, 437 So.2d 98, 99 (Ala.1983)) (a contract giving a party an option to purchase property does not transfer title to that property).

Nonetheless, I find support for the result reached by the main opinion in the case of Wadsworth v. Hannah, 431 So.2d 1186 (Ala.1983). See also McGuire v. Andre, 259 Ala. 109, 65 So.2d 185 (1953). I therefore concur in the result reached by that opinion.

      . I note that, notwithstanding the language of the contract at issue here, the Millers take the position that Cornelius’s claim was not a contingent claim.


author: PER CURIAM.

text:
    ALABAMA CLASSIC HOMES, INC., and Jim McBrayer v. WICKES LUMBER COMPANY, INC.
    2001111.
    Court of Civil Appeals of Alabama.
    May 10, 2002.

      James R. Kramer, Alabaster, for appellants.
    William M. Acker III of Burgess & Hale, L.L.C., Birmingham, for appellee.
   PER CURIAM.

Alabama Classic Homes, Inc., and Jim McBrayer, president of Alabama Classic Homes, appeal from a final judgment in favor of Wickes Lumber Company, Inc., on a contract dispute. In 1992, Wickes Lumber entered into a credit agreement with Alabama Classic Homes; Wickes Lumber also entered into a separate agreement with Jim McBrayer in which McBrayer personally guaranteed the Alabama Classic Homes account. In 1999, Alabama Classic Homes contracted to build a house for Nannette Rainey. During the course of the construction of the house, Alabama Classic Homes obtained building materials on credit from Wickes Lumber. Between May 4, 1999, and July 22,1999, the materials purchased by Alabama Classic Homes on account from Wickes Lumber for the Rainey job totaled $27,266.29.

A dispute between Alabama Classic Homes and Rainey over “draws” on the construction account halted construction on August 1, 1999. McBrayer allegedly told Rainey that no further work would be performed until she paid him for the work already completed. Alabama Classic Homes never completed the job.

Rainey sued Alabama Classic Homes and Wickes Lumber, alleging breach of contract, negligence, and fraud (case no. CV-99-788). Alabama Classic Homes claimed a materialmen’s lien against Rai-ney’s house.

Separately, Wickes Lumber sued Alabama Classic Homes and Rainey for failure to pay for building materials supplied to Alabama Classic Homes during construction of Rainey’s house (case no. CV-99-020). Alabama Classic Homes counterclaimed against Wickes Lumber for a breach of contract. Wickes Lumber then filed an amended complaint adding Jim McBrayer as a defendant, based upon the personal guaranty McBrayer signed as an inducement for Wickes Lumber to extend credit to Alabama Classic Homes.

The actions filed by Rainey and Wickes Lumber were consolidated for discovery purposes and for trial. A summary judgment was entered for Rainey on Wickes Lumber’s claim for a material-men’s lien, thereby resolving all issues against Rainey in the Wickes Lumber action (case no. CV-00-020). ‘Where several actions are ordered to be consolidated for trial, each action retains its separate identity and thus requires the entry of a separate judgment.” League v. McDonald, 355 So.2d 695, 697 (Ala.1978) (quoting Rule 42(a), Ala. R. Civ. P., and Committee Comments on 1973 Adoption, and Teague v. Motes, 57 Ala.App. 609, 330 So.2d 434 (1976)). Therefore, the judgment entered in the present case does not affect Rainey’s ongoing action (case no. CV-99-788), and Rainey is not a party to this appeal.

After Wickes Lumber filed its complaint, Alabama Classic Homes made the following payments on the dates indicated on its outstanding account with Wickes Lumber: $8,2115.42 on August 16, 1999; $3,000 on October 21, 1999; and $6,000 on December 1, 1999. After these payments were made, the balance owed on the account was $10,050.87. Alabama Classic Homes did not pay the balance, and, according to McBrayer, did not intend to pay until it collected money from Rainey for the construction work that had been completed before August 1, 1999. On January 16,1999, Wickes Lumber moved for a summary judgment against Alabama Classic Homes and McBrayer. On May 10, 2001, the trial court granted Wickes Lumber’s summary-judgment motion with respect to its contract claims against Alabama Classic Homes and McBrayer and awarded Wickes Lumber $25,254.54 in damages, representing the balance owed of $10,050.87, delinquency fees of $371.96, and expenses in the amount of $14,831.71 relating to the collection of the debt. The trial court also granted Wickes Lumber’s summary-judgment motion with respect to Alabama Classic Homes’ counterclaim against Wickes Lumber. Alabama Classic Homes and McBrayer filed a motion to “reconsider,” which the trial court denied. Alabama Classic Homes and McBrayer appeal.

Review of a summary judgment is de novo, and this court applies the same standard the trial court applied. Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). A motion for a summary judgment is appropriate when no genuine issue of a material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. This court must view the evidence in a light most favorable to the nonmoving party and inust resolve all reasonable doubts against the moving party. Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

A party moving for a summary judgment must make a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law. Rule 56(c), Ala. R. Civ. P.; Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the moving party meets this burden, the burden then shifts to the nonmoving party to show by substantial evidence that a genuine issue of material fact exists. Id. Substantial evidence means “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.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Alabama Classic Homes and McBrayer argue that the trial court erred in entering a summary judgment, because, they say, a genuine issue of material fact exists. Alabama Classic Homes alleges that Wickes Lumber delivered nonconforming goods to the Rainey job site, leading to the dispute between Alabama Classic Homes and Rainey; that Alabama Classic Homes reported the mistake to Wickes Lumber; that Wickes Lumber failed to cure the error; and that when Wickes Lumber did not cure the error, Alabama Classic Homes used the nonconforming goods in the Rainey construction project in order to mitigate their damages. Alabama Classic Homes asserts that the delays caused by waiting for the error to be corrected, then altering the plans and specifications of the construction to accommodate the nonconforming goods, caused it to lose the Rainey job and to suffer further economic damage. The primary support for these allegations is McBrayer’s sworn affidavit, and an invoice to Alabama Classic Homes from Wickes Lumber.

Wickes Lumber denies that it delivered nonconforming goods; it argues that McBrayer’s affidavit supporting the allegation that it delivered nonconforming goods contradicts McBrayer’s prior deposition testimony. McBrayer’s deposition was taken in December 1999, before Rainey’s action was consolidated with the action filed by Wickes Lumber. Wickes Lumber quotes the following deposition exchange in its brief in support of its summary-judgment motion:

“Q. Before August 1 [when the dispute over draws occurred], had you and Ms. Rainey had any problems with this construction?
“A. [McBrayer] You always have problems in construction.
“Q. I didn’t ask you that, Mr. McBrayer.
“A. I’m sure we did.
“Q. Can you tell me some of those problems, please?
“A. I don’t recall any specific problems.
“Q. You can’t recall any specifically, right?
“A. I don’t know if there were any major problems.
“Q. But you can’t think of any, as you sit here today?
“A. No.
“Q. So as far as you know, the construction had been progressing, and the only problem that you could see at that point, was, maybe, some delays with getting the draws?
“A. Yes.
“Q. You can’t think of any other problems?
“A. No. There was some minor things.
“Q. You keep mentioning that, but you can’t tell me what they were.
“A. I mean, like, light switches being in the wrong places, stuff like that.
“Q. And when she would bring a problem to your attention, would you fix it?
“A. In due course, yes.”

