author: WOODALL, Justice. JOHNSTONE, Justice

text:
    Ex parte D.W. and J.C.W. (In re J.S. and E.S. v. D.W. and J.W.)
    1001467.
    Supreme Court of Alabama.
    Feb. 8, 2002.
    Rehearing Denied April 12, 2002.

      Randall W. Nichols of Massey & Stot-ser, P.C., Birmingham, for petitioners.
    John M. Wood and Brian D. Turner, Jr., of Wood & Shaw, L.L.C., Birmingham, for respondents.
   WOODALL, Justice.

This Court granted certiorari review to determine whether § 26-10A-30, Ala.Code 1975, is unconstitutional, as the Court of Civil Appeals held in this case that it was. J.S. v. D.W., 835 So.2d 174 (Ala.Civ.App.2001). Presiding Judge Yates adequately stated the relevant facts in that opinion; there is no need to repeat them here. The issue presented is one of first impression before this Court. We reverse the judgment of the Court of Civil Appeals.

I.

The Alabama Adoption Code, which became effective January 1, 1991, is codified at § 26-10A-1 et seq., Ala.Code 1975. The constitutionality of the following section of the Alabama Adoption Code is at issue in this case:

“Post-adoption visitation rights for the natural grandparents of the adoptee may be granted when the adoptee is adopted by a stepparent, a grandfather, a grandmother, a brother, a half-brother, a sister, a half-sister, an aunt or an uncle and their respective spouses, if any. Such visitation rights may be maintained or granted at the discretion of the court at any time prior to or after the final order of adoption is entered upon petition by the natural grandparents, if it is in the best interest of the child.”

§ 26-10A-30, Ala.Code 1975. In short, that section allows the “natural grandparents of the adoptee” to petition for “post-adoption visitation rights” in the context of intrafamily adoptions. The section clearly abrogates, under certain circumstances, the common-law rule, which did not allow grandparents a legal right of visitation. See Ex parte Bronstein, 434 So.2d 780, 783 (Ala.1983).

II.

Under the authority of § 26-10A-30, the trial court granted the petitioners visitation rights. The adopting parents appealed to the Court of Civil Appeals. That court reversed the judgment of the trial court, holding that § 26-10A-30 unconstitutionally infringes upon the adoptive parents’ fundamental right to parent. The Court of Civil Appeals based its holding upon its interpretation and application of the recent decision of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Court of Civil Appeals discussed Troxel at length in its opinion, stating in part:

