author: WOODALL, Justice.

text:
    Ex parte Carol R. EVANS. (In re Carol R. Evans v. David J. Evans).
    1020381.
    Supreme Court of Alabama.
    Sept. 5, 2003.

      Martin Ray and Jonathan K. McGee of Ray, Oliver & Ward, L.L.C., Tuscaloosa, for petitioner.
    Dan Warnes, Guntersville, for respondent.
   WOODALL, Justice.

In 2001, after 22 years of marriage, David J. Evans (“the husband”) and Carol R. Evans (“the wife”) were divorced by the Marshall Circuit Court, following the presentation of ore tenus evidence. The wife filed a Rule 59, Aa. R. Civ. P., motion to alter, amend, or vacate the judgment, or, alternatively, for a new trial (“the Rule 59 motion”). In the Rule 59 motion, the wife requested a hearing, which the trial court did not grant. On July 17, 2001, the trial court entered an amended judgment of divorce, from which the wife appealed.

The Court of Civil Appeals affirmed the judgment of the trial court, without opinion. Evans v. Evans (No. 2001205), 878 So.2d 346 (Ala.Civ.App.2002)(table). After the Court of Civil Appeals overruled the wife’s application for rehearing, the wife petitioned this Court for certiorari review, which we granted on March 26, 2003. We reverse and remand with directions.

This divorce action began on September 26, 2000, when the wife filed a complaint in the Marshall Circuit Court. She alleged that the husband was engaged in “an open adulterous affair.” Aso, the complaint alleged “a complete incompatibility of temperament ... between the parties” and “an irretrievable breakdown of the marriage.” In her demand for judgment, the wife sought relief in the form of a “divorce ... on the grounds of adultery.”

On October 30, 2000, the husband filed an answer and a counterclaim. In his answer, the husband admitted “a relationship with a third party.” Also, he admitted “a complete incompatibility of temperament” and “an irretrievable breakdown of the marriage,” and in his counterclaim he sought a judgment of divorce on those grounds.

The case was tried on March 6, 2001, and both the husband and the wife testified. The trial court also received into evidence numerous exhibits, including the deposition of the woman with whom the husband was having the adulterous relationship.

On May 23, 2001, the trial court entered a final judgment of divorce. The judgment did not mention the husband’s adultery, and it did not specify any ground for the divorce. The other terms of the judgment are not relevant to our review of this matter.

On June 22, 2001, the wife filed the Rule 59 motion, requesting that the trial court “set a hearing in this matter.” In that motion, the wife alleged, in pertinent part, that the trial court had exceeded its discretion “by failing to state the grounds for divorce as being the adulterous conduct of the [husband],” and by failing to award her a larger share of the marital property and a larger amount of periodic alimony.

On July 2, 2001, the husband filed a response to the wife’s Rule 59 motion. In that response, the husband stated, in pertinent part:

“To the extent the court is of the opinion that the grounds for divorce are not sufficiently identified in the judgment of divorce, ample evidence demonstrated that the parties have a complete incompatibility of temperament such that they can no longer live together as husband and wife, and there has been an irretrievable breakdown of the marriage and further attempts at reconciliation are futile and not in the best interest of the parties and family. Therefore, the judgment can be amended to state the divorce is granted on the grounds of incompatibility of temperament.”

The trial court did not schedule a hearing on the wife’s Rule 59 motion. Instead, on July 17, 2001, the trial court entered an amended judgment of divorce, which differed very little from its earlier judgment, and in only one relevant respect. The amended judgment added a ground for the divorce, stating that the husband and the wife “are forever divorced from each other for and on account of irretrievable breakdown of the marriage.” From that amended judgment of divorce, the wife appealed.

The wife contends that the Court of Civil Appeals’ affirmance of the judgment of the trial court conflicts with this Court’s decision in Flagstar Enterprises, Inc. v. Foster, 779 So.2d 1220 (Ala.2000). Our resolution of this issue is dispositive of this appeal. In Flagstar, this Court stated:

“In general, whether to grant or to deny a posttrial motion is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless by its ruling the court abused some legal right and the record plainly shows that the trial court erred. See Green Tree Acceptance, Inc. v. Standridge, 565 So.2d 38 (Ala.1990). However, if a party requests a hearing on its motions for a new trial, the court must grant the request. Rule 59(g), Ala. R. Civ. P. See Walls v. Bank of Prattville, 554 So.2d 381, 382 (Ala.1989) (‘[W]here a hearing on a motion for [a] new trial is requested pursuant to Rule 59(g), the trial court errs in not granting such a hearing.’). Although it is error for the trial court not to grant such a hearing, this error is not necessarily reversible error. For example, if an appellate court determines that there was no probable merit to the motion, it may affirm based on the harmless-error rule. See Rule 45, Ala. R.App. P.; and Kitchens v. Maye, 623 So.2d 1082, 1088 (Ala.1993) (‘failure to grant a hearing on a motion for new trial pursuant to Rule 59(g) is reversible error only if it “probably injuriously affected substantial rights of the parties” ’).”

779 So.2d at 1221. In light of these well-established principles, it is apparent that the trial court erred in failing to grant a hearing on the wife’s Rule 59 motion. Therefore, we must determine whether there is “probable merit” in the wife’s allegation that the trial court exceeded its discretion in failing to state in its order that adultery was the ground for the divorce.

In her petition for the writ of cer-tiorari, the wife points out that “[i]n its final judgment, the trial court did not make a finding of adultery by the [husband],” and, further, she contends that the trial court “ignored [the husband’s] admitted adultery when it adopted [the husband’s] requested property division.” In Ex parte O’Daniel, 515 So.2d 1250, 1253 (Ala.1987), this Court stated: (Emphasis added.) See also Jordan v. Jordan, 802 So.2d 238, 240 (Ala.Civ.App.2001); and Wilkerson v. Wilkerson, 719 So.2d 235, 237 (Ala.Civ.App.1998). One of the “[f|actors the trial court should consider in its award of alimony and its division of property [includes] the conduct of the parties in relation to the marriage.” Turner v. Turner, 804 So.2d 1118, 1120 (Ala.Civ.App.2001).

“A trial judge does not have to grant a divorce on the grounds of adultery or to divide the property in light of one party’s adultery unless the failure to do so would be palpably wrong in light of extensive evidence of adultery.”

The husband and the wife were married in 1978. On May 4, 2000, the wife learned of the husband’s adulterous relationship, a relationship that began in April 1999. On May 21, 2000, the husband moved from the marital residence. Shortly after the parties’ separation, and before the wife filed the divorce action, the parties attempted to reconcile. However, those attempts failed when the husband informed the wife that his adulterous relationship was continuing.

As previously stated, the husband admitted the adulterous relationship in his answer. The third party also admitted the continuing relationship in her deposition, which was taken only five days before trial. Finally, at trial, the following colloquy occurred:

“THE COURT: Well, do [you] stipulate — as I understand it, [you] have told me that [you] stipulate to the grounds for divorce.
“[HUSBAND’S ATTORNEY]: Judge, we stipulated to the relationship that existed. Yes, sir.”

The trial court made no other reference, direct or indirect, to the husband’s adultery.

We must conclude that the trial court’s error in not granting a hearing on the wife’s Rule 59 motion was not harmless, because we find “probable merit” in the wife’s contention that the trial court should have granted the divorce on the ground of adultery and should have considered the husband’s adultery in dividing the marital property and making its award of alimony. Therefore, the judgment of the Court of Civil Appeals is reversed, and the Court of Civil Appeals is directed to remand the cause for the trial court to conduct a hearing on the merits of the wife’s Rule 59 motion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    Carol R. EVANS v. David J. EVANS.
    2001205.
    Court of Civil Appeals of Alabama.
    Oct. 17, 2003.
    Martin Ray and Jonathan K. McGee of Ray, Oliver & Ward, L.L.C., Tuscaloosa, for appellant.
    Dan Warnes, Guntersville, for appellee.
   After Remand from the Alabama Supreme Court

YATES, Presiding Judge.

This court, on October 4, 2002, affirmed the trial court’s judgment, without an opinion. Evans v. Evans, 878 So.2d 346 (Ala.Civ.App.2002) (table). The Alabama Supreme Court has reversed this court’s judgment and has remanded the case. Ex parte Evans, 875 So.2d 297 (Ala.2003). In compliance with the supreme court’s opinion, the judgment of the trial court is reversed, and the case is remanded for the trial court to conduct a hearing on the merits of the wife’s Rule 59, Ala. R. Civ. P., motion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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


text:
    HARDEE’S FOOD SYSTEMS, INC. v. Christie Jo HOOD.
    2020471.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2003.

