author: THOMPSON, Judge.

text:
    W.C. v. STATE DEPARTMENT OF HUMAN RESOURCES and C.H.D. and T.B.D.
    2020629.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Certiorari Denied Feb. 13, 2004 Alabama Supreme Court 1030091.

      Patricia W. Hall, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen.; J. Coleman Campbell, deputy atty. gen.; and Lois Brasfield and Connie M. Carraway, asst, attys. gen., Department of Human Resources, for appellees.
   THOMPSON, Judge.

J.G.C. (“the child”) was placed in the custody of the Mobile County Department of Human Resources (“DHR”) pursuant to a December 18, 2001, order of the trial court. On September 4, 2002, DHR petitioned to terminate the parental rights of S.H. (“the mother”) and W.C. (“the father”) to the child. T.B.D., the mother’s first cousin, and her husband, C.H.D. (hereinafter sometimes referred to as “the maternal cousins”), filed a motion to intervene, and on November 13, 2002, they petitioned the trial court for custody of the child. On March 28, and April 1, 2003, the trial court conducted a hearing in which it received ore tenus evidence. The father was present and testified on March 28, 2003; however, the record reveals that the father was not present at the April 1, 2003, continuation of the hearing. On April 4, 2003, the trial court entered an order terminating the parental rights of the mother and the father and awarding the maternal cousins legal custody of the child. Only the father appealed.

The pertinent facts are as follows. At the age of 16, the mother was married to C.H.; four children were born of that marriage. The mother and C.H. separated, and the mother entered into a relationship with the father. The mother became pregnant as a result of that relationship. The father testified that the child was his; the mother also informed DHR of the same. The child was born on April 21, 2000. Shortly after the child was born, the father was convicted of driving under the influence, domestic violence, and contributing to the delinquency of a minor and was subsequently incarcerated in Florida for five and one-half months.

While the father was incarcerated in Florida, the child was originally in the custody of the mother; however, the child was later adjudicated dependent by the Florida Department of Health and Rehabilitative Services (“HRS”) and was placed in foster care. HRS returned custody of the child to the mother on October 28, 2001; thereafter, the mother moved, with the child, to Mobile, Alabama, to live with relatives. Three days later, on November 1, 2001, the mother’s grandparents called DHR and requested assistance with the child after the mother did not return home one day from work. On November 5, 2001, the child was placed in the home of the maternal cousins, who cared for the child for approximately four months until returning the child to the custody of DHR. DHR placed the child in foster care, and, in November 2002, the child was returned for a second time to the temporary custody of the maternal cousins after they petitioned for custody of the child.

At the time of the hearing in this matter, the father was 27 years old. The father testified that he was released from jail in August 2001 and that, within one month of being released, he moved from Florida to California to “regain stability.” The father testified that he has immediate family that lives in California. Sharniece Green, a DHR social worker, testified that the mother informed her that the father was in California. Green eventually contacted the father at his grandmother’s home in California where the father had been living. According to Green, the father expressed an interest in gaining custody of the child and told her that he would contact her. Green testified that after her one conversation with the father she did not hear from the father again.

The father testified that shortly after he moved to California he was convicted for driving under the influence. The father testified that, sometime thereafter, he was arrested for assault with a deadly weapon following an altercation in which he stabbed a man twice with a knife. The father was jailed in July 2002; the father posted bond after serving three and one-half months in jail. The father testified that while he was in jail he lost contact with Green. The father was served with DHR’s petition to terminate his parental rights in September 2002 while he was incarcerated in California.

The father testified that after he moved to California he worked for his grandfather’s construction business and that he also worked for a flooring company. The father testified that, at the time of trial, he had arranged to work for a company that installed fluorescent lights but that he had yet to be officially hired. The father also testified that he had looked into renting an apartment and had found a day-care facility for the child to attend if he were to gain custody of the child. The father testified that, at the time of trial, he lived in a one-bedroom mobile home on his grandparents’ property. Green testified that the HRS case plan in Florida required that the father attend a drug-treatment program and an anger-management program. However, Green was unaware if the father had completed the programs.

The father testified that he called the child when he could but that his busy schedule in California prevented him from calling often. The father also testified that he was unable to visit the child because of the long distance between their residences. T.B.D., a maternal cousin, testified that she and her husband, C.H.D., had had custody of the child since November 2002. According to T.B.D., the father had visited the child once. That visit occurred immediately following a November 2002 hearing at which the trial court awarded the father supervised visitation with the child. T.B.D. testified that the father had only called the child three times since that hearing. According to T.B.D., the father sent a card to the child at Christmas. The father testified that he had never paid child support for the child.

T.B.D. testified that she first had custody of the child from November 2001 until March 2002. T.B.D. testified that she and C.H.D. had returned the child to the custody of DHR after the mother and the maternal grandmother were in a physical altercation in front of T.B.D. and C.H.D.’s daughters. T.B.D. testified that the police were called and that her daughters were questioned following the incident. According to T.B.D. and C.H.D., caring for the child at that time jeopardized the safety of their immediate family, specifically their three children, who were 17, 16, and 13 years old at the time of the hearing. Green testified that the maternal cousins continued to exercise visitation with the child after the child was removed from their custody.

T.B.D. and C.H.D. took custody of the child for a second time in November 2002, after petitioning the trial court for custody. According to T.B.D., there are no other family members willing or able to take the child. T.B.D. testified that the mother has two sisters, both of whom are unmarried and have children. The mother also has a brother, who, according to T.B.D., does not want the child. T.B.D. testified that her family members have no objection to C.H.D. and her having custody of the child. T.B.D. testified that she and C.H.D. plan to adopt the child.

On appeal, the father contends that the trial court erred in terminating his parental rights. A trial court’s determination of factual issues following the presentation of ore tenus evidence is presumed correct and will not be disturbed on appeal absent a showing of palpable error. F.L.L. v. State Dep’t of Human Res., 612 So.2d 501 (Ala.Civ.App.1992). Section 26-18-7, Ala. Code 1975, sets forth the statutory authority for the termination of a parent’s parental rights, providing, in pertinent part:

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

(Emphasis added.)

“A parent has a prima facie right to custody of his or her child and this right can be overcome only by clear and convincing evidence that the child’s best interests would be served by permanently terminating the parent’s custody.” Ex parte State Dep’t of Human Res., 624 So.2d 589, 591 (Ala.1993)(citing R.C.M. v. State Dep’t of Human Res., 601 So.2d 100 (Ala.Civ.App.1991)). When the State is petitioning to terminate a parent’s parental rights, the trial court must first determine if the child is dependent and then must examine whether all viable alternatives to termination have been explored. Ex parte Beasley, 564 So.2d 950 (Ala.1990). On appeal, the trial court’s determination is presumed to be correct, and it will not be reversed absent a showing that the decision is so unsupported by the evidence as to be plainly and palpably wrong. Ex parte State Dep’t of Human Res., supra.

The record indicates that the father has been arrested on several occasions and, as a result of those arrests, has been incarcerated twice. At the time of trial in this matter, the father was scheduled to appear for trial in California to defend a charge of assault with a deadly weapon. The father has had very limited contact with the child and has never paid child support; the child was three years old at the time of the hearing in this matter. Although the father testified that he intended to obtain employment and rent an apartment, he had not yet executed those plans at the time of trial. Given the father’s criminal arrest record, the father’s impending criminal trial for assault with a deadly weapon, and the father’s lack of support, both emotional and financial, of the child, we cannot say that the trial court’s termination of the father’s parental rights was plainly or palpably wrong. See Ex parte State Dep’t of Human Res., supra.

The father also contends that the trial court erred in failing to appoint an attorney to represent his interests at the “show cause hearing” held after DHR filed its December 18, 2001, petition for immediate custody of the child. It is well settled that the “constitutional due process clause does not require the appointment of counsel for an indigent parent in dependency and temporary custody proceedings.” Morgan v. Lauderdale County Dep’t of Pensions & Sec., 494 So.2d 649, 651 (Ala.Civ.App.1986)(citing Lassiter v. Department of Social Servs. of Durham County, North Carolina, 452 U.S. 18, 34, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). However, a due-process right to appointed counsel does exist for an indigent parent in termination-of-parental-rights proceedings. See K.P.B. v. D.C.A., 685 So.2d 750 (Ala.Civ.App.1996)(holding that in Ex parte Shuttleworth, 410 So.2d 896 (Ala.1981), the supreme court found that a due-process right to appointed counsel existed for indigents in termination-of-parental-rights cases).

The trial court granted DHR’s petition for immediate custody of the child on December 18, 2001. In its petition, DHR stated that the address of the father was unknown. The case action summary sheet in the record on appeal indicates that the trial court set a date for a show-cause hearing but that it continued the hearing because the mother had not been served. It appears that the trial court held a hearing on March 15, 2002, at which the mother, but not the father, was present. Following the March 15, 2002, hearing, the trial court entered an order on the case action summary sheet that states: “By agreement custody continued with DHR.” The father did not appeal the March 15, 2002, judgment of the trial court continuing DHR’s custody of the child. The trial court then set a permanency hearing for November 15, 2002. After one failed attempt to serve the father by certified mail, the father was successfully served by certified mail on July 17, 2002, and he was notified of the November 15, 2002, permanency hearing set by the trial court. The record indicates that the father was present at the permanency hearing and that he was represented by appointed counsel at that time. The record does not indicate that the father objected at the November 15, 2002, hearing to the failure of the trial court to appoint counsel to represent him at the earlier hearings.