“While this appeal was pending, the United States Supreme Court handed down an opinion in which six Justices of that Court affirmed the Washington Supreme Court’s decision striking down Washington’s nonparental-visitation statute as an unconstitutional infringement on parents’ fundamental rights to rear their children. Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). In Troxel, the Supreme Court stated that, with regard to child-visitation rights, ‘the right of parents to make decisions concerning the care, custody, and control of their children’ is a fundamental right protected by the Due Process Clause. The Supreme Court struck down the Washington statute, which allowed ‘any person’ at ‘any time’ to seek visitation rights with a child and provided that visitation might be awarded if ‘visitation may serve the best interest of the child.’ 530 U.S. at 67, 120 S.Ct. at 2061.
“The plaintiffs in Troxel were the paternal grandparents of two illegitimate children of their deceased son; they sought visitation with the children. The grandparents requested two weekends of overnight visitation per month and two weeks of visitation during the summer. The mother did not oppose the visitation, but, instead, objected to the amount of visitation requested by the grandparents. The mother requested that the grandparents have one day of visitation per month, with no overnight stay. The trial court granted the grandparents visitation for one weekend per month, one week during the summer, and four hours on each grandparent’s birthday.
“The mother appealed. The Washington Court of Appeals reversed the trial court’s order and dismissed the grandparents’ petition for lack of standing. On review, the Washington Supreme Court held that the grandparents had standing but that the statute was unconstitutional for two reasons. First, the court found that the statute did not require that a person seeking visitation make a showing that in the absence of the requested visitation the child was at risk, and such a showing, the court held, is required before the state can interfere with parents’ rights to rear their children. Second, the court held that the statute was too broad in allowing ‘any person’ at ‘any time’ to seek visitation and requiring only that the visitation serve the best interests of the child.
“The Supreme Court of the United States affirmed the Washington Supreme Court’s judgment, concluding that what it called the ‘breathtakingly broad’ statute, as applied to the mother, violated her due-process rights to make decisions concerning the care, custody, and control of her children. In reaching its decision, the Supreme Court noted that the statute contained no requirement that the parent’s decision be given any presumption of validity or any special weight. 530 U.S. at 70, 120 S.Ct. at 2062-63. The Supreme Court held that because the grandparents had not alleged that the mother was unfit, it must be presumed that the mother had acted in the best interests of her children. 530 U.S. at 68, 120 S.Ct. at 2061. The problem, the Supreme Court said, was not that the trial court intervened, but that in so doing it gave no special weight to the mother’s determination of her children’s best interests. 530 U.S. at 69-70, 120 S.Ct. at 2062. Indeed, the trial court presumed the opposite and placed the burden on the mother to prove that visitation would not be in the best interests of her children. 530 U.S. at 69-70, 120 S.Ct. at 2062.
“The Supreme Court’s plurality opinion in Troxel is also notable for the issues it left unanswered. First, the Court declined to determine whether, as a condition precedent to visitation, the Due Process Clause requires a showing of harm or potential harm to the child. The Court did not define ‘the precise scope of the parental due process right in the visitation context.’ 530 U.S. at 73, 120 S.Ct. at 2064. The Court did not issue a per se holding that all nonparen-tal visitation statutes are unconstitutional. 530 U.S. at 73-74, 120 S.Ct. at 2064. The members of the plurality agreed with Justice Kennedy’s statement in his dissent that the ‘constitutionality of any standard for awarding visitation turns on the specific manner in which that standard is applied.’ 530 U.S. at 73, 120 S.Ct. at 2064-65. The reason the Court did not make a per se ruling on constitutionality is that states, in ruling on the constitutionality of their own nonparen-tal-visitation statutes, have made these determinations in the past on a case-by-case basis, because the outcome depends on the application of those statutes. 530 U.S. at 73-74, 120 S.Ct. at 2064. The Troxel Court noted differing provisions in various state statutes governing grandparent visitation. 530 U.S. at 73-74, 120 S.Ct. at 2064. This too, would affect the constitutionality of a particular statute.”

J.S. v. D.W., 835 So.2d at 179-80.

The Court of Civil Appeals focused upon the fundamental right of parents to rear their children, - the linchpin of the United States Supreme Court’s holding in Troxel. However, Troxel involved the rights of a natural mother, while this case involves the rights of adopting parents in the limited context of intrafamily adoptions. In our opinion, the Court of Civil Appeals erred in overlooking this significant distinction.

III.

In considering the constitutionality of § 26-10A-30, we must remember that “[i]t is well established that this Court should be very reluctant to hold any act unconstitutional.” Ex parte Boyd, 796 So.2d 1092, 1094 (Ala.2001). In Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 9-10, 18 So.2d 810, 814-15 (1944), cert. dismissed, 325 U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945), this Court stated:

“Uniformly, the courts recognize that [the] power [to strike down a statute as unconstitutional] is a delicate one, and to be used with great caution.... It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.
“Another principle which is recognized with practical unanimity, and leading to the same end, is that the courts do not hold statutes invalid because they think there are elements therein which are violative of natural justice or in conflict with the court’s notions of natural, social, or political rights of. the citizen, not guaranteed by the constitution itself. Nor even if the courts think the act is harsh or in some degree unfair, and presents chances for abuse, or is of doubtful propriety. All of these questions of propriety, wisdom, necessity, utility, and expediency are held exclusively for the legislative bodies, and are matters with which the courts have no concern. This principle is embraced within the simple statement that the only question for the court to decide is one of power, not of expediency or wisdom.”

