author: JOHNSTONE, Justice.

text:
    Ex parte Robert C. GILL. (In re State of Alabama v. Robert C. Gill).
    1000624.
    Supreme Court of Alabama.
    June 28, 2002.

      Robert C. Gill, pro se.
    Bob Burrell, district atty., and Stacy W. Adams, asst, district atty., Morgan County, for respondent.
   JOHNSTONE, Justice.

Pro se, Robert C. Gill, an inmate at the Donaldson Correctional Facility, petitions this Court for a writ of mandamus directing Morgan County Circuit Judge Sherrie W. Brown to vacate her denial of his requests for copies of certain documents and to order the circuit clerk of that county to copy the documents and to “forward” the copies to Gill at his address in the penitentiary. The petition is denied for the reasons we will explain.

Gill mailed the circuit clerk a signed document which reads:

“IN THE CIRCUIT COURT OF MORGAN COUNTY, ALABAMA
“Robert C. Gill
“Requester,
“To: Hon. John Pat Orr
“Circuit Clerk, Morgan
“4th Floor
“P.O. Box 668
“Decatur, Alabama 35602
“REQUEST PURSUANT TO THE RIGHTS OF
CITIZENS TO INSPECT AND COPY PUBLIC
WRITINGS/FREEDOM OF INFORMATION ACT
“Comes now the requester, Robert C. Gill, and moves this Hon. Circuit Court Clerk, John Pat Orr, pursuant to the right of citizens to inspect and Copy Public Writings/Freedom of Information Act, Title 36, Section 12-40 of the Code of Ala. 1975, Ex parte [State] of Alabama v. Roderick Matthews, 724 So.2d 1140, for the following:
“All information requested is in reference to Robert C. Gill [v.] State of Alabama, CC-95-43.60
“1. A copy of the Grand Jury Foreperson from 1980-2000, including the Race, Gender, and Age, Sex.
“2. A copy of the demographic data concerning members of Grand Jury including Race, Gender, and Age of the Spring Term 1995, Grand Jury No: 5591 “Done this 21st day of November, 2000.
“Respectfully Submitted,
7s/ Robert C. Gill
“Robert C. Gill # 168741
“100 Warrior Lane
“Bessemer, Alabama 35203”

During the several preceding weeks, Gill had mailed the circuit clerk two similar requests. One of the preceding requests specifically adds the names of the grand jury forepersons to the specification of the information Gill seeks.

Because Gill’s requests referred to his case number CC-95-43.60, a Rule 32, Ala. R.Crim. P., petition on Judge Brown’s docket, the circuit clerk took Gill’s requests to Judge Brown, who issued an order which reads, in pertinent part:

“The Court has reviewed petitioner’s Request Pursuant To The Rights Of Citizens To Inspect And Copy Public Writings/Freedom Of Information Act, and determines that said request is due to be and hereby is DENIED.”

Gill then petitioned the Court of Criminal Appeals for its writ of mandamus; but that court dismissed Gill’s petition without explanation. Gill finally petitioned us for our writ.

The State, on behalf of the respondent Judge Brown, first argues that Gill is merely disguising a discovery motion as a citizen’s request to inspect and to copy pursuant to § 36-12-40, Ala. Code 1975, and that Gill has not fulfilled the requirements of Rule 32.4 and Rule 32.6(b), Ala. R.Crim. P., for discovery pursuant to Rule 16, Ala. R.Crim. P. Gill avoids the issue of his failure to fulfill the Rule 32 requirements for postjudgment discovery. He insists, rather, that he is merely seeking to exercise the “freedom-of-information” rights granted him by § 36-12-40. To this contention the State responds that Gill has failed to invoke § 36-12-40 adequately:

“Gill never asserts that he, nor any of his agents, has ever made arrangements to pay the fees set forth in Rule 30, [Ala. R. Jud. Admin.,] and authorized by § 36-12-41, Ala.Code 1975. Likewise, Gill never alleges that he or his agents were ever denied access to inspect or copy the documents that he requested. Gill’s allegations concern the trial court’s unwillingness to reproduce documents at the court’s expenses and send them to him.”

Respondent’s brief, p. 11 (footnote omitted). The State is right.

On the one hand, § 36-12-40 expressly provides that “[e]very citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute.” No statute denies this right to inmates or felons. This right is not dependent on the pen-dency or lack of pendency of any criminal proceeding. Indeed, Rule 16.1(f), Ala. R.Crim. P., provides that “[n]othing in this Rule 16.1 [(discovery in criminal proceedings)] shall be construed to limit the discovery of exculpatory material or other material to which a defendant is entitled under constitutional provisions or other provisions of law.” (Emphasis added.)

“[A] ‘public writing’ spoken of in Code 1975, § 36-12-40, is such a record as is reasonably necessary to record the business and activities to be done or carried on by a public officer so that the status and condition of such business and activities can be known by our citizens.” Stone v. Consolidated Publishing Co., 404 So.2d 678, 681 (Ala.1981). “The right of the public to inspect and copy a ‘public writing’ is broad and the exceptions thereto are narrow and limited.” Ex parte Alabama Dep’t of Transp., 757 So.2d 371, 374 (Ala.1999). The races, genders, and ages of grand jurors are subject to disclosure; but the names, addresses, and occupations are not. State v. Matthews, 724 So.2d 1140 (Ala.Crim.App.1998), aff'd, Ex parte Matthews, 724 So.2d 1143 (Ala.1998).

On the other hand, § 36-12-40 does not authorize a citizen to shift to the custodian of public writings the tasks of inspecting them and identifying the ones to be copied or the expense of copying those and does not require the custodian to undertake the burden and expense of mailing or otherwise delivering the copies. Rather, any inspection of the writings and any identification of the ones to be copied must be performed by the citizen or his or her agent (simply another citizen) under such reasonable safeguards as the custodian may impose for the preservation of the writings. Likewise, the burden and expense of copying the writings and taking the copies must be borne by the citizen or his or her agent as provided by law, see, e.g., § 36-12-41, Ala.Code 1975, and Rule 30, Ala. R. Jud. Admin., or as required by such reasonable safeguards as the custodian may impose.

In the case before us, Gill did not identify the particular writings to be copied and did not tender any payment for copies to be made. Likewise, he did not present himself at the circuit clerk’s office or send an agent to inspect writings, to identify those to be copied, to make such copies, to pay the circuit clerk to make them, or to take delivery of them; and § 36-12 — 40 does not entitle inmates to any relief from their incarceration or to any transportation to the custodian’s office to accomplish those tasks and does not entitle them to free copies or to funds to pay for copies.

“ ‘A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court.’ ” Ex parte Wal-Mart, Inc., 809 So.2d 818, 821 (Ala.2001) (quoting Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)). Gill had no legal right, much less a clear legal right, to “inspect and take a copy of any public writing” in the circuit clerk’s office without presenting himself there or sending his agent, nor to require his own release and transportation from incarceration to travel to the circuit clerk’s office. Likewise, Gill had no legal right, much less a clear legal right, to require the circuit clerk to inspect the writings, to identify the appropriate ones, to copy them, to deliver them to Gill, all in the absence of Gill or his agent, and to bear the expense of such copying and delivery. Therefore, Gill has no legal right, much less a clear legal right, to any relief from Judge Brown; and she has no duty, much less an imperative duty, to grant him any relief under these circumstances.

WRIT DENIED.

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

MOORE, C.J., concurs in the result.

      . Gill's petition words the relief he seeks several different ways. Our statement of the relief sought is our best interpretation.


source: Caselaw Access Project

author: BROWN, Justice. MOORE, Chief Justice

license: Public Domain

text:
    Ex parte Susan MICHAEL. (In re Susan Michael v. Megan Brooke Michael).
    1010237.
    Supreme Court of Alabama.
    June 28, 2002.
    Michael A. Dasinger III of Hoiles, Da-singer & Hollon, P.C., Robertsdale, for petitioner.
    Bayless E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for respondent.
   BROWN, Justice.

WRIT QUASHED.

HOUSTON, SEE, JOHNSTONE, HARWOOD, WOODALL, and STUART, JJ., concur.

MOORE, C.J., dissents.

MOORE, Chief Justice

(dissenting).

I must respectfully dissent from the decision to quash the writ of certiorari. The trial court’s use of its continuing jurisdiction to change the terms of the divorce judgment was improper. The agreement between Timothy Michael and his ex-wife stipulated that Michael had in place at that time life insurance policies on his own life, the life of his ex-wife and that of his minor daughter, Megan Brooke Michael, a party to this appeal. The judgment required that Michael

“maintain an equal face amount of life insurance as he currently has in force with the proceeds of said insurance on the lives of the Wife and the Husband payable to the minor child as beneficiary. In the event that said proceeds are payable while the minor child remains a minor, said policy shall name whichever party is not the named insured thereunder as custodian of said proceeds for the benefit of the minor child.”

(Emphasis added.) In a separate provision, the parties agreed that “[e]ach parent shall contribute to the costs of [Megan’s college] education in accordance with their earning or income ability.”

Michael remarried, and shortly before Megan turned 19 he changed the beneficiary of his life insurance policy to his second wife, Susan. Michael died. The life insurance company refused to pay the proceeds to Susan, and Susan sued. The trial court held that Megan was entitled to the insurance proceeds. Susan appealed; the Court of Civil Appeals affirmed, without an opinion.

From the two provisions in the agreement between Michael and his ex-wife the trial court in the case underlying this appeal determined that

“it was the intention of the parties that Timothy J. Michael maintain life insurance on his life with his child, Megan Brooke Michael, as the beneficiary so said child would have the insurance proceeds to provide a college education should Timothy J. Michael die or not otherwise be able to provide for said child’s college education.”