In Morgan, 494 So.2d 649, this court addressed a similar situation involving the trial court’s failure to appoint counsel to an indigent parent in a termination-of-parental-rights proceeding. In that case, the trial court determined that the mother’s children were dependent, and it placed them in the temporary custody of the Department of Pensions and Security. The trial court held three preliminary hearings on the matter, and, following the third hearing, it appointed counsel for the indigent mother. On appeal, the mother argued that the trial court erred by not appointing an attorney to represent her at any of the three preliminary hearings. However, the mother had never raised the issue before the trial court and had waited to raise the issue until she appealed the termination of her parental rights. This court affirmed the judgment of the trial court terminating the mother’s parental rights. In so doing, this court held, among other things, that the trial court could not be reversed in light of the mother’s failure to first raise the issue of the trial court’s failure to appoint counsel to represent her at the preliminary hearings before the trial court. Morgan, 494 So.2d at 650-51.

A thorough review of the record reveals that the father did not object to the trial court’s failure to appoint counsel to represent him at the March 15, 2002, hearing. Regardless, the father attended the November 15, 2002, permanency hearing and was represented by counsel at that hearing. It does not appear from the record that the father raised the issue before the trial court that he now raises on appeal. This court may not consider an issue that is raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). Therefore, we will not address the merits of this issue on appeal.

AFFIRMED.

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

MURDOCK, J., concurs in the result.

      . At the time of the hearing, the mother’s children, bom of her marriage to C.H., had been removed from her custody.

      . The father went to trial on the assault-with-a-deadly-weapon charge, claiming self-defense; the jury could not reach a verdict, and a new trial was scheduled for May 6, 2003. The father testified that he obtained permission to leave California for the custody hearing in Alabama.

      . We note that the maternal grandmother filed for custody of the child in May 2002, but she later withdrew her petition for custody.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Candace Renee SMITH v. Jay Samuel SMITH.
    2020522.
    Court of Civil Appeals of Alabama.
    Oct. 31, 2003.
    Certiorari Denied March 12, 2004 Alabama Supreme Court 1030296.

      Michael Lipscomb of Lipscomb & Lipscomb, Bessemer, for appellant.
   CRAWLEY, Judge.

Candace Renee Smith (“the mother”) and Jay Samuel Smith (“the father”) were married in December 1999. They separated in March 2002. The wife filed for a divorce, which the trial court granted after a trial on September 20, 2002, at which only the wife testified. One child was born of the marriage; he was 11 months old at the time of the divorce trial. The wife appeals the divorce judgment, arguing that the trial court erred by awarding the parties joint legal custody of the child, by awarding the father unsupervised visitation, by awarding the father more than “standard” visitation, by placing unwarranted restrictions on the parties during periods of physical custody, by failing to correctly compute the father’s child-support obligation by omitting child-care expenses from the computation, by failing to allocate the debts of the parties, and by fading to divide the parties’ personal property. We affirm in part and reverse in part.

The mother testified that the father was not able to keep a job during their short marriage. The mother further testified that she had worked at a day-care facility during the marriage but that she worked as a waitress at the time of trial. She said that her monthly income was $1,040, while child-care costs for the child amounted to $300 per month. The father’s monthly income, as reflected on his CS-41 child-support income affidavit, was $1,160.

The mother claimed that the father was abusive to her during the marriage. She said that he would yell and scream at her and that he often pushed and shoved her. She recounted an incident during their separation at which, she says, the father repeatedly punched and kicked her during an argument over pendente lite visitation with the child. She further explained that she was concerned about his violent relationship with his brother, M.J.S., which, she said, involved hitting, chasing each other with baseball bats, and chasing each other with knives. M.J.S., who was 19 years old at the time of the parties’ divorce trial, had been hospitalized several times and had been diagnosed with “major depressive disorder with psychotic features, impulse control disorder, and generalized anxiety disorder.”

The mother has lived with her parents since the parties’ separation. She described their home as a five-bedroom house in which she, her parents, her sister, and the child lived. She explained that the father currently lived with his parents in a two-bedroom trailer with M.J.S., his sister, his sister’s husband, and his sister’s child. When the child visits with the father overnight, he shares a bed with the father.

The mother testified that the child has asthma and must be on a nebulizer at least twice a day. She explained that, although she smokes, she does not smoke around the child, in her parents’ home, or in the car because of the child’s asthma. She testified that the father and his family members smoked in the presence of the child before the separation. She also testified that the father called her while he had the child for visitation to say that “he couldn’t do nothing with [the child]” and that he was going to take the child to day care. She also said that she had taken care of the child as an infant, that the father had not prepared bottles or changed a diaper, and that the father “sleeps hard” and does not hear the child cry at night. The mother indicated concern that the father may roll over on the child while sharing a bed during overnight visitations and concern that the father would not adequately care for the child.

The judgment awards the parties “joint custody” and then awards the mother “primary physical custody.” As we have explained before, the proper terms for custody judgments are contained in Ala.Code 1975, § 30-3-151, which became effective on January 1, 1997. See Harris v. Harris, 775 So.2d 213, 214 (Ala.Civ.App.1999). Like the divorce judgment in Harris, the divorce judgment in the present case uses the terms commonly used by the bench and bar prior to the adoption of § 30-3-151. Again, we are faced with a judgment that awards the parties “joint custody,” which is defined in the statute as “0]oint legal custody and joint physical custody,” and yet awards one party “primary physical custody,” a term undefined in the statute. As we held in Harris, there is but one way to interpret a judgment that awards “joint custody” with an award of “primary physical custody” to one parent — such a judgment must be interpreted as awarding the parents joint legal custody and awarding one parent sole physical custody, the term used by the statute to denote a parent being favored with the right of custody over the other parent, who will receive visitation. § 30-3-151(5). We take this opportunity to remind the bench and bar that our legislature has adopted terminology to be used in crafting custody judgments. Use of the terminology used before the enactment of § 30-3-151 only serves to engender confusion.

“In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. The trial court’s overriding consideration is the children’s best interests and welfare. The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Likewise, it is proper for the court to consider the ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.’ ”

Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994) (quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)) (internal citations omitted). In addition, our review of custody determinations based on ore tenus evidence is quite limited; the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong. Bates v. Bates, 678 So.2d 1160, 1161-62 (Ala.Civ.App.1996). “ ‘The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony it has an opportunity to evaluate the demeanor and credibility of witnesses.’ ” Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001)(quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)). Thus, the mother’s contention that the ore tenus rule does not apply to this case because she presented the only testimony and, therefore, the facts are undisputed, is incorrect. The trial court heard both the mother’s testimony on direct examination and on cross-examination, and it had the opportunity to evaluate the mother’s demeanor and credibility. We must review the divorce judgment with that in mind.

The mother argues that the trial court erred by awarding the parties “joint custody” because the Custody and Domestic or Family Abuse Act, Ala.Code 1975, § 30-3-130 et seq., prohibits an award of sole, joint legal, or joint physical custody of a child to the perpetrator of domestic or family abuse. See § 30-3-131. She also points out that, under the joint-custody statute, there was no presumption in favor of joint custody because the parties did not both request it. See Ala.Code 1975, § 30-3-152(c). The mother also argues that the evidence does not support a determination that joint legal custody is in the child’s best interest.

A trial court is required to consider joint custody in every case. See § 30-3-152(a). It can award a form of joint custody when not requested by both parties. § 30-3-152(b). Under the joint-custody statute, the trial court retains the discretion to determine the appropriate custody arrangement on a case-by-case basis, guided, as always, by the best interest of the child. § 30-3-152(a). The joint-custody statute sets out the factors a trial court must consider in a custody case when determining whether joint custody would be appropriate:

“(a) The court shall in every case consider joint custody but may award any form of custody which is determined to be in the best interest of the child. In determining whether joint custody is in the best interest of the child, the court shall consider the same factors considered in awarding sole legal and physical custody and all of the following factors:
“(1) The agreement or lack of agreement of the parents on joint custody.
“(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.”

§ 30-3-152(a).

The mother points out that the joint-custody statute and the Custody and Domestic and Family Abuse Act both reference domestic abuse as a matter to be considered by the trial court. However, the mother’s testimony concerning the father’s domestic abuse of her during the marriage was called into doubt by the father’s attorney on cross-examination. The mother admitted, under cross-examination, that she had bitten the father during the altercation arising out of an argument about pendente lite visitation that occurred while the parties were separated; she explained that she had done so to “get [the father] off of her” during the altercation. The mother denied that the bruising on her arm that was depicted in photographs she admitted into evidence was caused by the father’s attempt to hold her arms to prevent her from hitting him, as suggested by the father’s attorney; she explained that the bruises were caused by the father’s repeated punching. The mother also admitted under cross-examination that she once threw a bottle of nail polish at the father after he released her from being restrained because he was blocking her exit from a room. She said that they had both engaged in pushing and shoving during the marriage, but she portrayed the father as the primary instigator of those physical altercations.