Wickes Lumber argues that McBrayer’s testimony in this excerpt from his deposition contradicts McBrayer’s affidavit testimony that delays on the part of Wickes Lumber contributed to the dispute with Rainey. We do not agree. It is impossible to discern from the excerpt, or from the selected deposition pages included in the record on appeal, whether McBrayer was specifically questioned about delays caused by Wickes Lumber. In fact, the line of questioning upon which Wickes Lumber relies refers only to problems between Rainey and Aabama Classic Homes. Therefore, the trial court could have concluded that McBrayer’s sworn affidavit concerned issues beyond those discussed in the deposition, and that his affidavit, therefore, did not contradict his deposition testimony.

Aabama Classic Homes claims that part of the nonconforming materials was the nine-foot studding Wickes Lumber sent to the job site; Aabama Classic Homes claims it ordered eight-foot studding. Wickes Lumber asserts that a review of the invoices included in the record shows that no nine-foot studding was delivered. However, many of the invoices provided are illegible and contain abbreviations peculiar to the lumber trade. Based on the affidavits and other evidence presented, we are unable to determine from the record which party is correct as to this issue, and we conclude that there is a genuine issue of a material fact as to whether the lumber delivered by Wickes Lumber was nonconforming.

While we conclude that the record presents a genuine issue of material fact as to whether the goods in this case were nonconforming, we cannot say the same as to the issue of whether Aabama Classic Homes “rejected” those goods or “revoked acceptance” of those goods. A buyer who receives “nonconforming goods” may have the right to “reject” those goods pursuant to Aa.Code 1975, § 7-2-602, or to “revoke” acceptance of those goods pursuant to Aa.Code 1975, § 7-2-608. See also Aa.Code 1975, § 7-2-607(2). When a buyer neither rightfully rejects the goods nor rightfully revokes acceptance of the goods, the “buyer must pay at the contract rate for any goods accepted.” Aa.Code 1975, § 7-2-607(1). Based on our review of the record in the present case, we do not find substantial evidence indicating that Aabama Classic Homes either rejected or revoked acceptance of the goods in question. Because there was no genuine issue of material fact in this regard, we find no error in the trial court’s summary judgment in favor of Wickes Lumber and against Aabama Classic Homes on Wickes Lumber’s claim for payment for the goods.

With respect to the summary judgment in favor of Wickes Lumber as to the counterclaim of Aabama Classic Homes, however, we must reverse. The remedies for nonconforming goods that have been accepted, and as to which that acceptance has not subsequently been rightfully revoked, include those remedies set out-in Ala.Code 1975, §§ 7-2-714 and -715, and such other portions of Alabama’s Uniform Commercial Code as may be applicable. These include the right to recover “the loss resulting in the ordinary course of events from the seller’s breach.” Ala.Code 1975, § 7-2-714(1). Because we find substantial evidence creating a genuine issue of material fact as to whether the goods in this case were or were not conforming, we therefore conclude that the summary judgment in favor of Wickes Lumber as to Alabama Classic Homes’s counterclaim was inappropriate.

With respect to the trial court’s consideration on remand of the counterclaim of Alabama Classic Homes, we further note that there also appears to be a genuine issue of material fact as to whether Alabama Classic Homes notified the seller, Wickes Lumber, of any nonconformity within a “reasonable time after [it] discovered] or should have discovered” such nonconformity; as required by Ala. Code 1975, § 7-2-607(3)(a) (barring remedies for nonconformity where such notification is not given within a reasonable time). See also Ala.Code 1975, § 7-2-714(1).' Wickes Lumber introduced the affidavit of Traci Dill, the manager of its credit department, in which Dill stated that she was not aware of receiving any notice from Alabama Classic Homes that the materials delivered were nonconforming. McBrayer stated in his affidavit, however, that Wickes Lumber “improperly and inappropriately shipped the wrong sized building materials to the job site” and that notice of that fact was given to Wickes Lumber. Because of the conflicting testimony with regard to this matter, we conclude that a genuine issue of a material fact is presented with respect to the issue of notice.

In light of the foregoing, we affirm the trial court’s summary judgment in favor of Wickes Lumber with respect to its contract claim against Alabama Classic Homes and McBrayer, individually. However, as to the trial court’s summary judgment in favor of Wickes Lumber on Alabama Classic Homes’ counterclaim, we reverse that judgment and remand the cause for further proceedings consistent with this opinion.

Wickes Lumber’s request for the award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

THOMPSON, J., concurs in the result.

      . "Draws’’ are periodic payments disbursed by the homeowner to the contractor based upon the amount of work completed and the expenses incurred by the contractor at the time of the payment.

      . We express no opinion as to whether, in the event of an award of money damages to Alabama Classic Homes on its counterclaim, a setoff would be appropriate with respect to money damages awarded to Wickes Lumber on its claim against Alabama Classic Homes.


text:
    T.D. and S.D. v. A.L.
    2000483.
    Court of Civil Appeals of Alabama.
    May 31, 2002.

      Hugh E. Holladay, Pell City, for appellants.
    Submitted on appellants’ brief only.
   PER CURIAM.

T.D. and S.D. (“the adoptive parents”), who are the biological grandparents of C.D. (“the child”), and who are the natural parents of the child’s biological mother, A.L. (“the biological mother”), appeal from a judgment of the St. Clair County Juvenile Court that, among other things, awarded the biological mother visitation rights with the child. We reverse.

The record reveals that the child was born in November 1992, while the mother was 16 years old, unmarried, and living with the adoptive parents in their home in Pell City. Within a few months after the child’s birth, the biological mother and S.D. agreed that the child should be adopted by the adoptive parents, and the St. Clair County Probate Court subsequently entered a final judgment in January 1993, granting the adoptive parents’ petition for leave to adopt the child.

The parties continued to live together with the child after the adoption; S.D. quit her job and stayed at home to care for the child, although no party provided exclusive care. In August 1994, the biological mother left home to live near the college in which she had enrolled, and the child remained with the adoptive parents. The biological mother and the child, however, maintained close contact, with the biological mother returning to the family home in Pell City on weekends and at other times. During 1995, the child lived with the biological mother at college with the adoptive parents’ permission. In 1996, the biological mother and the child returned to the adoptive parents’ home and the biological mother began commuting to college. That arrangement continued until 1998, when the biological mother married and moved with her husband to another city for several months; several months later, the biological mother and her husband separated (they were later divorced), and she moved with the child to an apartment in Pell City. The adoptive parents continued to provide financial support to the biological mother and the child throughout this period, although the precise extent of that support is disputed.

On one weekend in September 2000, the adoptive parents discovered that the biological mother was seeing an unmarried man and was allowing him to stay at her apartment in the presence of the child. At that time, the adoptive parents declined to allow the child to live with or visit the biological mother any longer. The biological mother brought an action in October 2000 seeking custody of the child; she later amended that petition to allege that the child was “dependent” in that the child’s custody was the subject of controversy (citing § 12-15-l(10)(c), AIa.Code 1975), and she filed a motion for pendente lite visitation with the child. The juvenile court granted the biological mother two days of visitation each week pending the resolution of the underlying controversy.