      Brent A. Tyra of Smith, Tyra & Thomas, LLC, Alabaster, for appellant.
    Neil Taylor, Jr., Russellville, for appel-lee.
   YATES, Presiding Judge.

Christie Jo Hood sued her employer, Hardee’s Food Systems, Inc., on April 11, 2000, seeking to recover workers’ compensation benefits for injuries she sustained during the course of her employment. Following an ore tenus proceeding, the trial court, on January 13, 2003, entered an order finding that Hood had sustained a 90% loss of earning capacity and awarding her benefits. Hardee’s appeals.

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

Hood was employed by Hardee’s as an assistant manager on the date of her injury. She had an average weekly wage of $379.80. Hood was injured on September 10, 1998, when her hair got caught in an exhaust fan, suddenly jerking her head into the fan and cutting her. She stated that she had to free herself from the fan by ripping her hair from her head.

Hood was treated by Dr. Johnny E. Bates following the workplace accident. Hood complained of headaches, neck pain, and dizziness following the accident. She additionally complained about a “bald spot” and a scar that resulted from the accident. Dr. Bates referred Hood to a plastic surgeon for the scar to her head. The plastic surgeon performed surgery on June 1, 1999, to repair Hood’s scar. Hood subsequently underwent a second surgery to further reduce the scar. She returned to Dr. Bates with continued complaints of headaches and neck pain and was referred to Dr. David Longmire, a neurologist.

Hood was first seen by Dr. Longmire on November 10, 1999; she complained of severe headaches and neck pain, which she described as radiating pain from her neck into her head, which was more severe on the left side. She informed Dr. Longmire that the symptoms had not been present before her workplace accident. Dr. Long-mire described Hood’s headaches as cervi-cogenic, identifying the source of the pain as being the muscles in Hood’s neck. He stated that such pain could be caused by the sudden jerking of the neck such as that experienced by Hood during her workplace accident. Dr. Longmire diagnosed Hood with myofacial pain syndrome, cervical radiculopathy, and cervicogenie headaches. He treated her headaches and neck pain with medication. He determined that Hood had reached maximum medical improvement on May 25, 2000.

Hood was referred for a functional capacities evaluation on May 10, 2001. The functional capacities evaluation was conducted by Dr. Eric R. Beck. Dr. Beck determined that Hood had a 15% physical-impairment rating to the body as a whole. He placed no restrictions on her walking, standing, sitting, balancing, stooping, kneeling, crouching, squatting, and reaching; however, he restricted Hood to only occasional overhead work, climbing, and looking down, and he restricted her to occasional lifting of no more than 40 pounds and frequent lifting of no more than 15 pounds. Dr. Longmire testified that he agreed with the 15% physical-impairment rating assigned to Hood and with the restrictions placed upon her.

Hood returned to her position of assistant manager with Hardee’s shortly after her injury at the same rate of pay she was earning before her injury. Hardee’s terminated Hood’s employment in August 1999, approximately 11 months after her injury. Hood claims that her physical problems, the side effects of her medication, and work-related issues led to her losing her job.

Following her employment with Har-dee’s, Hood was employed by another fast-food restaurant for approximately three months. She left that job because “[she] found a better opportunity at [Jack’s Family Restaurants].” Hood was employed as a manager trainee by Jack’s and earned a weekly wage of $375. Hood’s tax records submitted into evidence indicate that she earned more wages while employed at Jack’s than she did while she was employed at Hardee’s. Hood worked for Jack’s for approximately two years before resigning her employment.

The trial court’s order stated, in part:

“[T]he plaintiff, Christie Jo Hood, was an adult female, 26 years of age at the time of hearing; that she has a high school and one semester of college education; that the plaintiffs employment training and history is that of a manual laborer, and that she is not now trained or suited for any type of work or employment other than as a manual laborer.”

Because Hood returned to work after her injury at a wage equal to or greater than.her preinjury wage, § 25 — 5—57(a)(3)i., Ala.Code 1975, is applicable to the facts of this case. That section reads:

“Return to Work. If, on or after the date of maximum medical improvement, ... an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

With regard to § 25 — 5—57(a)(3)i., this court has stated:

“ ‘It is well settled that the trial court has the duty to determine the extent of disability and is not bound by expert testimony in making that determination; yet, in making its determination, the trial court must consider all the evidence, including its own observations, and it must interpret the evidence to its own best judgment. Wolfe v. Dunlop Tire Corp., 660 So.2d 1345 (Ala.Civ.App.1995). Specifically, a trial court is not bound to accept a physician’s assigned impairment rating and is free to make its own determination as to an employee’s impairment. Checker’s Drive-In Restaurant v. Brock, 603 So.2d 1066 (Ala.Civ.App.1992).
“ ‘... Nothing in § 25-5-57(a)(3)i. can be interpreted to mean that the trial court is bound by the physician’s assigned physical impairment rating and prohibited from considering its own observations with regard to the impairment and then making adjustments to that rating, so long as it does not consider evidence of vocational disability and the disability rating assigned the employee is equal to the physical impairment rating.’ ”

Dairyman’s Supply Co. v. Teal, 863 So.2d 1109, 1112-13 (Ala.Civ.App.2003), quoting Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.Civ.App.1996).

It appears from the trial court’s order that it considered certain factors routinely considered by this court as evidence of vocational disability, i.e., the employee’s age, education, training, and experience. See Wal-Mart Stores, Inc. v. Reynolds, 794 So.2d 1193 (Ala.Civ.App.2001). Because § 25-5-57(a)(3)i., Ala. Code 1975, prohibits the consideration of evidence regarding vocational disability when an employee returns to work at a wage equal to or greater than his or her preinjury wage, we have no choice but to reverse the judgment of the trial court and remand the case for the trial court to enter an order without considering evidence of vocational disability, or making it clear that such evidence was not considered by the court in reaching its determination as to the extent of Hood’s disability.

Hardee’s also argues that the trial court erred in awarding Hood permanent partial disability benefits in excess of the statutory maximum allowed by law. Section 25-5-68(a), Ala.Code 1975, provides “the maximum compensation payable for permanent partial disability shall be no more than the lesser of $220.00 per week or 100 percent of the average weekly wage.” The trial court awarded Hood permanent partial disability benefits of $227.86 per week for 294.43 weeks. Accordingly, on remand, should the court again determine that Hood is entitled to permanent partial disability benefits, the award should not exceed the statutory maximum allowed by § 25-5-68(a), Ala. Code 1975. Further, the 15% attorney fee that was calculated in part on the basis of the court’s erroneous award of permanent partial benefits above the statutory maximum allowed must also be recalculated on remand. See G.UB.MK. Constructors v. Traffanstedt, 726 So.2d 704 (Ala.Civ.App.1998).

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

MURDOCK, J., concurs in the result.


author: THOMPSON, Judge.

text:
    B.G. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2020577.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2003.
    Todd B. Watson, Evergreen, for appellant.
    William H. Pryor, Jr., atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources.
   THOMPSON, Judge.

Following an ore tenus proceeding held on October 23, 2002, the Conecuh Juvenile Court (“the trial court”) terminated the parental rights of B.G. (“the mother”) with regard to her two minor children. The trial court also terminated the parental rights of C.A., the father of the two minor children. Only the mother appeals.

In 2001, the mother and her two minor children were evicted from public housing because the mother had allowed her brother to live with the mother and the children in violation of the public housing authority’s rules. Because she was homeless, the mother requested that the Department of Human Resources (“DHR”) place her children with their paternal grandmother. Relative placement was explored without success by DHR; subsequently, the children were placed in foster care.

On September 6, 2002, DHR filed a petition to terminate the mother’s parental rights. The petition alleged that the mother had abandoned the children for over six months preceding the filing of the petition. A hearing on the petition was held on October 23, 2002, during which Mary Sullivan, a social-service caseworker, testified for DHR.

Sullivan testified that DHR had offered counseling and parenting classes to the mother during the 16 months preceding the termination hearing. Sullivan also testified that DHR had arranged for weekly family visits with the children and had provided transportation for the mother to the visitation. While the children were in DHR’s custody, the mother was incarcerated on three separate occasions in Clarke, Conecuh, and Escambia counties. Two of the incarcerations were because the mother was found guilty of shoplifting, and one was due to the mother’s failure to pay child support; each of those offenses was a misdemeanor. Before the termination hearing, the mother had served all of her time in jail and was working and living in Evergreen.

