author: LYONS, Justice. JOHNSTONE, Justice

text:
    Ex parte FIRST ALABAMA BANK, now known as Regions Bank. (In re Donald J. Vincent v. First Alabama Bank and Betty Vincent).
    1020855.
    Supreme Court of Alabama.
    Sept. 12, 2003.
    As Modified on Denial of Rehearing Nov. 21, 2003.

      R. Cooper Shattuck and Jane L. Cala-musa of Rosen, Cook, Sledge, Davis, Cade & Shattuck, P.A., Tuscaloosa, for petitioner.
    William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham, for respondent.

       Rule 16(b), Ala. R. App. P., provides that when by reason of disqualification the number of Justices competent to sit in the determination of a cause is reduced, a majority shall suffice, but in no event may a cause be determined unless at least four Justices sitting shall concur.

   LYONS, Justice.

First Alabama Bank, now known as Regions Bank (“the Bank”), petitions for cer-tiorari review of the Court of Civil Appeals’ opinion reversing the trial court’s summary judgment in its favor. We reverse the judgment of the Court of Civil Appeals.

I. Facts and Procedural History

Including today’s opinion, this litigation has generated five appellate opinions. The most recent opinion of the Court of Civil Appeals, Vincent v. First Alabama Bank, 883 So.2d 1231 (Ala.Civ.App.2002) (“Vincent TV”), quotes Vincent v. First Alabama Bank, 770 So.2d 86 (Ala.Civ.App.1998) (“Vincent /”), and describes the procedural history as follows:

“‘Donald Vincent sued [the Bank] and Betty Jo Vincent, his wife, alleging negligence, breach of contract, conversion, and wantonness claims. Vincent alleged that he had rented two safe deposit boxes from the bank and had placed $500,000 in cash and certificates of deposit in the boxes. However, he claims that when he opened the boxes on November 21, 1991, the boxes were empty. Vincent alleges that Betty Jo Vincent, his wife, gained unauthorized access to the boxes and removed the money. The bank filed a cross-claim against the wife.
“ ‘A jury returned a verdict in favor of Vincent against the bank on the negligence claims and against the wife on the conversion claim, awarding him $10,000 in damages. The jury found in favor of the bank on Vincent’s breach of contract and wantonness claims. The jury found in favor of the bank on its cross-claim against the wife and awarded it $10,000. Thereafter, Vincent filed a motion for a new trial and the bank renewed its earlier motion for a judgment as a matter of law. The trial court denied both motions. Vincent and the bank appealed.’

“[Vincent v. First Alabama Bank, 770 So.2d 86, 88 (Ala.Civ.App.1998) (‘Vincent /’).] In Vincent I, this court affirmed the trial court’s denial of Vincent’s new-trial motion, which had asserted that that court had improperly refused to admit certain evidence; we also affirmed the trial court’s denial of the bank’s renewed motion for a [judgment as a matter of law] (see Rule 50(b), Ala. R. Civ. P.), which had asserted, among other things, that a release appearing on the form that Vincent had signed when he closed the safety-deposit boxes barred his claims against the bank as a matter of law.

“Vincent subsequently sought certio-rari review of our affirmance in Vincent I of the trial court’s denial of his new-trial motion. In Ex parte Vincent, 770 So.2d 92 (Ala.1999) (‘Vincent II’), the Alabama Supreme Court reversed this court’s judgment affirming of the trial court’s denial of Vincent’s new-trial motion, concluding that a ledger that had been kept by Betty Vincent should have been admitted into evidence. 770 So.2d at 96. The Supreme Court remanded the cause to this court ‘for further proceedings consistent with [its] opinion.’ [770 So.2d at 96.] On remand from the Supreme Court, this court reversed the trial court’s order denying Vincent’s new-trial motion, stating that the cause was ‘remanded for a new trial.’ Vincent v. First Alabama Bank, 770 So.2d 97 (Ala.Civ.App.2000) (‘Vincent III ’).

“In January 2001, after the cause had been remanded to the trial court for a new trial, the circuit judge who had presided over the original trial left office. In August 2001, the bank filed a motion for a summary judgment. As one of its bases for that motion, the bank asserted that Vincent had released the bank from liability, citing the release addressed by this court in Vincent I. The bank also asserted that Vincent’s claims were barred by the doctrine of judicial estoppel because he had, according to the bank, represented under oath in previous bankruptcy proceedings and in divorce litigation with a former wife, Billie Vincent, that he did not have the $500,000 that he claimed Betty Vincent had removed from the safety-deposit boxes at the bank. The bank’s summary-judgment motion was supported by, among other things, excerpts from Vincent’s transcribed deposition testimony and from the transcript of his testimony at the original trial. Vincent responded by asserting, among other things, that a summary judgment based upon the release would be inconsistent with our holding in Vincent I, that a defense based upon judicial estoppel could not properly be asserted at that time, and that judicial estoppel was inapplicable under the facts of the case.

“In September 2001, the successor circuit judge entered a summary judgment in favor of the bank and Betty Vincent. In its summary-judgment order, the trial court relied primarily upon the doctrine of judicial estoppel, although it also cited the release as an alternative ground. Vincent appealed to the Alabama Supreme Court, filing two notices of appeal, one as to the bank and one as to Betty Vincent; that court transferred the appeals to this court, pursuant to § 12-2-7(6), Ala.Code 1975.”

Vincent IV, 883 So.2d at 1232-33 (footnote omitted).

The Court of Civil Appeals in Vincent TV reversed the trial court’s summary judgment in favor of the Bank and Betty Jo Vincent and remanded the case for further proceedings. The Bank petitioned for certiorari challenging the failure of the Court of Civil Appeals in Vincent IV to uphold the trial court’s summary judgment on the basis of the release and the doctrine of judicial estoppel. We granted the petition only as to the issue whether the doctrine of judicial estoppel entitles the Bank to a summary judgment.

II. Standard of Review

Our review of a summary judgment is de novo. “A motion for summary judgment is granted only when the evidence demonstrates that ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ Rule 56(c), Ala. R. Civ. P.” Reichert v. City of Mobile, 776 So.2d 761, 764 (Ala.2000). We apply “the same standard as that of the trial court in determining whether the evidence before the court made out a genuine issue of material fact.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988); System Dynamics Int'l, Inc. v. Boykin, 683 So.2d 419, 420 (Ala.1996). In order to defeat a properly supported motion for a summary judgment, the nonmoving party must present substantial evidence that creates a genuine issue of material fact. “[Sjubstan-tial 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).

III. Analysis

The Bank maintains that it is entitled to a summary judgment based upon the doctrine of judicial estoppel. Vincent contends that the Bank waived its right to assert the defense of judicial estoppel and that the Bank cannot satisfy the requirements of privity and reliance essential to the application of the doctrine of judicial estoppel.

A. Waiver

Vincent argues in his brief that the Bank waived its right to assert the defense of judicial estoppel “by allowing time and litigation expenses to accrue for eight years before it decided to advance this defense” in its August 2001 motion for a summary judgment. Vincent concedes that “the Bank generally asserted the defense of ‘estoppel’ in its answer filed on May 4,1994,” but he argues that it was not until the August 2001 motion for a summary judgment that “the Bank took any action to buttress the estoppel allegation or to even assert the more specific theory of judicial estoppel.”

This argument is without merit. The Bank pleaded “waiver and estoppel” in its original answer filed in May 1994. While this answer did not specify that the Bank was pleading judicial estoppel as a defense, it was sufficient to preserve the Bank’s right to assert that defense. In addition, the remand of this case ordered by the Court of Civil Appeals in Vincent v. First Alabama Bank, 770 So.2d 97 (Ala.Civ.App.2000) (“Vincent III ”) did not limit the proceedings of the trial court except as indicated by Vincent I and Ex parte Vincent, 770 So.2d 92 (Ala.1999) (“Vincent II ”). See Vincent I, 770 So.2d 92 (which did not limit the new trial to specific issues); see also Vincent II, 770 So.2d at 97. As the Court of Civil Appeals stated in its review of this issue:

“The bank asserted estoppel as a defense in its answer, and the trial court, in the exercise of sound judicial discretion, was authorized to permit the bank to argue that Vincent’s claims were barred by the doctrine of judicial estop-pel. See Federal Land Bank of New Orleans v. First Nat’l Bank of Scottsboro, 237 Ala. 84, 88, 185 So. 414, 417 (1938); see also Stover v. Alabama Farm Bureau Ins. Co., 467 So.2d 251 (Ala.1985).”

Vincent IV, 883 So.2d at 1234-35.