The trial court could have determined that the father was not the perpetrator of domestic or family abuse. The trial court could also have considered the lack of evidence concerning the impact of the alleged domestic or family abuse upon the child. See § 30-3-131 (“Notwithstanding the provisions regarding rebuttable presumption, the judge must also take into account what, if any, impact the domestic violence had on the child.”). The trial court could also have determined that granting the mother and the father joint legal custody would be in the child’s best interest. Because any or all of these findings would be supported by the meager record, we must affirm the trial court’s award of joint legal custody to the parties.

The mother also argues that the trial court’s visitation award is an abuse of discretion on several grounds. First, she complains that the trial court failed to award supervised visitation despite the fact that evidence presented to the trial court indicated that M.J.S. had a severe mental disorder that might put the child at risk, that the father would not adequately care for the child, and that the father might roll over on the child or not hear the child’s cries at night because he “sleeps hard.” She points out that § 30-3-135(a) permits an award of visitation with a perpetrator of domestic abuse only if adequate provisions for the safety of the child and the victim are made; she argues that the trial court failed to make adequate provisions for the child’s safety. The mother also complains that the trial court awarded more than “standard” visitation and that the trial court imposed unnecessarily strict restrictions on the consumption of alcohol by both parties and on overnight nonfamily guests during custodial periods.

A trial court has a wide degree of discretion in visitation matters. See Anonymous v. Anonymous, 620 So.2d 43, 44 (Ala.Civ.App.1993); Baugh v. Baugh, 567 So.2d 1358 (Ala.Civ.App.1990). “Visitation cases require an examination of the facts and circumstances of the individual situation which the trial court is able to observe.” Watson v. Watson, 634 So.2d 589, 590 (Ala.Civ.App.1994). A trial court’s decision on such matters will not be overturned absent a clear and palpable abuse of that discretion. Anonymous v. Anonymous, 620 So.2d at 44.

The trial court’s judgment indicates that the paternal grandmother should supervise the father’s visitation; however, it also states that the paternal grandmother is not required to be in the constant presence of the father and the child during visitation. Thus, the trial court essentially granted the father unsupervised visitation. However, the judgment does require that the paternal grandmother be present whenever M.J.S. is present when the child is in the home. The trial court’s decision not to require that the father’s visitation with the child be supervised does not run afoul of § 30-3-135 because the trial court could have either determined that the father had not committed domestic abuse, could have determined that any domestic abuse had not had any impact on the child, or that the child’s safety was protected by the occasional presence of the grandmother. The trial court did require the grandmother to be present whenever M.J.S. is in the home. The mother does not specifically explain what further safeguards she would consider adequate to protect the child from any threat posed by M.J.S.; it appears to this court that the trial court’s judgment provides sufficient safeguards.

The mother also argues that the trial court ignored her concerns that the father did not adequately care for the child and about the child’s sleeping with the father during overnight visitation periods because, she said, the father “sleeps hard” and might roll over onto the child during the night or might not hear him if he cried. However, on cross-examination, the father’s attorney asked the mother why she had not mentioned the father’s “sleeping hard” as a reason to supervise visitation during her deposition. By doing so, the father’s attorney called into question the mother’s credibility. The father’s attorney also asked the mother why she had decided restrictions on the father’s visitations were warranted when initial pendente lite visitation had not required any restrictions or supervision. We cannot say that the trial court was required to limit, restrict, or supervise the father’s visitation based on the mother’s allegations. The trial court heard the mother’s testimony and could have determined that her protests concerning the father’s capabilities as a father were exaggerated.

Finally, the mother argues that the trial court’s award of visitation is overly generous and that the trial court imposed unnecessary and strict restrictions on both parents by prohibiting the use of any alcoholic beverages by either parent during custodial periods and by prohibiting overnight nonfamily guests during custodial periods. Because the mother cites no authority indicating that a trial court abused its discretion by awarding a generous amount of visitation to the noncustodial parent, we decline to consider the argument advanced by the mother. Asam v. Devereaux, 686 So.2d 1222, 1224 (Ala.Civ.App.1996) (“This court will address only those issues properly presented and for which supporting authority has been cited.”). However, the mother does cite Smith v. Smith, 599 So.2d 1182, 1187 (Ala.Civ.App.1991), as authority for her argument that the trial court’s prohibition on the consumption of alcohol and overnight nonfamily guests is overly restrictive.

In Smith, this court reversed a trial court’s restriction on overnight visitation that prohibited the mother from having any male she was not married to or immediately related to be in or stay in her residence during visitation periods. Smith, 599 So.2d at 1187. This court commented that the provision, interpreted as written, would prevent the mother from having any male visitor, be it a male pastor, the husband of a married couple who were social friends of the mother, a male relative who was not immediately related (i.e., an in-law), or a male friend of the children. Id. We reversed the trial court’s judgment on this point, ordering that the trial court craft a less restrictive provision that would truly protect the children. Id.

Insofar as the mother complains of the trial court’s excessively broad prohibition that “neither parent shall allow any person to whom he or she is not married to or related to by blood to remain overnight in his or her residence or other place where he/she might be staying when the minor child is present,” we agree with the mother that the judgment should be reversed on that point and a more properly worded restriction should be inserted in the judgment upon remand. The present wording of the judgment would prohibit the father’s brother-in-law (his sister’s husband) — he is not married to nor related by blood to the father — from remaining in the trailer overnight during visitation periods. Other overnight guests who would not likely be harmful to the child, like an out-of-town friend of the mother’s parents or a female Mend of the mother’s sister, would also be prohibited under the provision as it is presently worded. We note that even the typical restriction on overnight guests may be particularly difficult to word-in this case because both parents live in homes inhabited by several family members and even spouses of those family members.

We do not, however, find that Smith requires a reversal of the provision restricting the use of alcoholic beverages in the presence of the child. The mother argues that no evidence was presented indicating that she had an alcohol-abuse problem; therefore, she argues the restriction is too broad or overly restrictive of her rights. We disagree, The restriction prevents the child from being supervised by a parent whose judgment may be impaired by the consumption of intoxicating beverages, which would be in the child’s best interest. Therefore, we affirm the judgment in that respect.

The mother also argues that the trial court improperly computed the child-support award because it failed to include $300 per month in child-care costs in its computation of the award. Rule 32(B)(8), Ala. R. Jud. Admin., states that “[e]hild care costs, incurred on behalf of the children because of employment or job search of either parent, shall be added to the ‘basic child support obligation.’ ” , The mother testified that child-care costs for the child were $300 per month. Her .CS-42 ehild-support-guidelines form, which was submitted in support of her Rule 59, Ala. R. Civ. P., motion to alter, amend, or vacate the judgment, includes the $300 figure in the computation of child support. Because the evidence that the child-care costs for the child are $300 per month is undisputed, we must reverse the trial court’s award of child support so that it can recompute the amount the father is required to pay by including the $300 figure in the computations as required by Rule 32.

Finally, the mother argues that the trial court erred by failing to address and distribute the debts of the parties and by failing to divide the parties’ property. The testimony revealed several debts of the parties, including a debt to the mother’s grandfather in the amount of $3,060.92 for a down payment on the parties’ trailer, a $300 utility bill, a $2,742.23 medical bill for treatment of the child, and a $905 medical bill for treatment of the mother after the child’s birth. The record also contains a list of property owned by the parties.

The only debt mentioned in the divorce judgment is the utility bill; the judgment requires both parties to be responsible for the bill. When a divorce judgment fails to address who will be responsible for the debts associated with the marriage, “[t]he party liable for his or her debts during the marriage would still be liable for those debts after the dissolution of the marriage and if the parties were jointly liable for debts during the marriage they would still be jointly liable for them after the divorce.” Miller v. Miller, 391 So.2d 119, 120 (Ala.Civ.App.1980). Thus, the judgment’s silence on the debts of the parties indicates that they continue to be jointly liable for their joint debts.

The judgment awards each party his or her personal property, specifying nothing but the parties’ automobiles. The judgment does not divide the property listed on an exhibit in the record, which appears, besides the personal effects of the parties and their automobiles, to be all the property owned by the parties. However, the mother’s Rule 59 motion indicated that the parties had already divided the property; that motion only requested that the trial court reword the provision to read that “each party is awarded all household goods and furnishings in his or her possession.” The mother does not support her argument urging reversal of this provision with authority. “This court will address only those issues properly presented and for which supporting authority has been cited.” Asam v. Devereaux, 686 So.2d at 1224. Accordingly, we affirm the trial court’s division of property.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

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

      . The mother testified during direct examination that the child required breathing treatments twice per day; on redirect, she testified that he required breathing treatments three times per day.

      . The record reflects that the father's attorney submitted a proposed divorce judgment to the mother’s attorney. Before the mother's attorney responded with suggested changes, the father's attorney submitted the proposed judgment to the trial court. The trial court signed and entered the judgment. When the mother’s attorney discovered that the proposed judgment, to which he had suggested several changes, had been entered as the divorce judgment, he filed a Rule 59 motion. Attached to that motion were the mother’s CS-42 child-support-guidelines form and other documentary evidence (for example, evidence substantiating the $300 monthly child-care expense) that the mother’s attorney had supplied to the father's attorney during their correspondence over the proposed judgment.


author: PER CURIAM.

text:
    Jane Meredith Andrews HINDS v. Thomas Martin HINDS.
    2020014.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2003.
    Certiorari Denied Feb. 13, 2004 Alabama Supreme Court 1030301.