Sullivan testified that, except during the times when the mother was incarcerated and one other time when the mother was working, the mother had not missed a visit with her children. Sullivan stated that the mother brought small gifts to the children and that she lived in a mobile home that was “nice.” Sullivan said that the mother paid child support and that she had no knowledge of the mother having any drug or alcohol problems.

At the time of the termination hearing, the mother had been employed for three months at South Forty restaurant. She was living in a mobile home with O.C. (“the boyfriend”), a married man separated from his wife. Sullivan expressed concern with the mother’s living arrangement because the rent on the mobile home was paid by the boyfriend. Sullivan feared that the mother and the boyfriend might argue and that the boyfriend could force the mother to leave the mobile home, thus leaving the mother and the children homeless again. Sullivan felt that any living arrangement involving the boyfriend could be volatile because the boyfriend was still married.

Sullivan said that DHR might have felt differently regarding whether to seek the termination of the mother’s parental rights if the mother had been living by herself in a more stable arrangement. Sullivan said that she never explicitly told the mother to move out of the mobile home that she was sharing with the boyfriend; however, she did state that she told the mother that DHR viewed the mother’s current living conditions as unstable. Sullivan admitted that DHR did not help the mother find another place to live or tell the mother that she needed to move out and get her own place to live; Sullivan testified that, “I never advised [the mother] to do that. Where she lives is her choice.” The mother testified that she believed she had done everything that DHR had asked her to do.

When asked whether she thought the mother could take care of the children, Sullivan testified that “as long as it was going to be a stable home ... she probably could.” Sullivan explained that a “stable home” would be one in which the mother lived by herself. Sullivan admitted that the mother had made improvements during the time that the children had been in foster care, but she stated that the mother had taken too long to improve her situation. At the time of the termination hearing, the children had been in foster care for almost 17 months.

“The termination of parental rights is a drastic measure, and the courts gravely consider such action.” K.A.C. v. Jefferson County Dep’t of Hitman Res., 744 So.2d 938, 940 (Ala.Civ.App.1999)(citing Ex parte Beasley, 564 So.2d 950 (Ala.1990)). A parent’s right to custody of his or her child may be overcome by clear and convincing evidence indicating that a termination of parental rights is in the best interests of the child. M.H.S. v. State Dep’t of Human Res., 636 So.2d 419 (Ala.Civ.App.1994).

Where a nonparent petitions to terminate a parent’s parental rights, the trial court must apply a two-part test. Ex parte Beasley, 564 So.2d at 952. First, the trial court must determine that the child is dependent. After finding the child dependent, the court must examine viable alternatives to the termination of parental rights. Where a trial court hears evidence ore tenus, its judgment is presumed to be correct; that judgment will be set aside only if the record reveals it to be plainly wrong. Varner v. Varner, 662 So.2d 273 (Ala.Civ.App.1994).

The mother argues that the trial court did not have before it clear and convincing evidence that no viable alternative to the termination of her parental rights existed. Section 26-18-7, Ala.Code 1975, which provides the statutory authority for the termination of parental rights, provides:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for [the] needs of the child.
“(3) That the parent has tortured, abused," cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached by local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

The mother certainly has been far from the ideal parent. She has made numerous bad decisions in her life. However, according to DHR’s own assessment, the mother has made a great deal of progress. The record shows that at the time of the termination hearing, the mother had served her jail time, found employment, completed two parenting classes, attended counseling, continued making child-support payments, and found a place to live that Sullivan described as a “nice, neat and clean home.” The mother also had continued weekly visitation with her children and had brought them gifts. The mother did not drink any alcohol or use any illegal drugs. According to Sullivan, the only part of the mother’s life that DHR viewed as “unstable” was the mother’s living situation with the boyfriend. Although arguably the mother should have been able to recognize the problem with her living arrangement, DHR never clearly explained to the mother that it was her living with the boyfriend that was keeping her children from being returned to her. Sullivan testified that after children have been in DHR’s custody for one year the State begins to seek the termination of parental rights pursuant to state policy.

The termination of parental rights is reserved for the most egregious of circumstances. Ex parte Beasley, supra. Given the facts of this case, we cannot say that the evidence in support of DHR’s petition in this case was “so ‘clear and convincing’ as to support ‘the last and most extreme disposition permitted by law, the termination of parental rights.’ ” T.H. v. State Dep’t of Human Res., 740 So.2d 1089, 1092 (Ala.Civ.App.1998)(quoting Bowman v. State Dep’t of Human Res., 534 So.2d 304, 306 (Ala.Civ.App.1988)). While we are aware of the legal principles that control a parental-rights-termination case and of the presumption accorded a trial court’s judgment when it has heard evidence ore tenus, after reviewing the record in this case, we must conclude that the decision of the trial court to terminate the mother’s parental rights, at least at this point, is not supported by the evidence. Therefore, we conclude that the trial court’s decision to terminate the mother’s parental rights was premature. See K.A.C. v. Jefferson County Dep’t of Human Res., 744 So.2d 938 (Ala.Civ.App.1999); see also L.A.G. v. State Dep’t of Human Res., 681 So.2d 596 (Ala.Civ.App.1996).

REVERSED.

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

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


author: MURDOCK, Judge. PITTMAN, Judge,

text:
    Angela BOHANON et al. v. Bobby EDWARDS.
    2010547.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2003.
    Donald R. Harrison, Dadeville, for appellant.
    Kenneth Ingram, Jr., of Kenneth Ingram, Jr. & Associates, P.C., Alexander City, for appellee.
   MURDOCK, Judge.

This case involves an action to quiet title to real property filed by Angela Bo-hanon, James Chapman, and Debra Poole (hereinafter referred to collectively as “the children”) against Bobby Edwards. The children appeal from a judgment of the Tallapoosa Circuit Court in favor of Edwards.

William Robinson (“the father”) died intestate on May 2, 1979; he was survived by three minor children, Angela, James, and Debra, who were 18,10, and 5 years of age, respectively. The father was not survived by a spouse or by any siblings. Following the father’s death, his parents, Archie Robinson (“the grandfather”) and Annie Robinson (“the grandmother”), took possession of a parcel of property the father had acquired by deed in 1973. When the grandfather died in 1980, his will devised all of his real property to the grandmother. In 1997, the grandmother died; her will devised all of her real property to Bobby Edwards, her nephew.

On November 24, 1999, Angela Bohanon filed an action in the Tallapoosa Circuit Court to quiet title to the parcel of property that the father had owned. Thereafter, the complaint was amended to add Debra Poole and James Chapman as plaintiffs. On March 21, 2000, Edwards moved for a summary judgment, claiming that he owned legal title to the land by virtue of the grandmother’s will. On October 15, 2001, Edwards filed a supplemental motion for a summary judgment, contending that the children’s claims should be “dismissed” because they were barred by the 10-year and 20-year limitations periods referenced in Ala.Code 1975, § 6-2-33(2), and Ala. Code 1975, § 6-2-8(a), respectively. Following the filing of this supplemental motion for a summary judgment, the children filed a “trial brief’ in which they argued that Edwards could not prove the factual elements requisite to either a showing of statutory adverse possession for the 10-year period prescribed in Ala.Code 1975, § 6-5-200, or a showing of adverse possession for the 20-year period of prescription.

Although the trial court did not rule on either of Edwards’s motions for a summary judgment, following an ore tenus hearing held on October 1, 2001, the trial court, on January 11, 2002, entered an order dismissing the children’s complaint on the same grounds asserted by Edwards in his supplemental motion:

“The Court agrees with [Edwards] that the statute of limitations has expired on all of the [children’s] claims set out in their Complaint, therefore, the Court finds no reason to discuss the issue of adverse possession raised by [Edwards]. Alabama- Code 1975, § 6-2-33(2) states that ‘[a]ctions for the recovery of lands ... or the possession thereof ... ’ must be commenced within 10 years....
“Alabama Code 1975, § 6-2-8(a) also applies to this cause of action which further states that ‘[n]o disability shall extend the period of limitations so as to allow an action to be commenced ... after the lapse of 20 years from the time the claim or right accrued.’ In applying this statute of limitations, the [children’s] claims as set out in this Complaint must have been commenced on or before May 3,1999. This action to quiet title was filed by the [children] on or about November 24, 1999, in the Circuit Court of Tallapoosa County, Alabama at Alexander City after the statute of limitations on May 3, 1999, and therefore [is] barred under the Alabama Code 1975, § 6-2-8(a) and § 6-2-33(2).
“It is therefore ORDERED, ADJUDGED AND DECREED that the [children’s] Complaint to quiet title fails and therefore the [children’s] Complaint is hereby dismissed.”