B. Availability of the Defense of Judicial Estoppel

In evaluating the Bank’s judicial-estoppel defense, the Court of Civil Appeals recognized that Vincent had admitted that he testified in a 1982 bankruptcy proceeding and in a 1985 divorce action involving a previous wife that he did not have the $500,000 he has alleged in the instant proceeding was in his safe-deposit box. The Court of Civil Appeals stated:

“Specifically, Vincent did not report $500,000 in cash and cashier’s checks to the bankruptcy court, but concealed that money from that court and from his creditors and lied during a creditors meeting in that case because he wanted to retain those funds after the conclusion of the bankruptcy proceedings. Moreover, Vincent apparently informed Billie Vincent of his intent to defraud the bankruptcy court, but later, under oath in the subsequent divorce proceedings, denied having had that money and having had a safety-deposit box. Vincent’s position in this litigation with the bank is apparently in direct opposition to the positions he took in the bankruptcy proceedings and in his divorce litigation with Billie Vincent and arguably casts severe doubt upon his credibility.”

Vincent IV, 883 So.2d at 1235.

The Bank argues that the Court of Civil Appeals incorrectly applied the law of judicial estoppel in holding that Vincent is not judicially estopped from bringing his claims against the Bank. “The doctrine of judicial estoppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial systemf,] while equitable estoppel focuses on the relationship between the parties to the prior litigation.’ ” Jinright v. Paulk, 758 So.2d 553, 555 (Ala.2000) (quoting Selma Foundry & Supply Co. v. Peoples Bank & Trust Co., 598 So.2d 844, 846 (Ala.1992), quoting in turn Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir.1988)).

In reversing the trial court’s summary judgment in favor of the Bank and Betty Jo Vincent, the Court of Civil Appeals relied on our decision in Jinright. In Jin-right we examined whether debtors in a Chapter 13 bankruptcy proceeding, who failed to list as an asset their potential tort and/or contract claims against Dennis Paulk and Option Builders, Inc., were judicially estopped from later asserting claims against Paulk and Option Builders. In examining this issue, we reviewed the law of judicial estoppel and stated:

“ ‘ “[Tjhe following have been enumerated as essentials to the establishment of an estoppel under the rule that a position taken in an earlier action es-tops the one taking such position from assuming an inconsistent position in a later action: (1) The inconsistent position first asserted must have been successfully maintained; (2) a judgment must have been rendered; (3) the positions must be clearly inconsistent; (4) the parties and questions must be the same; (5) the party claiming estoppel must have been misled and have changed his position; and (6) it must appear unjust to one party to permit the other to change.” ’
“28 Am.Jur.2d § 70 Estoppel and Waiver (1966).... Thus, a party may not claim the benefit of the doctrine of judicial estoppel unless the party can demonstrate that the party against whom the estoppel is sought procured a judgment in its favor as a result of the inconsistent position taken in the prior proceeding. Moreover, the party claiming the estoppel must have been misled by the conduct of the party against whom the estoppel is sought, and consequently changed its position to its prejudice.”

758 So.2d at 555.

We further stated in Jinright that the purpose of the doctrine of judicial estoppel “will be frustrated if defendants are allowed to use this doctrine to their advantage at the expense of plaintiffs with valid claims.” 758 So.2d at 557. We pointed out that if the Jinrights were judicially estopped from bringing their claims against Paulk and Option Builders solely because they had failed to list those potential claims as an asset in their bankruptcy proceeding, claims of which the bankruptcy court had since been informed, Paulk and Option Builders would receive a windfall. We also concluded that the Jinrights would not benefit from their initial failure to list their claims as an asset in their bankruptcy proceeding, and that Paulk and Option Builders had not been prejudiced by the omission. Consequently, we held that the Jinrights were not judicially estopped from bringing their claims against Paulk and Option Builders.

The Court of Civil Appeals concluded that because the Bank was not a party to the bankruptcy proceeding or the divorce litigation in which Vincent asserted that he did not have the $500,000 at issue in his claims against the Bank, the case did not meet the Jinright requirement that when a party alleges “that a position taken in an earlier • action estops the one taking such position from assuming an inconsistent position in a later action,” Jinright, 758 So.2d at 555, the parties and actions must be the same. The Court of Civil Appeals also cited Dzwonkowski v. Sonitrol of Mobile, Inc., 854 So.2d 598 (Ala.Civ.App.2002) (judicial estoppel did not apply because the parties and actions were not the same and the parties asserting the defense of judicial estoppel were not misled by nor had they detrimentally relied on the different positions taken by the opposing party), and Hoffman v. Truck Driving Academy, Inc., 777 So.2d 151 (Ala.Civ.App.2000) (judicial estoppel did not apply where the defendant did not show prejudice arising from the plaintiffs failure to disclose assets to the bankruptcy court), to support its determination. Consequently, the Court of Civil Appeals held that Vincent was not judicially estopped from bringing his claims against the Bank. Vincent IV, 888 So.2d at 1236.

The Bank argues that Jinright occurred in the context of a Chapter 13 bankruptcy proceeding and should therefore be applied only in the context of a Chapter 13 bankruptcy proceeding. The Bank asserts in its brief to this Court that Chapter 13 proceedings are unique because “a Chapter 13 debtor has the opportunity to amend his plan before discharge”; “[n]o harm is done to anyone by a debtor amending his plan to include a claim or asset”; and “assets are distributed to [the debtor’s] creditors” during the pre-dis-charge period. The Bank then concludes, in its brief to this Court, that if the debtor is judicially estopped from bringing a claim, “each creditor’s recovery would likely be diminished.” Therefore, the Bank states that the application of the Jinright factors in a ease involving a Chapter 13 proceeding is necessary to prevent unfairness toward creditors. However, the Bank points out that this Court has applied the Jinright factors on only three occasions, all within the context of a Chapter 13 bankruptcy proceeding. See Jim Walter Homes, Inc. v. Kendrick, 810 So.2d 645 (Ala.2001); Ex parte White, 775 So.2d 798 (Ala.2000); Ex parte Moore, 793 So.2d 762 (Ala.2000).

Rather than resolving this case by limiting the holding in Jinright to those cases where the earlier action is a Chapter 13 bankruptcy proceeding, we opt for the broader approach of reevaluating the propriety of limitations upon the availability of the doctrine of judicial estoppel found in some of our earlier cases. We previously quoted from Jinright what was there described as “essentials to the establishment of an estoppel.” Those requirements were found in Porter v. Jolly, 564 So.2d 434, 437 (Ala.1990), where this Court observed that “there are a number of limitations that should be placed upon this ‘doctrine of inconsistent positions,’ which is in the nature of an estoppel.” The Bank tries to distinguish Porter on the ground that Porter applies to equitable estoppel only. However, it clearly addresses inconsistent positions in judicial proceedings. Nevertheless, the requirements of privity and reliance set forth in Porter focus upon the relationship between the parties to the pri- or litigation as opposed to the relationship between the litigant and the judicial system.

Since Porter, our Court has dealt with the inconsistency of positions in judicial proceedings without attention to the strict requirements set forth in Porter for the availability of the doctrine of judicial es-toppel. In Selma Foundry & Supply Co., 598 So.2d 844, this Court stated:

“As the United States Court of Appeals for the Third Circuit recognized, the doctrine of judicial estoppel ‘applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial system while equitable estoppel focuses on the relationship between the parties to the prior litigation.’ ”

598 So.2d at 846 (quoting Oneida Motor Freight, Inc., 848 F.2d at 419) (emphasis added).

In Jinright, there was no showing that the parties invoking judicial estoppel had been parties to the bankruptcy proceeding in which the prior inconsistent position had been taken nor had the parties invoking judicial estoppel relied upon those proceedings. Had we slavishly adhered in Jinright to the limitations set forth in Porter, we could have reached the same result simply by declining to apply the doctrine of judicial estoppel solely on those grounds without any discussion of benefit to the party accused of inconsistency and detriment to the party invoking judicial estoppel. To this extent, Jinright departs from rigid adherence to the requirements expressed in Porter.

This Court also applied the doctrine of judicial estoppel in Terminix International Co. v. Jackson, 728 So.2d 555, 558 (Ala.1998), an arbitration case in which a party had taken a position upon which the court had relied, thereby giving rise to the application of the doctrine of judicial estoppel. In so holding, this Court quoted with approval that portion of Selma Foundry & Supply Co. quoted above distinguishing judicial estoppel and equitable estoppel. No attention was given to a requirement of reliance by a party; the reference to reliance by the court was the operative basis for application of the doctrine of judicial estoppel.