After an ore tenus proceeding, the juvenile court entered a judgment denying the biological mother’s petition for custody. In- its judgment, the juvenile court determined, among other things, that both the child and the biological mother had spent the majority of the period following the child’s birth in the home of the adoptive parents; that the child was not a dependent child; and that the adoptive parents had not forfeited custody of the child to the biological mother. The biological mother did not cross-appeal from that judgment, and we therefore do not have before us the question whether the evidence supports these conclusions by the trial court, including its conclusion that the adoptive parents did not relinquish custody to the biological mother.

Although it denied the biological mother’s custody petition, the juvenile court granted the biological mother visitation with the child of two days each week, 30 days each summer, and the period each year from December 25 to December 31; the biological mother was directed not to have male companionship in her home on those occasions. Pursuant to the requirements of Rule 28(A)(1)(a), Ala. R. Juv. P., the juvenile court certified the record as adequate for appellate review.

In their brief on appeal, the adoptive parents contend that because the juvenile court determined that the child was not dependent, it had no authority to award the biological mother visitation rights. The biological mother has not favored this court with a brief.

In Ex parte Bronstein, 434 So.2d 780 (Ala.1983), our Supreme Court noted that “adoption, like birth, creates legal relationships under which adoptive parents gain certain rights which pre-empt any visitation rights by natural parents,” and held that “because there is a societal importance in the establishment of a permanent and stable family unit, an adoption of a child must necessarily sever all former family bonds and relationships.” 434 So.2d at 784 (citations omitted). “The courts are not free, therefore, to intervene on behalf of relatives who seek visitation, especially when the child’s adoptive parents have decided not to permit visitation.” Id. Therefore, as a general rule, persons who adopt children, such as the adoptive parents in this case, assume the role of parents, with all of the rights and responsibilities inherent in that role, to the exclusion of natural parents such as the biological mother. See § 26-10A-29, AIa.Code 1975 (providing that an adopted child “shall be treated as the natural child of the adopting parent” and that “natural parents of the adoptee, except for a natural parent who is the spouse of the adopting parent[,] are relieved of all parental responsibility for the adoptee and will have no parental rights over the adoptee”).

In C.Y. v. C.L., 726 So.2d 733 (Ala.Civ.App.1999), this court concluded that a trial court, after having concluded that a child was no longer dependent and having restored full parental rights to the child’s mother, did not have the power to award alternate-Saturday visitation with the child’s maternal grandmother, a nonpar-ent, where the conditions of the grandpa-rental-visitation statute then in effect (Ala. Code 1975, § 30-3-4 (now repealed)) were not satisfied. Similarly, in this case, the child has been adjudicated not to be a dependent child, and the biological mother cannot claim the benefit of an express visitation statute. Thus, we conclude that the juvenile court erred in awarding visitation rights to the biological mother, and we reverse its judgment. The case is remanded for the trial court to enter an amended judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., dissents.

      . This case was originally assigned to Judge Murdock. An opinion, reversing the trial court’s judgment, was previously ready for release, but was held pending reconsideration by Judge Murdock.

      . In the wake of the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), this court has addressed the constitutionality of Ala.Code 1975, § 30-3-4.1, the successor statute to § 30-3-4, in R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001), and Ex parte State of Alabama, 826 So.2d 178 (Ala.Civ.App.2002).


author: CRAWLEY, Judge. MURDOCK, Judge,

text:
    Brian C. SMITH v. N. Laquetta SMITH.
    2001040.
    Court of Civil Appeals of Alabama.
    May 31, 2002.

      Nancy S. Gaines of Gaines & Gaines, L.L.C., Magnolia Springs, for appellant.

      Susan C. Conlon, Huntsville, for appel-lee.
   CRAWLEY, Judge.

Brian C. Smith, the husband, appeals from a judgment divorcing him from N. Laquetta Smith, the wife. We affirm in part, reverse in part, and remand with instructions.

The record reveals the following: the husband and wife were married in 1991, and two children were born of the marriage. A daughter was born in 1991, and a son was born in 1996. During the marriage, the wife worked as a registered nurse at Huntsville Hospital every other weekend from the beginning of the marriage until 1999. She later worked part-time for Gradkell Systems, Inc., a closely held computer corporation owned primarily by the wife’s brother. The wife voluntarily resigned her position as a nurse in 1999 because of a self-confessed problem with alcohol abuse and narcotics that, among other things, compelled her to inject herself with “waste” portions of narcotics after having administered the prescribed dose to her patients. On April 29, 1999, the wife checked into Bradford Health Services (“Bradford”) for a three-week inpatient-treatment program. The wife’s mother paid the expenses of the program. During her absence, the children stayed with the husband.

Upon returning home, the wife began attending Alcoholics Anonymous (“AA”) meetings and also attended an outpatient-treatment program at Bradford on a regular basis. The husband did not support the wife’s recovery attempts; he refused to attend “Al-Anon” support-group meetings, told the wife that AA meetings were only for “losers,” and told the wife that he was ashamed for anyone to know that she attended AA meetings. The husband also kept alcohol in the home, drank alcohol around the wife, and offered the wife cocktails on occasion. In addition, the husband regularly searched the wife’s possessions and called the numbers on the caller-identification log on the wife’s cellular telephone in an effort to track the wife’s activities. The wife suffered a relapse in March 1999 and resumed her consumption of alcoholic beverages approximately twice a week, drinking one to two bottles of wine on each occasion.

The wife regained sobriety on March 7, 2000, and currently attends AA meetings two to three times weekly, serving as the speaker at some of the meetings. The wife is presently receiving treatment from Dr. Roger Rinn, a clinical psychologist. As a condition to his continuing to treat her, Dr. Rinn insists that the wife undergo random drug-and-alcohol screenings; he has administered a total of seven screening tests since he began treating her in April 2000, and all of those tests have been negative. Dr. Rinn has observed the wife interacting with both of the minor children and has described that interaction with them as appropriate. In addition, Dr. Rinn believes the wife’s status as a recovered alcoholic to have little relevance concerning which parent should act as custodian of the children because, he explained, the chance of relapse falls dramatically after the initial six months of sobriety and also because of the wife’s high level of motivation. The wife has arranged, financed, and provided transportation for all of the children’s extracurricular activities, such as tutoring, karate, dance, swimming, and acrobatics. In addition, she has been the primary caretaker for the children during the course of the marriage.

The husband is a scientist at Coleman Research Corporation and earns $101,500 per year. He has been married twice. He has two children, both boys, from his previous marriage; those boys were ages 11 and 14 at the time of trial. The father does not exercise overnight visitation with his oldest child from his previous marriage because that child will not respect his “house rules,” and spends little time with the younger child, delegating most of the child-care for that child to the wife. Since the wife began treatment at Bradford, the husband has been very invasive of the wife’s privacy, searching her purse, dresser, and car on a regular basis; taping her conversations and public speeches at AA meetings; stealing her private journal that she kept at Bradford as a part of her treatment; and dialing all of the numbers stored in her cell phone, including that of her attorney. The husband has called the police to report various offenses against the wife on five occasions; none of those calls has resulted in any arrests, fines or citations.