      Claude D. Boone, Mobile, for appellant.
    Charles A. Dodson, Jr., and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for appellee.
   PER CURIAM.

Jane Meredith Andrews Hinds (“the wife”) appeals from a judgment terminating the obligation of Thomas Martin Hinds (“the husband”) to pay her periodic alimony.

After a 21-year marriage, the parties were divorced in 1980. The judgment of divorce stated, in pertinent part:

“1. [The husband] shall pay [the wife] the sum of Seven Hundred and No/100 Dollars ($700.00) per month as alimony until the death of the [wife] or until such time as the [wife] shall remarry, whichever occurs earlier.
“4. In the event the [husband’s] income from regular full-time employment (provided that ‘income from regular full-time employment’ shall not include any bonus or other extraordinary payment unless such bonus exceeds 30% of his base salary) increases from the amount which he receives as of the date of the decree of divorce in this case, the amount of periodic alimony and child support shall be increased in accordance with the following formula: On the 24th month following the entry of the decree and every 2 years thereafter the amount of such periodic alimony shall be increased by the percentage Qk the percentage upon [the parties’ daughter’s] reaching majority) by which the [husband’s] income has increased in the same 24-month period (for example, if the [husband’s] rate of salary at the end of the 24th month following the entry of the decree of divorce is 20% higher than his rate of salary as of the date of the decree, then the periodic alimony and child support commencing with the 25th month shall be 20% higher than the periodic alimony on the date of the decree). In the event of a decrease in income from regular full-time employment a comparable decrease shall be made in alimony and child support provided that bonuses and extraordinary payments shall be considered in determining whether a decrease has occurred. Such adjustment shall be effected without the necessity of further petition to this Court, but in the event the parties cannot agree on the amount of the adjustment then this Court shall determine the amount of the adjustment upon the petition of either party. So long as the [husband] is obligated to pay the [wife] alimony or child support pursuant to this paragraph, he shall maintain the policy of life insurance in the principal amount of $92,000 supplied by his employer (The [husband] shall act in good faith with his employer to maintain said policy) with the [wife] as beneficiary, provided that if the [wife] shall remarry, the beneficiary shall be changed to [the parties’] minor children. Upon the request of the [wife], the [husband] shall provide periodic evidence of the existence of said policy.”

(Emphasis added.)

After the husband retired on December 31, 2000, he discontinued his periodic-alimony payments to the wife. In February 2001, the wife filed a petition for a rule nisi, alleging that the husband was in arrears in paying alimony. The husband moved for a judgment on the pleadings, asserting that, based on the language in paragraph 4 of the divorce judgment emphasized above, his obligation to pay alimony had terminated at the time he retired because, he argued, he no longer had any “income from full-time employment.” The trial court denied the husband’s motion for a judgment on the pleadings, and the husband then filed a petition to modify, seeking an order terminating his alimony obligation based on a material change in circumstances. The wife filed a coun-terpetition to modify, seeking an increase in periodic alimony based on a material change in circumstances. Following an ore tenus proceeding, the trial court denied the wife’s petition for a rule nisi and granted the husband’s petition to modify by terminating the husband’s alimony obligation. The trial court’s judgment states: “[A]ny further payment of alimony is hereby terminated ... in accordance with the terms of the judgment of divorce dated March 6, 1980.” The court ordered each party to be responsible for his or her respective attorney fees.

The wife appeals, arguing that the trial court’s interpretation of paragraph 4 of the divorce judgment is erroneous. She also maintains that the trial court’s judgment cannot be upheld on the alternative basis that the husband established a material change in circumstances justifying a termination of his alimony obligation.

The parties were married in 1959, and they lived for 20 years in Greensboro, North Carolina, where the husband was in the banking business. The divorce was precipitated by the husband’s accepting a position with the predecessor to Regions Bank in Mobile in 1979. The husband and the parties’ minor son relocated to Mobile; the wife and the parties’ minor daughter remained in North Carolina.

The wife was 62 years old at the time of the hearing. She is a college graduate with a major in English. During the marriage she did not work outside the home. After the divorce, she was employed in a variety of part-time jobs such as bank teller, receptionist, bookstore clerk, and salesperson in a antiques store; she never earned more than $8 per hour. She was last employed in 1999 as a receptionist at a museum. She testified that she left that job for health reasons. She explained that, for the 10 years preceding the hearing in this case, she had suffered from interstitial cystitis, an inflammation of the lining of the bladder that causes frequent urination and pain upon urination. She stated that the illness is a chronic one; it is treatable but not curable. The wife testified that she also suffered from cardiac arrhythmia, a spur on her rotator cuff, and varicose veins. She presented no evidence, however, to indicate that any of those conditions caused her not to be able to work.

Dr. Robert J. Evans, a board-certified urologist in Greensboro, North Carolina, testified by deposition that he had treated the wife for interstitial cystitis. He said that he had not advised the wife to stop working, and he could not say whether her illness rendered her unable to work. He stated that the illness varied greatly with the individual, that most patients had good days and bad days, and that he could not determine precisely how much the illness had affected the wife’s daily life. He testified, however, that “most patients with this disease find it difficult to maintain employment because of the severity of their urinary frequency as well as from the side-effects of the medications they take; particularly, the antidepressants and the antihistamines. [Those medications] tend to make it hard for them to remain oriented.”

The evidence tended to show that the wife maintains an active lifestyle. She travels frequently. She and her daughter went to Europe in 1999; she and a longtime male companion visited New York, Boston, and Washington, D.C., in 2001. In North Carolina, she is involved in the Debutante Club, the Friday Club, and the Greensboro Country Club, where, she admitted, she is a regular tennis player. Her monthly expenses at the country club are $350.

Before the husband retired, the wife had been receiving $1,340 per month in periodic alimony. At the time of the hearing, she was receiving Social Security benefits in the amount of $560 a month. She testified that since the divorce she has received over $100,000 in gifts from her mother. The wife owns stock valued at $178,000. She recently sold what had been the parties’ marital home for a net profit of $385,000. She now lives in a condominium she purchased for $190,000, on which there is a mortgage of $110,000. The wife acknowledged that after she filed the petition for a rule nisi in this ease, she made a $10,000 gift to her daughter.

The wife is a contingent beneficiary, along with her brother, of three family trusts valued at $1.2 million, $185,000, and $85,000, respectively. The first trust was established by the wife’s uncle; its primary beneficiary is the uncle’s 82-year-old former law partner. The wife and her brother will share in the proceeds of that trust if they outlive the primary beneficiary. The second and third trusts were established by the wife’s father; the wife’s mother is the primary beneficiary and the holder of a power of appointment over the trust assets. The wife and her brother are the sole heirs of their mother’s estate. The wife estimated that her portion of her mother’s estate was valued at $150,000.

The husband, who was 68 years old at the time of the hearing, remarried after the divorce. He has two children, ages 7 and 10, by his second wife. He testified that for 22 years (a time period that, the husband points out, is longer than the length of the marriage) he had paid periodic alimony, biennially increasing his payments according to the formula set out in the divorce judgment, without missing a payment. He estimated that, in addition to having paid child-support for the parties’ daughter, he had paid $100,000 for his son’s college education expenses at Emory University and his daughter’s college education expenses at Hollins College. He testified that he had also paid $25,000 to $30,000 for his daughter’s wedding.

When the husband first went to work for the predecessor of Regions Bank in Mobile in 1979, his annual salary was $40,000. In 2000, when he retired as the chief executive officer of Regions Bank, his annual income was $492,799. The following year his income was $370,000, none of which was derived from “regular full-time employment.” Until April 2003, he served as chairman of the board of the bank. The husband owns 55,000 shares of Regions Bank stock. His residence is worth approximately $400,000 and is subject to a mortgage held by his current mother-in-law. He has a retirement account valued at over $800,000. His other assets include stocks, cash, and certificates of deposit, with a total net worth of $3.5 million. The husband testified that, in the two years preceding the hearing, he had had surgery twice to repair a ruptured disk in his back. He estimated that his family’s monthly living expenses were $12,000.

I.

Paragraph 4 of the divorce judgment states: “In the event the [husband’s] income from regular full-time employment ... increases from the amount which he receives as of the date of the decree of divorce in this case, the amount of periodic alimony ... shall be increased in accordance with [a prescribed] formula.” Paragraph 4 further states: “In the event of a decrease in income from regular full-time employment a comparable decrease shall be made in alimony.”

The husband argues that, because his retirement on December 31, 2000, produced a “decrease [to zero] in [his] income from regular full-time employment,” his periodic-alimony obligation was terminated pursuant to the provisions of the divorce judgment. The wife argues that the decrease-in-employment-income provision of paragraph 4 of the divorce judgment does not automatically terminate the husband’s periodic-alimony obligation because, she says, paragraph 1 of the divorce judgment specifies the only events — her death or remarriage — that would automatically terminate the husband’s duty to pay alimony.