(Emphasis added.)

Thus, as Edwards himself states in his brief to this court, “[t]he trial court never addressed the issue of adverse possession, and instead ruled for [Edwards] based on [the] statute [of] limitations.”

The children appeal. They argue that it was error for the trial court to enter the judgment in favor of Edwards based merely on either the 10-year or the 20-year limitations period referenced above without determining whether Edwards had satisfied all of the factual elements necessary under Alabama law to acquire title to real property by adverse possession.

Alabama recognizes two types of adverse possession: (1) adverse possession by prescription and (2) statutory adverse possession pursuant to § 6-5-200, Ala. Code 1975. Sparks v. Byrd, 562 So.2d 211 (Ala.1990). Specifically,

“ Adverse possession by prescription requires actual, exclusive, open, notorious and hostile possession under a claim of right for a period of twenty years. See Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965). Statutory adverse possession requires the same elements, but the statute provides further that if the adverse possessor holds under color of title, has paid taxes for ten years, or derives his title by descent cast or devise from a possessor,[] he.may acquire title in ten years, as opposed to the twenty years required for adverse possession by prescription. Code 1975, § 6-5-200. See Long v. Ladd, 273 Ala. 410, 142 So.2d 660 (1962).’”

Sparks, 562 So.2d at 214 (quoting Kerlin v. Tensaw Land & Timber Co., 390 So.2d 616, 618 (Ala.1980)) (emphasis omitted). Those required elements to claim title by prescriptive adverse possession, or by statutory adverse possession, are well established and consistently have been reiterated by this court and our Supreme Court in a long line of cases that continues to the present day. See, e.g., Bradley v. Demos, 599 So.2d 1148 (Ala.1992); Sparks v. Byrd, 562 So.2d 211; Calhoun v. Smith, 387 So.2d 821 (Ala.1980); Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964); and Henderson v. Dunn, 871 So.2d 807 (Ala.Civ.App.2001).

The 10-year statute of limitations relied upon by Edwards and by the trial court states, in pertinent part:

“The following actions must be commenced within 10 years:
“(2) Actions for the recovery of lands, tenements or hereditaments, or the possession thereof, except as otherwise provided in this article.”

Ala.Code 1975, § 6-2-33 (emphasis added).

As for the 20-year limitations period also relied upon by the trial court, § 6-2-8(a) provides, in pertinent part:

“(a) If anyone entitled to commence any of the actions enumerated in this chapter, to make an entry on land or enter a defense founded on the title to real property is, at the time the right accrues, below the age of 19 years, or insane, he or she shall have three years, or the period allowed by law for the commencement of an action if it be less than three years, after the termination of the disability to commence an action, make entry, or defend. No disability shall extend the period of limitations so as to allow an action to be commenced, entry made, or defense made after the lapse of 20 years from the time the claim or right accrued.”

The children contend that the trial court erred in dismissing their complaint based merely on the limitations periods prescribed in § 6-2-33 and § 6-2-8, without any finding as to the factual elements requisite to establishing a claim of adverse possession. There clearly is force of logic behind the children’s position. If the 20-year prescriptive period referenced in § 6-2-8 is to be applied in the manner in which it was applied by the trial court in this case — without any finding as to whether the qualitative elements of possession necessary to constitute “adverse possession” (i.e., actual, exclusive, open, notorious, hostile, and continuous possession) have been proven — this effectively will excise those elements from our well-established caselaw regarding adverse possession by prescription. Likewise, to apply § 6-2-33(2) as did the trial court — without any finding that the qualitative elements of adverse possession had been proven — would effectively excise those elements from our well-established caselaw regarding statutory adverse possession under § 6-5-200. Further, application of the 10-year limitations period prescribed in § 6-2-33(2) in the manner in which it was applied by the trial court would obviate the need to demonstrate one of the three elements prescribed by § 6-5-200 as a prerequisite for acquiring title by adverse possession in 10 years, rather than in 20 years.

We reverse the trial court’s judgment. In doing so, however, it is not necessary for us to rely solely upon the force of logic of the children’s position.

In Washington v. Norwood, 128 Ala. 383, 30 So. 404 (1901), the Supreme Court considered a creditor’s action to set aside a fraudulent conveyance of land. The grantee asserted both the statute of limitations and adverse possession as defenses. In explaining that both defenses failed for the same reason, the Supreme Court explained as follows:

“In dealing with this question, it needs only to be ascertained what is adverse possession, its nature and incidents, and to avoid a confusion of it with the statute of limitations. Adverse possession may be said to be a collective fact made up of other facts which are essential, constituent elements to the creation of the collective fact. Among these constituent elements are an actual possession of the res, and an open and notorious assertion of claim of ownership hostile to the true owner. After its creation, it is the continuation of this collective fact without interruption for the period fixed by the statute of limitations as a bar to the commencement of a suit that renders it effective as a defense. It is the thing that puts the statute in motion as con-tradistinguished from the statute itself and its continuity for a definite period that completes the bar of the statute. Even after the statute has been put in motion a break or interruption in the adverse possession stops the running of the statute.”

128 Ala. at 390, 30 So. at 406.

Suggesting that the predecessors of § 6-2-33(2) and § 6-5-200 were to be read in pan materia with one another, the Supreme Court stated in Cotney v. Eason, 269 Ala. 354, 357, 113 So.2d 512, 515 (1959):

“ ‘The ten-year statute of limitations as to real actions and the statute of adverse possession are to the same end and purpose,’ Drummond v. Drummond, 232 Ala. 401, 168 So. 428, 430 [ (1936) ]; or to express it another way— adverse possession is based upon the running of the statute of limitation of ten years.”

Moreover, in Lay v. Phillips, 276 Ala. 273, 161 So.2d 477 (1964), our Supreme Court offered the following explanation of the requirements for establishing adverse possession and satisfying the applicable statutes of limitations in a case involving a boundary-line dispute:

“The burden upon [the plaintiff], if he is to extend his documentary title, is to show by the required measure of proof that he has been in the actual, clear, notorious, continuous, adverse and exclusive occupancy of the questioned strip for the ten years required by [Title 7, § 828, Ala.Code 1940, the predecessor to § 6-5-200,] or for twenty years if he seeks to establish absolute repose of title in him by prescription.
“Our adverse possession statute of ten years (Sec. 828, supra) is a statute of limitations, Cotney v. Eason, 269 Ala. 354, 113 So.2d 512 [ (1959) ], whereas our rule of prescription of twenty years is a rule of absolute repose....
“Thus the absolute presumption arising from a right claimed and exercised for twenty years is not subject to being tolled, whereas our statute of adverse possession, being a statute of limitations is so subject under appropriate circumstances.
“Under both our adverse possession statute and our rule of prescription, a claimant to succeed, must show his dominion over the real estate, and his adverse holding and claim, to the same degree and extent, that is, under the statute for a period of ten years, and the prescriptive rule for a period of twenty years. Under the statute, unless a coterminous owner, in addition to adverse possession for the required period of ten years, the claimant must also show one of the three alternative conditions precedent, i.e., color of title, or payment of taxes for ten years, or title by descent cast or devise, etc. Neither of these alternative conditions are required to exercise a claim of right by prescription. Ford v. Bradford, 218 Ala. 62, 117 So. 429 [ (1928) ].”

276 Ala. at 276-77, 161 So.2d at 480-81.

In Craig v. Craig, 372 So.2d 16 (Ala.1979), our Supreme Court once again explained that the 10-year statute of limitations in § 6-2-33(2) does not run without the factual elements of adverse possession being in existence:

“The appellants’ initial contention is that the trial court erred by ruling against them on their defense of the ten-year statute of limitations, Code 1975, § 6-2-33(2). This section, dealing with actions for the recovery of lands, applies to actions seeking to set aside a deed as a fraudulent conveyance. Hall v. Hulsey, 271 Ala. 576, 126 So.2d 217 (1961); Drummond v. Drummond, 232 Ala. 401, 168 So. 428 (1936).
“... However, the statutory period does not start to run until adverse possession begins. Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779 (1949); Rowe v. Bonneau-Jeter Hardware Co., 245 Ala. 326, 16 So.2d 689 (1943).
“The complaint in this case is silent as to possession. It does not show on its face whether or not Marcus was in adverse possession so as to start the running of the ten-year statute. Ellis v. Stickney, supra. Therefore, the motion to dismiss was properly denied.
“Moreover, the evidence adduced at trial was not sufficient to establish adverse possession for ten years. There was testimony that Marcus Craig paid taxes on the land, collected rents, and made no accounting of the profits. However, there is nothing to show that his possession was adverse to the rights of his brothers and sisters. There was no open disavowal of his position as executor brought home to the other heirs with unquestionable certainty, thus putting them on notice that he held the land for himself and not for the estate. See Holt v. Wilson, 75 Ala. 58 (1883); McCarthy v. McCarthy, 74 Ala. 546 (1883).”