The husband sought treatment for himself from a clinical psychologist, Kathryn Allen, for marital stress. Dr. Allen administered a number of tests that are typically used in custody evaluations. She administered the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”); the husband’s results from the MMPI-2 were within normal limits. Dr. Allen also administered the Bricklin Perceptual Scales test to the minor daughter, and Dr. Allen testified that the results revealed that the daughter felt similarly about both parents.

The husband filed a petition seeking a divorce and full custody of the two minor children on March 28, 2000, claiming that the wife was unfit to serve as a custodial parent because she was subject to a relapse into alcohol abuse. After a trial at which ore tenus testimony was presented, the trial court entered a judgment awarding joint legal custody to the parties, with primary physical custody to the wife. In its judgment, the trial court directed the wife to continue treatment with Dr. Rinn for as long as the doctor deemed necessary and authorized the doctor to report to the court any positive results of random drug and alcohol tests administered to the wife. The trial court directed the husband to pay $1,097 per month in child support for the minor children and to maintain hospitalization, major medical, and dental (if available) insurance coverage for the parties’ minor children for so long as the group insurer allows. In addition, the trial court ordered the husband to maintain a policy of life insurance with a minimum value of $150,000, naming the wife as beneficiary on behalf of the children. The trial court made various divisions of personal property in its judgment, awarded the parties their own vehicles, and awarded the wife the marital residence subject to the mortgage indebtedness thereon in the amount of $73,000. The trial court ordered each party to pay the indebtedness in the party’s own name with the exception of a Redstone Federal Credit Union signature loan, which was allocated to each party equally. The trial court awarded the wife no periodic alimony.

The husband filed a postjudgment motion. After the trial court held a hearing on the postjudgment motion, it entered an amended judgment, finding that the wife was voluntarily underemployed and reducing the amount of monthly child support from $1,097 to $1,067 per month; the trial court also directed the wife to avoid consumption of alcoholic beverages when the children were in her care and directed the wife to refinance the marital home within 60 days of the date of the judgment. The husband appealed.

On appeal, the husband claims that the trial court erred to reversal in awarding the wife custody of the two minor children. As to the standard of review applicable to that issue, this court recently quoted our Supreme Court as follows:

“ ‘[W]here evidence is presented ore ten-us, a child custody determination is committed to the sound discretion of the trial court, and [that determination] will not be reversed on appeal absent a finding that the determination is so poorly supported by the evidence as to be plainly and palpably wrong. This standard recognizes the trial court’s unique position to observe the parties and to hear their testimony.’ ”

Moore v. Moore, 795 So.2d 736, 737 (Ala.Civ.App.2001) (quoting Ex parte Watters, 580 So.2d 1352, 1353 (Ala.1991) (citations omitted)). The primary consideration in determining custody is the best interests and welfare of the children. Brown v. Brown, 602 So.2d 429 (Ala.Civ.App.1992). The trial court considers several factors, including the age and needs of the children and each parent’s ability to provide for those needs. Id.

After reviewing the evidence in the record, we conclude that the trial court did not abuse its discretion by awarding custody of the children to the wife. The evidence indicates that either parent would have been a suitable custodian of the children and that each parent is quite capable of caring for the children. In addition, the wife has historically provided the day-today care for the children, and she is accustomed to responding to their needs. Any concerns the husband may have regarding the wife’s potential relapse have been addressed in the trial court’s direction that the wife continue treatment with Dr. Rinn and its having authorized Dr. Rinn to report to the court any positive results from random drug and alcohol tests administered to the wife. Therefore, we affirm the custody award.

The husband argues that the trial court erred to reversal in directing him to provide health insurance for the children of the marriage “for as long as such group insurer allows (i.e. if a full-time student, coverage may be available beyond the child’s age of majority).” He maintains that, if his health insurance carrier allows coverage for dependents beyond the age of majority, this provision would be reversible error. We agree. In this case, there is no evidence regarding whether the husband’s health-care insurer does or does not allow coverage of adult dependents. The direction in the judgment is expressly conditioned on the husband’s health insurer’s agreement to provide such coverage. There is no evidence in the record that that condition has been met to trigger what the husband considers as objectionable coverage. Moreover, the wife has not requested postminority coverage and any request at this time would be premature. This court has held that when children are not yet of college age, an award of postmi-nority support is “premature [and] without evidentiary basis and has reversed such an award.” Massey v. Massey, 706 So.2d 1272, 1273 (Ala.Civ.App.1997). See also Wylie v. Wylie, 794 So.2d 1174 (Ala.Civ.App.2001); Martin v. Martin, 624 So.2d 192 (Ala.Civ.App.1993); Berry v. Berry, 579 So.2d 654 (Ala.Civ.App.1991). Although we reverse the trial court’s award of postminority support because it is premature, we note that this court has upheld a judgment ordering the noncustodial parent to pay health-insurance benefits as a part of postminority support, pursuant to Ex parte Bayliss, 550 So.2d 986 (Ala.1989). See Payne v. Williams, 678 So.2d 1118 (Ala.Civ. App.1996).

The husband also argues that the trial court erred in its division of property and allocation of the marital debt. Although the husband has raised several sub-issues, we believe these issues are best addressed together.

This court must consider the issues of property division and alimony together when reviewing the decision of the trial court, Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995), and, because the facts and circumstances of each divorce case are different, this court must also consider the particular facts and circumstances of the case being reviewed. Murphy v. Murphy, 624 So.2d 620, 623 (Ala.Civ.App.1993). The trial court has wide discretion over alimony and the division of property, and it may use whatever means are reasonable and necessary to equitably divide the parties’ property. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). In making its. division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and their health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). The trial court’s property division will not be set aside on appeal absent a palpable abuse of that discretion. Id.

The wife was awarded the following property by the trial court: the equity in the marital home worth $26,000; the 1992 Previa Van valued at $8,000; the wife’s 401 (k) plan from Gradkell Systems valued at $2,000; the wife’s 401(k) plan from Huntsville Hospital valued at $7,560; one-half of the husband’s 401 (k) plan from Nichols Research Corporation that had been accumulated during the marriage valued at $54,056.56; 420 shares of stock in Gradkell Computers, Inc., valued at $2,868.60; the wife’s bank accounts in her individual name; and one-half of the contents of the marital home. The trial court awarded the husband the 1995 Jeep Cherokee valued at $10,200; one-half of his 401 (k) plan from Nichols Research Corporation that had been accumulated during the marriage valued at $54,056.56; the husband’s 401 (k) plan from Coleman Research Corporation valued at $5,500; the certificate of deposit at AmSouth Bank valued at $1,000; the husband’s individual bank accounts held in his own name; and the remaining half of the contents of the marital home. We note that, at the present time, the husband annually earns approximately $100,000 and the wife makes approximately $20,000. Even in light of the fact that she is currently working part-time, and the court found her to be voluntarily underemployed, the wife’s income-earning ability is substantially less than that of the husband. The evidence indicates that the wife’s family had provided: prepaid college tuition (“PACT”) plans for the children, had purchased the daughter’s bedroom furniture, and had paid for several family trips, as well as for the wife’s substance-abuse treatment. The husband also claims that the record contains no evidence of retirement benefits earned during the marriage. The record does not support that claim; an exhibit offered by the husband and admitted into evidence shows the husband’s retirement benefits accumulated during the marriage.