A judgment of divorce is to be interpreted or construed like other written instruments. Grizzell v. Grizzell, 583 So.2d 1349 (Ala.Civ.App.1991). The meaning of the decrease-in-employment-income provision of paragraph 4 is a question of law, and the trial court’s ruling on that issue does not carry a presumption of correctness. See Ex parte Agee, 669 So.2d 102 (Ala.1995); Laney v. Laney, 833 So.2d 644 (Ala.Civ.App.2002).

“Although the ore tenus presumption applies to the trial court’s findings of fact, no such presumption adheres to the trial court’s application of the law to those facts. Ex parte Agee, 669 So.2d 102, 104 (Ala.1995). The [parties’] arguments are based upon the interpretation of certain provisions and terms in the parties’ antenuptial agreement; such interpretations, like the interpretation of unambiguous contracts, are questions of law. See Agee, 669 So.2d at 105; Stacey v. Saunders, 437 So.2d 1230, 1233 (Ala.1983).”

Laney v. Laney, 833 So.2d at 646.

We hold that the trial court’s construction of paragraph 4 of the divorce judgment was erroneous. We agree with the wife that paragraph 1 states only two events — the wife’s death or the wife’s remarriage — that automatically terminate the husband’s alimony obligation and that neither of those events has occurred in this case. Paragraph 4 simply does not contemplate a complete cessation of the husband’s “income from regular full-time employment” — a result that could be caused by involuntary termination as well as by voluntary retirement. Instead, paragraph 4 contemplates the husband’s continuing to earn an “income from regular full-time employment,” albeit possibly a decreased amount of income. Because paragraph 4 contemplates the husband’s continuing employment and, therefore, his continuing to earn some “income from regular full-time employment,” it does not address the husband’s separation from employment, either by way of retirement or involuntary termination. Thus, if the husband had suddenly been terminated from his job and had had no “income from regular full-time employment,” paragraph 4 would not have automatically absolved him of the duty to pay periodic alimony. See Arnett v. Arnett, 812 So.2d 1246 (Ala.Civ.App.2001). Under such circumstances, the trial court would have had the authority to impute income to the husband, despite the husband’s unemployed status, based on, among other things, proof that the husband had income from sources other than employment or that the husband had the ability to earn an income. The “ability to earn, as opposed to actual earnings, is a proper factor to consider in deciding either an initial award of child support or periodic alimony or whether to terminate ... the amount of the award in modification proceedings.” Ebert v. Ebert, 469 So.2d 615, 618 (Ala.Civ.App.1985); Arnett v. Arnett, supra.

Likewise, the husband’s voluntary retirement did not automatically terminate his alimony obligation under paragraph 4. Instead, the trial court was required to consider the husband’s retirement as one factor among several— including, but not limited to, the husband’s income from sources other than employment, the husband’s expenses, the wife’s income, and the wife’s expenses— in determining whether the husband had shown a material change in circumstances warranting a termination of his alimony obligation.

“The obligation to pay periodic alimony may be modified when there has been a material change in the financial or economic needs of the payee spouse and the ability of the payor spouse to respond to those needs. McKenzie v. McKenzie, 568 So.2d 819 (Ala.Civ.App.1990). The burden of proving the existence of a material change in circumstances is upon the moving party. McKenzie. A decision to modify periodic alimony lies within the discretion of the trial court and will not be set aside on appeal unless a palpable abuse of that discretion is shown.”

Maddox v. Maddox, 612 So.2d 1222, 1223 (Ala.Civ.App.1992). See also Taylor v. Taylor, 640 So.2d 971 (Ala.Civ.App.1994), and Oyler v. Oyler, 446 So.2d 650 (Ala.Civ.App.1984).

The husband argues that, even if that portion of the trial court’s judgment terminating his alimony obligation cannot be sustained by this court based on paragraph 4 of the divorce judgment, it can be sustained on the alternative ground that the evidence of record supports a finding of a material change of circumstances. Assuming that the husband is correct in arguing that there is substantial evidence to support factual findings of the nature he advocates, the point is that the trial court did not make those factual findings.

It may or may not be that a termination of the husband’s periodic-alimony obligation could be justified based on a factual finding of a “material change of circumstances.” The trial court did not make a factual finding in this regard, however, but instead expressly based its judgment on the automatic-adjustment provisions of paragraph 4 of the divorce judgment. Because we do not find the evidence in the record before us so strongly weighted on either side of the issue that this court can draw a conclusion, as a matter of law, as to whether there was a material change of circumstances warranting a termination of the husband’s alimony obligation, we leave this issue of fact to be determined by the trial court on remand.

II.

The wife also argues that the trial court erred by not entering a judgment in her favor for the periodic alimony that the husband failed to pay between January 2001 and the date of the hearing on the husband’s petition to modify or to terminate his alimony obligation. If there is to be no change in the husband’s alimony obligation, the wife would indeed be entitled to the alimony the husband failed to pay beginning in January 2001, together with any interest due on that alimony. On the other hand, if the trial court decides to modify or to terminate the husband’s alimony obligation, it will have the discretion to modify or to terminate that obligation retroactive to a date not earlier than the date the husband filed his petition to modify. See Bush v. Bush, 784 So.2d 299 (Ala. Civ.App.2000).

III.

The wife argues that the trial court abused its discretion by failing to award her an attorney fee. Whether to grant an attorney fee in a proceeding to modify an alimony award is discretionary with the trial court, whose judgment will not be disturbed in the absence of a plain and palpable abuse of that discretion. Ramsey v. Ramsey, 585 So.2d 79 (Ala.Civ.App.1991); Hayes v. Hayes, 485 So.2d 753 (Ala.Civ.App.1986).

In deciding whether to award an attorney fee in a modification-of-alimony proceeding, the trial court should consider the following factors: (1) the respective financial conditions of the parties; (2) the results of the litigation, that is, whether the party seeking a modification or the party defending against a modification was successful; and (3) whether the conduct of one of the parties precipitated the litigation. See generally Thomas R. Malia, Annotation, Right to Attorneys’ Fees in Proceeding, After Absolute Divorce, For Modification of Child Custody or Support Order, 57 A.L.R.4th 710 (1987).

After reviewing the relevant factors, we conclude that the trial court did not abuse its discretion by failing to award the wife an attorney fee.

The judgment terminating the husband’s periodic-alimony obligation is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

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

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

All the judges concur.

      . The husband states in his brief to this court that the wife’s mother died on December 3, 2002, three weeks before the wife submitted her brief to this court.

      . In Alabama Alcoholic Beverage Control Board v. City of Pelham, 855 So.2d 1070 (Ala.2003), our Supreme Court observed that an appellate court "can affirm a trial court's judgment 'if it is right on any ground developed in, and supported by, the record.' " 855 So.2d at 1083 (quoting Ex parte Ramsay, 829 So.2d 146, 155 (Ala.2002)). While this is a valid principle of law, it cannot be used to make this court into a fact-finder. The role of appellate courts is limited to deciding questions of law:
      "It is the function of a trial judge sitting as factfinder to decide facts where conflicts in the evidence exist. Such was the case here. The appellate courts do not sit in judgment of the facts, and review the factfinder's determination of facts only to the extent of determining whether it is sufficiently supported by the evidence, that question being one of law."

        Curtis White Constr. Co. v. Butts & Billingsley Constr. Co., 473 So.2d 1040, 1041 (Ala.1985) (emphasis added).
      Not unlike the present case, in Ex parte Golden Poultry Co., 772 So.2d 1175 (Ala.2000), this court determined that the trial court had applied an incorrect legal standard in entering a judgment in favor of a defendant. Although this court specified the correct standard that should have been applied, it did not remand the case for the trial court to apply that standard, but, rather, it implicitly determined that the plaintiff had met that standard. Thus, rather than remanding for a determination of liability, this court remanded the case to the trial court for the sole purpose of determining the amount of recovery to which the plaintiff was entitled. Our Supreme Court reversed, holding that this court’s responsibility is "to determine whether the trial court’s decision is supported by sufficient evidence, but [this court] is not authorized to independently weigh the evidence.” 772 So.2d at 1177. See also Ex parte R.T.S., 771 So.2d 475, 477 (Ala.2000) ("The trial court must be allowed to be the trial court; otherwise, we (appellate court judges and justices) risk going beyond the familiar surroundings of our appellate jurisdiction and into an area with which we are unfamiliar and for which we are ill-suited — -factfind-ing.”); Harris v. Pinelog Props., Inc., 474 So.2d 1113 (Ala.1985).
      In City of Pelham, the trial court denied a municipality's challenge to the distribution of net profits from the Alcoholic Beverage Control Board, basing its decision on the principle of sovereign immunity. The Supreme Court upheld the trial court's judgment, but it did so on a different ground, namely, that a 2001 legislative enactment retroactively validating the distribution of profits was constitutional. Thus, while the Supreme Court did uphold the trial court's decision on a different ground than that which was expressly stated in the trial court's opinion, that different ground was a purely legal ground that was within the province of the appellate court to decide. City of Pelham therefore represents an application of the oft-quoted general rule that an appellate court " 'will affirm the judgment appealed from if supported on any valid legal ground.' ” Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988) (quoting Tucker v. Nichols, 431 So.2d 1263, 1265 (Ala.1983)) (emphasis added).
      Where, unlike the present case, a trial court states no grounds for its judgment, an appellate court can, and indeed must, affirm on any valid ground properly presented in the record, even a factual ground, provided that it is supported by substantial evidence. We do so in such circumstances, however, because of a somewhat different principle applicable to such cases:
      "It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.”

        Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (emphasis added). See also Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 747, 287 So.2d 847, 864 (1973). No such assumption is possible, however, where the trial court removes the uncertainty as to the grounds for its decision by expressly stating those grounds, as was done in the present case.


text:
    Leon F. STAMP, Jr. v. Sally McCants JACKSON.
    2020554.
    Court of Civil Appeals of Alabama.
    Nov. 7, 2003.
    Rehearing Denied Jan. 16, 2004.
    Certiorari Denied March 12, 2004 Alabama Supreme Court 1030642.

      Glenn L. Davidson of Collins, Davidson L.L.C., Mobile, for appellant.
    R. Jeffrey Perloff, Mobile, for appellee.
   CRAWLEY, Judge.

Leon F. Stamp, Jr., appeals from a judgment entered on a jury verdict in favor of Sally McCants Jackson. We affirm.

Stamp and Jackson were involved in an automobile collision when a vehicle operated by Stamp rear-ended the vehicle driven by Jackson. Jackson sued Stamp alleging that he had been under the influence of alcohol at the time of the accident and seeking compensatory and punitive damages on counts of negligence and/or wantonness, assault, and “felonious injury.” Jackson’s insurer filed a motion to intervene, which the trial court granted, but it was later dismissed from the action before trial. At the close of Jackson’s case-in-chief, she voluntarily dismissed her assault and felonious-injury counts; Stamp filed a motion for a directed verdict — now properly referred to as a motion for a judgment as a matter of law, pursuant to Rule 50, Ala. R. Civ. P. — as to the remaining count, which the trial court denied. Accordingly, Jackson’s negligence and/or wantonness count was the only count to be considered by the jury. After the presentation of all the evidence, the jury returned a verdict in favor of Jackson and awarded her $25,000 in compensatory damages and $150,000 in punitive damages; the trial court entered a judgment on that verdict.

Stamp filed three alternative post-judgment motions: a postverdict motion for a judgment as a matter of law, a motion for a new trial, and a motion for a remittitur. In those motions, he challenged the admission of evidence of his previous arrests for driving under the influence and the amount of damages awarded by the jury. Both parties agreed to allow the trial court additional time to rule on Stamp’s postjudgment motions. After conducting a hearing on the postjudgment motions, the trial court entered an order that stated:

“On January 24, 2003, the court held a hearing on [Stamp’s postjudgment] motions, using the Hammond [v. City of Gadsden, 493 So.2d 1374 (Ala.1986)]/ Green Oil [v. Hornsby, 539 So.2d 218 (Ala.1989),] factors and the supreme court’s decision in BMW of North America, Inc. v. Gore, 701 So.2d 507 (Ala.1997). Further, this court has considered [§ ] 6-11-21, [Ala.Code 1975,] and applicable subsections, and [§ ] 6-11-27, [Ala.Code 1975]. In addition to the foregoing, the court has considered the arguments of counsel, the briefs, and the authorities submitted by both sides.
“As to the Hammond/Green Oil factors and Gore and its progeny, the court finds as follows:
“1. Relationship between compensatory and punitive awards.
“The ratio is 6 to 1 and therefore within the ‘ratios’ and ‘caps’ provided in [§ ] 6-ll-21(a). The court observes that the jury which rendered this verdict was attentive and deliberative throughout the trial. The compensatory award was reasonable and supported by the evidence. In addition to the awards being within the statutory limits, the jury did not award punitive damages to the extent argued by [Jackson’s] counsel. However, the court feels that the $150,000 in punitive damages is somewhat on the high end of the scale.
“2. Actual or likely harm of Defendant’s misconduct.
“Decisional authority requires focus on the deterrent effect of an award of punitive damages. Deterrence is the ‘component’ of punitive damages which promotes the public weal. The harm of Defendant’s conduct should not be viewed solely in the past tense. In fact, deterrence is and should be ‘forward-focused.’ For this reason, and the reasons stated herein, the court finds, in addition to the harm to [Jackson], there was and is a likelihood of actual harm to one of our most essential values — public safety — should [Stamp’s] misconduct go unpunished.
“3. Degree of reprehensibility of Defendant’s conduct.
“The evidence on this factor was clear, convincing and substantial. [Stamp] clearly and consciously engaged in illegal and dangerous conduct which was likely to injure [Jackson] or other innocent motorists or both.
“4. Litigation costs.
“The time and expense to litigate this case has been substantial on [Jackson]. It is noted however that [Stamp’s] trial counsel made it known that he represented [Stamp] ‘pro-bono.’ Thus the equities on this factor are assuredly in favor of [Jackson].
“5. Profitability to Defendants.
“There was no evidence presented to the court that would indicate in any way that [Stamp] profited from his actions.
“6. Similar misconduct by Defendant.
“During the trial, [Jackson] presented substantial evidence that [Stamp] previously engaged in similar egregious conduct; specifically [Stamp] was previously arrested for driving under the influence ‘at least’ four times. On one of these occasions and similar to the case at hand, [Stamp] was arrested for D.U.I. [driving under the influence] after an accident with another vehicle. The court further recognizes the testimony of the law enforcement officers who testified at trial and who specifically recalled the level of intoxication of [Stamp] on these occasions and the danger he posed to the public. Because of this evidence, this factor would in no manner support [Stamp’s post-judgment] motions.
“7. Other sanctions.
“[Stamp] argued that his past and present misconduct had been addressed by the criminal justice system and that he has suffered sanctions already.
“As to these contentions, several conclusions are inescapable. With regard to the proceedings in question: (a) [Stamp] benefitted from favorable plea bargains which continuously allowed him to escape statutorily imposed incarceration; (b) whatever sanctions [Stamp] did receive for his conduct via the criminal courts, said sanctions failed to deter his future conduct; and (c) those proceedings did not in any manner compensate [Jackson] for the injuries she suffered.
“8. Financial and economic impact on Defendants.
“In Green Oil v. Hornsby, 539 So.2d 218 (Ala.1989), the supreme court recited at length the concurrence in Ridout’s-Brown Service, Inc. v. Holloway, 397 So.2d 125, 127-128 (Ala.1981), wherein Justice Jones aptly observed that a punitive damage[s] award ‘ought to be large enough to hurt. It ought to sting in order to deter; this is its purpose.’ Green Oil, supra [at] 222.
“In his initial [postjudgment] filings and in the [postjudgment] hearing, [Stamp], relying principally on [§ ] 6-11-21 and its subsections, contended that the verdict should be remitted due to the potential financial harm and economic impact the jury’s award would have on him. In support of his position, [Stamp], a licensed and practicing attorney, submitted his state and federal tax returns for the years 1996-2001. [Stamp] also testified as to the value of his law office in which he owns a \ interest and which is substantially paid for. [Stamp] also provided a 1996 appraisal and his own testimony as to the value of a parcel of waterfront property on Magnolia Springs in Baldwin County, Alabama which [Stamp] owns. The court finds [Stamp’s] testimony unpersuasive. On the other hand, [Jackson] presented qualified expert testimony which conservatively established the value of the said waterfront property to be ‘at least’ $200,000.00, approximately $100,000.00 more than the total [Stamp] owes to (a) his mortgage bank of approximately $35,000.00; (b) I.R.S. tax lien of approximately $58,516.80; and (c) the State of Alabama of approximately $8,100.00.
“The foregoing considered, the court finds that [Stamp’s] single most valuable asset is his ability to practice law. The award in this case will not affect or prevent [Stamp] from maintaining his law practice and continuing to earn income therefrom. The court is mindful of [Stamp’s] claim that his law practice is not very lucrative[;] however, the court still finds that it is a substantial intangible asset which is far more valuable than the other assets of [Stamp]. A reduction in the jury’s punitive damagefs] award will in all likelihood cost [Stamp] the waterfront property only. However, the award should sting [Stamp] and it should have detrimental effect so long as it does not destroy [Stamp], Allowing a punitive damages award in the amount of $75,000.00 would accomplish the purpose and goals referred to herein without destroying [Stamp].
“The foregoing considered, the court finds that the $25,000.00 compensatory award in favor of [Jackson] was supported by substantial evidence. As to the $150,000.00 punitive damages award, the court finds that the evidence clearly and convincingly supported a punitive damages award, but not the full amount assessed. Based upon the preceding analysis, the punitive damage[s] award is remitted to $75,000.00. Thus the ratio is reduced from 6:1 to 3:1. Based on the foregoing, the court ORDERS as follows:
“ORDERS ON DEFENDANT’S MOTIONS
“1. [Stamp’s] motion to stay is DENIED;
“2. [Stamp’s] motion for a judgment as a matter of law; alternatively new trial is DENIED; and
“3. [Stamp’s] motion for remittitur is hereby DENIED except to the extent that it is ORDERED that [Jackson] accept a remittitur of the punitive damages from $150,000.00 to $75,000.00, or suffer the grant of a new trial.”