372 So.2d at 18-19. See also Barrentine v. Parker, 236 Ala. 188, 181 So. 263 (1938).

Nor does the 20-year limitations period expressed in § 6-2-8 set up any bar to actions for the recovery of land distinct from the well-established elements of adverse possession by prescription. As our Supreme Court explained in Scroggins v. Reneau, 277 Ala. 243, 246, 168 So.2d 614, 617 (1964):

“[T]he respondents, or their predecessors in title, having been in possession of the land and exercising absolute dominion over it adverse to all the world, for more than 20 years, our rule of prescription would vest title in the respondents.
“The latter part of [Title 7, § 36, Ala. Code 1940, the predecessor to § 6-2-8], to the effect that no disability shall extend the period of limitations so as to allow an action after twenty years is but a statutory affirmation of our doctrine of prescription. Woodstock Iron Co. v. Roberts, 87 Ala. 436, 6 So. 349 [ (1888) ]. So sweeping is the principle of prescription that the presumption raised by it is not affected by proof of any disability such as non-age or coverture. Garrett v. Garrett, 69 Ala. 429 [ (1881) ]; Schwab v. Nonidez, 276 Ala. 308, 161 So.2d 592 [ (1964) ].”

(Emphasis added.) See also Ellis v. Stickney, 253 Ala. 86, 94-95, 42 So.2d 779, 786 (1949) (recognizing that the 10-year limitations period prescribed in Title 7, § 20, Ala.Code 1940, the predecessor of § 6-2-33(2), Ala.Code 1975, did not come into operation until adverse possession was shown). See also Barrentine v. Parker, 236 Ala. 188, 190, 181 So. 263, 264-65 (1938) (holding that “although a mortgagor remains in the actual, open, possession of the mortgaged land without recognition of the debt or the existence of the mortgage as a valid claim, but without a renunciation or disclaimer of the mortgagee’s right ... for a period of twenty years from its maturity, ... he cannot defeat foreclosure proceedings begun within such twenty-year period”).

In light of the foregoing, we agree with the children’s argument that the trial court erred in dismissing the children’s complaint based merely upon the bare application of the 10-year and 20-year limitations periods prescribed in § 6-2-33 and § 6-2-8. We therefore reverse the trial court’s judgment. On remand, the trial court should make findings as to whether the nature and quality of possession required for a showing of adverse possession — i.e., actual, exclusive, open, notorious, hostile, and continuous possession— were proven for the requisite period. In the event the trial court finds on remand that Edwards did, in fact, adversely possess the property for at least 10 years, but less than the prescriptive period of 20 years, the provisions of § 6-5-200(a) would then become relevant.

REVERSED AND REMANDED.

YATES, P.J., and CRAWLEY, THOMPSON, and PITTMAN, JJ., concur in the result.

PITTMAN, Judge,

concurring in the result.

The trial court’s judgment was entered after an ore tenus proceeding. Under the proper standard of review, i.e., the “ore tenus rule,”

“ ‘a presumption of correctness accompanies the trial court’s judgment when it has made findings of fact based on disputed oral testimony without a jury, and its judgment will not be reversed unless it is shown to be plainly and palpably wrong, considering all of the evidence and all inferences that can be logically drawn from the evidence.’ ”

River Conservancy Co. v. Gulf States Paper Corp., 837 So.2d 801, 806 (Ala.2002) (quoting Alabama Highway Dep’t v. Stuckey’s/DQ of Grand Bay, Inc., 613 So.2d 333, 335 (Ala.1993)). Moreover, “[a] ruling of a trial court, right for any reason supported by the record, should be affirmed on appellate review.” Cassels v. Pal, 791 So.2d 947, 954 (Ala.2001).

I am not convinced that a judgment in favor of Edwards would necessarily be erroneous in light of the record in this case. According to the record, at the time Archie Robinson and Annie Robinson, William Robinson’s parents, took possession of the subject property via intestate succession pursuant to § 43-8-42, Ala.Code 1975, they did so under a claim of right based upon the premise that William Robinson had died on May 2, 1979, without any living children; that possession, therefore, would appear to have been in direct opposition to the children’s claim to ownership. Edwards, who is Annie Robinson’s nephew, testified that he had lived on the subject property since the death of William Robinson and had paid the taxes on the subject property; moreover, the record reveals that he received title to all of his aunt’s real property by devise and that his aunt, in turn, had received title to all of Archie Robinson’s land by devise.

Under § 6-2-33(2), Ala.Code 1975, an action “for the recovery of lands” must be brought within 10 years of the accrual of the cause of action. Although two of the children were not of the age of majority (19 years) at the time of William Robinson’s death, which afforded them an additional three years from their having reached the age of 19 years to commence an action to recover lands (§ 6-2-8(a), Ala. Code 1975), the youngest of the children attained the age of majority in February 1993. If Archie Robinson and Annie Robinson (and Edwards) can be said to have adversely possessed the land from the death of William Robinson, none of the children could properly have brought an action to recover the subject property after February 1996. See Varden v. Fulmer, 621 So.2d 1320 (Ala.1993).

Under the ore tenus standard, the trial court’s judgment and all implicit findings necessary to support its judgment carry a presumption of correctness, and the trial court’s judgment will not be reversed unless found to be plainly and palpably wrong. Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). There is no statutory requirement that a trial court must “find the facts specially and state separately its conclusions of law” in adverse-possession actions so as to require express findings in this case under Rule 52(a), Ala. R. Civ. P. Therefore, had the trial court simply ruled in favor of Edwards, or determined that the children’s action was time-barred without explicitly mentioning adverse possession in its judgment, I believe that court’s judgment could properly have been affirmed under Transamerica because we would have been required to assume that the trial court made those intermediate findings necessary to support its judgment. Here, however, I cannot properly make the assumption that the trial court found Edwards’s possession to be adverse, a finding which is necessary to support a judgment in Edwards’s favor, because that court stated in its judgment that it would not “discuss” adverse possession. Because I believe that the trial court may not expressly disavow any determination on the issue of adverse possession, I concur in the result to reverse.

CRAWLEY and THOMPSON, JJ„ concur.

      . Whether the three plaintiffs were, in fact, the father's children was initially disputed. Evidence subsequently established that Boha-non, Chapman, and Poole were the father's children.

      . Edwards claims that because the father was not survived by any known children (see note 1), a spouse, or siblings, the property passed to the grandfather and the grandmother equally under § 43-8-42, Ala.Code 1975 (providing that intestate succession mandates that in the event there is no surviving spouse or issue at the time of the decedent’s death, the property passes to the decedent’s parent or parent’s equally).

      . Edwards also states in his brief that the issue of adverse possession was not at issue "based on the ruling of the trial court in the order of January 11, 2002, dismissing the [children’s] Complaint to quiet title. The court did not rule on this issue because of the invalid Complaint. Therefore, [Edwards] was not required to prove adverse possession.” (Emphasis added.)

      . More specifically, § 6-5-200(a), Ala.Code 1975, provides:
      "(a) Adverse possession cannot confer or defeat title to land unless:
      "(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
      "(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10. years prior to the commencement of the action if the land is subject to taxation; or
      "(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land.”

      . Presumably because of the principle recognized in Scroggins v. Reneau, 277 Ala. 243, 168 So.2d 614 (1964), and Ellis v. Stickney, 253 Ala. 86, 42 So.2d 779 (1949), no statute-of-limitations argument appears to have been made by the defendant in Jones v. Jones, 423 So.2d 158 (Ala.1982), despite the fact that the defendant had been in actual possession of the disputed property for over 20 years. The Supreme Court held that the defendant’s attempt to assert a claim of adverse possession by prescription failed because the defendant’s possession did not become adverse to the plaintiff until a date less than 20 years from the plaintiff’s filing of a complaint against the defendant seeking to establish his rights in the disputed property. 423 So.2d at 160-61 (also holding that the defendant could not take advantage of the 10-year period for possession under § 6-5-200 because, although there was evidence that the defendant had paid taxes on the disputed property for 24 years, the court could not infer that "paying” taxes was the same as "listing” the land for taxation, as required by § 6-5-200(a)(2)).


text:
    Timothy A. BURLESON v. Sandra G. BURLESON.
    2020180.
    Court of Civil Appeals of Alabama.
    Sept. 5, 2003.