The parties were married on January 6, 1991. The husband filed the complaint for divorce on March 23, 2000. The final judgment of divorce was entered almost a year later, on March 13, 2001. The husband claims that the wife was not entitled to retirement benefits because the couple had not been married for 10 years at the time the divorce was filed. The allocation of retirement benefits in divorce proceedings is addressed in § 30-2-51, Ala.Code 1975. Section 30-2-51(a) provides in part that “the judge, upon granting a divorce,” may direct that marital property from one spouse’s estate be given to the other spouse. Subsection (b), which immediately follows this subsection provides:

“(b) The judge, at his or her discretion, may include in the estate of either' spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

(Emphasis added.)

The husband argues that because he and the wife had not been married for 10 years at the time the divorce action was filed, it was error for the trial court to award any of his retirement benefits to the wife. We agree. Although § 30-2-51 is not a model of legislative clarity, we conclude that it requires that the parties must have been married for at least 10 years on the date the action for divorce is filed.

“The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where the plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.”

IMED Corp. v. Systems Eng’g Assoc. Corp., 602 So.2d 344, 346 (Ala.1992) (citing Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 589 So.2d 687 (Ala.1991)).

A reading of § 30-2-51(b) indicates that a trial judge has the discretion to divide a spouse’s retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits. Section 30-2-51(b) then states that the trial judge’s discretion to divide retirement benefits is further limited by three additional conditions: the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50 percent division rule of subsection (3). The apparent meaning of these provisions, when read as a whole, is that the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for 10 years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court.

Three time-dependent events or conditions are mentioned in the statute, namely: “vesting,” “receiving,” and the existence of a 10-year marriage. Logically, the trial judge should be required to look to the same date to determine the existence of all three events. We conclude that the legislature intended that the date be when the complaint for divorce was filed. The result argued for by the wife — -that the length of the marriage should be measured by the date the judgment divorcing the parties is entered — could cause the division of retirement benefits to be dependent on the following arbitrary and fortuitous circumstances: the congestion of the domestic docket, the complexity of the case, or the number of continuances requested or granted. Thus, the trial court’s ruling on continuances or the time of rendering a judgment (including any amended judgments in response to Rule 59 motions) could determine whether retirement benefits were divisible. The performance of an administrative duty by a trial court should not be allowed to affect the merits of a case. In seeking to ascertain legislative intent, a court may consider the consequences resulting from one meaning rather than another and adopt the construction that avoids an illogical, unreasonable, or unfair result. See Studdard v. South Central Bell Tel. Co., 356 So.2d 139, 142 (Ala.1978). “If a statute is susceptible of two constructions, one of which is workable and fair and the other unworkable and unjust the court will assume that the legislature intended that which is workable and fair.” See State v. Calumet & Hecla Consol. Copper Co., 259 Ala. 225, 233-34, 66 So.2d 726, 731 (1953). We hold that the most workable and fair interpretation of § 30-2-51(b) is that the duration of the parties’ marriage should be measured by the date of the filing of the complaint for divorce. The trial court’s award to the wife of a portion of the husband’s retirement benefits is, therefore, reversed.

The husband received approximately $71,000 of marital assets compared to the wife’s receipt of approximately $100,485 of marital assets. Because the entire judgment, including the division of marital assets and the failure to award periodic alimony must be considered together in order to determine whether the trial court abused its discretion, see Hanna v. Hanna, 688 So.2d 887 (Ala.Civ.App.1997), and because we are reversing the trial court’s award to the wife of a portion of the husband’s retirement benefits, we must remand this case with instructions that the trial court reconsider the division of the marital assets and the award of periodic alimony. Although § 30-2-51(b)(l) precludes the division of the husband’s retirement benefits as marital property, the retirement benefits may be considered as a source of income to the husband from which to pay periodic alimony. See Brasili v. Brasili, 827 So.2d 813, 821 n. 9 (Ala.Civ.App.2002).

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in part in the rationale and concurs in the result.

MURDOCK, Judge,

concurring in part in the rationale and concurring in the result.

I concur in that portion of the main opinion affirming the trial court’s award of custody of the children to the wife. As to the remaining issues addressed in the main opinion, I concur in the result.

      . The wife explained that narcotics were supplied in vials containing 50 milligrams ("mg.”) and 100 mg doses; she stated that, for example, if a patient were prescribed only 75 mg, of a popular narcotic, 25 mg would have to be "wasted.” The "wasted” portion of the narcotic was the unused portion in the vial that would have been discarded pursuant to hospital procedure.

      . A substance-abuse rehabilitation center.

      . There is no evidence as to the value of the accounts of either party.

      . This represents the value after the deduction of the $4,800 lien.


author: CRAWLEY, Judge.

text:
    ALAPLEX TRANSPORTATION, INC. v. Robert ROSSEN.
    2000826.
    Court of Civil Appeals of Alabama.
    May 31, 2002.
    James S. Ward of Corley, Moncus & Ward, P.C., Birmingham, for appellant.
    Robert W. Hanson, Albertville, for ap-pellee.
   CRAWLEY, Judge.

This appeal concerns whether Robert Rossen — a truck driver whose services were secured by R.P. Gray, the independent owner and operator of the truck in which Rossen suffered a permanent partial disability as a result of an automobile accident — can properly bring a claim for benefits under the Alabama Workers’ Compensation Act, § 25-5-1 et seq., Ala.Code 1975, against Alaplex, Inc. (“Alaplex”), a common carrier that had entered into a lease agreement with Gray.

The record reveals that Rossen was involved in an automobile collision in October 1997 along Interstate Highway 95 while transporting a load of automobiles from Charleston, South Carolina, to Cape Canaveral, Florida. After the collision, Rossen, who was 64 years old at the time, was hospitalized in Florida for two nights; he later sought treatment from a physician in Gadsden for neck and shoulder problems purportedly related to the collision.