(Emphasis added.)

It is obvious that the divorce judgment did not mention how the proceeds of Michael’s insurance policy were to be used, except that they were to be used for the benefit of his minor child, Megan. However, Megan had already turned 19 years of age when Michael died. Megan was not listed as an irrevocable beneficiary of the insurance policy; therefore, Michael was entitled to change the beneficiary of his insurance policy when Megan reached the age of majority. Michael did, in fact, change the beneficiary on his insurance policy to his second wife shortly before Megan turned 19. Because the provision of the divorce judgment providing that Michael name Megan as beneficiary mentions nothing about providing for college education, I fail to see how the judgment demonstrates that the parties intended to have the insurance proceeds pay for Megan’s postminority college education.

In Whitten v. Whitten, 592 So.2d 183 (Ala.1991), this Court held:

“A trial court has, as a general rule, ‘no continuing equitable jurisdiction over the issues or parties to a divorce,’ in the absence of an express agreement by the parties, ‘to require that a non-custodial parent provide support of any kind to any child that [has] reached the legislatively prescribed age of majority.’ This court has recognized exceptions to the general rule in two instances. The first instance in which a court may order child support from a noncustodial parent beyond the age of majority is one in which the child is, at the time of majority, physically or mentally incapable of self-support. Under the second exception, a trial court may order a noncustodial parent to provide educational support beyond minority where application for such support is made before the minor reaches majority.”

592 So.2d at 185 (emphasis added; citations omitted).

Because it lacked any express agreement stating that the life insurance proceeds would pay for postminority support, the trial court had to arrive at its conclusion by perceiving “the intention of the parties,” which means that the trial court’s provision for postminority support must fall under one of the exceptions to the general rule that a trial court has no continuing jurisdiction over the issues or parties to a divorce. There was no evidence indicating that Megan is physically or mentally incapable of self-support, nor did Megan or her mother apply for postminority support before Megan turned 19. Thus, even if I accept the legitimacy of the exceptions to the general rule for postmi-nority support, Megan fails to qualify for either of the exceptions. Consequently, according to Whitten the trial court lacked jurisdiction to order that the life insurance proceeds be used for postminority support in this case.

The trial court’s justification for its action was that the divorce judgment explicitly provided that “[t]he Court shall retain jurisdiction of this case for the entry of any necessary order in conjunction [with the parties’ promise to contribute to the costs of Megan’s college education].” While this provision gives the trial court the jurisdiction to order the parents to contribute to Megan’s college education, it does not give the trial court a free hand to rewrite the divorce judgment, and to construe an intention regarding the life insurance policy where none existed.

Michael’s intention as to the life insurance policy was evident when he changed the beneficiary before his death, a change he was entitled to make because the divorce judgment did not prohibit him from doing so once Megan reached the age of majority. Estates are still private property even after the death of the testator, and a court may not alter the testator’s express choice of an heir or a beneficiary. The trial court erred. Accordingly, I dissent.

      . I do not accept their legitimacy. See my dissent in Ex parte Tabor, 840 So.2d 115, 123 (Ala.2002).


author: MADDOX, Retired Justice. JOHNSTONE, Justice

text:
    Dana CARPENTER, as administratrix of the estate of James Carpenter, deceased v. MOBILE COUNTY et al.
    1010448.
    Supreme Court of Alabama.
    June 28, 2002.
    Griffin Sikes, Jr., Montgomery; and Frank H. Hawthorne, Jr., of Hawthorne & Hawthorne, Montgomery, for appellant.
    Lawrence M. Wettermark and Thomas O. Gaillard III of Galloway, Smith, Wetter-mark & Everest, Mobile, for appellee Mobile County.
   MADDOX, Retired Justice.

This is a wrongful-death action filed against Mobile County, the City of Mobile, and others by Dana Carpenter, the admin-istratrix of the estate of a deceased prisoner of the City of Mobile, who died detained in the Mobile Metro Jail, a jail facility constructed and maintained jointly by the City of Mobile and Mobile County pursuant to the terms of an “Agreement Concerning Joint Jail Facility” (“the agreement”). The agreement was executed by Mobile County, the sheriff of Mobile County, and the City of Mobile.

The sole question presented on this appeal is whether Mobile County can be held legally responsible for the death of a prisoner of the City under the provisions of the agreement, which was attached to plaintiffs complaint, on the ground that Mobile County, in executing the agreement, assumed a duty it did not have to assume under the laws of the State of Alabama. The trial judge granted Mobile County’s Rule 12(b)(6), Ala. R. Civ. P., motion to dismiss on the ground that Mobile County, by executing the agreement, did not assume a duty, and the court made the judgment final pursuant to the provisions of Rule 64(b), Ala. R. Civ. P. Carpenter appealed. We reverse and remand.

Before the agreement was executed, both the City of Mobile and Mobile County operated separate jail facilities. After the agreement was executed and after the joint jail facility was built, both the City of Mobile and Mobile County used the newly built facility, which was called the Mobile Metro Jail.

The agreement that is the center of the controversy in this case provided for the construction of the new facility and, among other things, provided that the City of Mobile and Mobile County would share the costs of operating the facility. The section of the. agreement that is pertinent to the present controversy is section “E” entitled “Responsibility of County.” That section reads, in part, as follows:

“1. The County agrees to accept and provide for the secure custody, care and safekeeping of City prisoners in accordance with laws, standards, policies, procedures or court orders applicable to the operations of the joint jail facility.”

Carpenter, although admitting that under State law Mobile County could not be held responsible for the death of a City prisoner, nevertheless claims that the County assumed a duty under the above-quoted provision that it otherwise would not have had had it not executed the agreement.

Facts and Procedural History

Carpenter is the administratrix of the estate of James Carpenter, who, at the time of his death, was a “City detainee” in the Mobile Metro Jail.

Carpenter, in her capacity as the representative of James Carpenter’s estate, sued Mobile County, the City of Mobile, and others seeking damages for James Carpenter’s alleged wrongful death. In her complaint, she alleged:

“10. On July 12, 2000, City of Mobile police officers arrested plaintiffs decedent, James Carpenter, on misdemeanor charges.
“11. City of Mobile police officers took Carpenter to the Mobile Metro Jail where, pursuant to and upon the City’s authority, Mr. Carpenter, as a ‘City detainee,’ was detained pending his trial on the misdemeanor charges ... from July 12, 2000, until his death in the Mobile Metro Jail on or about July 28, 2000.
“12. While James Carpenter was a ‘City detainee’ at the Mobile Metro Jail between July 12 and July 28, 2000, personnel at the Mobile Metro Jail placed handcuffs and leg irons around James Carpenter’s wrists and ankles in such a manner that they cut or abraded his wrists and ankles thereby causing serious and life threatening infections at the sites of the open, festering wounds or sores caused by these cuts and abrasions.
“13. These infections, which were not promptly observed or treated, but were allowed to progress unchecked, caused the death of James Carpenter.”

In Carpenter’s third claim for relief, which was her attempt to impose liability on Mobile County, she alleged that “[u]n-der the Jail Agreement, Mobile County undertook the duty and responsibility to ‘provide for the secure custody, care and safekeeping’ of James Carpenter, a ‘City detainee,’ ” and that “Mobile County negligently breached these duties,” and that “[a]s a direct and proximate result of the negligent breach of this duty by Mobile County, James Carpenter suffered grave and serious personal injuries from which he died.” Carpenter attached a copy of the agreement to the complaint.

On June 21, 2001, Mobile County filed a motion to dismiss, pursuant to Rule 12(b)(6), Ala. R. Civ. P. Carpenter filed a response to the motion, and on August 24, 2001, the trial judge conducted a hearing on the motion. On September 5, 2001, the trial court granted the motion to dismiss. On September 19, 2001, Carpenter filed a motion to reconsider the dismissal, and subsequently, on October 10, 2001, filed a supplemental submission in support of the motion. In her supplemental submission, she attached various documents, including a document containing the standard operating procedures for the Mobile Metro Jail, which had been produced in discovery. She also attached a publication entitled “Standards for Adult Local Detention Facilities,” published by the American Correctional Association. After hearing oral arguments of counsel, the trial court denied the motion to reconsider on October 12, 2001. Carpenter appealed.

Standard of Review

Both parties agree as to the proper standard for review of a trial court’s ruling on a Rule 12(b)(6) motion to dismiss — a trial court should not dismiss a claim unless it appears that a plaintiff can prove no set of facts in support of the claims stated in the complaint that would entitle the plaintiff to relief under some cognizable theory of law. See Rice v. United Ins. Co. of America, 465 So.2d 1100 (Ala.1984). Both parties also agree that, on appeal, this Court should review the ruling below in a light most favorable to the plaintiff and must resolve all reasonable doubts in the plaintiffs favor. Thermal Components, Inc. v. Golden, 716 So.2d 1166 (Ala.1998).

Analysis

In this case, Carpenter alleged in her complaint that “Mobile County undertook the duty and responsibility to ‘provide for the secure custody, care and safekeeping’ of James Carpenter,” as part of a contract between Mobile County, the City of Mobile, and the sheriff of Mobile County, and that Mobile County had negligently breached this duty. Carpenter also attached a copy of the agreement to the complaint. There is no question that the trial court took the agreement into consideration in granting Mobile County’s motion to dismiss.