Reliance and privity are components that fit easily under the heading of equitable estoppel, but should not be essential elements of the doctrine of judicial estop-pel. See, e.g., Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir.2002) (“The doctrine of judicial estoppel protects the integrity of the judicial system, not the litigants; therefore, numerous courts have concluded, and we agree, that ‘[wjhile privity and/or detrimental reliance are often present in judicial estoppel cases, they are not required.’ ” (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 360 (3d Cir.1996))); Montrose Med. Group Participating Sav. Plan v. Bulger, 243 F.3d 773, 779 n. 3 (3d Cir.2001) (“Privity and detrimental reliance — prerequisites for the application of equitable estoppel — are not required for invocation of judicial estoppel.”); Fay v. Federal Nat’l Mortg. Ass’n, 419 Mass. 782, 788, 647 N.E.2d 422, 426 (1995) (“Suffice it to say that we would apply the doctrine of judicial estoppel at least where a party had successfully asserted his or her inconsistent position in a previous proceeding, and that neither privity nor reliance are essential requirements.”); and Johnson v. Si-Cor Inc., 107 Wash.App. 902, 907-908, 28 P.3d 832, 835 (Div. 3 2001) (“The majority of courts that have considered the matter have concluded that privity of the parties, reliance, and prejudice — generally recognized elements of estoppel — are inapplicable to the doctrine of judicial estoppel. IB, James William Moore, Moore’s Federal Practice, § 0.405[8] (2d ed.1991); Eugene R. Anderson & Nadia V. Holober, Preventing Inconsistencies in Litigation with a Spotlight on Insurance Coverage Litigation: The Doctrines of Judicial Es-toppel, Equitable Estoppel, Quasi-Estop-pel, Collateral Estoppel, “Mend the Hold, ” “Fraud on the Court,” and Judicial and Evidentiary Admissions, 4 Conn. Ins. L.J. 589, 622-36 (1997-1998).”). See also Rand G. Boyers, Precluding Inconsistent Statements: the Doctrine of Judicial Estoppel, 80 Nw. U.L.Rev. 1244 (1986), where the author states:

“First, reliance is not an element of judicial estoppel. Since equitable estop-pel is designed ‘to ensure fairness in the relationship between parties,’ reliance is an essential element of this type of es-toppel. Without reliance, there would be no injury to a party and hence, no unfairness in the relationship. Judicial estoppel, on the other hand, strives to preserve the sanctity of the oath and protect the integrity of the judicial process. Reliance is not a factor because any inconsistent statement violates the sanctity of the oath and injures the integrity of the judicial process, whether or not some party relied on the first statement. The inconsistency itself damages ‘public confidence in the purity ... of judicial proceedings.’ Thus, for judicial estoppel to remain an independent doctrine, capable of achieving its intended objective, reliance should not be required.”

80 Nw. U.L.Rev. at 1249-50 (footnotes omitted; emphasis added).

Speaking to privity, Boyers continued:

“Similarly, judicial estoppel, unlike the other estoppel doctrines, does not require privity between the parties in the two proceedings. Collateral and equitable estoppel operate only when the parties are in privity, for without privity, the objectives of each doctrine cannot be accomplished. Collateral estoppel, for instance, aims to conserve judicial resources by preventing repetitive litigation. Similarly, equitable estoppel ‘focuses on the relationship between the parties to the prior litigation,’ and is designed to ensure fairness in that relationship.
“No such crucial nexus between privity and policy exists under judicial estop-pel, whose essential purpose is ‘to prevent parties from deliberately shifting positions to suit the exigencies of the moment’ in order to maintain the sanctity of the oath and the integrity of the judicial process. Indeed, the doctrine ‘has nothing to do with other parties to the suit.’ Rather, ‘it is the very inconsistency that judicial estoppel will not tolerate.’ ”

80 Nw. U.L.Rev. at 1250 (footnotes omitted).

The United States Supreme Court in New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), recently observed that “ ‘[t]he circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle’ ” and then identified several factors as informative in determining the applicability of the doctrine of judicial estop-pel. 532 U.S. at 750-51, 121 S.Ct. 1808 (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982)). The Court held that for judicial estoppel to apply (i) “a party’s later position must be ‘clearly inconsistent’ with its earlier position”; (2) the party must have been successful in the prior proceeding so that “judicial acceptance of an inconsistent position in a later proceeding would create ‘the perception that either the first or second court was misled’ ” (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982)); and (3) the party seeking to assert an inconsistent position must “derive an unfair advantage or impose an unfair detriment on the opposing party if not es-topped.” 582 U.S. at 750-51, 121 S.Ct. 1808. No requirement of a showing of privity or reliance appears in the foregoing statement of factors to consider in determining the applicability of the doctrine of judicial estoppel.

Application of the strict standards endorsed in Porter would require us to reject the Bank’s defense of judicial estoppel on two grounds — want of involvement of the Bank in the antecedent litigation and absence of reliance on the part of the Bank upon the result in the previous litigation. Such a result in this case is simply offensive — Vincent would be permitted to have it both ways, successfully denying ownership of an asset in the earlier proceedings and seeking its recovery in this proceeding.

The Bank, after first having tried to distinguish Porter, urges us to apply Ter-minix with its emphasis on detriment to the Court and its recognition of a distinction between judicial estoppel and equitable estoppel. It can be said that Terminix and Selma Foundry & Supply Co., with their recognition of the distinction, have already sub silentio overruled the requirement of rigid adherence to a showing of privity and reliance as set forth in Porter. Likewise, Jinright, with its discussion of the effect of an amendment to the ongoing bankruptcy plan and analysis of a detriment to the plaintiff and a windfall to the defendant as determinative factors, is not substantially different from considerations appropriate to factors (2) and (3) in New Hampshire v. Maine. The emphasis in Jinright was also directed to the relationship between the litigant and the judicial system, as opposed to the relationship between the parties to the prior litigation. Cf. De Leon v. Comcar Indus., Inc., 821 F.3d 1289, 1292 (11th Cir.2003), reaching a result inconsistent with Jinright without reference to the standards set forth in New Hampshire v. Maine.

Application of the formulation in New Hampshire v. Maine yields a result that is not offensive to the judicial system. With reference to the requirement of clear inconsistency, Vincent’s testimony in the divorce proceeding and his filings in the bankruptcy proceeding were completely inconsistent with the position he takes in the complaint in this action. In the earlier proceedings, he said that he did not have $500,000 in cash and certificates of deposit in a safe-deposit box; in this proceeding, he said that he did. Success of the prior proceedings cannot be challenged, because both proceedings concluded on a state of facts consistent with Vincent’s not having $500,000 in cash and certificates of deposit. Finally, Vincent, if allowed to assert the inconsistent position in this proceeding, satisfies both alternative prongs set forth under the third factor of Neiv Hampshire v. Maine — he would derive an unfair advantage and impose an unfair detriment on the Bank if not estopped.

Justice Houston, writing specially in Southern States Ford, Inc. v. Proctor, 541 So.2d 1081 (Ala.1989), embraced a useful standard for weighing the need for change against the advantages of settled principles of law under the doctrine of stare decisis. He posed the question as follows: whether the ratio decidendi of earlier precedent would “ ‘hypothetically be consented to today by the conscience and the feeling of justice of the majority of all those whose obedience is required by [that] rule of law?’ ” Southern States Ford, Inc., 541 So.2d at 1093 (quoting Laun, Stare Decisis, 25 Va. L.Rev. 12, 22 (1938)). The conscience and feeling of justice of the overwhelming majority whose obedience is required to a rule that would permit Vincent to play fast and loose with the court would be, quite simply, shocked. We today embrace the factors set forth in New Hampshire v. Maine and join the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel. To the extent that Porter v. Jolly and eases consistent with Porter have not heretofore been sub silentio overruled, they are expressly overruled.

IV. Conclusion

We hold that the Bank did not waive its defense of judicial estoppel and that Vincent is estopped from asserting his claims against the Bank. We therefore reverse the judgment of the Court of Civil Appeals as it pertains to the Bank and remand the case for the Court of Civil Appeals to affirm the judgment of the trial court in favor of the Bank.

REVERSED AND REMANDED.

BROWN, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs in part.

HOUSTON and HARWOOD, JJ., recuse themselves.

JOHNSTONE, Justice

(concurring in part).

I concur, except that I express no opinion on the issue of whether the Bank waived its right to assert the defense of judicial estoppel.


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Donald J. VINCENT v. FIRST ALABAMA BANK and Betty Vincent.
    2010117 and 2010118.
    Court of Civil Appeals of Alabama.
    Jan. 16, 2004.
    William J. Baxley and David McKnight of Baxley, Dillard, Dauphin & McKnight, Birmingham, for appellant.
    R. Cooper Shattuck and Jane L. Cala-musa of Rosen, Cook, Sledge, Davis, Cade & Shattuck, P.A., Tuscaloosa, for appellee First Alabama Bank.
   On Remand from the Alabama Supreme Court

MURDOCK, Judge.