At the time Rossen was involved in the collision, he was operating a truck leased by Alaplex from Gray pursuant to an agreement that contained, among other things, the following terms:

“Carrier [Alaplex] is engaged in the interstate ... transportation of commodities as a common ... carrier under authority from the Interstate Commerce Commission (hereinafter TCC’) and the Alabama Public Service Commission (hereinafter ‘APSC’);
“... Contractor [Gray] is engaged in the transportation of freight by motor vehicle.
“2. Contractor hereby agrees to furnish to Carrier upon the latter’s request the equipment described Appendix ‘A’ [i.e., two tractors and two trailers]. Carrier shall have the exclusive possession, control, and use of the equipment furnished by Contractor for the duration of this agreement.
“3. Carrier agrees to pay Contractor 85 percent of gross revenue derived by Carrier from the full and proper performance of this agreement by Contractor subject, however, to the following conditions:
“(A) Payment shall be withheld until submission to Carrier of all properly completed documents and paperwork related to the transportation of commodities as may be required by Carrier, the ICC, the United States Department of Transportation (hereinafter ‘DOT’), or any other governmental entity or agency, including but not limited to all delivery receipts, bills of lading, driver’s logs, destination records, and driver’s fuel tax reports.
“5. Contractor agrees that all equipment furnished hereunder shall be subject to the inspection and approval of Carrier as to compliance with the rules and regulations of the DOT and various states in or through which Carrier operates. It is further understood that Contractor’s equipment for the duration of this agreement shall be in compliance with all federal and state regulations presently in force or enacted in the future, and that any expense associated therewith is and shall be borne by Contractor.
“6. If the Contractor determines that it is necessary to use drivers, driver helpers, laborers or others to perform the work under this agreement, they shall be employed at the Contractor’s expense. Such employees shall be qualified under and meet all requirements of applicable federal and state laws and municipal ordinances and the rules and regulations of the ICC, DOT, APSC and any other governmental agency having jurisdiction in such matters, and such qualifications shall be satisfactorily proven to Carrier prior to performance of driving duties.... Carrier reserves the right to decline to load any driver based on qualifications, performance or any inadequacies as deemed necessary by Carrier. Carrier does not, however, assume any responsibility for direction and/or control of Contractor’s employees. Contractor shall be solely responsible for the direction and control of its employees in fulfilling its obligations under this agreement including but not limited to:
“(A) The rejection of any loads, choice of lawfully authorized routes, the number of drivers and helpers to be used, points for servicing equipment, rest stops and other similar or pertinent matters;
“(B) Selecting, hiring, supervising, directing and training its employees; and
“(C) Setting of wages, hours and working conditions, and the paying or adjusting of any grievance relating to any service provided under this agreement by any of its employee.
“10. Contractor agrees to and shall comply with all applicable [workers’] compensation statutes concerning its employees, and Contractor shall indemnify and hold Carrier harmless for all claims and demands thereof that may be made against Carrier. Contractor further agrees that any and all costs incurred in the handling, settling, and/or defending any and all claims, including court costs and attorneys fees, will be paid by Contractor, and that Carrier reserves the right to obtain legal counsel, file legal action and/or obtain professional services as deemed necessary by Carrier in order to protect Carrier’s interest at Contractor’s expense. Contractor agrees that any such expenses are payable upon demand and may be withheld from any sums of money due to Contractor by Carrier.
“16. Contractor agrees to conduct all activities and personal conduct in the best business interest of Carrier and to
perform the transportation under this agreement in a safe, competent and workmanlike manner and at the earliest time practicable and permissible under ICC, APSC and DOT rules and regulations, after the freight is tendered for movement by the shipper....
“17. Contractor agrees to comply with all of the terms and conditions, rules and regulations, and company policies as set forth in Alaplexfs] Owner-Operator/Driver’s Manual and any revisions thereof as may be issued from time to time during the course of this agreement. A copy of same is attached hereto and incorporated into this lease agreement. Contractor further acknowledges that Contractor has received and understands the aforementioned Owner-Operator/Driver’s Manual.
“19. ... The parties agree that Contractor is and shall be an independent contractor free from any control of Carrier as to means and methods of accomplishing results herein contracted for and that there shall be no relationship of employer and employee at any time under any circumstances or for any purpose between Carrier and Contractor or Contractor’s drivers, agents, servant or other employees.
“20. Carrier may, at its own discretion advance mon[ey]s to Contractor or on Contractor’s behalf for repairs, permits, tags, insurance or other expenses; and Contractor agrees that any such advance(s) will become a debt of said Contractor and shall be due upon demand.”

The record reveals that Rossen was hired by Gray in 1988 and that he drove trucks for Gray for nine years; during the majority of that time, Gray’s trucks were leased exclusively to Alaplex. Gray paid Rossen one-quarter of the gross revenue Gray received from Alaplex as a result of Rossen’s hauling of loads for Alaplex; however, Gray did not withhold taxes on Rossen’s behalf. With respect to workers’ compensation coverage, Gray had informed Rossen that Alaplex would not provide that coverage for Rossen. Gray did not himself provide workers’ compensation coverage for Rossen, but he had assisted Rossen in securing occupational insurance to cover any injuries he might sustain. Rossen’s occupational-insurance carrier paid his medical bills after his injury and made disability payments to Rossen amounting to approximately $600 each month for 13 months after his injury; however, those payments have ceased because that insurance coverage did not provide for the continuation of disability payments beyond Rossen’s reaching 65 years of age.

In April 1999, Rossen sued Alaplex seeking benefits under the Workers’ Compensation Act. Alaplex’s motion to dismiss was denied. Alaplex then filed a motion for a summary judgment, contending that under § 25-5-1(4), Ala.Code 1975, Alaplex was not, as a matter of law, Rossen’s “employer” so as to subject Alaplex to liability under the Act. The trial court denied Ala-plex’s summary-judgment motion, but ordered separate hearings on the two issues presented: whether an employer-employee relationship existed between Alaplex and Rossen and, if so, what benefits Rossen should receive from Alaplex.

After the first hearing, the trial court entered an order concluding that Rossen was an employee of Alaplex at the time of the collision. In so ruling, that court relied upon evidence tending to show that Rossen had been paid based upon the loads provided by Alaplex; that Alaplex’s dispatchers had instructed Rossen to pick up and deliver shipments in the same manner that those dispatchers had instructed Alaplex’s own employees; that Rossen was expected to contact Alaplex should he encounter problems on the road or should he need an advance for expenses; that Ros-sen was required to comply with procedures imposed by Alaplex, its customers, and DOT; that Alaplex had held meetings with Rossen and other drivers; that Ala-plex had issued “certificates of appreciation” to Rossen in 1991 and 1996; and that under federal precedents and regulations, Rossen would be classified as a “statutory” employee of Alaplex.

Alaplex filed a third-party complaint against Gray, asserting that Gray had a contractual duty under the equipment lease between Alaplex and Gray to defend and indemnify Alaplex as to Rossen’s claim. Rossen moved to sever the third-party claim; that motion was denied. Gray then asserted a claim against Rossen, seeking damages arising from damage to the truck Rossen was operating at the time of the collision. Alaplex filed an answer in February 2000 in which it denied that it had been Rossen’s employer, contended that Rossen had engaged in willful misconduct in causing the accident, and asserted that the applicable statute of limitations barred Rossen’s claim. Rossen’s occupational-insurance carrier was then permitted to intervene to protect its subro-gation interest. Alaplex filed a second summary-judgment motion, asserting that the collision in which Rossen was involved was not the proximate cause of his disability, and Gray filed a summary-judgment motion making the same assertion; however, the trial court denied both of those motions.

The trial court then held an ore tenus proceeding concerning Rossen’s entitlement to benefits under the Workers’ Compensation Act. During that proceeding, Alaplex and Gray moved for a judgment on partial findings (see Rule 52(c), Ala. R. Civ. P.) at the close of Rossen’s evidence and at the close of all the evidence, asserting not only the grounds stated in the previous summary-judgment motions, but also arguing the application of the doctrine of “quasi-judicial” estoppel and misconduct. After denying these dispositive motions, the trial court entered a judgment directing Alaplex to pay Rossen temporary-total-disability and permanent-partial-disability benefits under the Workers’ Compensation Act based upon its finding that Rossen had suffered a 25 percent disability as a result of the collision. However, the trial court entered a judgment in favor of Alaplex on its third-party claim against Gray and directed Gray to indemnify Alaplex as to the compensation award and to pay attorney fees to Alaplex of $7,500. All other relief was denied. Alaplex appeals.