      Becky Meyer, Decatur, for appellant.
   THOMPSON, Judge.

Timothy A. Burleson (“the father”) and Sandra G. Burleson (“the mother”) were married on March 18, 2000. One child was born of the parties’ marriage. On April 10, 2002, the mother filed a complaint seeking, among other things, a divorce and an award of temporary custody of the child. The trial court entered a pendente lite order on April 11, 2002, and it subsequently amended that order on May 30, 2002, to award the mother the exclusive use of the marital home and to order the father to pay $405 per month for child support. On June 19, 2002, the father answered.

The trial court conducted a final hearing on September 24, 2002, during which it received ore tenus evidence. On that same day, the trial court entered a temporary order awarding the father and the mother joint legal custody of the child, with the mother having physical custody of the child, and setting forth a visitation schedule for the father. The father was ordered to make monthly payments of $391 for child support and $428 towards a child-support arrearage.

On October 9, 2002, the trial court entered a final divorce judgment, in which it incorporated its September 24, 2002, temporary order and in which it also divided the parties’ marital property. Pursuant to the divorce judgment, the mother was awarded the marital home, subject to its mortgage indebtedness; a 1991 Lincoln Town Car; and some possessions acquired during the marriage. The father was awarded a 2001 Ford F-350 truck, a 2000 all-terrain vehicle, and a 1995 Dutchman camper. The father and the mother were held responsible for their individual debts and were awarded their respective retirement benefits. The father appeals.

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). “Th[is] 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).

At the time of the hearing in this matter, the father was 42 years old and the mother was 40 years old; the child was 14 months old. The parties were married for two years. The father had been married three times previously; this was the mother’s first marriage. The father had one child from a previous marriage for whom he paid $325 in monthly child support.

The father works as a police officer for the City of Decatur; he has worked for the City for 21 years. The mother works as a special-education teacher for the Decatur City School System, and she also works part-time as an adjunct professor for Athens State University. The father earns $3,165 in gross income per month. The mother earns $3,950 in gross income per month as a special-education teacher, and $400 in gross income per month as an adjunct professor; the mother’s total gross monthly income is $4,350. The father was employed part-time with Russell Security during the parties’ marriage, but he quit his part-time employment in March 2002.

The parties owned one piece of real property, the marital home. The parties purchased the marital home shortly after they married for $86,000. The mother testified that a recent appraisal listed the value of the parties’ home at $115,000. The parties owed $87,046.20 in outstanding mortgage indebtedness on the marital home; the parties made no down payment towards the purchase price of the home and borrowed $88,000 to purchase the home. The mother testified that, at the time the parties purchased the home, she and the father borrowed $1,000 earnest money from the father’s mother. The mother further testified that she reimbursed the father’s mother for the earnest money and that the father did not contribute to that payment.

Before purchasing the marital home, the father and the mother lived in a condominium that the mother had owned before the parties married. The mother testified that in July 2000 she sold her condominium and made a $1,750 profit that she then spent towards improvements on the marital home. According to the mother, the home was in need of multiple repairs that she paid for without any financial assistance from the father. The mother testified that she paid $1,098.89 for paint for the interior of the home, in addition to $3,416 for new carpet for the first floor of the home.

The mother testified that she had paid the monthly mortgage payments of $860 since the parties purchased the home. The mother testified that, in addition to the mortgage payment, she paid for approximately 90% of the groceries and for most, if not all, of the child’s needs. According to the father, he paid $100 to $150 per month for groceries. The father testified that he was responsible for paying the power bill, the cable bill, and the telephone bill. According to the mother, the power bill averaged $175 per month and the telephone bill averaged $100 per month; the cable bill was consistently $29.95. The father testified that he is responsible for payments on his Ford truck and his all-terrain vehicle; the mother owes nothing on her vehicle.

The mother and the father testified that there were problems in the marriage almost immediately. The father is a recovering alcoholic. The mother testified that she reached her decision to leave the father after an incident in February 2002 when the father arrived home drunk. Following that incident, the father entered a 21-day program at the Bradford treatment center; the father was suspended for 15 days from his employment as a police officer after he returned from treatment. The father testified that he is now an active participant in Alcoholics Anonymous. The father works as a third-shift police officer from 10:30 p.m. to 6:30 a.m.

On appeal, the father contends that the trial court erred by awarding the mother the marital home, thereby awarding the mother 100% of the equity in the home. It is well settled that matters of property division rest soundly within a trial court’s discretion. Albertson v. Albertson, 678 So.2d 118 (Ala.Civ.App.1996); Welch v. Welch, 636 So.2d 464 (Ala.Civ.App.1994). In fashioning a property division, a trial court should consider the earning ability of the parties; their ages and health; their station in life; the marital properties and their sources, values, and types; and the conduct of the parties in relation to the marriage. Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001). Furthermore, a division of marital property in a divorce case does not have to be equal, only equitable, and a determination of what is equitable rests within the sound discretion of the trial court. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996).

Pursuant to the divorce judgment, the mother was awarded the marital home, subject to the indebtedness thereon; the father was not awarded any equity in the marital home. The undisputed evidence presented before the trial court indicates that the parties entered into an $88,000 mortgage on the house; the purchase price of the house was $86,000. According to the mother, she and the father financed the total purchase price of the house and the closing costs. At the time of the hearing in this matter, the outstanding mortgage indebtedness on the property was approximately $87,000. The mother had paid for all of the improvements to the house, including new carpet and paint. In addition to paying for the improvements, the mother repaid the earnest money that the parties had borrowed from the father’s mother to purchase the marital home, and she also made all of the mortgage payments; the father only paid the bills for power, cable, and telephone service.

The appraised value of the marital home at the time of trial was $115,000; the parties originally purchased the house for $86,000. The mother testified that she recently had the home appraised while refinancing the home in an effort to lower the monthly mortgage payment. Although the value of the home had clearly increased during the parties’ two-year marriage, it is arguable that the trial court attributed that increase in value at least partially to the mother’s improvements to the marital home. Testimony revealed that during the course of the parties marriage, the father did not take an interest in improving the marital home but that the mother carried that burden.

The evidence at trial also revealed that the father’s alcoholism contributed to the breakdown of the marriage. A trial court may consider the conduct of the parties with respect to the cause of their divorce when dividing their marital property. Mahaffey v. Mahaffey, 806 So.2d 1286 (Ala.Civ.App.2001). While the trial court’s judgment awarding the mother the marital home and not awarding the husband any equity in the home may appear to favor the mother, this court has previously held that a division of property favoring one party over another is not in and of itself an abuse of discretion. Jordan v. Jordan, 547 So.2d 574 (Ala.Civ.App.1989). Given the short length of the parties’ marriage, the conduct of the parties during the marriage, the improvements the mother made to the marital home, and the fact that the mother made all of the mortgage payments, we cannot say that the trial court abused its discretion in awarding the mother the marital home, subject to the mortgage indebtedness. See Golden v. Golden, supra.

The father next argues that the trial court’s scheduling of the father’s visitation with the child was impractical, impossible to implement, and contrary to the evidence presented at trial. “Visitation ... is a matter that rests soundly within the broad discretion of the trial court, and its determination regarding visitation must be affirmed absent a finding that the judgment is not supported by any credible evidence, and that the judgment, therefore, is plainly and palpably wrong.” Cohn v. Cohn, 658 So.2d 479, 482 (Ala.Civ.App.1994).

The judgment of the trial court provided that the father could visit the child at “such reasonable times and places as can be mutually agreed upon by the parties.” The judgment went on to provide, in pertinent part, that

“[i]n the event the parties are unable to agree on visitation, the [father] shall have the right to visit with said minor child and have said child visit with him, during the time he is off from work, with the [father] being entitled to visit when he is scheduled to be off work for three (3) days, commencing at 7:00 a.m. on the day following the first day he is scheduled to be off from work, until 6:00 p.m. on the day he is scheduled to return to work, and when the [father] is scheduled to be off from work for two (2) days, he shall be entitled to visit commencing at 7:00 a.m. on the day following the first day he is scheduled to be off from work, until 6:00 p.m. on the day he is scheduled to return to work. The [father] shall also be entitled to have holiday and special occasion visitation with the said minor child as set out in the Court's standard schedule of visitation ... attached hereto ... based on his aforesaid work schedule.”