Stamp filed a notice of appeal to the supreme court. This case was transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

On appeal, Stamp argues (1) that the trial court erred in allowing Jackson to introduce evidence of his prior arrests for driving under the influence; (2) that the trial court erred in denying his motion for a judgment as a matter of law as to Jackson’s wantonness claim; (3) that the evidence was insufficient to support an award of punitive damages; and (4) that the punitive-damages award was excessive.

I. Evidence of Prior Arrests

Stamp contends that the trial court erred in allowing Jackson to introduce evidence of his prior arrests for driving under the influence. Stamp specifically argues (1) that the testimony and exhibits relating to his prior arrests were evidence of “other crimes, wrongs, or acts,” which are inad-missable pursuant to Rule 404(b), Ala. R. Evid.; (2) that the evidence of his prior arrests were too remote to be considered relevant evidence of intent under Rule 404(b); and (3) that the evidence was irrelevant to the issue being litigated and that it was so prejudicial that it deprived him of a fair trial. In addressing these issues, we are mindful that “ ‘[t]he trial court’s decision to admit or to exclude evidence is within its sound discretion, and that decision will not be reversed on appeal absent a showing of an abuse of discretion.’ ” B.S.L. v. S.E., 826 So.2d 890, 894 (Ala.Civ.App.2002), quoting Roberts v. Roberts, 802 So.2d 230, 236 (Ala.Civ.App.2001).

A review of the trial transcript shows that Stamp’s counsel made a general objection when Stamp was first asked by Jackson’s counsel about his prior driving-under-the-influence arrests. In making the general objection, Stamp’s counsel made reference to a pretrial ruling by the trial court — which would suggest that Stamp had filed a motion in limine. However, the record does not contain any motion in limine filed by Stamp or a pretrial ruling relating to Stamp’s prior arrests.

“[A]n appellant who suffers an adverse ruling on a motion to exclude evidence (or other matters, e.g., argument of counsel), made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence or other matters and assigns specific grounds therefor at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary.”

Liberty Nat’l Life Ins. Co. v. Beasley, 466 So.2d 935, 936 (Ala.1985). A review of the record shows that Stamp’s counsel failed to make a specific objection at trial, and it does not indicate that the trial judge gave his express acquiescence to do away with the necessity of such an objection. Accordingly, as to the admission of this evidence, Stamp has failed to preserve any adverse ruling by the trial court for this court to review.

II. Jackson’s Wantonness Claim

Stamp contends that the trial court erred by denying his motion for a judgment as a matter of law at the end of Jackson’s case-in-ehief because, he says, Jackson failed to present substantial evidence to support her wantonness claim.

“ ‘The standard of review applicable to a motion for directed verdict or judgment notwithstanding the verdict [now referred to as preverdict and postverdict motions for a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying the motions initially. Thus, when reviewing the trial court’s ruling on either motion, we determine whether there was sufficient evidence to produce a conflict warranting jury consideration. And, like the trial court, we must view any evidence most favorably to the non-mov-ant.’ ”

Glenlakes Realty Co. v. Norwood, 721 So.2d 174, 177 (Ala.1998)(quoting Bussey v. John Deere Co., 531 So.2d 860, 863 (Ala.1988)) (citations omitted in Glenlakes Realty). This court has further observed that:

“ ‘ “[w]antonness” is statutorily defined as “[c]onduct which is carried on with a reckless or conscious disregard of the rights or safety of others.” Ala.Code 1975, § 6-ll-20(b)(3).
“ ‘ “ ‘Wantonness’ has been defined by the [Alabama Supreme] Court as the conscious doing of some act or the omission of some duty, while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result. McDougle v. Shaddrix, 534 So.2d 228 (Ala.1988).”
‘Stone v. Southland Nat’l Ins. Corp., 589 So.2d 1289, 1292 (Ala.1991). ‘Wantonness is the doing of some act or omission with reckless indifference to the knowledge that such act or omission will likely or probably result in injury.” Bishop v. Poore, 475 So.2d 486, 487 (Ala.1985); Anderson v. Moore Coal Co., 567 So.2d 1314, 1317 (Ala.1990).’
“Bozeman v. Central Bank of the South, 646 So.2d 601, 603 (Ala.1994). A [judgment as a matter of law] is appropriate on a wantonness claim if the plaintiff has failed to offer substantial evidence showing that the defendant knew that its act or omission would likely or probably result in injury. See Anderson v. Moore Coal Co., 567 So.2d 1314, 1317 (Ala.1990).”

Joyner v. B & P Pest Control, Inc., 853 So.2d 991, 998-99 (Ala.Civ.App.2002).

Considering Stamp’s motion for a judgment as a matter of law in a light most favorable to Jackson, we conclude that she offered substantial evidence to support her wantonness claim. It was undisputed that, at the time of the accident, Stamp was arrested for driving under the influence, and that he later pleaded guilty to that charge. It was also undisputed that Stamp had been arrested for driving under the influence on at least four prior occasions, one of which also involved an automobile accident. Thus, from the evidence presented by Jackson, whether or not Stamp’s choosing to drive his automobile after becoming intoxicated in this instance was an act that he should have known would likely or probably cause injury was an issue for the jury to determine.

III. Punitive Damages

Stamp contends that Jackson failed to present sufficient evidence to support an award of punitive damages and, alternatively, that the amount of the punitive-damages award was excessive.

A. Evidence Supporting Award of Punitive Damages

As stated by Stamp in his brief to this court on appeal, § 6-ll-20(a), Ala. Code 1975, sets out when punitive damages may be awarded. That section states, in pertinent part, as follows:

“(a) Punitive damages may not be awarded in any civil action ... other than in a tort action where it is proven by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.”

Our supreme court has also stated that “[i]n reviewing punitive damages awards, this Court must presume that the jury awarded the proper amount of punitive damages and may not disturb the verdict on the ground of insufficiency of the evidence unless it appears that the verdict was ‘plainly and palpably wrong and unjust.’ ” Gold Kist, Inc. v. Griffin, 657 So.2d 826, 830 (Ala.1994) (quoting Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 322 (Ala.1992)). As discussed above, Jackson presented sufficient evidence in support of her wantonness claim; given that the jury in this case was the ultimate trier of fact, we cannot say that it erred in determining that the evidence supporting that claim was clear and convincing, and it does not appear that the verdict was otherwise “plainly and palpably wrong and unjust.”

B. Amount of Punitive-Damages Award

Stamp’s last contention is that the amount of the punitive-damages award was excessive. The jury awarded Jackson $150,000 in punitive damages; the trial court reduced the award to $75,000 after conducting a hearing on Stamp’s post-judgment motions, and it set out detailed findings as required by Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986). Our supreme court has stated the appropriate standard of review as follows:

“When considering a defendant’s argument that a punitive-damages award is excessive, we consider the ‘guideposts’ established by the United States Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), and the factors set forth in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989).[] See Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968, 978 (Ala.1998). In Gore the United States Supreme Court provided three ‘guideposts’ for courts to use in reviewing a punitive-damages award: (1) the reprehensibility of the defendant’s conduct; (2) the ratio of the punitive-damages award to the compensatory-damages award; and (3) a comparison of the award of punitive damages to the civil or criminal penalties that could be imposed for comparable misconduct. Montgomery Coca-Cola Bottling Co. v. Golson, 725 So.2d 996, 1000 (Ala.Civ.App.1998). We have determined that the Supreme Court’s requirement that a court consider these new guideposts does not preclude a court from considering the factors set out earlier in Hammond and Green Oil. BMW of North America, Inc. v. Gore, 701 So.2d 507 (Ala.1997).”

AutoZone, Inc. v. Leonard, 812 So.2d 1179, 1187 (Ala.2001). Further, our review of a trial court’s determination whether a jury’s punitive-damages award was excessive is de novo. See Orkin Exterminating Co. v. Jeter, 832 So.2d 25, 39 (Ala.2001) (quoting Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), and citing Acceptance Ins. Co. v. Brown, 832 So.2d 1 (Ala.2001)).

Considering the relevant factors set out in Gore, Hammond, and Green Oil, the trial court’s detailed findings as it related to the evidence presented at trial, and the arguments presented in Stamp’s brief to this court on appeal, we cannot conclude that the trial court’s reduced award of $75,000 in punitive damages was excessive. The trial court’s judgment, including the reduced punitive-damages award, is therefore due to be affirmed.

AFFIRMED.

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

THOMPSON, J., concurs in the result, without writing.

PITTMAN, J., recuses himself.

      . Those factors are the relationship to the harm that is likely to occur or that has actually occurred; the degree of reprehensibility of the defendant's conduct; the profit to the defendant as a result of wrongful conduct; financial position of the defendant; the costs of litigation; whether criminal sanctions have been imposed; and whether there have been other civil actions against the same defendant.


author: PITTMAN, Judge.

text:
    ILLINOIS NATIONAL INSURANCE COMPANY v. Luisa CASTRO and Hilario Castro.
    2020915.
    Court of Civil Appeals of Alabama.
    Nov. 21, 2003.
    Certiorari Denied Feb. 13, 2004 Alabama Supreme Court 1030388.