Because jurisdictional issues, including that of standing, should be considered by an appellate court ex mero motu (see C.Y.M. v. P.E.K., 776 So.2d 817 (Ala.Civ.App.2000), and Scheinert v. Southern Rubber Co., 764 So.2d 1291, 1292 (Ala.Civ.App.2000)), we must first address the issue of Alaplex’s standing to appeal. As we have noted, the trial court entered a judgment in favor of Alaplex on its third-party claim, i.e., it ordered Gray to indemnify Alaplex as to its workers’ compensation payments to Rossen and its attorney fees and costs. Thus, Alaplex is arguably not an aggrieved party having a genuine stake in the outcome of this appeal.

However, when a similar situation presented itself in Bolack v. Underwood, 340 F.2d 816 (10th Cir.1965), the United States Court of Appeals for the Tenth Circuit concluded that to dismiss an appeal brought by a party from a judgment favorable to the plaintiff but unfavorable as to a third-party defendant “would detract from the benefits of third party practice and would be inconsistent with the inherent policy of Rule 14(a), Fed.R.Civ.P.” 340 F.2d at 819. In accord is Aetna Cas. & Sur. Co. v. Smith, 127 A.2d 556 (D.C.1956), in which the District of Columbia Court of Appeals declined to hold that the recovery of a judgment against a third-party defendant precludes a third-party plaintiff from appealing the judgment against it in favor of the plaintiff, saying that to do so “would be an unwarranted restriction of a party’s right to appellate review.” 127 A.2d at 558. In the absence of any indication in the record that Alaplex has executed on its judgment against Gray, we deem it similarly inappropriate to dismiss Alaplex’s appeal for lack of standing on the basis that Alaplex prevailed on its third-party claim.

We thus proceed to consider the merits of Alaplex’s appeal. The standard of review in a workers’ compensation case was stated by our supreme court in Ex parte Trinity Indus., Inc., 680 So.2d 262 (Ala.1996):

“[W]e will not reverse the trial court’s finding of fact if that finding is supported by substantial evidence — if that finding is supported by ‘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.’ ”

680 So.2d at 268-69 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). However, “an appellate court’s review of the proof and its consideration of other legal issues shall be without a presumption of correctness.” American Color Graphics, Inc. v. Foster, 838 So.2d 374, 381 (Ala.Civ.App. 2001) (citing Ala.Code 1975, § 25-5-81(e)(1)).

The origin of the modern Workers’ Compensation Act can be traced to an act of the 1919 Alabama Legislature. At the time of its original enactment, a portion of the original Workers’ Compensation Act provided that its provisions should “not be construed or held to apply to any common carrier doing an interstate business while engaged in interstate commerce.” That language was later codified at Ala.Code 1923, § 7543; Ala.Code 1940, tit. 26, § 263; and Ala.Code 1940 (Recomp.1958), tit. 26, § 263. During the period when that exclusion constituted a part of Alabama’s workers’ compensation law, it was held that employees of a common carrier could not recover workers’ compensation benefits for injuries arising out of and in the scope of their employment. See, e.g., Birson v. Decatur Transfer & Storage, Inc., 271 Ala. 240, 122 So.2d 917 (1960).

Just under 30 years ago, the Legislature adopted Act No. 1062, 1973 Ala. Acts, which was titled, in pertinent part, “An Act ... extending coverage to common carriers but specifying certain persons not to be employees of common carriers.” Act No. 1062 repealed that portion of Ala.Code 1940 (Recomp.1958), tit. 26, § 263, that exempted common carriers in interstate commerce from the Act. However, the Legislature did not impose blanket liability upon such carriers, because it also amended subsection (d) of Title 26, § 262, to read as follows:

“The term ‘employer’ as used herein shall mean every person not excluded by Section 263 of this title who employs another to perform a service for hire and to whom the ‘employer’ directly pays wages ... however not withstanding [sic] any section of articles 1 and 2 of this chapter, in no event shall a common carrier by motor vehicle operating pursuant to a certifícate of public convenience and necessity be deemed the ‘employer’ of a leased-operator or owner-operator of a motor vehicle or vehicles under contract to such a common carrier.”

Thus, by amending the definition of the word “employer” in the Workers’ Compensation Act, the Legislature, in effect, chose in 1973 to maintain the immunity afforded under the Act to common carriers in one particular situation, i.e., where common carriers have entered into contracts with owners of motor vehicles for the use of those vehicles. This portion of the definition of “employer” was recodified with the remainder of the Workers’ Compensation Act, and now appears (with some slight stylistic changes) at § 25-5-1(4), Ala.Code 1975; it has remained substantively unchanged since its enactment in 1973. However, we are not aware of any cases in which the exception to common-carrier liability under the Act that now appears in § 25-5-1(4) has been addressed by this court or by the Alabama Supreme Court. See 2 Terry A. Moore, Alabama Workers’ Compensation, § 30:23 n. 41 (1998) (stating that “[t]his exclusion has never been construed by the courts”).

Nevertheless, as Alaplex notes in its appellate brief, Alabama is not alone in excluding common carriers from liability to owner-operators and leased operators under its workers’ compensation laws. Our research has found that a number of states, including Colorado, Georgia, Iowa, Oklahoma, and Tennessee, provide for a general no-liability rule with respect to workers’ compensation claims of owner-operators or leased operators against contracting common carriers. CoIo.Rev.Stat. Ann. § 8^40-301(5) (West 2001); Ga.Code Ann. § 34-9-1(2) (1998 & Supp.2001); Iowa Code § 85.61(13) (1995 & Supp.2001); Okla. Stat. Ann. tit. 85, § 3(6) (West Supp. 1997); Tenn.Code Ann. § 50-6-106(1)(A) (1999). Courts in most of these states have held that the legislative exclusion of common carriers from the definition of “employer,” or the exclusion of an owner-operator or a leased operator from the definition of “employee” or “worker,” will bar liability under workers’ compensation law. E.g., Scott v. Matlack, Inc., 1 P.3d 185, 188 (Colo.Ct.App.1999), rev’d on other grounds, 39 P.3d 1160 (Colo.2002); Upshaw v. Hale Intermodal Transp. Co., 224 Ga.App. 239, 480 S.E.2d 277 (1997); Young v. Barbour Trucking Co., 856 P.2d 599, 600-01 (Okla.Ct.App.1993); Long v. Stateline Sys., Inc., 738 S.W.2d 622, 623-24 (Tenn.1985).