(Emphasis added.) (Citations omitted.) In light of these principles, the relevant issue is quite simple' — did the Legislature have the power to qualify the rights of adopting parents by enacting § 26-10A-30? We hold that the Legislature had such power, and that it properly exercised it.

“The right of adoption ... is purely statutory, and was never recognized by the rules of common law.” Hanks v. Hanks, 281 Ala. 92, 99, 199 So.2d 169, 176 (1967). “Adoption ... is a status created by the state acting as parens patriae, the sovereign parent.” Ex parte Bronstein, 434 So.2d at 781. Therefore, the rights of adopting parents are purely statutory, as defined in the Alabama Adoption Code.

As a general rule, “the adoption of a child ... creates the status of parent and child, with the duty of care, maintenance, training and education, along with the right to the custody, control and services of the child. Buttrey v. West, 212 Ala. 321, 102 So. 456 [(1924)].” Law v. Bush, 239 Ala. 612, 614, 195 So. 885, 887 (1940). In fact, the Alabama Adoption Code provides that “[a]fter adoption, the adoptee shall be treated as the natural child of the adopting parent or parents and shall have all rights and be subject to all of the duties arising from that relation.” See § 26-10A-29(a), Ala.Code 1975. This general rule would appear to support the conclusion that, under Alabama law, adopting parents have the same right as the natural mother in Troxel to make decisions concerning the care, custody, and control of their child. However, because we are construing the statutory rights of the adopting parents, we must look beyond the general rule concerning their rights.

In construing a statute, the first rule is that the intent of the Legislature should be effectuated. Boackle v. Bedwell Constr. Co., 770 So.2d 1076 (Ala.2000). “[W]e must consider it as a whole and must construe [the statute] reasonably so as to harmonize all of its provisions.” James v. McKinney, 729 So.2d 264, 267 (Ala.1998). When two sections of an act conflict, the last in order of arrangement controls. Alabama State Bd. of Health ex rel. Baxley v. Chambers County, 335 So.2d 653 (Ala.1976). Applying these well-established principles of statutory construction, we must determine the effect of § 26-10A-30 upon the general rule stated in § 26-10A-29(a).

It was the clear intent of the Legislature in enacting § 26-10A-30 to give the trial court the authority to grant post-adoption visitation rights to the natural grandparents of the adoptee, when the adoptee is adopted by a family member. The only reasonable conclusion is that the Legislature intended to limit the rights of the adopting parents by allowing the possibility of court-ordered grandparent visitation over the objections of the adopting parents. Any other conclusion would fail to give any effect to § 26-10A-30, in violation of this Court’s duty to harmonize the statutory provisions in order to give effect to all parts of the statute.

IV.

Under the facts of this case, adopting parents, whose rights are exclusively dependent upon statutory law, must be treated differently than natural parents. The Court of Civil Appeals erred in failing to note this distinction and, as a result, erroneously held that Troxel compelled the reversal of the judgment of the trial court.

The judgment of the Court of Civil Appeals is reversed, and the case is remanded for an order or further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

JOHNSTONE, J., concurs specially.

MOORE, C.J., and SEE, J., concur in the result.

JOHNSTONE, Justice

(concurring specially).

I concur in the main opinion. I add that the respondents J.S. and E.S., the adoptive parents, do not, in the certiorari review before us, challenge the standing of the petitioners D.W. and J.C.W. to sue as “natural grandparents” within the meaning of § 26-10A-30, Ala.Code 1975, to obtain rights of visitation with the baby adopted by the respondents J.S. and E.S. Before the Court of Civil Appeals, they did unsuccessfully challenge the standing of the petitioners D.W. and J.C.W. on the ground that they are not the adoptee-baby’s natural grandparents, but rather his great grandparents.