The trial judge entered a lengthy order analyzing the issue presented and setting forth in some detail his reasons for reaching the conclusion he reached. In that order he distinguished Keeton v. Fayette County, 558 So.2d 884 (Ala.1989), a case Carpenter relies heavily on. He concluded his order as follows:

“In ruling on [Mobile County’s] Rule 12(b)(6) motion to dismiss, this Court is cognizant that the complaint must be construed in favor of [Carpenter] and should not be dismissed unless it appears beyond all doubt that [Carpenter] can prove no facts in support of her claim which would entitle her to relief under some legally cognizable theory. Jennings v. City of Huntsville, 677 So.2d 228 (Ala.1996). For purposes of this motion, there are no facts in dispute. [Carpenter] does not allege that Mobile County undertook any action to assume a duty greater than that imposed by law other than the contractual provision discussed above. Under these circumstances, the issue is one of law to be determined by the Court. The motion to dismiss is due to be granted.”

(Footnotes omitted.) We cannot agree with the trial court’s determination that Mobile County was entitled to a dismissal pursuant to Rule 12(b)(6), because nothing in the pleadings explains what the “laws, standards, policies, or procedures or court orders applicable to the operations of the joint jail facility” must be. Because we cannot determine from the pleadings, as a matter of law, that Mobile County, in executing the agreement, did not assume a duty that it did not have to assume, we are constrained to hold that Mobile County has failed to meet its burden of showing that Carpenter can prove no facts in support of her claim that would entitle her to relief under some legally cognizable theory.

In determining that the trial court erred in granting Mobile County’s Rule 12(b)(6) motion, we should not be understood as holding that Mobile County may not be able to present evidence in support of a motion for a summary judgment, or at trial, to show that, in executing the agreement, it did not assume a duty it did not have to assume.

Based on the foregoing, the judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

This opinion was prepared by Retired Justice Hugh Maddox, sitting as a Justice of this Court pursuant to § 12-18-10(e).

REVERSED AND REMANDED.

MOORE, C.J., and HOUSTON, SEE, BROWN, and HARWOOD, JJ., concur.

JOHNSTONE and WOODALL, JJ., concur in the rationale in part and concur in the judgment.

LYONS, J., concurs in the result.

STUART, J., dissents.

JOHNSTONE, Justice

(concurring in the rationale in part and concurring in the judgment).

But for an exception and a caveat, I concur in the main opinion. The exception and the caveat address different topics.

The exception is that I do not agree with the part-sentence which reads, “Carpenter, although admitting that under State law Mobile County could not be held responsible for the death of a City prisoner ....” 841 So.2d at 1238 (emphasis added). The pertinent passage in the plaintiffs brief reads:

“The circuit court’s order recites that at common law, i.e., absent this agreement, the County had no obligations regarding the ‘operation’ of the Mobile Metro Jail.
“This point is irrelevant since plaintiff does not contend that the County owed any duties at common law to inmates of county jails, nor is the Third Claim for Relief premised on any common law duties.
“Under well-settled Alabama law, a party may assume or agree to undertake duties that it does not owe under the common law, and if these duties are negligently breached, that party is liable for the reasonably foreseeable consequences of such negligence. This rule is a corollary of the legal principle that one who volunteers to act, although under no duty to do so, is thereafter charged with the duty of acting with due care. Berkel & Co. Contractors, Inc. v. Providence Hospital, 454 So.2d 496 (Ala.1984); Herston v. Whitesell, 374 So.2d 267 (Ala.1979).”

Plaintiff/Appellant’s brief, p. 14 (emphasis added; footnote omitted). The plaintiff here and elsewhere in her brief maintains the distinction, among others, between a county jail and the city-county jail at issue in this case.

The caveat is that we do not necessarily agree with the trial court in its conclusion that Keeton v. Fayette County, 558 So.2d 884 (Ala.1989), is distinguishable from the case before us. Our holding that the plaintiffs pleadings are sufficient to withstand a Rule 12(b)(6), Ala. R. Civ. P., motion pretermits any analysis of whether Keeton is analogous to, or distinguishable from, the case before us.

WOODALL, J., concurs.

      . The order read:
      "[Carpenter] has filed a motion to reconsider the court's order of September 5, 2001, dismissing the complaint as to Mobile County, supporting her motion by memorandum brief, to which Mobile County has filed a response. After hearing oral argument on Wednesday, October 10, 2001, and consideration of the briefs, the court, upon consideration, does hereby DENY [Carpenter's] motion to reconsider the order of September 5, 2001.”
      It is not clear from the order whether the trial judge considered the supplemental material Carpenter filed with the court in support of the motion to reconsider, but apparently the trial judge, believing that Mobile County had not assumed a duty that it was not obligated by law to assume, did not need to consider whether there had been a breach of any duty.

      . Because the agreement was attached to the complaint in this case, the fact that the trial court considered the agreement does not require the conversion of Mobile County’s motion to dismiss into a motion for a summary judgment under the provisions of Rule 12(c), Ala. R. Civ. P.; that rule states, in part:
      "If, on a motion [to dismiss for failure of the pleading to state a claim upon which relief can be granted], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
      See Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81 (Ala.2000). In that case, a copy of a garage-liability policy was attached to the complaint, and the defendant filed a motion for a judgment on the pleadings. This Court stated that the fact that the garage-liability policy was attached to the complaint and considered by the trial court did not require that Thompson's motion for a judgment on the pleadings be converted to a motion for a summary judgment, citing Wilson v. First Union National Bank of Georgia, 716 So.2d 722, 726 (Ala.Civ.App.1998)(holding that the trial court’s consideration of documents attached to the complaint, whose identity and authenticity were not in dispute, did not require conversion of a motion to dismiss into a motion for a summaiy judgment).


author: PER CURIAM. JOHNSTONE, Justice

text:
    CONSECO FINANCE et al. v. Norman D. MURPHY and Vicky C. Murphy.
    1002054.
    Supreme Court of Alabama.
    June 28, 2002.

      Robert A. Huffaker and R. Austin Huf-faker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellants.
    Clatus Junkin and Charles E. Harrison of Junkin & Harrison, Fayette, for appel-lees.
   PER CURIAM.

Conseco Finance Corporation, Conseco Finance Corporation-Alabama (a subsidiary of Conseco Finance Corporation), and Carlos D. Tyler, an agent of Conseco Finance Corporation-Alabama, appeal the order of the trial court denying their motion to compel the plaintiffs Norman D. Murphy and Vicky C. Murphy to arbitrate their claims. We reverse and remand.

On December 21, 1999, the Murphys, Alabama residents, consolidated several debts by obtaining a loan from Conseco Finance Corporation-Alabama (“Conse-co”). They executed a loan application and a note with Conseco’s agent Tyler. The loan application listed the names and the out-of-state addresses of creditors who were to be paid from the proceeds of the loan the Murphys received from Conseco. The note showed that the Murphys received a loan of $45,500 from the lender, listed as “Conseco Finance Corp.-Alabama, 100 Concourse Parkway, Suite 305, Birmingham, AL 35244.” The note provided that the Murphys repay the loan by paying $513.42 per month from February 2, 2000 through January 2, 2020 to “Conseco Finance, 7360 South Kyrene Road, Tempe, AZ 85283.” The note contained an arbitration provision.

On October 11, 2000, the Murphys executed an agreement to extend the maturity date of their loan from January 2, 2020 to March 2, 2020. The extension agreement named “Conseco Finance Corp.-Alabama” as the creditor, but a header on the agreement contained the following name, address, and telephone number: “Conseco Finance Servicing Corp., 7360 S. Kyrene Road, Tempe, Arizona, 85283-4583, 888-315-8733.”

On January 26, 2001, the Murphys sued the defendants Conseco Finance Corporation, Conseco Finance Corporation-Alabama, and Carlos D. Tyler for fraudulent misrepresentation and fraudulent deceit. The Murphys alleged that the defendants had told the Murphys that their debts “would be consolidated under one debt consisting of a monthly payment of $513.00” and that “Conseco would re-finance the loan in three (3) months time at 8.265 interest.” (Complaint, pp. 3, 4, & 6.)

The defendants moved to compel the Murphys to arbitrate their claims. As evi-dentiary support for the motion to compel, the defendants submitted an affidavit by Roxanne Wheeler — the credit manager of mortgage services for Conseco Finance Corporation — and the loan application and the note executed by the Murphys.

The arbitration provision in the note provides, in pertinent part:

“9. ARBITRATION
“All disputes, claims, or controversies arising from or relating to this Agreement or the relationships which result from this Agreement, or the validity of this arbitration clause or the entire Agreement, shall be resolved by binding arbitration by one arbitrator selected by Lender with Borrower’s consent. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, Title 9 of the United States Code. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY LENDER (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under case law, statutory law and all other laws including, but not limited to, all contract, tort, and property disputes will be subject to binding arbitration in accord with this agreement.... Notwithstanding anything hereunto the contrary, Lender retains an option to use judicial or nonjudicial relief to enforce a security agreement relating to the collateral secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation or to foreclose on the collateral.... ”

Wheeler’s affidavit reads, in pertinent part:

“My name is Roxanne Wheeler. I am over the age of twenty-one years. I am the Credit Manager for the Mortgage Services Division of Conseco Finance Corp., which is a Delaware Corporation. Conseco Finance Corp.-Alabama is a wholly owned subsidiary of Conseco Finance Corp. (collectively, ‘Conseco Finance’). I make this Affidavit in support of Conseco Finance’s position in this case.
“I am one of the persons who has custody and control of the business records of Conseco Finance concerning the account of Norman D. Murphy and Vicky C. Murphy (the ‘Consumers’)....
“On or about December 21, 1999, [the Murphys] entered into an agreement with Conseco Finance to borrow money for the purpose of consolidating their debts. A copy of the Uniform Residential Loan Application and a Note (‘Loan Documents’) evidencing the loan are attached hereto as Exhibit A.
“The Loan Documents included an arbitration provision. (Ex. A.)
“On or about October 11, 2000, [the Murphys] entered into an agreement with Conseco Finance to extend the maturity date of the December 21, 1999 loan. A copy of the Conseco Finance Extension Agreement (‘Extension Agreement’) evidencing this transaction is attached hereto as Exhibit B.
“Under both the Loan Documents and the Extension Agreement, [the Mur-phys] were to make payments on their loan to a designated location outside the State of Alabama. (Ex. A, B.)
“In the performance of its regular and routine business activities, Conseco Finance executes notes and mortgages in the State of Alabama and other states. The funding that Conseco Finance uses to provide this financing is obtained from sources all over the United States.”