However, in only one state having an express owner-operator exclusion has the question of a common carrier’s liability to agents of owner-operators been conclusively adjudicated by that state’s highest court. In Long v. Stateline Systems, the Tennessee Supreme Court affirmed a summary judgment in favor of a common carrier on a claim brought under that state’s workers’ compensation law by a surviving spouse of a driver of a vehicle that had been leased by a common carrier from an owner-operator. In that ease, the common carrier’s “Equipment Lease Agreement” with the owner-operator specified that the owner-operator would be responsible for the costs of operation, including payments for injury or damage to operators or drivers and workers’ compensation for operators or drivers. The pertinent Tennessee statute under review, like § 25-5-1(4), Ala. Code 1975, provided that “ ‘no common carrier by motor vehicle operation pursuant to a certificate of public convenience and necessity shall be deemed the “employer” of a leased-operator or owner-operator of a motor vehicle or vehicles under a contract to such a common carrier.’ ” 738 S.W.2d at 623.

On appeal, the surviving spouse argued that the Tennessee statute did not exclude “employees” of owner-operators or leased operators. The Tennessee Supreme Court rejected that argument, noting that principles of statutory construction indicated that the terms “owner-operator” and “leased operator” should be given different meanings; that court held that the term “leased-operator must be construed to be a non-owner operating a vehicle pursuant to a lease agreement.” 738 S.W.2d at 623. In addition, the Tennessee court concluded that the language of the pertinent statute “removfed] common carriers from consideration as the statutory employer o[f] an owner-operator or leased-operator.” Id. at 624; accord, Joslin v. Michigan Mut. Ins. Co., 742 S.W.2d 263, 265 (Tenn.1987) (workers’ compensation plaintiff operating a truck owned by owner-operator and leased to common carrier holding certificate of convenience and necessity “was an employee of an owner-operator and was himself a leased operator” and “[i]n each of those capacities ... was precluded from being” common carrier’s employee).

Thus, both Long and Joslin belie the trial court’s conclusion that Rossen “is neither a leased operator nor an owner operator.” Furthermore, those cases support the proposition that where the Legislature manifests an intent to exclude common carriers entering into lease contracts with owner-operators from the class of employers subject to liability under a workers’ compensation law, that intent may not be defeated by an owner-operator’s mere delegation of driving duties to another driver, i.e., in the words of Long and Joslin, to a “leased operator.” While Rossen is correct that this court has held that that portion of § 25-5-1(4) that generally defines an “employer” as one who pays wages “directly to” the person hired is not the sole basis for determining who is an employer (see American Tennis Courts, Inc. v. Hinton, 378 So.2d 235 (Ala.Civ.App.1979)), the Legislature has, in this limited factual context, unequivocally foreclosed consideration of other factors by stating in § 25-5-1(4) that in no event shall a common carrier be deemed the “employer” of an owner-operator or a leased operator.

Based upon the foregoing facts and authorities, we conclude that the trial court’s legal conclusion that Alaplex was Rossen’s “employer” was erroneous. The remaining issues raised by Alaplex — whether Rossen’s claim against Alaplex was barred by the doctrine of estoppel or by willful misconduct and whether Rossen suffered a permanent partial disability as a result of the collision made the basis of his claim— are moot. We reverse the trial court’s judgment and remand the cause for further proceedings, to include the entry of a judgment in favor of Alaplex on Rossen’s claims against it.

REVERSED AND REMANDED.

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


text:
    Tamara L. McQuinn SLOANE v. Jeffery T. McQUINN.
    2010037.
    Court of Civil Appeals of Alabama.
    June 7, 2002.
    F. Patrick Loftin of Loftin, Loftin & Hall, Phenix City, for appellant.
    James M. Ivins, Phenix City, for appel-lee.
   CRAWLEY, Judge.

Tamara L. McQuinn Sloane (“the mother”) and Jeffery T. McQuinn (“the father”) were divorced in 1994. The mother was awarded physical custody of the parties’ two children. Other than during a seven-month period in 1996, during which the children lived with the father when he resided in Michigan, the children have resided with the mother. In March 1998, the court modified the divorce judgment, awarding the parties “joint custody,” but awarding the mother “primary custody” and the father “secondary custody.”

In October or November 1999, the mother allowed the children to live with the father. The reason underlying this arrangement was disputed. When the father put off returning the children after she requested that they be returned, the mother sought the advice of an attorney, who advised her that she had custody of the children pursuant to the divorce judgment. The mother then refused to return the children to the father after a “visit” with her in August 2000.

The father filed a petition to modify custody in October 2000. In April 2001, the trial court granted the father custody pendente lite. After a hearing at which the mother, the father, the mother’s mother, and the mother’s current mother-in-law testified, the trial court, in September 2001, awarded custody to the father. The mother appeals.

The mother argues that the trial court erred either by failing to apply the standard announced in Ex parte McLendon, 455 So.2d 863 (Ala.1984), or by determining that the father had met that burden. The McLendon standard is well-settled. A parent seeking a change in custody must establish that the change would materially promote the interests and welfare of the child and that the benefits of the change in custody would “ ‘more than offset the inherently disruptive effect caused by uprooting the child.’ ” King v. King, 521 So.2d 69, 70 (Ala.Civ.App.1988) (quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)).

The trial court’s order indicates that it did apply the McLendon standard to this case. It expressly found that the children’s fives would not be disrupted by awarding custody to the father because they had been in the father’s custody pursuant to the pendente lite order entered in April 2001 and found that the children’s fives were disrupted in “the Fall of 1999 when the [mother] left the children with the [father].” It also determined that the children’s best interests would be served and that a positive good would obtain by placement in the father’s custody because the father could provide a more stable environment and because “it is the belief of this Court that the children have performed better socially and academically while in the father’s care.”

We agree with the mother that the trial court erred in determining that the father met the burden imposed upon him by Ex parte McLendon. The trial court based its determination that the children’s interests would be materially promoted by a change in custody, in part, on the “more stable” home of the father. Our review of the record reveals no evidence impugning the stability of the mother’s home. She is now remarried and has resided in the same mobile home for two years; the father admits the home is suitable and well-kept. The father fives in a home behind his mother’s home, and, when the children are in his custody, the son sleeps in a bedroom on the first floor of his mother’s home, while he, his girlfriend, and the daughter sleep in his home.

The trial court also expressed its belief that the children performed better academically and socially while in the custody of the father. A comparison of the grades the son made during the relevant periods indicates that the child’s grades fluctuated slightly at times but that, on the whole, his grades were similar during the periods he resided with either parent. In fact, the son’s lowest grade was received during the period he resided with his father under the pendente lite order. The son was involved in the same extracurricular activity— band — while living with both parents. The daughter was in kindergarten when she first went to live with her father in the fall of 1999. She was retained in kindergarten at the completion of the school year. No other information concerning the children’s school or social lives is contained in the record.

Although we recognize .that the ore ten-us presumption prevents this court from reweighing the evidence in cases where the trial court hears oral testimony, makes credibility determinations, and observes firsthand the credibility and demeanor of the witnesses, we are not constrained to affirm a judgment of the trial court when the evidence fails to support the findings upon which that judgment is based. Andrews v. Andrews, 495 So.2d 688 (Ala.Civ.App.1986). We conclude that the father failed to present sufficient evidence indicating that the children’s best interests would be materially promoted by a change in custody. Accordingly, we reverse the trial court’s judgment modifying custody.

REVERSED AND REMANDED.

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