The prior judgment of this court as it pertains to First Alabama Bank (“the Bank”) has been reversed and the cause remanded by the Supreme Court of Alabama. Ex parte First Alabama Bank, 883 So.2d 1236 (Ala.2003). On remand to this court, and in compliance with the Supreme Court’s opinion, the judgment of the trial court in favor of the Bank is hereby affirmed.

AFFIRMED.

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


author: CRAWLEY, Judge. YATES, Presiding Judge,

text:
    Carolyn NOBLES-HAMILTON v. Steve THOMPSON.
    2010740.
    Court of Civil Appeals of Alabama.
    Jan. 31, 2003.
    Certiorari Quashed Jan. 16, 2004 Alabama Supreme Court 1020759.

      James W. Cameron of Cameron & Cameron, Montgomery, for appellant.
    Raymond Johnson, Montgomery, for ap-pellee.
   CRAWLEY, Judge.

Carolyn Nobles-Hamilton was employed at Health Wise, a health-food store located in the Village East shopping center on the Atlanta Highway in Montgomery, until August 31, 2000. She had worked at the store for approximately 14 years. In 1988, the owner of Health Wise, Mitch Freeland, sold the store to Steve Thompson. Thompson continued to employ Nobles-Hamilton, but he requested that she sign an employment contract containing a non-competition agreement, which read as follows:

“Item Seven
“The employee agrees not to open a competing business, or to be employed by a competing business, for a period of three years after her employment at Health Wise terminates. Further, employee agrees not to divulge any trade secrets or operating procedures of Health Wise to any person, or to ever use any customer list of Health Wise or to solicit any Health Wise customers away from Health Wise.”

When Health Wise’s profits declined in the summer of 2000, Thompson discussed the matter with Nobles-Hamilton and, according to his testimony, explained that she would have to become a part-time employee if the profits did not increase. He said that Nobles-Hamilton informed him that part-time employment would not be sufficient to cover her living expenses, so, he said, he told her to start looking for other employment in the event that the profits did not improve. In August 2000, Thompson informed Nobles-Hamilton by letter that she would be terminated at the end of the month.

Some time shortly after her termination, Nobles-Hamilton decided to open her own health-food store, Health Source, in an empty portion of the Nobles Glass building, which is owned by her parents. Health Source is located on Burbank Drive, which intersects with the Atlanta Highway. In September 2000, after Nobles-Hamilton’s employment had been terminated, Thompson and his daughter ate a meal at a drive-in restaurant on the corner of Burbank Drive and the Atlanta Highway. As he returned to Health Wise, Thompson drove down Burbank Drive and past the Nobles Glass building. Thompson noticed Nobles-Hamilton’s automobile in front of the building and noticed that Nobles-Hamilton was putting up shelves in the empty portion of the building. The next evening, Thompson stopped at the Nobles Glass building to see what items might be on the shelves he saw Nobles-Hamilton installing. According to Thompson, the shelves contained health-food products that are also sold at Health Wise.

Thompson sued Nobles-Hamilton, alleging that she had breached the noncompetition agreement in her employment contract and that she had interfered with his business relationships with his customers. Nobles-Hamilton filed a motion for a summary judgment, arguing that the noncom-petition agreement was void because it lacked a definite geographical limitation. The trial court denied her motion, and the case proceeded to a jury trial.

At trial, the basic issues were whether Nobles-Hamilton had signed the employment contract containing the noncompetition agreement, whether she had breached that agreement, whether she had interfered with Thompson’s business relationships with his customers, and, if she had breached the agreement or interfered with those business relationships, what, if any, damage her actions had caused Thompson. The jury found in Thompson’s favor, awarding him $30,000 in damages. After the trial, the court granted Thompson’s request for an injunction preventing Nobles-Hamilton from operating Health Source or any other health-food store within a five-mile radius of Health Wise for the balance of the three-year term provided for in the noncompetition agreement. Nobles-Hamilton appeals, arguing that the noncompetition agreement was void because it did not include a specific geographical limitation; that the noncompetition agreement was void in that Thompson did not have a protectible interest because at the end of her employment Nobles-Hamilton essentially only “ran the cash register”; and that the trial court erred in making a new contract for the parties by supplying a missing term' — a geographical limitation. She does not raise any arguments concerning the intentional-interference-with-business-relations claim.

The thrust of Nobles-Hamilton’s argument is that the noncompetition agreement does not comply with Ala.Code 1975, § 8-1-1, because it does not contain a definite geographical limitation. Thompson argues, however, that the geographical limitation is contained within the term “competing,” thus precluding Nobles-Hamilton from opening a store or being employed at a store that would compete with Health Wise for the same customer base. See Parker v. EBSCO Indus., Inc., 282 Ala. 98, 100-01, 209 So.2d 383, 384-85 (1968) (affirming the enforcement of a noncompetition agreement that did not contain a specific geographical limitation; the trial court ordered that the former employee not solicit established customers of the employer or induce other employees of the employer to leave their employment for a one-year period). Additionally, Thompson argues that the trial court, under its broad equitable powers, has the right to restrict the time limitation or the geographical limitation contained in the noncompetition agreement to a more reasonable one as appropriate under the circumstances of the individual case rather than declaring the entíre noncompetition agreement void. See Mason Corp. v. Kennedy, 286 Ala. 639, 645, 244 So.2d 585, 590 (1971). Nobles-Hamilton disagrees, arguing that supplying a missing but required term is not the same as limiting an existing term in order to make the agreement reasonable under the law.

Although noncompetition agreements are not favored, see Ala.Code 1975, § 8-l-l(a), an “employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.” Ala.Code 1975, § 8-l-l(b). Our courts, in interpreting that statute, have developed a test to determine whether a given noncompetition agreement is enforceable. A court will enforce a noncompetition agreement only if:

“(1) the employer has a protectable interest;
“(2) the restriction is reasonably related to that interest;
“(3) the restriction is reasonable in time and place;
“(4) the restriction imposes no undue hardship.”

DeVoe v. Cheatham, 413 So.2d 1141, 1142 (Ala.1982). “The burden is upon the person or entity seeking to enforce a contract which restrains a lawful trade or business to show that it is not void under § 8-1-1.” Calhoun v. Brendle, Inc., 502 So.2d 689, 693 (Ala.1986).

We first address whether Thompson has proven that he has a protectible interest. Although the evidence indicates that near the end of her employment with Health Wise Nobles-Hamilton’s duties were restricted mainly to running the cash register and to waiting on customers when she had previously been responsible for ordering products and dealing with representatives of the various suppliers with which Health Wise did business, the protectible interest that Thompson mainly sought to protect was Health Wise’s customer relationships. Nobles-Hamilton is correct in arguing that a simple labor skill is not a protectible interest under the law governing noncompetition agreements. See De-Voe, 413 So.2d at 1143 (“A simple labor skill, without more, is simply not enough to give an employer a substantial protectable right unique in his business.”). However, employees who have access to customer lists and who develop close relationships with the customers of their employers have repeatedly been restrained from entering into competition with their employers because the customer base is a protec-tible interest. Id.; Clark v. Liberty Nat’l Life Ins. Co., 592 So.2d 564, 566 (Ala.1992).

The testimony at trial reflects that Nobles-Hamilton had a long history of maintaining relationships with many Health Wise customers. Thompson testified that he had, on several occasions, “staked-out” Health Source. He said he had observed several customers he recognized as being customers of Health Wise enter Health Source and purchase items. Although he testified that he could not remember all of those customers by name, he did identify by name four such customers. He also testified concerning the typical monthly purchases those customers had made at Health Wise in the months preceding the opening of Health Source in September 2000, and he presented documentary evidence in support of his testimony. Thus, Nobles-Hamilton’s knowledge of and relationship with Health Wise customers benefitted her by allowing her to solicit those customers. Accordingly, we find that Thompson proved that he had a protectible interest.

Nobles-Hamilton’s other arguments are interrelated, so we will discuss them together. She argues that the noncompetition agreement is void because it does not have a geographical limitation and that, in supplying such a limitation in the order issuing the injunction, the trial court im-permissibly supplied a term missing from the parties’ contract, in essence, creating for the parties a contract that did not exist. Although a trial court cannot supply the terms of a contract for the parties, see generally Dawkins v. Walker, 794 So.2d 333, 339 (Ala.2001), and Estes v. Monk, 464 So.2d 103, 105 (Ala.Civ.App.1985), we do not agree that the trial court in this case did so. We also do not agree that an essential term was missing from the noncompetition agreement.