The Murphys did not file any motion, brief, or evidentiary materials opposing the motion to compel arbitration. However, at a hearing on the motion, the Mur-phys argued that the arbitration provision was unenforceable because 1) it did not have a substantial effect on interstate commerce, 2) it lacked mutuality of remedy, and 3) it was unconscionable because the Murphys did not have a real choice in selecting an arbitrator. After hearing arguments and considering the evidentiary materials submitted by Conseco, the trial court summarily denied the motion to compel arbitration. The trial court also denied the subsequent motion of Conseco to alter, to amend, or to vacate the order denying the motion to compel arbitration.

The parties bring two issues before us on this appeal. The first is whether Con-seco satisfied its initial burden of establishing that the loan substantially affected interstate commerce so that the Federal Arbitration Act (“FAA”) governs the transaction. The second issue is whether the Murphys satisfied their burden of proving their affirmative, see Rule 8(c), Ala. R. Civ. P., claim of unconscionability, which they asserted to avoid operation of the arbitration provision.

Standard of Review

“This Court reviews the denial of a motion to compel arbitration de novo. Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 502 (Ala.1999); Patrick Home Ctr., Inc. v. Karr, 730 So.2d 1171, 1172 (Ala.1999). The party seeking to compel arbitration has the initial burden of proving the existence of a contract calling for arbitration and proving that the contract evidences a transaction substantially affecting interstate commerce. TranSouth Fin. Corp. v. Bell, 739 So.2d 1110, 1114 (Ala.1999); Sisters of the Visitation v. Cochran, 775 So.2d 759 (Ala.2000).”

American General Fin., Inc. v. Morton, 812 So.2d 282, 285 (Ala.2001).

“[0]nee a moving party has satisfied its burden of production by making a prima facie showing that an agreement to arbitrate exists in a contract relating to a transaction substantially affecting interstate commerce, the burden of persuasion shifts to the party opposing arbitration. If that party presents no evidence in opposition to a properly supported motion to compel arbitration, then the trial court should grant the motion to compel arbitration.”

Ex parte Greenstreet, Inc., 806 So.2d 1203, 1209 (Ala.2001) (emphasis added).

I. Interstate Commerce Criterion

Conseco argues that Wheeler’s affidavit proves that the loan had enough of an effect on interstate commerce to support the application of the FAA and thereby to require the Murphys to arbitrate their claims against Conseco. The facts cited by Conseco to establish the interstate commerce criterion for the application of the FAA are similar to but stronger than the facts this Court found sufficient to satisfy the interstate commerce criterion in Green Tree Fin. Corp. v. Lewis, 813 So.2d 820 (Ala.2001). Thus, Conseco has satisfied its initial burden of establishing that the loan had a substantial effect on interstate commerce, and the Murphys have offered no evidence to refute Conse-co’s proof. We do observe that, because the interstate transactions cited in the last paragraph of Roxanne Wheeler’s affidavit either are not related to the transaction between Conseco and the Murphys at all or are not related in any particularized way, those interstate transactions do not add to Conseco’s proof that the transaction with the Murphys substantially affected interstate commerce.

II. Unconscionability

The only argument asserted by the Murphys on appeal is that the arbitration provision is unconscionable and, therefore, unenforceable. “Unconscionability is an affirmative defense, Green Tree Fin. Corp. v. Wampler, 749 So.2d 409, 415 (Ala.1999), and the party asserting the defense bears the burden of proof. Ex parte Napier, 723 So.2d 49, 52-53 (Ala.1998).” Fleetwood Enters., Inc. v. Bruno, 784 So.2d 277, 281 (Ala.2000). This Court has previously held that arbitration provisions not materially distinguishable from the one in the note executed by the Murphys are not unconscionable. See Green Tree Fin. Corp. v. Lewis, supra; Green Tree Fin. Corp. v. Wampler, supra; Green Tree Fin. Corp. v. Vintson, 753 So.2d 497 (Ala.1999); Ex parte Parker, 730 So.2d 168 (Ala.1999); and Ex parte Napier, 723 So.2d 49 (Ala.1998). Further, the Murphys offered no evidence to prove that the arbitration provision was unconscionable. Unlike the arbitration provision we held to be unconscionable in American General Fin., Inc. v. Branch, 793 So.2d 738, 747 (Ala.2000), the arbitration provision in the case before us does not limit the kind or amount of damages the Murphys can recover. Also, the record is devoid of evidence that the Murphys tried unsuccessfully to borrow from another finance company that would not require them to arbitrate, while the plaintiffs in American General Fin., Inc. v. Branch submitted evidence which established that they did try unsuccessfully to find a lender that would not impose arbitration on them.

Conclusion

Because the Murphys did not present evidence to rebut the defendants’ prima facie showing that Conseco’s loan to them substantially affected interstate commerce and thereby supported the application of the FAA to require them to arbitrate their claims, and because the Murphys did not present evidence to prove that the arbitration provision in the loan was unconscionable, the trial court erred in denying the defendants’ motion to compel arbitration. Thus, we reverse the order of the trial court denying the motion of the defendants to compel the Murphys to arbitrate their claims. We remand this case for the trial court to enter an order compelling the Murphys to arbitrate their claims against the defendants.

REVERSED AND REMANDED.

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

BROWN, J., concurs in the result.

JOHNSTONE, J., concurs in part and dissents in part.

MOORE, C.J., dissents.

JOHNSTONE, Justice

(concurring in part and dissenting in part).

I dissent from the judgment only because I think the arbitration provision allowing Conseco to sue but requiring the Murphys to arbitrate invalidates the arbitration agreement in its entirety. See my dissent in Green Tree Fin. Corp. v. Vintson, 753 So.2d 497, 505 (Ala.1999). In all other respects, however, I concur in the main opinion and its rationale.


author: CRAWLEY, Judge.

text:
    Andrea Elizabeth DANIEL v. Phillip Francis DANIEL.
    2001266.
    Court of Civil Appeals of Alabama.
    July 19, 2002.

      Mark B. Craig of Craig & Craig, P.C., Decatur, for appellant.
    A. Leigh Daniel of Leigh Daniel & Associates, Huntsville, for appellee.
   CRAWLEY, Judge.

Andrea Elizabeth Daniel (“the wife”) and Phillip Francis Daniel (“the husband”) were married in 1983. They separated in June 2000, and the wife sued for a divorce. After a trial, the trial court divorced the parties and, among other things, awarded the parties joint legal custody and the wife sole physical custody of their three ehil-dren; awarded $1,810 in child support; ordered the parties to be equally responsible for any noncovered medical expenses of the children; and divided the parties’ property. As agreed upon by the parties, the judgment ordered that the largest marital asset, the marital residence, be offered for sale, that each party be responsible for one-half the mortgage payment until the residence is sold, and that the proceeds from the sale be divided equally; the judgment was later amended to order the husband to make the entire mortgage payment pending the sale of the residence and to provide that the husband be reimbursed for one-half of each mortgage payment he made from the proceeds of the sale.

The judgment awarded the wife three investment accounts with an approximate value, at the time of trial, of $9,927; the husband was awarded four investment accounts with an approximate value, at the time of trial, of $10,777. The judgment also awarded the wife her retirement account with the Alabama Teachers’ Retirement System worth approximately $12,000 at the time of trial. The wife was awarded a portion of the husband’s retirement accounts as follows:

“[The husband] shall transfer to the [wife] ... the sum of $6,500 from the husband’s United States Government Thrift Savings Plan [worth approximately $25,000 at the time of trial].... [The husband] shall further transfer and assign to the [wife] ... the sum of $10,488 annually from the [husband’s] Civil Service Retirement[, worth over $59,000 at the time of trial,] commencing with the retirement of the [husband] from employment with the United States Government, provided the [wife] does not remarry prior to attaining the age of fifty-five (55) years.”

The judgment also ordered, in a section of the order entitled “Support for Plaintiff,” that the husband “make available” to the wife medical and hospitalization insurance until she became employed or until six months after the date of the judgment, whichever event occurred sooner. The wife appeals.

The wife was 41 at the time of trial; the husband was 43. The husband is an electronics engineer employed with the United States Army Aviation and Missile Command in Huntsville. He earns $79,968 per year. The wife, who completed her business-accounting degree after giving birth to the parties’ triplet daughters in 1986, had earned $29,700 per year working as a bookkeeper for a local high school in the latter years of the marriage. She was not employed at the time of trial because she had briefly relocated to Walling, Tennessee, to begin a bookkeeping job at a junior college; however, the husband objected to her relocation, and, on the advice of her attorney, she had returned to Huntsville.

We first address the wife’s argument that the trial court should not have required that the children’s noncovered medical expenses be split evenly between the parties. She urges this court to reverse the trial court’s judgment because it arbitrarily required each parent to pay one-half of the noncovered medical expenses even though their income levels are markedly unequal. She cites West v. Rambo, 786 So.2d 1138 (Ala.Civ.App.2000), which she candidly admits is not authority for requiring the trial court to assess noncov-ered medical expenses based on the percentage of income each parent contributed to the household.