      Rick A. Howard and Paul U. Chistolini of Nix Holtsford Gilliland Higgins & Hit-son, P.C., Montgomery, for appellant.
    Charles A. Graddick and Joseph D. Steadman of Sims, Graddick & Dodson, P.C., Mobile, for appellees.
   PITTMAN, Judge.

This appeal concerns uninsured-motorist insurance.

On October 3, 2002, Luisa Castro (“the insured”) applied for a policy of automobile liability insurance from Illinois National Insurance Company (“the insurer”). The application contained a section requesting the insured to list all persons residing in the insured’s household and all motor-vehicle operators in the household other than the insured; that section of the application also stated that “[coverage may be voided if a resident or regular operator is driving and is not listed on this application.” Although the insured was married to, and resided with, her husband, Hilario Castro, only the insured’s name appeared on the insured’s insurance application in the space provided to list household residents and other motor-vehicle operators. Further, on another page of the application, the insured responded affirmatively to the question, “Is there anyone in the household you wish to exclude?” The application further indicated that the insured had “declare[d] the facts [tjherein to be true” and that she had understood and agreed “that failure to disclose any resident operators or regular operators on [the] application ... may result in the rescission (voiding) of [the] policy and/or denial of a future claim.”

At the time the insured submitted her application for insurance, she executed a form labeled “Named Driver Exclusion Agreement” (“the exclusion form”). The exclusion form, which bore the identifier “DR8906,” expressly stated that “[i]n consideration of the premium charged, it is agreed [the insurer] will not provide coverage or defend or pay for any claim arising out of an accident or loss which occurs while any vehicle insured under this policy is driven with or without your permission by” those drivers whose names, dates of birth, relationship, and reasons for exclusion from coverage are disclosed in the exclusion form. Hilario Castro was identified as an excluded driver in the exclusion form; the reason disclosed for his exclusion is that “[o]ther coverage” applied as to him. The insured’s signature appears on the exclusion form directly beneath the following printed statement: “The undersigned, the named insured in this policy, hereby consents and agrees to this amendment of the policy.”

In consideration of the insured’s payment of premiums and based on the information provided on the insured’s application, the insurer issued a policy of automobile liability insurance to the insured for a term of six months beginning on October 3, 2002. The declarations page of the policy identified the insured and her address and the single motor vehicle covered under the policy, a 1984 model Oldsmobile. The declarations page further indicated that the insurer would provide coverage for bodily injury and property damage, as well as uninsured-motorist coverage for bodily injury; however, that page also indicated that Hilario Castro was an “excluded driver” and that “Form DR8906” (i.e., the exclusion form) constituted a part of the insurance policy.

On November 8, 2002, the insured, while occupying the 1984 Oldsmobile identified in the insurance policy, was injured when a second vehicle collided with her vehicle on Interstate 10 in Baldwin County. At the time of the collision, Hilario Castro was operating the Oldsmobile. The insured incurred medical expenses of over $21,000 as a result of the collision and has been unable to work since the collision occurred; she later sought and received $25,000 from the liability insurance carrier who provided coverage to the operator of the second vehicle. Because the insured’s damages allegedly exceeded the monetary limits of the liability insurance coverage available from the operator of the second vehicle, the insured and Hilario Castro sought uninsured-motorist insurance benefits from the insurer.

In February 2003, the insurer filed a complaint in the Mobile Circuit Court seeking a declaration that it had no duty to pay uninsured-motorist insurance benefits to either the insured or Hilario Castro. The insured and Hilario Castro answered the complaint, contending that the insured was entitled to uninsured-motorist insurance benefits in the amount of $20,000. Both the insurer and the insured filed summary-judgment motions. The trial court denied the insurer’s summary-judgment motion, granted the insured’s summary-judgment motion, entered a judgment in favor of the insured declaring that the insurer was required to pay the insured $20,000, and dismissed Hilario Castro as a party.

The insurer appeals from the judgment in favor of the insured. We note that the facts are essentially undisputed and that the controversy involves solely questions of law; we therefore review the trial court’s judgment de novo, with no presumption in favor of that judgment. E.g., State Dep’t of Revenue v. Garner, 812 So.2d 380, 382 (Ala.Civ.App.2001).

We agree with the insurer that the facts of this case closely parallel those of McCullough v. Standard Fire Insurance Co., 404 So.2d 637 (Ala.1981). In McCullough, Betty Lou Steele purchased an automobile liability insurance policy that also provided fQr uninsured-motorist insurance coverage; however, that policy contained a provision that the insurance carrier would “ ‘not be liable for loss, damage, and/or liability caused while the automobile described in the policy or any other automobile to which the terms of the policy are extended is being driven or operated by1 ” the named insured’s son, Robert Steele. 404 So.2d at 638. While operating an automobile covered under Mrs. Steele’s policy, Robert Steele was involved in a head-on collision with another vehicle, resulting in the death of a passenger in the vehicle operated by Robert Steele. Id.

The administrator of the passenger’s estate brought an action against Mrs. Steele’s insurance company seeking an award of uninsured-motorist insurance benefits, but the trial court hearing that action entered a summary judgment in favor of the insurance company. The Alabama Supreme Court affirmed that summary judgment, reasoning as follows:

“Although ... § 32-7-23, [Ala.Code 1975,] provides that no automobile liability insurance shall be delivered or issued for delivery without uninsured motorist coverage, it also allows the insured to reject the coverage. Hence, the coverage spoken to in § 32-7-23 is not mandatory, and the failure to carry the coverage does not violate the public policy of this State.
“The insurance policy bought by Mrs. Steele did not provide any coverage when her son, Robert Steele, was driving the car. The coverage excluded Robert Steele entirely. The [administrator] contends the exclusion extended to the liability coverage only. This puts the [administrator] in the position, as noted by the trial judge, of using the exclusion to show Robert Steele was uninsured, yet claiming the exclusion only applied to the liability coverage. We cannot agree with this contention.
“The statute specifically provides for the insured to reject coverage. That is exactly what Mrs. Steele has done, except she did not reject it entirely but only as to her son. We find nothing wrong with this. Had Mrs. Steele wanted to reject uninsured motorist coverage altogether she could have done so. It would seem to us that a partial rejection of the coverage should be no different.
“The language of the endorsement is clear. It states simply that the insurance company is not liable if Robert Steele is operating or driving the vehicle involved in this accident.”

McCullough, 404 So.2d at 639 (emphasis added and removed); compare Reed v. Farm Bureau Mut. Cas. Ins. Co., 549 So.2d 3, 5 (Ala.1989) (finding uninsured-motorist insurance coverage where excluded driver was not driving an automobile listed in the declarations of an insurance policy; distinguishing McCullough because “[t]he exclusion [in McCullough] denied Robert Steele any coverage under the policy, both liability and uninsured motorist, while he was driving the declared automobile ”).

Here, as in McCullough, we are confronted with an insurance policy that excludes coverage with respect to incidents involving a particular driver named in the body of the policy. The pertinent clause in McCullough stated that the insurer would not be liable “ ‘for loss, damage, and/or liability caused while the automobile described in the policy or any other automobile to which the terms of the policy are extended is being driven or operated by’ ” the excluded driver; here, the policy provides that the insurer “will not provide coverage or defend or pay for any claim arising out of an accident or loss which occurs while any vehicle insured under this policy is driven” by Hilario Castro (emphasis added).

The insured contends that the exclusion form applies only to the policy’s liability coverage rather than all “coverage” afforded in the policy, arguing that “provide coverage or defend” are “specific” words that “control” the term “pay for any claim” under the maxims of contract construction known as ejusdem generis and noscitur a sociis. However, the language of the exclusion form regarding accidents or losses occurring while an insured automobile is operated by Hilario Castro, like the language of the named-driver endorsement in McCullough, is clear; therefore, “there is no question of interpretation or construction” requiring resort to such maxims to discern the intent of the parties. American & Foreign Ins. Co. v. Tee Jays Mfg. Co., 699 So.2d 1226, 1228 (Ala.1997); see also Callen v. Callen, 257 Ala. 226, 228, 58 So.2d 462, 464 (1952) (ejusdem generis and noscitur a sociis “merely furnish an aid to construe an ambiguity in an instrument”). Neither do we find persuasive the insured’s unsupported argument that the word “for” in the term “pay for any claim” evidences a limited application of the exclusion form to liability claims only. Finally, while the insured correctly notes that she was not herself an excluded driver, we deem that point immaterial — under McCullough, the claimant’s identity does not matter where the applicability of an automobile-insurance-coverage exclusion turns instead, as here, on who the operator toas at the time an accident or loss occurs.

In this case, the insured noted in her application for automobile liability insurance coverage and uninsured-motorist insurance coverage that she wished to exclude her husband as an insured, and she expressly agreed that failure to disclose resident operators of the insured automobile could result in the denial of a future claim under the policy. Her signature on the exclusion form indicates a knowing assent to the exclusion of any coverage as to all claims “arising out of an accident or loss” occurring while the 1984 Oldsmobile identified in the policy was being driven by Hilario Castro, which precisely describes the nature of her claim for uninsured-motorist insurance benefits against the insurer. We therefore conclude that the trial court, as a matter of law, erred in entering the summary judgment in favor of the insured; that judgment is hereby reversed, and the cause is remanded for the entry of a judgment in favor of the insurer.

REVERSED AND REMANDED.

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