Thompson testified that he construed the term “competing” as used in the agreement to mean a business actually competing for the same customers in the Montgomery area (an area that, according to Thompson, includes, for example, Pratt-ville and Wetumpka). Therefore, he indicated that he felt the agreement was limited to the area surrounding Montgomery. We agree that the term “competing” is somewhat ambiguous and that it could be construed so as to include a geographical component. Thus, the agreement could be construed to prevent Nobles-Hamilton from operating a competing health-food store in an area in which she would be soliciting customers from Health Wise — an area that, based on the evidence, exceeded the five-mile radius the trial court placed in the injunction. See Clark v. Liberty Nat’l Life Ins. Co., 592 So.2d 564, 566 (Ala.1992) (holding that a noncompetition agreement precluding a former insurance agent from soliciting or writing insurance for any of the company’s policyholders whom he had serviced or of whom he was made aware through his employment was reasonable in “place,” although no specific “place” was specified, because the territory covered by a noncompetition agreement can be all or part of Alabama or even extend outside Alabama, as the circumstances dictate).

In addition, a fair reading of the contract here could equally compel the conclusion that Nobles-Hamilton could not open a competing business, i.e., a health-food store, anyivhere for a period of three years after her termination. Such a broad noncompetition agreement would almost surely be held to be unreasonable. See generally James S. Kemper & Co. Southeast, Inc. v. Cox & Assocs., Inc., 434 So.2d 1380, 1384 (Ala.1983) (commenting that the restriction must be reasonably related to the interest to be protected and specifically noting that the noncompetition agreement at issue in that case was “reasonably relate[d] to the protection of [the employer’s] interest in a narrow, identifiable group of clients and potential clients”). The trial court certainly had the power to enforce such an overly broad agreement by limiting the geographical restriction to a more reasonable distance so as to fairly protect the interests of both Thompson and Nobles-Hamilton. Mason Corp. v. Kennedy, 286 Ala. 639, 645, 244 So.2d 585, 590 (1971).

Accordingly, we affirm the judgment entered on the jury verdict in favor of Thompson. We also affirm the trial court’s decision to limit the noncompetition agreement to a five-mile radius of the Health Wise store. The evidence clearly supports the fact that the proximity of the stores and Nobles-Hamilton’s knowledge of the health-food business and her knowledge regarding Health Wise customers have contributed to the loss of profits Health Wise has suffered since Health Source opened.

AFFIRMED.

PITTMAN, J., concurs.

MURDOCK, J., concurs in the result.

YATES, P.J., and THOMPSON, J., dissent.

YATES, Presiding Judge,

dissenting.

I believe the trial court erred in arbitrarily inserting a geographical limitation in the noncompetition clause at issue in this case. Therefore, I must respectfully dissent.

Contracts in restraint of employment are disfavored “ ‘because they tend not only to deprive the public of efficient service, but [also] tend to impoverish the individual.’ ” James S. Kemper & Co. Southeast v. Cox & Assocs., Inc., 434 So.2d 1380, 1384 (Ala.1983)(quoting Robinson v. Computer Servicenters, Inc., 346 So.2d 940, 943 (Ala.1977)).

Section 8-1-1, Ala.Code 1975, provides, in pertinent part:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein.”

Courts will enforce a noncompetition clause that fits within the exception of § 8 — 1—1(b) only if:

“(1) the employer has a protectable interest;
“(2) the restriction is reasonably related to that interest;
“(3) the restriction is reasonable in time and place; [and]
“(4) the restriction imposes no undue hardship [on the employee].”

DeVoe v. Cheatham, 413 So.2d 1141, 1142 (Ala.1982).

The person or entity seeking to, enforce the agreement has the burden of showing that it is not void under § 8-1-1. Calhoun v. Brendle, Inc., 502 So.2d 689, 693 (Ala.1986). An agreement limiting competition must strictly comply with the requirements of § 8-1-1. Construction Materials, Ltd., Inc. v. Kirkpatrick Concrete, Inc., 631 So.2d 1006 (Ala.1994).

In the present case, the restriction is not enforceable because the noncompetition clause, which Thompson drafted, contained no geographical limitation. The lack of the geographical restriction was not remedied by the trial court’s insertion of such a restriction in its injunction. I note that this is not a situation where the trial court narrowed an unreasonable territorial restriction, Kershaw v. Knox Kershaw, Inc., 523 So.2d 351 (Ala.1988), or where the counties from which the employee was restricted were identifiable by the remainder of the contract, Clark v. Liberty Nat’l Life Ins., Co., 592 So.2d 564 (Ala.1992). The failure to include any geographical term, as statutorily required, is, in my opinion, fatal to the noncompetition clause.

Because I believe the noncompetition clause is unenforceable as written, I would hold that Thompson may not recover monetary damages for the breach of the non-competition clause nor could Nobles-Hamilton be enjoined from operating her store. Also, the second claim asserted by Thompson — interference with business relations — is not a viable claim, in light of the fact that the covenant not to compete is itself unenforceable by Thompson. Construction Materials, supra.

THOMPSON, J., concurs.


author:
YATES, Presiding Judge.
     THOMPSON, Judge,

text:
    Sandra Ray Morgan DAVIS v. Jason Duane DAVIS.
    2001097.
    Court of Civil Appeals of Alabama.
    March 21, 2003.
    Rehearing Denied June 13, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1021710.

      Derek E. Yarbrough of Motley, Motley & Yarbrough, Dothan, for appellant.
    Matthew C. Lamere, Dothan, for appel-lee.
   On Application for Rehearing

YATES, Presiding Judge.

This is a custody-modification case. Sandra Ray Morgan Davis, the mother, and Jason Duane Davis, the father, divorced in October 1995. The court awarded the parties joint custody of their two minor children, with primary custody being vested in the mother.

On January 2, 2001, the father petitioned for a modification of the divorce judgment and for temporary custody, alleging that a material change in circumstances had occurred in that the mother had moved from Alabama to Tennessee and that she and the children were living there with her boyfriend. The mother answered and counterclaimed, seeking a modification of the final judgment, alleging that a material change in circumstances had occurred, and seeking a recalculation of child support.

Following an ore tenus hearing, the court, on April 28, 2001, entered a three-sentence order on the case action summary; that order stated:

“Petition for Modification is granted. Joint custody with the parties with physical custody to be awarded to [the father]. Liberal visitation to be given to [the mother].”

The mother moved for a stay of execution of the final order, and the court granted the motion and stayed the execution of its order, pending disposition of “any and all postjudgment motions.” The mother moved the court to set aside its final judgment, or, in the alternative, to alter or amend the judgment, or for a new trial; the court denied the motion. The mother then moved the court to extend the stay pending an appeal; the court denied the mother’s motion. The mother appealed.

The mother argues that the trial court abused its discretion in changing custody from her to the father, claiming that the father did not meet the requirements of Ex parte McLendon, 455 So.2d 863 (Ala.1984). She further argued that the trial court misapplied the standard of Hodges v. Nelson, 370 So.2d 1020 (Ala.Civ.App.1979). In Hodges, this court held that “[t]he primary consideration in this case, as in every custody case, is the welfare of the children.” This court further held that in considering a parent’s conduct, the court must determine whether the welfare of the children is adversely affected, and held that “[t]his determination, as with other factual matters, is within the broad discretionary powers of the trial court.” Id. at 1021-1022.

“The ore tenus rule is applicable to child-custody-modification proceedings, and the court’s judgment based on its findings of fact will not be reversed absent a showing that the findings are plainly and palpably wrong.” E.M.C. v. K.C.Y., 735 So.2d 1225, 1228 (Ala.Civ.App.1999). This court has stated:

ltWhen a noncustodial parent seeks to modify the custody provision of a prior judgment, the evidentiary standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), must be applied. The petitioning parent must show that a change in custody will materially promote the child’s best interests and welfare. Id. That parent must also show that the good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Butts v. Startley, 600 So.2d 310 (Ala.Civ.App.1992).”

Etheridge v. Etheridge, 712 So.2d 1089, 1091 (Ala.Civ.App.1997). We have further held:

“The question is not the presence or absence of sexual activity in [the mother’s] social life; rather, the trial court must determine whether the emphasis on social life, promiscuous or chaste, detracts from a stable, worthwhile home environment for the child.”

Junkin v. Junkin, 332 So.2d 392, 395 (Ala.Civ.App.1976).

The father testified that he has worked as a firefighter for the City of Dothan since 1990. He further testified that he lived in a three-bedroom house and that he had a male friend that “stays at the house sometimes.” He went on to state that if he was awarded custody, his friend would “leave.”

The father testified that he and the mother had been married for almost six years when they divorced in 1995. He stated that they had two children, a girl and a boy, age 10 and 8, respectively, at the time of the hearing. He testified that at the time of the divorce he exercised visitation with the children one day each week and every other weekend, with standard holiday visitation. He went on to state that the parties had increased his weekly visitation to two days per week.