In West, this court affirmed a trial court’s order requiring the husband to pay 63% of the children’s noncovered medical expenses. West, 786 So.2d at 1143. We discussed the comments to Rule 32, Ala. R. Jud. Admin., which state, “ ‘Courts and parties may wish to consider whether non-covered medical and/or dental expenses should be allocated in the same percentages as the health insurance premiums are allocated pursuant to this rule and as entered on the Child Support Guidelines form.’ ” West, 786 So.2d at 1142 (quoting Comment, Rule 32, Ala. R. Jud. Admin.) (emphasis added). The trial court in West had allocated the noncovered expenses in accordance with the percentages of each parent’s responsibility for health insurance, and the evidence indicated that the father was capable of paying for those expenses. Id. at 1142-43. Accordingly, we affirmed the trial court’s judgment. Id. at 1143.

In this case, the father and mother, when she was employed, had very different incomes. The father provided 73% of the former household income, while the mother provided only 27%. At trial, the mother stated that she intended to seek employment, and she testified that, with her degree, she could possibly find a position paying $45,000. The mother has been awarded custody of the children, and she will receive $1,310 per month in child support. When the amount of child support is combined with an estimated income for the mother of $45,000, it appears quite reasonable for the parents to be required to equally bear the costs of noncovered medical expenses. Although the mother’s argument that responsibility for noncovered medical expenses should be based upon the percentage of income each parent provided to the household is logical, we cannot reverse the judgment of the trial court in this ease on the ground that it equally distributed the burden of noncovered medical expenses. No authority supports a conclusion that the trial court’s decision was an error of law or an abuse of discretion.

The mother’s remaining arguments center on the property division and the alimony provision of the trial court’s judgment. Specifically, she argues that the trial court impermissibly restricted an award of alimony in gross consisting of a portion of the husband’s retirement benefits. She also complains that the trial court failed to award her sufficient periodic alimony or at least to reserve the issue of alimony for future consideration. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999) (stating that a trial court loses the power to grant alimony where it does not award periodic alimony in the divorce judgment and does not reserve the right to do so in the future).

Generally, the trial court has wide discretion over the award of alimony and the division of property, and it may use whatever means are reasonable and necessary to divide the parties’ property equitably. Grimsley v. Grimsley, 545 So.2d 75, 77 (Ala.Civ.App.1989). In dividing property and awarding alimony, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and their health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174 (Ala.Civ.App.1986). This court must consider the issues of property division and alimony together when reviewing the judgment of the trial court. Albertson v. Albertson, 678 So.2d 118, 120 (Ala.Civ.App.1995). The trial court’s property division and alimony award will not be set aside on appeal absent an abuse of discretion. Lutz, 485 So.2d at 1176.

The wife argues that the trial court’s condition to its award of a portion of the husband’s civil-service retirement to the wife, i.e., that she not remarry before age 55, is an improper restriction of an alimony-in-gross award. The provision, quoted above, is contained in a section of the divorce judgment entitled “Real and Personal Property.” In support of the trial court’s judgment, the husband argues that the award is clearly in the nature of periodic alimony and that the wife would lose her right to the retirement funds were she to marry at any time. In order to address the wife’s argument, we must first determine whether the award is an award of alimony in gross or periodic alimony.

Our supreme court has explained the difference between periodic alimony and alimony in gross. Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Alimony in gross is considered “compensation for the [recipient spouse’s] inchoate marital rights [and] ... may also represent a division of the fruits of the marriage where liquidation of a couple’s jointly owned assets is not practicable.” Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award “must satisfy two requirements, (1) the time of payment and the amount must be certain, and (2) the right to alimony must be vested.” Cheek v. Cheek, 500 So.2d 17, 18 (Ala.Civ.App.1986). It must also be payable out of the present estate of the paying spouse as that estate exists at the time of the divorce. Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. In other words, alimony in gross is a form of property settlement. Hager v. Hager, 293 Ala. at 54, 299 So.2d at 749. An alimony-in-gross award is generally not modifiable. Id.

Periodic alimony, on the other hand, “is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].” Hager v. Hager, 293 Ala. at 55, 299 So.2d at 750. Its purpose is “is to support the former dependent spouse and to enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until the spouse is self-supporting or maintaining a status similar to the one enjoyed during the marriage.” O’Neal v. O’Neal, 678 So.2d 161, 165 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala.Code 1975, § 30-2-55.

This court has considered other cases in which the type of alimony awarded was in question. See Singleton v. Harp, 689 So.2d 880 (Ala.Civ.App.1996); Barber v. Barber, 684 So.2d 150 (Ala.Civ.App.1996); Laminack v. Laminack, 675 So.2d 479 (Ala.Civ.App.1996); Stockbridge v. Reeves, 640 So.2d 947 (Ala.Civ.App.1994); Vainrib v. Downey, 565 So.2d 647 (Ala.Civ.App.1990); Cheek v. Cheek, 500 So.2d 17 (Ala.Civ.App.1986). In each case, we were concerned with the trial court’s construction of a provision in the parties’ separation agreement, which had been incorporated into the divorce judgment. In the present case, however, we are concerned with an interpretation of the trial court’s judgment. However, those cases still provide guidance for determining when an award is for periodic alimony or alimony in gross. “When the type of award is not specifically stated in the divorce [judgment], the source of payment and its purpose are important factors in determining whether an award is periodic alimony or alimony in gross.” Cheek v. Cheek, 500 So.2d 17, 19 (Ala.Civ.App.1986).

When we apply the above-quoted principles concerning periodic alimony and alimony in gross to the award in the present case, it becomes apparent that the trial court’s award fully satisfies neither definition. Although the award is like alimony in gross in that it is based on the husband’s present estate — the present value of his civil service retirement account — the time and amount of payment is not certain because it apparently continues until the retirement benefits are exhausted or until the husband no longer draws benefits for whatever reason. In addition, although contained within the section concerned with the division of property, the award is contingent upon the wife’s not remarrying before age 55, which would not be a permissible limitation on an alimony-in-gross award. The husband testified concerning a formula used to determine what benefits the wife would be entitled to upon divorce, and, pursuant to Ala. Code 1975, § 30-2-51(b) and (c), the wife could have properly been awarded up to one-half of the husband’s retirement benefits, to be paid to her once he began receiving those benefits. The fact that most divisions of retirement benefits are considered to be property divisions would support a conclusion that the provision is in the nature of alimony in gross. However, retirement benefits can also be considered a source of income from which to pay periodic alimony. Strong v. Strong, 709 So.2d 1259, 1261 (Ala.Civ.App.1998).

Upon a review of the entire judgment, it becomes apparent that the trial court may have awarded a form of periodic alimony in another section of the judgment. In the section entitled “Support for Plaintiff,” which tends to describe the purpose of periodic alimony, the wife is awarded medical and hospitalization insurance benefits for six months or until she becomes employed, whichever occurs sooner. In addition, the award of retirement benefits 'will not be available to the wife until the husband’s retirement (as early as age 55 or perhaps as late as age 60); if the award were intended to be periodic alimony, this court could reasonably question the trial court’s determination of the needs of the wife and the ability of the husband to pay so far in the future.

Because the trial court’s judgment appears to award what could best be termed as a hybrid form of alimony, containing some, but not all, characteristics of both periodic alimony and alimony in gross, we cannot determine which form the trial court intended to award. Therefore, we reverse the judgment of the trial court insofar as it awards to the wife $10,488 annually of the husband’s civil-service-retirement benefits upon his retirement, and we remand the cause to the trial court for it to specify which type of alimony it intended to award in this provision and for it to draft that provision to reflect the characteristics of the type of alimony it awards.

The wife’s final argument is that the trial court erred in failing to award more periodic alimony or to at least reserve the issue for future consideration. We cannot effectively address that argument at this time because, if the trial court intended the retirement-benefit award to be periodic alimony, it has awarded “future” alimony and arguably, that issue is sufficiently reserved in the judgment. However, because we reverse the award of retirement benefits to allow the trial court to draft the award as the type of alimony it intended to award, we will reverse the award of insurance benefits to the wife as well, so the trial court, in redrafting the retirement-benefits provision, can reconsider the entire property settlement and alimony provisions together so as to most equitably divide the parties’ property.

Both parties’ requests for an attorney fee on appeal are denied.

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

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

      . In Singleton, Stockbridge, Vainrib, and Cheek, this court affirmed a trial court’s determination that a provision in the parties’ divorce judgment provided alimony in gross and not periodic alimony. In Barber we reversed a trial court’s determination that the provision provided alimony in gross rather than periodic alimony. In Laminack we affirmed a trial court’s determination that the provision awarded periodic alimony.


author: PER CURIAM.

text:
    G.P. and A.P. v. A.A.K. and L.M.P. n/k/a L.M.K.
    2000496.
    Court of Civil Appeals of Alabama.
    July 19, 2002.

      Thomas D. Motley and Kimberly A. Clark, Dothan, for appellants.
    Wade H. Baxley of Ramsey, Baxley & McDougle, Dothan, for appellees.
    J. Coleman Campbell and James E. Long, asst, attys. gen., Department of Human Resources, for amicus curiae Attorney General, Bill Pryor.
   On Application for Rehearing

PER CURIAM.

This court’s opinion of December 21, 2001, is withdrawn and the following opinion is substituted therefor.