The facts are that the adoptee-baby’s mother is not the biological daughter of the petitioners D.W. and J.C.W. but is, rather, their biological granddaughter, whom they adopted as their own daughter before she conceived and bore the adoptee-baby. Because the respondents do not maintain their challenge to the petitioners’ standing before us, we need not consider whether the petitioners’ standing is impaired by our holding that “[ujnder the facts of this case, adopting parents, whose rights are exclusively dependent upon statutory law, must be treated differently than natural parents.” That is, we need not consider whether the petitioners’ not being the biological parents of their adoptive daughter, who is the mother of the adop-tee-baby, impairs their standing to sue as “natural grandparents” under § 26-10A-30.


source: Caselaw Access Project

author: YATES, Presiding Judge.

license: Public Domain

text:
    J.S. and E.S. v. D.W. and J.W.
    2990431.
    Court of Civil Appeals of Alabama.
    May 17, 2002.

      John M. Wood and Michael A. Anderson of Wood & Shaw, L.L.C., Birmingham, for appellants.
    Robert P. Bynon, Jr., Birmingham, for appellees.
    Patricia N. Moore, Birmingham, guardian ad litem.
   YATES, Presiding Judge.

The Alabama Supreme Court has reversed this court’s judgment of May 4, 2001, and has remanded the case. Ex parte D.W., 835 So.2d 186 (Ala.2002). In accordance with the Alabama Supreme Court’s opinion, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: PITTMAN, Judge.

text:
    Raoul A. GRAY and Ronald M. Gray v. Janice M. BUSH.
    2991107.
    Court of Civil Appeals of Alabama.
    June 29, 2001.
    Rehearing Denied Aug. 10, 2001.
    Certiorari Denied Dec. 14, 2001 Alabama Supreme Court 1010310.

      Michael R. Holberg and Ralph G. Hol-berg III of Holberg & Holberg, P.C., Mobile, for appellants.
    George L. Simons, Mobile, for appellee.
   PITTMAN, Judge.

This appeal, which was transferred to this court by the Alabama Supreme Court, pursuant to § 12-2-7(6), Ala.Code 1975, arises out of an estate administration. The probate court determined that Janice M. Bush was the common-law wife of the decedent, Ronald A. Gray, who had died intestate. The probate court issued to Bush, based upon its finding that she was the decedent’s common-law wife, letters of administration regarding his estate. The decedent’s two sons, Raoul A. Gray and Ronald M. Gray (hereinafter “the sons”) moved to set aside or vacate the probate court’s judgment or for a new trial, based in part on a claim of newly discovered evidence. The probate court denied all motions. We conclude that the probate court erred in determining that a common-law marriage existed; thus, it erred in denying the motions to set aside or vacate its judgment. We reverse and remand.

The sons appealed, raising what they present as four issues. We recognize that all four of those issues are really the same issue: Whether the probate court erred in finding that the decedent and Bush had entered into a common-law marriage. We will consider the issue to be whether the probate court, having found that a common-law marriage existed (and having issued letters of administration based on that finding), erred in denying the sons’ motions to set aside its previous judgment or to order a new trial.

This court stated in Barrett v. Davis, 705 So.2d 462, 464-65 (Ala.Civ.App.1997), that a motion to “set aside” a judgment is essentially a motion to vacate the judgment, pursuant to Rule 59(e), Ala. R. Civ. P. We further stated in that case that the decision whether to grant or to deny a Rule 59 motion rests largely in the discretion of the trial court. However, that decision is subject to appellate review, and the trial court’s action may be reversed where a legal right was abused and the record plainly and palpably shows the trial court is in error. Barrett, supra, quoting Coker v. Farmers Mutual Exchange, 425 So.2d 489, 490 (Ala.Civ.App.1983). Furthermore, the grant or denial of a motion for a new trial based upon the movant’s claim of newly discovered evidence is a matter resting largely in the discretion of the trial court, and that determination carries a presumption of correctness. This court will not reverse the trial court’s ruling on that motion unless the great weight of the evidence plainly and palpably shows that the trial court erred. Owen v. Owen, 724 So.2d 6, 9 (Ala.Civ.App.1998), citing Adkins v. Gold Kist, Inc., 531 So.2d 890 (Ala.Civ.App.1987).