The father testified that the mother had informed him approximately one month before she moved that she and the children would be moving to Clarksville, Tennessee. He further testified that they had discussed his visitation with the children, and that she had offered to meet him in Birmingham on the weekends to cut his travel time in half. He stated that he had not been able to exercise his midweek visitation since the mother had moved.

He acknowledged that the children had made Mends in Tennessee, and that they were involved in the same type of extracurricular activities there as they had been involved in in Dothan. He stated:

“I would love to have my children, but I want them to be happy. I mean, I want whatever they want ... [i]f ... [the children] want to live with [the mother], they can go now. I have no problem with that, none.”

The father testified that he was aware that the mother had recently remarried and he presented no evidence that would indicate a problem with the mother’s new husband. He further stated that he had no concerns regarding the morals of the mother.

At the close of the father’s case at trial, the mother moved to dismiss the father’s petition, arguing that the evidence did not warrant a change of custody. The court responded as follows:

“THE COURT: I understand, except for one little fact ... that she was living with somebody as the kids said. Apparently, she keeps repeating her pattern of conduct, even after the Court instructed her last time ... she’s going to have to get up here and explain to me some things. Apparently, she has not learned her lesson. I don’t understand why we had a hearing before, and she was warned and told, and she still engages in that conduct. I’m not going to have it around the kids that age. And I don’t understand, ma’am, what you were thinking at the time. Do you think you can keep on and keep on?
“THE MOTHER: Your Honor, he has his own house. He has two houses.
“THE COURT: That is not the problem, ma’am. The problem is that you lived with a man you were not married to in front of a kid that is 8 and 10 years old after you had come to ... this very court. And because of that fact, before you almost lost the kids, and then you just keep doing it. I don’t understand ... maybe I’m thick-headed or something ... I don’t understand. Go ahead. You know ... I’m just not going to have it. And you knew it too, ma’am. You knew what the consequences were, because I told you—
“THE MOTHER: Your Honor, we were not living together.
“THE COURT: Oh, well, that is not what your kids said.
“THE MOTHER: I’m not saying that he was not there ... he has a house a mile and a half from me.”

The mother testified that she met the man who is now her husband in June 2000 and that they had married the weekend before the modification hearing. She further testified that after she and the children moved to Tennessee, she and her then fiancé maintained separate residences, although he would occasionally spend the night with her on the weekends. She went on to state that the children got along “great” with her new husband, and that he treats them “very well.”

After the mother testified, the court questioned the mother:

“THE COURT: ... Ma’am, let me ask you this, you stated that you didn’t live with him, except on ... a couple of weekends ... Did he sleep there overnight?
“THE MOTHER: Yes, sometimes he did.
“THE COURT: Okay. And where would he stay when he slept overnight?
“THE MOTHER: Where would he sleep?
“THE COURT: Yes, ma’am.
“THE MOTHER: With me. .
“THE COURT: Okay ... [t]hat is all I need to hear....
“THE COURT: You know, it’s no doubt that she is a pretty good mom and all that, but I just can’t tolerate this kind of stuff, especially when the Court has instructed her not to do this.... That shows to me just a total disregard of wanting those kids, because she knew how I felt about it. Didn’t you ma’am? Did you not know how I felt about that type of thing?
“THE MOTHER: Yes, sir.
“THE COURT: ... You know, other than that, I haven’t got any problem with you. But I just can’t let that go on.”

It appears that the trial court based its decision to change custody on the mother’s allowing her fiancé to occasionally spend the night with her before the marriage. We note that the father conceded that he had allowed a female to spend the night in his home while the children were present on at least one occasion. After thoroughly reviewing the record, we conclude that although the mother’s out-of-state move will result in a change in the father’s visitation schedule, the father failed to meet the stringent burden imposed by Ex parte McLendon, 455 So.2d 863 (Ala.1984).

APPLICATION GRANTED; MEMORANDUM OF NOVEMBER 1, 2002, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.

CRAWLEY, J., concurs.

THOMPSON, J., concurs in the result.

PITTMAN and MURDOCK, JJ., dissent.

THOMPSON, Judge,

concurring in the result.

On original submission, I concurred in the affirmance of the trial court’s judgment. After further consideration on rehearing of the issues involved, I now conclude that, given the applicable precedent, the trial court erred in modifying custody.

The moral fitness of a parent is always a factor to be considered in a child-custody case. All too often, the courts of this State are called upon to decide a child-custody case in which the moral fitness of one or both of the parents is questionable.

Over the years, in child-custody cases, our courts have held that the indiscreet' sexual conduct of a custodial parent, such as living with someone without the benefit of marriage while the child is in the home, is not in itself a reason to modify custody of a child; rather, the courts require proof that the conduct has had a detrimental effect on the child. Ex parte J.M.F., 730 So.2d 1190, 1194 (Ala.1998) (where a parent seeks a change of custody based solely upon the sexual misconduct of the custodial parent, a showing that the misconduct has a detrimental effect upon the child is required.); Phillips v. Phillips 622 So.2d 410, 412 (Ala.Civ.App.1993) (“Such misconduct is not evidence of a substantial detrimental effect on a child in the absence of any proof of harm to the child.”); Braswell v. Braswell, 460 So.2d 1339 (Ala.Civ.App.1984) (indiscreet premarital conduct by the custodial parent was not a sufficient basis for modifying custody of the child).

In a custody dispute in which custody has already been previously assigned, caselaw places the burden on the noncustodial parent of proving that the cohabitation of the custodial parent is detrimental to the child. Because I believe that the unmarried cohabitation of a custodial parent not only sets a poor moral example for the child but likely has an adverse effect on the child emotionally, it would seem to me to be more appropriate for the cohabiting parent to bear the burden of proving that the child is not harmed by the cohabitation. The initial burden would be on the noncustodial parent to prove by substantial evidence that the custodial parent is cohabiting without the benefit of marriage while the child is in the home. Following that showing, the burden would shift to the custodial parent to prove the absence of harm to the child caused by that cohabitation. It does not seem to me that the best interests of the child are served by waiting until such time as the child suffers harm or the conduct has a detrimental effect on the child to consider modifying custody.

I believe that a custodial parent who is truly interested in retaining custody of his or her child should be expected to place the interests of that child above his or her own and to refrain from conduct that has the potential of adversely affecting his or her child. The goal of the courts is to act in the best interest of the child. See Ex parte Johnson, 673 So.2d 410 (Ala.1994) (in a child-custody proceeding, the dominant concern must be the best interests of the child or children involved); Santmier v. Santmier, 494 So.2d 96, 96 (Ala.Civ.App.1986) (“The primary concern in child custody cases is the best interest and welfare of the child.”). The courts of this state should expect no less from the child’s parents.

In this case, I am not convinced that the mother’s conduct did not cause the children some harm. I am encouraged, however, by the fact that this mother has since married the man with whom the trial court found she was cohabiting and that the recurrence of the misconduct in the future is highly unlikely. It is also clear that, other than this poor decision on her part, the mother appears to have been a good mother to the children.

I do not condone the actions of this mother, and I can certainly empathize with the trial judge’s frustration with the mother’s conduct. However, our current case-law requires more than just proof of the unmarried cohabitation of the custodial parent, and this court and the trial court are bound by that law. Therefore, upon reconsideration, I agree with the majority in finding that the father failed to meet the stringent burden imposed by Ex parte McLendon. Therefore, I concur in the result reached by the main opinion.

      . This case was transferred to Presiding Judge Yates on January 17, 2003, on application for rehearing.

      . According to the father, Clarksville is a seven-hour drive from Dothan.

      . The record indicates that the mother had been living in Tennessee for approximately four months at the time of the hearing.

      . She denied that the children ever witnessed any sexual contact between her and her new husband either while they were dating or after they were married.

      . The mother in this case denies that she was cohabitating with her fiancé. The trial court, after discussing the matter with the children, however, apparently believed otherwise.


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

text:
    Bonnie Lee Klauss MORRIS v. Paul Ernest MORRIS.
    2010730.
    Court of Civil Appeals of Alabama.
    April 4, 2003.
    Certiorari Quashed Jan. 16, 2004 Alabama Supreme Court 1021161.

      William R. Blanchard, Montgomery, for appellant.
    Ronald W. Wise, Montgomery, for ap-pellee.
   PER CURIAM.