In April 1995, L.M.P. n/k/a L.M.K. (the “mother”) and M.P. (the “father”) had a child, D.P. In October 1995, the father was killed in an automobile accident. His parents, G.P. and A.P. (the “grandparents”) desired to see their grandchild, but the mother refused visitation. In December 1995, the grandparents sued in a Kentucky court for grandparent-visitation rights under Kentucky’s grandparent-visitation statute, Ky.Rev.Stat. Ann. § 405.021 (Banks-Baldwin 2001). In 1996, the Kentucky court entered a final judgment awarding visitation rights to the grandparents; this judgment was affirmed in July 1998 by the Kentucky Court of Appeals.

The mother married A.A.K. (the “stepfather”) in November 1997; in March 1998, the stepfather adopted the child. In November 1998, the Kentucky trial court modified the visitation order, on the petition of the grandparents, because the mother, stepfather, and child had moved to Pensacola, Florida. After the grandparents were denied Thanksgiving visitation, they petitioned the Kentucky court to enforce the visitation order. The mother, meanwhile, had petitioned the Florida court, requesting that it modify the Kentucky court’s 1996 visitation judgment. The parties reached an agreement, and, in February 1999, the Florida court adopted the 1998 Kentucky judgment. The mother, stepfather, and child then moved to Alabama.

In March 2000, the mother sought in the Circuit Court of Houston County, Alabama, a modification of the grandparents’ visitation judgment. The Alabama court determined that it had jurisdiction, pursuant to Ala.Code 1975, § 30-3B-203(2), a portion of Alabama’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The grandparents petitioned the Kentucky court, requesting that it retain jurisdiction under Kentucky’s version of the UC-CJEA, Ky.Rev.Stat. Ann. § 403-400 et seq. The Kentucky trial court retained jurisdiction, and the mother appealed to the Kentucky Court of Appeals. In an unpublished decision, that court determined that Alabama was the more appropriate forum and vacated the Kentucky trial court’s order retaining jurisdiction.

During this time, the United States Supreme Court decided Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), in which the high court struck down as unconstitutional a Washington third-party visitation statute. The mother thereafter petitioned the Alabama trial court to terminate the grandparents’ visitation rights, arguing, based on Troxel, that Alabama’s grandparent-visitation statute, Ala.Code 1975, § 30-3M.1, was unconstitutional. The attorney general was properly served, and he waived further service or argument. The Alabama trial court addressed the issue of the constitutionality of Alabama’s statute and held it unconstitutional per se. The court declined to enforce or to modify the grandparents’ visitation judgment, stating that it had no jurisdiction to modify another state’s judgment or to entertain a new suit in reference to grandparental visitation under Alabama law. The grandparents appeal that determination.

Since the trial court decided this case, this court has considered the constitutionality of § 30-3M.1. In a plurality decision, this court, after examining Troxel, struck down the rebuttable presumption in favor of grandparental visitation found in § 30-3-4.1(e) and determined that the statute was unconstitutional as applied in that case. R.S.C. v. J.B.C. 812 So.2d 361 (Ala.Civ.App.2001). In Ex parte State of Alabama, 826 So.2d 178 (Ala.Civ.App.2002), this court further addressed the circumstances under which § 30-3-4.1 may be constitutionally applied. However, proper disposition of this case does not turn on whether Alabama’s grandparent-visitation statute is unconstitutional, either per se or as applied. We therefore must reverse and remand.

The judgment awarding the grandparents visitation with their grandchild was a “child-custody determination” as that term is defined in the UCCJEA. See Ala.Code 1975, § 30-3B-102(3). The purposes of the UCCJEA are to:

“(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
“(2) Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
“(3) Discourage the use of the interstate system for continuing controversies over child custody;
“(4) Deter abductions of children;
“(5) Avoid relitigation of custody decisions of other states in this state;
“(6) Facilitate the enforcement of custody decrees of other states.”

Ala.Code 1975, § 30-3B-101 official comment (emphasis added).

Pursuant to the UCCJEA, and consistent with its stated purposes, judgménts providing for “visitation with respect to a child” are child-custody determinations that must be recognized and enforced by Alabama courts if the other state’s court rendering the judgment exercised jurisdiction in substantial conformity with the UC-CJEA. See §§ 30-3B-102(3) and 30-3B-303(a), Ala.Code 1975. In the present case, the Kentucky court’s determination as to visitation was a final judgment that must be recognized and enforced by Alabama courts.

The effect of the Kentucky court’s judgment awarding grandparent-visitation rights under the Kentucky statute was to decide the entitlement of the grandparents to visitation in the first instance. Parents had the same constitutional rights to direct a child’s upbringing in 1996 that they had in 2000, when the United States Supreme Court issued its decision in Troxel v. Granville. Constitutional objections to the award of visitation to the grandparents could have been raised in opposition to the Kentucky court’s award of such visitation. If they were not, they cannot be asserted now. See Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 84 L.Ed. 329 (1940) (party having failed to raise constitutionality of statute in a proceeding to which it was a party and in which it could have raised issue and had it finally determined, was not privileged to remain quiet and raise issue in a subsequent suit); Fields v. City of Fairfield, 273 Ala. 588, 591, 143 So.2d 177, 180 (1962) (upholding contempt finding against petitioners on ground that they failed to challenge constitutionality of statute in original proceeding, but waited until contempt proceeding to do so and noting that “[i]t is for the court of first instance to determine the question of the validity of the law”), rev’d on other grounds, 375 U.S. 248, 84 S.Ct. 360, 11 L.Ed.2d 311 (1963). On the other hand, if constitutional objections were raised in the Kentucky litigation, they were rejected, and the Kentucky court’s determination as to visitation became a final and binding judgment. See REO Broadcasting Consultants v. Martin, 69 Cal.App.4th 489, 81 Cal.Rptr.2d 639 (1999) (when a court acts pursuant to a statute later declared unconstitutional, prior final proceedings based on that statute are immune from collateral attack); People ex rel. First Nat’l Bank of Joliet v. Russel, 283 Ill. 520, 119 N.E. 617 (1918) (“Under the [more recent] decisions of the Supreme Court of the United States, our [earlier] judgment was erroneous; but the conclusiveness of a judgment upon the parties to it does not depend upon whether it is erroneous. Case v. Beauregard, 101 U.S. 688, 25 L.Ed. 1004 (1879). Although it may be based upon unsound principles, it is binding on the parties and on the court rendering it unless reversed or set aside, and it is unaffected by the fact that in another case another court has rendered a different judgment upon the same issues of law or fact”). See also Noel v. Noel, 307 Ky. 132, 210 S.W.2d 142 (1947) (where counterclaim for divorce based upon abandonment and cruel treatment was denied, party to marriage could not bring a subsequent divorce action based upon that conduct; under Kentucky law, res judicata includes every matter that is offered and received or might have been submitted to sustain or defeat a claim or demand); 1 Norman J. Singer, Sutherland Statutory Construction, § 2.07 (5th ed.1993) (the principle of estoppel by judgment has been applied to bar the reopening of a judicial decision that has become final, even where the decision was based on a statute that was later declared unconstitutional in other proceedings). Ab initio consideration of the issue of grandparent visitation in this case also would contravene the full faith and credit clause of the United States Constitution. See U.S. Const., art. IV, § 1; Ashwood v. Ashwood, 371 So.2d 924, 928 (Ala.Civ.App.1979) (holding that even though Alabama court had jurisdiction over the parties and the issue of custody, previous custody order issued by a Pennsylvania court was entitled to full faith and credit under U.S. Constitution, art. IV, § 1).

The Houston Circuit Court had jurisdiction in the present case. Under the UCCJEA, an Alabama court has jurisdiction to modify a child-custody determination when, among other things, the rendering state’s court has determined that continuing exclusive jurisdiction no longer exists in that state. See § 30-3B-203(l), Ala.Code 1975. As previously noted, the Kentucky courts have determined that Alabama courts should exercise jurisdiction over custody and visitation matters.

However, the fact that the Houston Circuit Court had jurisdiction to modify the grandparents’ visitation rights as the mother requested does not mean that it had jurisdiction to redetermine, ab initio, whether the grandparents should have been granted visitation rights—the previous visitation judgment “remain[ed] a custody determination of the state that issued it.” See Ala.Code 1975, § 30-3B-303 official comment. Nor did it fall to the Houston Circuit Court to determine whether Ala.Code 1975, § 30-3-4.1, was unconstitutional; that statute was not at issue in this case.

What does fall to the Houston Circuit Court is the task of exercising its discretion to determine whether to modify the visitation rights granted under the previous judgment. In Ashwood, supra, this court recognized that a circuit court of this state was obligated under the United States Constitution to give full faith and credit to a Pennsylvania judgment awarding custody of a child to its mother under Pennsylvania law. In light of that obligation, but also recognizing that the Alabama circuit court now had jurisdiction over the parties and that, under Alabama law, determinations regarding a child’s best interests never become res judicata, 371 So.2d at 928, this court held that the proper role of the Alabama court was “to focus its inquiry on the issues of whether, since the date of the Pennsylvania decree, there has been a sufficient change of circumstances to warrant a change of custody.” 371 So.2d at 928 (citations omitted).

The Houston Circuit Court may decide, consistent with Alabama law, that such a material change in circumstances has occurred that a prospective modification or termination of visitation is warranted in the best interests of the child, just as it could in cases not involving a foreign judgment. See, e.g., In re Stewart, 481 So.2d 899, 901 (Ala.Civ.App.1985). Nevertheless, the trial court’s jurisdiction to modify future visitation should not be equated with the power to “undo” the Kentucky court’s judgment by again considering the question of the constitutionality of the original court-ordered grandparental visitation, a question that is no longer properly at issue in this particular case.

In fight of the foregoing, the judgment of the trial court is reversed, and the cause is remanded for further proceedings and/or for the trial court to make findings consistent with this opinion.