Our review of the father’s testimony reveals that the trial court’s visitation award substantially follows the father’s third-shift work schedule. The father testified that he worked a “seven-day rotating system” during which he worked seven days followed by two, three, or four days off of work during a six-week cycle. The trial court’s visitation award clearly accommodates the father’s work schedule.

The father asks this court on appeal to reverse the trial court’s visitation award so that the trial court can enter a visitation award that will allow the parties to know precisely when visitation is scheduled. The father testified that his work schedule as a third-shift police officer is determined one year in advance. According to the father, that work schedule will not change. Our review of the trial court’s visitation award reveals that the trial court based its visitation award on the father’s work schedule. Therefore, we cannot say that the trial court abused its discretion in its award of visitation.

The father also contends that the trial court’s judgment ordering him to pay $428 per month toward a child-support arrear-age was not supported by the evidence, but was based on mere speculation by the trial court. The father avers that the trial court.entered it’s May 30, 2002, pendente lite order, requiring him to pay $405 per month in child support without any evidence of his monthly income from which to determine a monthly child-support obligation.

The record indicates that after the trial court entered its May 30, 2002, amended pendente lite order, in which the trial court ordered the father to pay $405 each month for child support and to vacate the marital home, the father filed a motion to amend that order. In his motion, the father argued that he was not given notice of the pendente lite hearing and that the trial court abused its discretion in ordering him to vacate the marital home. The father did not raise the issue of the amount of child support he was ordered to pay pursuant to the amended pendente lite order. The trial court denied the father’s motion.

The father now attempts to assert on appeal that the trial court erred by ordering him to pay $405 for child support in its pendente lite order; however, that argument was not raised by the father before the trial court. This court may not consider an issue that is raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Therefore, we will not address this issue on appeal, but we note that it is within a trial court’s broad discretion to determine a child-support arrearage. Campbell v. Campbell, 827 So.2d 111 (Ala.Civ.App.2002).

The father next contends that the trial court abused its discretion in failing to comply with Rule 32, Ala. R. Jud. Admin. The father asserts that the record does not contain a CS-42 child-support-guidelines form for the mother.

“[T]his court has consistently held that the application of Rule 32 is mandatory in child-support actions filed on or after October 9,1989. A trial court may deviate from the child-support guidelines in determining 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 mother and the father and a CS-42 form for the father; however, it does not contain a CS-42 form for the mother. Rule 32(E), Ala. R. Jud. Admin., mandates the filing of “[a] standardized Child Support Guidelines form ... in each action to establish or modify child support obligations and [that form] shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.” See also Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998).

The trial court ordered the father to pay child support in the amount of $391 per month. The record contains one CS-42 child-support-guidelines form that was filed by the father; however, the recommended child-support obligation in the amount of $317.58 per month on the one CS-42 form submitted to the trial court does not correspond to the amount of child support awarded by the trial court.

The record in this case does not contain all the child-support-guidelines forms required pursuant to Rule 32(E), Ala. R. Jud. Admin., and the trial court’s basis for determining the father’s child-support obligation is unclear. Moreover, as was the case in Nelson v. Landis, 709 So.2d at 1300-01, [t]his court has unsuccessfully attempted, based on the evidence in the record, to determine the manner in which the trial court determined the father’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. Landis, supra.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

CRAWLEY, J., concurs in the result.

      . We note that neither the father nor his counsel were present at the hearing on the mother's motion to amend the trial court’s previous pendente lite order.


author: PER CURIAM. THOMPSON, Judge,

text:
    Sonja E. WEST v. Patrick J. WEST.
    2020364.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2003.
    James W. Parkman III, Dothan, for appellant.
    J.R. Herring, Dothan, for appellee.
   PER CURIAM.

This is a child-support-modification case.

Sonja E. West (“the mother”) and Patrick J. West (“the father”) were divorced on April 10, 2002. Three children — two sons and a daughter — were born of the marriage. The mother retained primary physical custody of the children, and the father received visitation. On September 12, 2002, the mother petitioned the circuit court to hold the father in contempt for his failure to comply with the court’s order to pay overdraft fees on the parties’ bank account. She also requested postminority support for their 18-year-old son, who then enrolled at Wallace Community College in the fall of 2002. The father timely answered and counterclaimed, alleging, in part, that he had been awarded in the divorce judgment a horse, a saddle, tack, and a truck toolbox that had not been delivered by the mother, and that the mother had alienated the children against him. He requested that the court find the mother in contempt for her failure to deliver the aforementioned property and for her failure to facilitate visitation. He further requested that his obligation to make child-support payments be suspended until such time as the mother and the children complied with court-ordered visitation and that the mother pay his attorney fees and costs. The mother timely answered the counterclaim. Following a proceeding on December 19, 2002, at which evidence was presented ore tenus, the court entered an order, which reads, in pertinent part:

“The matters before the court are [the mother’s] petition for clerk’s deed, for contempt, and college expenses; and [the father’s] counterclaim for certain items of personal property not delivered to him ordered under the divorce decree.
“[The father] is allowed a credit totaling $1,100 against his child support at $50 per month due to the issue regarding the truck tool box and the equipment relating to the horses. [The mother’s] petition in regard to college expenses is denied as there appears to be no relationship between the minor child ... and his father.
“Each party shall be responsible for their own attorney’s fees and litigation expenses herein.”
The mother appealed.

On appeal, the mother argues that the trial court abused its discretion in denying her request for postminority support based solely on the lack of a relationship between the child and the father.

Our standard of review in a case involving a modification of a child-support order is well-settled. Matters related to child support, including modifications of a child-support order, rest soundly within the trial court’s discretion and will not be disturbed on appeal, absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong. Berrykill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997); Williams v. Braddy, 689 So.2d 154 (Ala.Civ.App.1996).

“In Ex parte Bayliss, 550 So.2d 986 (Ala.1989), our supreme court held that the trial court has discretion whether to order postminority support at all, and that, in exercising that discretion, the trial court shall consider
‘all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.’
“Ex parte Bayliss, 550 So.2d at 987 (emphasis in original). In addition, the trial [court] may consider
“ ‘the standard of living that the child would have enjoyed if the marriage had not been dissolved and the family unit had been preserved and the child’s relationship with his parents and responsiveness to parental advice and guidance.’

“Id.”

Stinson v. Stinson, 729 So.2d 864, 868 (Ala.Civ.App.1998).

In the present case, although there is no indication that the trial court considered the primary factors set out in Ex parte Bayliss in denying postminority support, we must affirm. The mother presented insufficient evidence of her financial resources, or her lack thereof, to support her contention that the older son should have been awarded postminority support. Ex parte Bayliss sets out the factors that a trial court must consider when awarding postminority support; however, a petitioner must provide a sufficient basis for making such an award.

The mother testified that she was a paraprofessional at Highlands Elementary School. She also submitted, and the court entered into evidence, proof that she had paid for the older son’s tuition and textbooks, which totaled $1,155.83. The father testified that he was a landscaper. No evidence of the father’s actual income or his ability to pay for the older son’s college expenses was presented to the trial court. In fact, he testified that he could not assist the older son with his college expenses because he was financially unable to do so, citing business losses. The father also testified that he lived with his parents for the same reason. Despite his alleged financial hardship, the father testified that he was current on his $613 per month child-support payments. We note that his only basis for requesting a reduction in his child-support obligation was that the children had not visited with him as ordered in the divorce judgment. Further, the record reflects that the older son was available to testify; however, the court declined to hear any testimony from him. Nevertheless, the mother testified that the older son lived with her, was enrolled at Wallace Community College, and was working full-time at Wal-Mart. She also stated that the son was enrolled in the National Guard and had received his first check from the National Guard for $104. She testified that the older son would have to leave school to fulfill his obligation to the National Guard but that he would return to finish his education.

The record also reflects that, although the older son was enrolled in college subsequent to the filing for postminority support, the mother presented insufficient evidence of his commitment to and aptitude for college.

Based on the foregoing, we cannot say that the trial court properly considered the primary factors set out in Ex parte Bayliss. However, we must affirm because the mother failed to produce evidence that warranted a postminority-sup-port award. The trial court’s basis for denying postminority support (i.e., the relationship between the father and the older son) was error.

“This court has repeatedly stated that the existence of a strained relationship between parent and child does not prevent the child from having the opportunity to obtain a college education.
“In Newman v. Newman, [667 So.2d 1362, 1368 (Ala.Civ.App.1994),] we stated:
“ ‘Evidence regarding the strained relationship between the father and the daughter disclosed that both the father and the daughter may have contributed to that poor relationship. This factor, alone, however, is insuffi-dent to prevent the daughter from receiving assistance in going to college.’ ”

Stinson, 729 So.2d at 869 (citations omitted).