Bonnie Lee Klauss Morris (“the wife”) and Paul Ernest Morris (“the husband”) were married for 24 years. On August 18, 2000, the wife filed a petition seeking a divorce from the husband alleging incompatibility of temperament between the parties and an irretrievable breakdown of the marriage. Three children were born of the parties’ marriage; only one child was a minor at the time the wife filed for a divorce (“the minor child”). The wife sought custody of the minor child, and requested current, continuing, and post minority child support from the husband. The wife also requested, among other things, periodic alimony and an equitable division of the marital property. On September 25, 2000, the husband answered and filed a counter-petition for divorce in which he requested custody of the minor child and an equitable division of the parties’ marital property. On October 20, 2000, the wife answered the husband’s counter-petition.

Following a four-day ore tenus hearing in October 2001, the trial court entered a judgment on November 20, 2001, that stated, in pertinent part:

“The oral testimony in this case consisted of the testimony of both parties. On numerous occasions, the testimony of the Husband conflicted with and contradicted the testimony of the Wife. The Court, sitting ore terms, was called upon on numerous occasions to pass upon the credibility and truthfulness of the witnesses. The Court has done so and has considered the credibility of the ... parties in its decision.
“The Husband testified that it costs $360 a month to have the minor child on his medical insurance coverage. The Court will use that figure when determining child support according to the child support guidelines.
“1. The Husband shall execute a quitclaim deed transferring his interest in the marital residence to the Wife.... [He] shall make arrangements to satisfy the mortgage in the ... amount of $18,000.00 on the marital residence within thirty (30) days of the date of this Order. The Wife will receive the marital residence clear of all liens and indebtedness.
“2. The Wife will receive the 1998 Astro Van which she is currently driving and she shall assume the indebtedness thereon and hold the Husband harmless.
“3. Each party shall be responsible for any credit cards in their names and shall hold the other harmless of the same.
“4. The Husband shall assume the debt of Gulf Bay [the husband’s business] in the amount of $68,900.43 and shall hold the wife harmless.
“7. The Wife will receive no interest in the Husband’s inheritance since there has been no testimony that said inheritance has been used regularly during the marriage, and in fact, the evidence presented is just the opposite.
“8. The Wife is hereby awarded primary physical custody of the minor child ... and the parties shall share joint legal custody. The Husband will be awarded the following visitation....
“9. The Husband shall pay child support to the Wife ... $425 per month.... Said child support payments shall continue until such time as [the minor child] achieves legal age, becomes emancipated or self-supporting, or dies. Said child support payment shall include funds necessary to pay for [the minor child’s] private school tuition and all fees associated therewith.
“10. The Husband currently owns a whole-life insurance policy ... in the amount of $100,000 on the Wife’s life wherein the Husband is the beneficiary of same.... The Court hereby awards the Wife said $100,000 whole-life ... policy....
“11. The Wife is hereby awarded $15,000 as an attorney fee....
“12. The Wife is hereby awarded alimony in the amount of $750 a month for a period of eight (8) years ... and continuing ... until December 1, 2009, or until such time as the Wife remarries ... cohabitates ... [dies], the Husband’s death, or otherwise terminated by law; whichever shall first occur....
“13. The Husband shall be obligated to provide medical insurance for the benefit of the minor child, to keep the same in full force and effect, pay the premiums thereon, and refrain from allowing said policy to lapse.... The Husband shall pay 75% of all non-covered medical expenses not covered by insurance with the Wife paying the remaining 25%....
“14. The retirement account, investment account and bank accounts currently in the Husband’s name shall remain his and shall remain his accounts. The retirement account, investment account and bank accounts currently in the Wife’s name shall remain hers and shall remain her accounts. Both the Husband and Wife shall have as their separate property, all checking accounts, savings accounts, cash, stocks, bonds and equivalents presently in their possession or in their individual name.”

Both parties filed postjudgment motions pursuant to Rule 59, Ala. R. Civ. P. Following a hearing on the motions, the court entered an order amending the final judgment; that order read, in pertinent part, as follows:

“1. That [the husband] shall pay alimony in the amount of $750 for the month of November, 2001 within 30 days of this Court’s Order.
“3. All other matters raised in the [wife’s] Motion for New Trial and Motion to Alter,- Amend or Vacate Judgement are hereby DENIED.”

The wife appealed.

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

The wife argues on appeal that the trial court abused its discretion in its division of property and award of alimony. The wife asserts that the trial court erred because the amount of alimony it awarded was insufficient, and it further erred by limiting the duration of the alimony award to only eight years. The wife further argues that the trial court abused its discretion in failing to order the husband to maintain life-insurance coverage to secure the award of alimony and child support in the event of the husband’s death.

It is well established that a trial court’s determination regarding a property division and an award of alimony is entitled to a presumption of correctness and that its rulings on those matters will not be reversed absent a showing of plain and palpable error. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993); Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). The issues of property division and alimony are interrelated, and they must be considered together on appeal. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996). A property division must be equitable, but not necessarily equal; the trial court determines what is equitable. Duckett v. Duckett, 669 So.2d 195 (Ala.Civ.App.1995); Parrish, supra. In fashioning a property division and an award of alimony, the trial court must consider factors such as the earning capacities of the parties; their future prospects; their ages and health; the length of the parties’ marriage; and the source, value, and type of marital property. Robinson v. Robinson, supra; Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986).

At the time of the hearing in this matter, the wife was 45 years old and the husband was 46 years old. The parties married in December 1976 and were married for 24 years. Before the hearing in this matter, the parties had been separated for one year. The parties’ minor child, a son, was 14 years old at the time of the hearing in this matter. The wife has worked as a registered nurse for 20 years, but she testified that she had not worked since 1996 because of health problems related to dysautonomia. The wife receives Social Security disability benefits in the amount of $789 per month. As a result of her medical condition, the wife testified, she is limited in her physical abilities and requires a great deal of rest; however, the wife admitted to driving long distances to attend the minor child’s sporting events. The wife also testified that she is capable of “doing a lot of things,” including light housework and “light” cooking. The wife conceded that a psychologist once told her that she could go back to work.

According to her testimony, the wife spends approximately $127 per month for various prescription medications and is covered by the husband’s health-insurance plan, which is provided through his business, and by “Medicare Part A.” The wife stated that she has applied for “Medicare Part B” and “C-Plus,” which would cost her approximately $163 per month, but that she has yet to receive coverage under those programs. The wife further stated that her participation in the programs would not cover all of her prescription medication costs.

The wife testified that in January 1999 the husband began working in Foley at his mother’s real estate company and that he gradually moved out of the marital home. The wife and the minor child continued to reside in the marital home. According to the wife, the parties’ relationship was suffering by March 2000 and the husband failed to show her any physical affection. In May 2000 the husband informed her that he wanted a divorce.

The wife testified that the minor child receives $394 each month in Social Security income as a result of wife’s disability. The minor child attends a private school, Catholic High School, and a tuition payment of $300 per month is due each month of the year. The wife testified thát the husband is not paying for the minor child’s private-school tuition but that the tuition payments are coming from the minor child’s Social Security income. In addition to tuition, the wife testified, the minor child’s school expenses include $90 per month for fees and uniforms, and $10 per month for school supplies. The wife submitted a list of the minor child’s monthly expenses that totaled approximately $1,655 per month; tuition, fees, and supplies were included in the list.

Beyond the costs associated with school, the wife also included expenses associated with the minor child’s participation in tennis. The wife testified that the minor child was an avid-tennis player and that the minor child had been ranked at state and national levels, but that his commitment level and rankings in the sport had dwindled. According to the wife, the minor child now showed an interest in and enjoyed playing high school football. The wife listed expenses totaling $870 for the child’s tennis lessons, tournament fees, and travel.

The wife owes $20,254 in credit-card and bank debt, and her payments toward that indebtedness are $558 per month. The wife testified that she owes her parents $10,050 for money she borrowed to pay her attorney fees. The wife submitted an exhibit listing her total monthly living expenses as $3,238.

The wife testified that the husband’s mother had helped the parties financially through the years and that the mother had given generous gifts to the parties and their children. The wife further testified that in 1996, the husband’s mother gave the husband a 50 percent interest in the family real estate business and that this business has generated income for the parties.

The husband testified that he has a bachelor’s degree in business administration and that his income was almost $40,000 in 2001 from his job as a real estate broker/agent and from distributions from a revocable trust established following his mother’s death in June 2000. The husband’s income tax records indicate that he earned approximately $33,000 in 1998; $40,000 in 1999; and $43,800 in 2000.

The husband testified that he recently closed his real estate agency because of a foundering real estate market, and that he combined the real estate agency with another company. According to the husband, he now works on straight commission, but he still receives some income from the revocable trust. The husband testified that he would inherit approximately $343,000 in real estate and in life-insurance proceeds from his mother.

The husband testified that the marital home had accumulated approximately $150,000 worth of equity, and that he owed approximately $18,000 on a balloon note that was due at the time of the hearing. The husband further testified that he pays $280 per month toward mortgage indebtedness on the marital home. The husband testified that the title to the 1998 Astro van the wife drives is in his name and that he still owes $8,000 on the van. The husband also testified that he pays $360 per month for the minor child’s health-insurance coverage.