OPINION OF DECEMBER 21, 2001, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND REMANDED WITH INSTRUCTIONS.

All the judges concur.

      . The Troxel decision did not change the law; it merely recognized or declared the law. See, e.g., Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 107, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (Scalia, J., concurring) (explaining that judicial power is a power “not delegated to pronounce a new law, but to maintain and expound the old one”).
      "Courts do not and cannot change the law by overruling or modifying former opinions. They only declare it by correcting an imperfect or erroneous view. The law itself remains the same.... An erroneous ruling may in some circumstances become the law of the particular case, but this will not prevent the court in another action from holding to the contrary.”

        Crigler v. Shepler, 79 Kan. 834, 842, 101 P. 619, 621 (1909).

      . It is not clear from the record whether constitutional objections were raised in the Kentucky litigation. A copy of the unpublished opinion by which the Kentucky Court of Appeals affirmed the visitation judgment is part of the record on appeal. Although that opinion contains a statement that the constitutionality of Kentucky's grandparent-visitation statute "has been settled” (citing the reader to King v. King, 828 S.W.2d 630 (Ky.1992)), there is no other description of any argument presented to the Kentucky Court of Appeals with respect to the constitutionality of the statute. At the outset of the opinion, the Kentucky Court of Appeals outlines three arguments raised on appeal, none of which is the constitutionality of the Kentucky statute.

      . The record contains no indication that there was any effort to obtain any appellate review of the decision of the Kentucky Court of Appeals.

      . For a discussion of the effect of a judicial decision holding a statute unconstitutional on a previous, collateral judgment entered in reliance on that statute, see Oliver P. Field, The Effect of an Unconstitutional Statute 150-97 (DaCapo Press 3d ed.1971) (1935); see also Note, The Effect of Declaring a Statute Unconstitutional, 29 Colum. L.Rev. 1140, 1143-44 (1929).

      . See generally Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445-46 (1947) ("True, we have often declared that the question of rightful custody of the child is never res judicata. But we have also stated that it does not follow that a former decree of a court of competent jurisdiction awarding the custody to one of two contesting parties is to be accorded no weight in later proceedings. Judicial findings upon the same, or substantially the same, conditions are presumed correct. The burden is on the party seeking a change of custody to show some change of conditions or other substantial reason therefor.”).


author: PITTMAN, Judge. MURDOCK, Judge, YATES, Presiding Judge,

text:
    WAL-MART STORES, INC. v. Stacy Jobson REYNOLDS.
    2010211.
    Court of Civil Appeals of Alabama.
    July 19, 2002.
    Glenn E. Ireland, Joseph H. Driver, and Holly H. Bazemore of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    Charles H. Rice of Rice, Adams, Underwood & Associates, P.C., Anniston, for ap-pellee.
   PITTMAN, Judge.

This is the second appeal in this case. See Wal-Mart Stores, Inc. v. Reynolds, 794 So.2d 1193 (Ala.Civ.App.2001) ("Reynolds I”). In Reynolds I, this court reversed the trial court’s judgment finding that Reynolds (“the employee”) suffered an 80% permanent partial disability because we concluded that the trial court had improperly considered evidence of vocational disability in violation of § 25-5-57(a)(3)!., Ala.Code 1975, when the employee returned to work at a greater wage than before the injury. 794 So.2d at 1196. We reversed the trial court’s judgment and instructed the trial court on remand “to enter an order without considering evidence of vocational disability.” Id.

On remand, the trial court again found that the employee suffered an 80% permanent partial disability. The trial court stated: “[I]t was not the intent of this trial court to base its judgment in any way upon vocational evidence in conflict "with § 25-5-57(a)(3)i nor does it intend to do so with this judgment following appeal and remand.”

The employer appeals from the trial court’s judgment on remand and argues that the evidence does not support the trial court’s finding of 80% permanent partial disability. The employer persuasively argues that the trial court violated § 25-5-57(a)(3)i. by again erroneously considering evidence of vocational disability when the employee returned to work at a wage greater than her wage before the injury. The employer also persuasively argues that the trial court’s finding of 80% permanent partial disability is not supported by the evidence.

This court will not reverse a trial court’s judgment in a workers’ compensation case based on factual findings if those findings are supported by “substantial evidence.” Section 25-5-81(e)(2), Ala.Code 1975. Substantial evidence is “‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” 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). The trial court’s legal conclusions, however, are afforded no presumption of correctness, and this court reviews them de novo. Ex parte Cash, 624 So.2d 576 (Ala.1993).

Several physicians examined the employee. None of them assigned her a physical disability rating over five percent. We conclude that the trial court’s finding of 80% permanent partial disability both before and after our remand directing the trial court not to consider evidence of vocational disability is not supported by the evidence and conflicts with § 25-5-57(a)(3)i. Although the trial court is not bound by expert testimony, a finding of 80% permanent partial disability both before the trial court erroneously considered vocational disability evidence and after the trial court had been instructed on remand to not consider vocational disability evidence is not supported by the evidence.

Therefore, the trial court’s judgment is reversed and the cause is remanded for the trial court to enter a disability finding supported by the evidence.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, J., concurs.

MURDOCK, J., concurs specially.

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

MURDOCK, Judge,

concurring specially.

While the trial court’s written judgment indicates that it considered several factors in assessing the employee’s physical impairment at 80%, among the court’s subsidiary findings was that the employee “had not worked since February 20, 2000, due to pain in her neck and shoulder.” The record contains no evidence, however, indicating that the employee was unable to continue working at Wal-Mart after February 20, 2000. To the contrary, the employee testified that she continued to work approximately 30 hours per week as of the time of trial. The trial court’s finding with regard to the employee’s inability to continue her work at Wal-Mart because of her injury was in error. It is my opinion after carefully reviewing the evidence, including the employee’s testimony, and the trial court’s judgment, that the conclusion that the employee suffered from an 80% physical impairment was based, in part, on the erroneous finding that the employee could no longer work.

I agree with the main opinion that there is not substantial evidence supporting the trial court’s finding of an 80% impairment and that, therefore, the judgment of the trial court must be reversed and the cause remanded for reconsideration of the extent of the employee’s loss of earning capacity.

YATES, Presiding Judge,

dissenting.

Because I believe that the majority has impermissibly reweighed the evidence on appeal, I must respectfully dissent.

Reynolds was employed by Wal-Mart as a stock person; she was unloading a microwave oven from a supply truck when she suffered an on-the-job accident. She described the accident as follows: “[I] had picked [a microwave] up, and when I went to pull it off the roller, it was extremely heavy on the right side, and when I pulled it off, ... it jerked me to the floor.” Reynolds stated that she experienced a sudden pain in her neck, shoulder, arm, and hand on the right side. She testified that she had never previously been treated for injuries or other problems to these parts of her body.

Reynolds was seen by Dr. James Holder on January 21, 1998, complaining of neck, back, and arm pain on the right side. Dr. Holder concluded that Reynolds most likely was suffering from a muscle strain with inflammation, but he could not rule out a cervical-disc injury at that point. Dr. Holder prescribed antiinflammatory medication, muscle relaxers, heat, and bed rest for five days. Reynolds’s symptoms did not improve, so Dr. Holder ordered that an MRI be performed. The results of the MRI were normal, and he referred Reynolds to Dr. Duane Tippets, an orthopedic surgeon.

Reynolds was first seen by Dr. Tippets on March 4, 1998, complaining of continued pain in her neck and shoulder. She stated that the pain is worse when she stands, lifts, and coughs or sneezes. Upon examination, Dr. Tippets noted that Reynolds was tender over her cervical spine and trapezius muscle with increased pain upon compression of those areas. Dr. Tippets further noted that Reynolds had some limitation in the range of motion of her neck. He reviewed Reynolds’s MRI and noted that she most likely had a small herniation of the C4-C5 disc, which “did disrupt CSF [cerebral spinal fluid] flow and did touch the gray matter.” Dr. Tippets also noted that Reynolds had a bulge at the C5-C6 disc. He attributed Reynolds’s symptoms to the small disc herniation. Dr. Tippets prescribed medication and returned Reynolds to work at light duty with a lifting restriction of five pounds and no prolonged standing or walking.

Reynolds returned to Dr. Tippets on April 9, 1998. She stated that on a scale of 1 to 10, her pain was a 10. Dr. Tippets noted that Reynolds had gained 15 pounds; that she was having headaches, tingling in her hands, and dizziness; and that she was depressed and having trouble sleeping. An examination revealed that Reynolds was “very tender” over her neck and shoulder. Dr. Tippets took Reynolds off work completely, continued her on medication, and recommended that she be sent to a “work-hardening” program, a physical-therapy program that stimulates work activities. Reynolds was referred to Dr. Charles Clark, a neurosurgeon.

Reynolds was seen by Dr. Clark on May 6, 1998, complaining of neck pain that extended into her arm and hand. Dr. Clark noted that Reynolds had good range of motion in her shoulders, but that hyperex-tension of the right shoulder produced pain. A motor exam revealed some weakness in the right triceps. Dr. Clark ordered a myelogram and a CT scan of Reynolds’s cervical region. The myelo-gram and CT scan indicated that Reynolds had a small midline bulge at the C6-C7 level and no herniation at the C4-C5 level. Dr. Clark recommended that Reynolds undergo some rehabilitation to strengthen her upper body and to increase the range of motion of her shoulder to be followed by a work-hardening program and a functional-capacity evaluation.

Reynolds was referred to Dr. Marilyn Burson on June 24, 1998, for an evaluation and for nerve-conduction studies. Reynolds complained of increased pain through her neck and shoulder following the work-hardening program. She also stated that she had some numbness in the last three fingers on her hand and that her right arm felt weaker. The nerve-conduction studies of the right upper extremity and cervical region were normal, showing no indication of a nerve impingement.