The judgment of the trial court is affirmed because the mother presented insufficient evidence upon which to base an award for postminority support.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting.

I dissent from the majority opinion which affirms the judgment of the trial court declining to award postminority support based solely on the child’s strained relationship with the father. In determining whether to award postminority educational support, a trial court shall primarily consider the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education. Ex parte Bayliss, 550 So.2d 986 (Ala.1989); Amaro v. Amaro, 843 So.2d 787 (Ala.Civ.App.2002). A trial court also should consider, among other things, the child’s relationship with his parents and the noncustodial parent’s financial ability to provide the requested support. Ex parte Bayliss, supra.

In its judgment, the trial court noted the child’s strained relationship with the father as the basis for not awarding postminority support; no other reason was given for the denial of postminority support. This court has held that the lack of a relationship between a child and parent is insufficient to prevent a child from receiving postmi-nority support. Stinson v. Stinson, 729 So.2d 864 (Ala.Civ.App.1998).

Moreover, the record indicates that the mother presented sufficient evidence of the child’s commitment to, and aptitude for, college for the trial court to consider an award of postminority support. The mother testified to the child’s commitment to attend college following the completion of his obligation with the National Guard. The mother offered two cancelled checks totaling $1,155.83 to Wallace Community College for tuition and books, as well as the child’s schedule of classes, as evidence of his commitment to attend college. Although the child postponed attending college to fulfill his obligation to the National Guard, I cannot say that that alone is evidence that the child is not committed to pursuing a college education in the future. Accordingly, I dissent.


author: THOMPSON, Judge. CRAWLEY, Judge,

text:
    S.D.F. v. A.K.
    2020419.
    Court of Civil Appeals of Alabama.
    Sept. 12, 2003.

      D. John Harrison, Montgomery, for appellant.
    Malcolm R. Newman, Dothan, for appel-lee.
   THOMPSON, Judge.

S.D.F. (“the mother”) appeals a judgment awarding custody of her child, A.Q.K. (“the child”), to his father, A.K. (“the father”).

The parties were never married; the child was born in 1995. After the child’s birth, the trial court entered a judgment that established the father’s paternity and ordered him to pay child support. Beginning in 1998, the father began filing a series of complaints against the mother with the Department of Human Resources (“DHR”), alleging that the mother neglected the child. DHR investigated those complaints and determined that they were unfounded.

In May 1999, the parties agreed to share joint custody of the child. On May 21, 1999, the trial court incorporated the parties’ custody agreement into a judgment that provided that the parties have joint custody of the child, with the mother retaining primary physical custody. The judgment provided the father a standard schedule of visitation.

On October 22, 2002, the father petitioned to modify custody of the child. The trial court conducted the hearing on that petition on January 6, 2003. Just before the hearing on January 6, 2003, the mother filed her answer to the father’s petition to modify; that answer contained a “counter motion” that requested, in part, that any future proceedings between the parties be transferred to the Montgomery County Juvenile Court.

Also on January 6, 2003, after the presentation of evidence, the trial court entered a judgment in which it found that, because the child’s custody was in controversy, the child was dependent. The trial court awarded custody of the child to the father. The mother appealed.

Initially, we note that the mother raises a venue issue; she contends in her brief on appeal that the trial court erred in denying her “motion to transfer venue.” Section 30-3-5, Ala.Code 1975, provides that venue for proceedings for, among other things, a modification of custody shall lie in the circuit court that issued the original custody judgment or in the circuit court of the county in which the custodial parent and the child have resided for the three years before the filing of the modification petition. The mother contends in her brief on appeal that she and the child had resided in Montgomery County for the three years before the father filed his petition to modify custody. Assuming that fact to be true, we cannot agree with the mother that the trial court erred with regard to the issue of venue. •

In the trial court, the mother, in her answer and “counter motion,” did not actually move to transfer venue of the action to the Montgomery Circuit Court. Rather, that portion of the mother’s “counter motion” pertaining to venue stated only:

“Upon the conclusion of the evidence, ... the mother requests this court to grant sole custody of the minor child to the mother and transfer all new proceedings to the Juvenile Court in Montgomery County where the child has resided with the mother for the past three years.”

(Emphasis added.) Thus, as is clear from the language of that portion of the mother’s motion pertaining to the issue of venue, the mother did not seek in the trial court a transfer, on the basis of venue, of the custody-modification proceedings then pending before that court. Rather, the mother sought the transfer, on the basis of venue, of any future custody proceedings. An issue not raised before the trial court may not be raised for the first time on appeal. Abbott v. Hurst, 643 So.2d 589 (Ala.1994); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). Therefore, this court may not address the mother’s argument relating to the issue of proper venue.

The mother next argues that the trial court erred in entering a judgment finding the child dependent; she contends that the proceeding before the trial court was in the nature of a custody-modification proceeding and that it did not constitute a dependency proceeding. In making her argument on this issue, the mother contends that the trial court erred in not applying the custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984).

A detailed recitation of the facts of this case is not necessary for the disposition of this appeal. The parties in this case made a number of allegations against each other with regard to their respective parenting abilities. The father alleged that the mother did not appropriately supervise the child or assist the child with his homework; that she displayed little interest in the child’s education; and that she often fought with other people. We note that DHR investigated several of the father’s allegations when he filed reports with DHR, but the DHR investigator found those allegations to be unfounded. The mother denied the father’s allegations, and she accused the father of, among other things, attempting to control her through his demands pertaining to the child and of threatening to drag her through whatever court proceedings he could in response to a requirement that he pay child support through the courts. The father alleged that the mother used profanity with regard to the child in a telephone conversation she had with the father. The mother denied that she had ever done so; however, her credibility was called into question when the father offered into evidence a tape recording of an answering-machine message left by the mother containing language similar to the profane language that the father had alleged the mother used during his telephone conversation with her.

This court has held that “[w]hen a review of the record discloses that the hearing relates to custody rather than to dependency, ... the trial court must apply the appropriate custody standard.” B.S.L. v. S.E., 826 So.2d 890, 893 (Ala.Civ.App.2002). See also S.T.S. v. C.T., 746 So.2d 1017, 1020 (Ala.Civ.App.1999) (“After thoroughly reviewing the juvenile dependency statutes and applicable caselaw, we conclude that this case was primarily a custody dispute and, therefore, did not fall within the scope of the dependency statute.”); C.P. v. M.K., 667 So.2d 1357 (Ala.Civ.App.1994) (after concluding that the action was more in the nature of a custody dispute than a dependency action and that the standard set forth in Ex parte Terry, 494 So.2d 628 (Ala.1986), applied, this court reversed a judgment awarding custody to nonparents).

In addition to the trial court’s January 6, 2003, judgment, the record contains several other orders of the trial court pertaining to the child. Those other orders establish the child’s paternity, award the mother custody of the child, and establish the father’s child-support obligation and visitation schedule. None of the orders filed before the January 6, 2003, judgment contain any indication that the court found the child to be dependent. The trial court’s January 6, 2003, judgment is the first order that appears in the record in which the trial court found the child to be dependent.

In his October 22, 2002, petition to modify custody, the father alleged that there had been a change in circumstances such that a modification of custody of the child would serve the child’s best interests. However, in his petition to modify custody, the father did not allege that the child was dependent. Even in his brief submitted to this court, the father did not argue that the trial court’s judgment was correct because the child was dependent. Our review of the record indicates that the parties made a number of allegations concerning each other and their respective abilities to properly parent the child. However, we cannot say that the allegations the parties made against each other, or the evidence they presented in support of those allegations, rose to the level that would result in the proceeding that forms the basis for this appeal being considered a dependency action rather than a custody proceeding.

We conclude that the trial court erred in treating this matter as a dependency action rather than as a custody proceeding. We remand this cause to the trial court for it to determine whether the evidence in this case warrants a change of custody under the standard set forth in Ex parte McLendon, supra.

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

REVERSED AND REMANDED.

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

CRAWLEY, J., dissents.

CRAWLEY, Judge,

dissenting.

I dissent. This court should not remand the cause for the trial court to apply the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard. Instead, this court should apply the McLendon standard to the evidence contained in the record. See Ex parte Breedlove, 673 So.2d 415 (Ala.1995); West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000).

By reviewing the evidence and applying the McLendon standard, this court would not be usurping the trial court’s function; we would be checking for harmless error. Here, the trial court erred by using the less stringent “best interests” standard, but if its order could be upheld under the more stringent McLendon standard, then the error would be harmless.