Pursuant to the trial court’s divorce judgment, the wife was awarded $750 per month in periodic alimony for a period of eight years. After considering the testimony and evidence presented at the ore tenus hearing, the trial court stated in its order that it believed the wife was capable of part-time employment:

“The wife holds a RN-ADN degree from Mobile College and up until a few years ago was a practicing Registered Nurse. She developed Dysautonomia and subsequently fell from a stool at Baptist Hospital where she injured her arm.... According to the wife she cannot work and has not been able to work for several years. According to the husband, although he agrees that she cannot work full time, he is of the opinion based upon his observing his wife over the last few years that she could obtain part-time employment.
“There was extensive testimony presented concerning the wife’s traveling by vehicle throughout the southeast United States ... with the minor son to attend tennis tournaments. Just recently, the testimony showed that she and the minor son traveled by vehicle from Wet-umpka, Alabama, to Tampa, Florida, spent a day at Disney World and drove back to Wetumpka, Alabama, within a period of three (3) days. Also, the testimony showed that in June 2000, the wife traveled from Wetumpka, Alabama, to Robertsdale, Alabama, late one Friday night and arriving fsic] in Robertsdale, Alabama, at approximately 2:00 a.m. After a brief visit at the husband’s mother’s residence, she and the minor son then got back into the van and drove all the way back to Wetumpka, Alabama, arriving in the early morning hours of the next day. The Court is of the opinion that the wife does have physical problems that will not allow her to work full time. However, the Court is also of the opinion that the wife could obtain part-time employment and therefore have an income of her own.”

After thoroughly reviewing the record on appeal, as well as the trial court’s detailed order, we cannot say that the trial court abused its discretion in its division of property and award of alimony. It is well settled that the trial court is in the unique position of being able to observe the witnesses firsthand and to evaluate their demeanor and credibility. Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001); Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998). Because the trial court is in that unique position, its judgment based on ore tenus evidence is presumed correct. Robinson, supra. Given the observations made by the trial court in its detailed order, we cannot say that the trial court’s judgment was so unsupported by the evidence as to be plainly and palpable wrong. Brown, supra.

The wife next argues that the trial court abused its discretion in failing to comply with Rule 32, Ala. R. Jud. Admin. Specifically, the wife asserts that the record does not contain a CS^12 child-support guidelines form.

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

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

The record on appeal contains CS-41 child-support income affidavits from both the wife and the husband; however, it does not contain a CS-42 child-support guidelines form. Rule 32(E), Ala. R. Jud. Admin., mandates the filing of “[a] standardized Child Support Guidelines form and a Child Support Obligation Income Statement/Affidavit form ... in each action to establish or modify child support obligations and [those forms] shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.” Rule 32(E), Ala. R. Jud. Admin.; see also Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998).

The portion of the trial court’s divorce judgment awarding child support, states, in part:

“The husband shall pay child support to the wife, for the benefit of the child, $425 per month.... Said child support payments shall include funds necessary to pay for [the child’s] private school tuition and all fees associated therewith.”

The husband contributes $360 toward the minor child’s health care. The wife submitted a list of the minor child’s monthly child-support expenses that included $300 per month for private school tuition, $90 per month for school fees and uniforms, $10 per month for school supplies, and $115 per month for school lunches and snacks. The record indicates that the trial court considered only the tuition and fees as the actual costs associated with attending a private school above and beyond the costs associated with attending a public school; the trial court clearly contemplated the costs of private-school tuition and fees in its award of child support. However, the trial court’s basis for determining the father’s $425 child-support obligation is unclear.

The record in this case does not contain all the child-support guideline forms required pursuant to Rule 32(e), Ala. R. Jud. Admin. Moreover, as was the case in Nelson v. Landis, 709 So.2d 1299, 1300-01 (Ala.Civ.App.1998), “[t]his court has unsuccessfully attempted, based on the evidence in the record, to determine the manner in which the trial court determined the [husband’s] child support obligation.” Therefore, this court must reverse the judgment of the trial court regarding the issue of child support and remand this case for the parties to fully comply with Rule 32(E), Ala. R. Jud. Admin., and for the trial court to enter an order in compliance with the child-support guidelines, or in the alternative, to enter findings justifying a deviation from those guidelines. See Nelson v. Lan-dis, supra.

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

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

CRAWLEY, THOMPSON, and PITTMAN, JJ., concur.

YATES, P.J., concurs in part and dissents in part.

MURDOCK, J., concurs in part; concurs in the result in part; and dissents in part.

YATES, Presiding Judge,

concurring in part and dissenting in part.

I agree with the majority on the issues of alimony and property division. However, I dissent on the issue of child support.

A review of the record indicates that the trial court issued a lengthy and thorough final order. Furthermore, the record contains CS-41 Child Support Obligation Income Statement/Affidavit forms for both the husband and the wife. In addition, the husband offered, and the trial court admitted into evidence, a Child Support Guidelines form CS-42 at trial, although the actual form itself is not contained in the record and the trial court cannot locate it. Nevertheless, I conclude that the record contains extensive evidence relating to the parties’ incomes that comports with the trial court’s award of child support. The majority states that the trial court’s order was “unclear whether the $425 child support award included educational expenses”; however, as to child support the trial court’s order states, in part:

“9. The Husband shall pay child support to the Wife ... $425 per month.... Said child support payments shall continue until such time as [the child] achieves legal age, becomes emancipated or self-supporting, or dies. Said child support payment shall. include funds necessary to pay for [the child’s] private school tuition and all fees associated therewith.”

I read paragraph 9 as providing that the child-support award “shall include funds necessary to pay for [the child’s] private

school tuition.” (Emphasis added.) I conclude that in calculating the amount of child support according to the Rule 32, Ala. R. Jud. Admin., child-support guidelines -the court did, in fact, include funds in its award to cover a portion of the child’s educational expenses, as it stated in its order. Although it is preferable that all of the necessary child-support forms be included in the record, I find that, in this case, the evidence did not place this court in the position of having to “guess at what facts the trial court found in order to enter the support order it entered.” Mosley v. Mosley, 747 So.2d 894, 898 (Ala.Civ.App.1999).

MURDOCK, Judge,

concurring in part; concurring in the result in part; and dissenting in part.

I concur in the result reached by the court with respect to the issue of child support for the reason that it is unclear to me how much the trial court intended to award in this regard. Paragraph 9 of the trial court’s judgment begins: “The Husband shall pay child support to the Wife, for the benefit of [the minor child], $425 per month.” Later in the same paragraph, the judgment states that the child-support award “shall include funds necessary to pay for [the minor child’s] private school tuition and all fees associated therewith.” The record reveals that the child’s private-school tuition was $300 per month and that the cost of school fees and uniforms was $90 per month. Based on the language of the trial court’s judgment and on the record before this court, one might reasonably ask whether the trial court intended to award an amount “necessary to pay for [the minor child’s] private school tuition and ... fees” in addition to the $425 specified in the first sentence of paragraph 9. On the other hand, if the court intended that $425 be the full amount of the husband’s monthly child-support obligation, it cannot be tenably maintained that the $425 includes funds to pay all of the minor child’s tuition and fees; if it did this it would leave only $35 per month for the child’s other financial needs. Yet, if the $425 includes only a portion of the child’s tuition and fees, what portion? How much did the court award for the child’s other financial needs? The answers to these questions are not discernible from the wording of the trial court’s judgment. I therefore agree with the need to reverse that portion of the trial court’s judgment pei-taining to child support and to remand the cause as outlined in the court’s opinion.

I concur in the remainder of the majority opinion except insofar as it provides for the termination of alimony after eight years; I respectfully dissent as to that aspect of the trial court’s judgment. I see no evidence in the record indicating that the wife’s earning capacity will increase over the next eight years; I conclude that the decision at this time to terminate alimony after eight years is arbitrary.

      . Dysautonomia is the faulty regulation of the automatic nervous system and is commonly associated with mitral valve prolapse syndrome. Dysautonomia is a genetic condition.

      . The wife has traveled to Dothan, Alabama; Atlanta, Georgia; Macon, Georgia; Jekyll Island, Georgia; and Baton Rouge, Louisiana.

      . The wife testified that the husband closed his business but his health insurance with Blue Cross and Blue Shield was still intact.

      . The husband testified that the business was in debt in the amount of approximately $69,000.

      . This payment is for a second mortgage on the house; the amount of total mortgage indebtedness is unclear from the record on appeal.

      . The record indicates that the husband introduced a CS-42 into evidence at trial; however, the form is not included in the record on appeal.