Reynolds underwent a functional-capacities evaluation in June 1998, which was conducted by Dr. Roland Rivard. At the time of the evaluation, Reynolds complained of constant pain in her neck and right shoulder that radiated down her right hand and increased with activity. Reynolds informed Dr. Rivard that she is no longer able to do yard work or housework; that she frequently wakes up during the night because of the pain; that she is much more irritable now than she was before the accident; and that she cries a lot because she is frustrated. Following the evaluation, Dr. Rivard assigned Reynolds a medical impairment rating of 5% to the whole person. Dr. Rivard placed no limitations on Reynolds for standing, walking, sitting, climbing, balancing, stooping, kneeling, or squatting. He did restrict Reynolds to a maximum lift of 38 pounds and a maximum frequent lift of 21 pounds. Dr. Rivard also restricted Reynolds to carrying loads of 30 to 35 pounds occasionally for short distances, and loads of 15 to 20 pounds frequently for short distances. He further restricted Reynolds to only occasional reaching and handling using her right upper extremity. Finally, Dr. Ri-vard noted that Reynolds was not exaggerating her symptoms.

Following her functional-capacities evaluation, Reynolds returned to Dr. Tippets on September 18, 1998. Reynolds complained of pain in her neck and upper back and of headaches. Dr. Tippets agreed with the 5% medical impairment rating and the restrictions assigned by Dr. Ri-vard. Dr. Tippets determined that Reynolds had reached maximum medical improvement at that time.

Reynolds returned to Dr. Tippets on October 15, 1998, with continued complaints of headaches and pain in her neck and complaints of pain in her shoulder. Dr. Tippets noted that Reynolds was depressed; that she was sleeping only four hours per night; that she was not eating well; and that she had lost her “zest for life.” He further noted that Reynolds could not work or function in the condition she was in, and he recommended that she seek psychiatric treatment. Dr. Tippets referred Reynolds to Dr. Anthony Esposi-to, a neurologist, for evaluation of her headaches.

Reynolds was seen by Dr. Esposito on January 8, 1999. A physical examination revealed cervical paraspinal tenderness over the trapezius and intrascapular region on the right side. Dr. Esposito concluded that Reynolds had significant cervical paraspinal spasms and headaches, that her symptoms were suggestive of tension-type headaches, and that significant depression could be contributing to her problem. Thereafter, Reynolds was referred to a psychiatrist, who diagnosed her with depression and prescribed an antidepressant medication.

Reynolds returned to Dr. Esposito on January 28, 1999, with continued complaints of pain in her neck and right arm. She stated that she was experiencing a shooting pain from her neck into her right arm with tingling in her fingers. Dr. Es-posito ordered an MRI and nerve-conduction studies. The MRI revealed the absence of the normal cervical lordosis with minimal disc bulges at the C5-C7 levels. The nerve conduction studies were normal. Reynolds returned to Dr. Esposito on May 10, 1999, with continued complaints of pain in her neck, shoulder, and numbness in her right hand. A physical examination indicated that Reynolds had tenderness in her cervical region. Dr. Esposito concluded that Reynolds had chronic neck pain and referred her to Dr. Daniel Harrison for management of her pain.

Reynolds was first seen by Dr. Harrison on May 18, 1999. At that time Reynolds complained of headaches and neck and shoulder pain that radiated down into her right arm, which increased with activity. She stated that her pain was 6 to 9 on a scale of 1 to 10. Dr. Harrison’s physical examination indicated some limited range of motion of Reynolds’s neck with pain upon right- and left-side flexion. Dr. Harrison noted tenderness over the C5-C7 spinous processes and in the trapezius and scapular region. He further noted that Reynolds had some loss of sensation in her middle finger on the right hand. Dr. Harrison also reviewed Reynold’s previous MRI. He diagnosed Reynolds with cervical discogenic pain with bulges at the C5-C7 levels and degeneration throughout the cervical spine. He stated that he felt the bulge at the C5-C6 level was the source of her pain and that the bulge at the C7 level was the cause of the loss of sensation in her finger. Dr. Harrison testified that there are multiple causes of bulging discs and that the history of Reynolds’s accident and injury is consistent with the bulges in her cervical spine. Dr. Harrison also concluded that Reynolds suffers from somatic referred pain. He stated that somatic referred pain occurs when a bulging disc, though not impinging a nerve, irritates the nerve causing pain in areas of the body that are enervated by the irritated nerve.

Dr. Harrison treated Reynolds with epidural steroid injections. He stated that the injections helped to give Reynolds some temporary relief from her pain, although she never got complete relief. Dr. Harrison also testified that Reynolds suffers from depression, which he says is common in patients suffering from chronic pain. He referred Reynolds to Dr. H. Evan Zeiger, a neurosurgeon.

Reynolds was first seen by Dr. Zeiger on June 24, 1999. Reynolds informed Dr. Zeiger that she has been in constant pain, which ranges from light to heavy, in her neck, right shoulder, right arm, and the right side of the back of her head since her workplace accident at Wal-Mart. Dr. Zeiger reviewed Reynolds’s previous MRI and noted that it revealed minor disc protrusions and bulges at the C5-C7 levels, with an absence of the normal cervical lordosis. Dr. Zeiger ordered a myelogram and a CT scan. The tests revealed some mild bulges but was otherwise normal.

Reynolds returned to work at Wal-Mart as an exit greeter. Reynolds testified that she has constant pain in her neck and that she still experiences pain in her right arm, right shoulder, and hand. She testified that lifting, jarring, and repetitive use of her arm and shoulder and prolonged standing exacerbates the pain. Reynolds stated that she is no longer able to perform the duties of a stock person; to play ball with her children; to ride a bicycle; and to cut grass. She testified that she has suffered from depression since the workplace accident and is on antidepressant medication.

The trial court applied § 25 — 5—57(a) (3)i., Ala.Code 1975, in determining the extent of Reynolds’s impairment. Neither party disputes the application of § 25-5-57(a)(3)i. to this case. Section 25-5-57(a)(3)i. provides:

“Return to Work. If, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25 — 5—57(a)(3), 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.”

Wal-Mart argues that the trial court erred in finding that Reynolds had a 80% physical impairment, because, it says, the physical impairment assigned by the trial court must have some rational relationship, as a matter of law, to the 5% medical impairment assigned by the medical experts in this case. Nothing in § 25 — 5—57(a)(3)i. indicates that the physical impairment rating assigned the employee must bear a rational relationship to the medical impairment rating assigned by the medical expert, and Wal-Mart cites no persuasive authority in support of this contention. This court has construed § 25-5-57(a)(3)i., in a similar case, stating:

“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. 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.
“The trial court is prohibited from considering vocational disability evidence under § 25 — 5—57(a)(3)i. Further, this section mandates that an employee’s permanent partial disability rating shall be equal to the employee’s physical impairment. 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.”

Compass Bank v. Glidewell, 685 So.2d 739, 741 (Ala.Civ.App.1996) (citations omitted). See also Fuller v. BAMSI, Inc., 689 So.2d 128 (Ala.Civ.App.1996). By arguing that the physical impairment rating assigned by the trial court should bear some rational relationship to the medical impairment assigned by the trial court, Wal-Mart is in essence asking this court to bind the trial court, at least to an extent, to the testimony of medical experts and, further, to limit the trial court’s authority to consider the evidence presented, including its own observations, in making its determination as to the extent of disability. To do so flies in the face of well-established workers’ compensation law in this state.

The evidence indicates that since Reynolds’s accident at Wal-Mart she has consistently complained of pain in her neck, right shoulder, and right arm, which would become exacerbated with activity. She stated that she had had no prior injuries or problems to these parts of her body. Physical examinations by her various treating physicians revealed tenderness in the areas of the neck and shoulder. Diagnostic testing has revealed the presence of bulging discs in her cervical spine and Dr. Tippets stated that an MRI indicated the presence of a small disc herniation at the C4-C5 level. Dr. Harrison noted that the history of the workplace accident related to him by Reynolds is consistent with the finding of the bulging discs in her cervical spine and that the bulge at the C5-C6 level was the source of her pain. Restrictions as to lifting, carrying, reaching, handling, and fingering with the right arm were placed on Reynolds after her functional-capacities evaluation. The functional-capacities evaluation indicated that Reynolds was not exaggerating her symptoms. Dr. Tippets noted that after the workplace accident Reynolds was having trouble sleeping and that she had lost her “zest for life.” Reynolds had never before been treated for depression; however, after the accident she was diagnosed with depression and placed on antidepressant medication. Finally, Reynolds testified that she was in constant pain and that her everyday activities had been limited since the workplace accident.

The special concurrence focuses on the trial court’s statement in its judgment that Reynolds “had not worked since February 20, 2000, due to pain in her neck and shoulder.” Although there is evidence in the record that indicates that Reynolds missed time from work following her return because of pain in her neck and shoulder, nothing in the record supports the trial court’s conclusion that she had not worked since February 20, 2000. However, I believe that the special concurrence gives too much weight to the statement of the trial court, considering the other evidence contained in the record that supports the finding of an 80% physical impairment. Further, I cannot look beyond the fact that the trial court applied the return-to-work provision of § 25-5-57(a)(3)i., Ala.Code 1975, and expressly stated in its amended order that it did not consider evidence of vocational disability.

Because I believe that the trial court did not abuse its discretion in finding that Reynolds had suffered an 80% physical impairment and that that judgment is supported by substantial evidence, I dissent.

CRAWLEY, J., concurs.