This Court stated in Stringer v. Stringer, 689 So.2d 194 (Ala.Civ.App.1997):

“ ‘Courts of this state closely scrutinize claims of common law marriage and require clear and convincing proof thereof.’ Baker v. Townsend, 484 So.2d 1097, 1098 (Ala.Civ.App.1986), citing Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982). A trial judge’s findings of facts based on ore tenus evidence are presumed correct, and a judgment based on those findings will not be reversed unless they are found to be plainly and palpably wrong. Copeland v. Richardson, 551 So.2d 353, 354 (Ala.1989). The trial court’s judgment must be viewed in light of all the evidence and all logical inferences therefrom, and it “will be affirmed if, under any reasonable aspect of the testimony, there is credible evidence to support the judgment.” Adams v. Boan, 559 So.2d 1084, 1086 (Ala.1990) (citation omitted).’
“Lofton v. Estate of Weaver, 611 So.2d 335, 336 (Ala.1992).”

Stringer, 689 So.2d at 197 (citation omitted.)

In Alabama, recognition of a common-law marriage requires proof of the following elements: (1) capacity; (2) present, mutual agreement to permanently enter the marriage relationship to the exclusion of all other relationships; and (3) public recognition of the relationship as a marriage and public assumption of marital duties and cohabitation. Stringer, 689 So.2d at 195, quoting Crosson v. Crosson, 668 So.2d 868, 870 (Ala.Civ.App.1995), citing Boswell v. Boswell, 497 So.2d 479, 480 (Ala.1986). Whether the essential elements of a common-law marriage exist is a question of fact. Stringer, supra, citing Johnson v. Johnson, 270 Ala. 587, 120 So.2d 739 (1960), and Arrow Trucking Lines v. Robinson, 507 So.2d 1332 (Ala.Civ.App.1987). “Whether the parties had the intent, or the mutual assent, to enter the marriage relationship is also a question of fact. See Mickle v. State, 21 So. 66 (1896).

Janice Bush, who claimed to have been the decedent’s common-law wife, testified before the probate court that she met the decedent in 1987. She stated that in 1990 they made an agreement to be husband and wife and that she, pursuant to that agreement, converted from her Baptist to his Catholic faith. However, Bush admitted that she was not divorced from her previous husband until 1991. She also stated that the decedent helped her procure her divorce from her previous husband and that the decedent chose her attorney for that divorce action. Bush said that during her relationship with the decedent, which continued until his death in 1999, he did not date anyone else and, as far as she knew, he did not have an affair outside their relationship.

Bush testified that she and the decedent attended social occasions together. Although at those functions he did not introduce her to others as “his wife,” he did introduce her to others as “his better half’ or as his “boss lady,” and she stated that everyone knew she and the decedent were living together. However, she never took the decedent’s last name as her own, and she stated that everyone in the community knew her by the name “Janice Bush.” Bush admitted that she never referred to herself as, or considered herself to be the decedent’s wife, because, she explained, everyone knew “what [she] was to him.” She testified that she and the decedent never exchanged wedding bands; in response to the question whether they ever went on a honeymoon, Bush responded, “Why would we go on a honeymoon when we didn’t get married?” However, she clarified that by saying they had made plans to marry, but that the decedent’s mother had interfered with the plans to the extent that she and the decedent canceled them. She also said she and the decedent took other trips together.

Although Bush stated that she and the decedent lived together during different periods (roughly from 1987 to 1994) over the course of their relationship, she admitted that she maintained her own residence for the last few years of their relationship. Bush also testified that the decedent maintained his own separate residence and that both she and the decedent maintained their residences under their own names. She explained that the decedent purchased his own residence because he wanted his sons to inherit something of value. She further explained that she and the decedent did not constantly live together because in her employment she worked “swing shifts.” Bush testified that she performed household duties and cooked for the decedent and that she cared for him when he was sick. She was not monetarily compensated for her household duties. Bush stated that the decedent required that she, because she had her own job and earned her own money, pay her own car payments and insurance and dress nicely.

Bush never filed a joint income-tax return with the decedent and never held a joint bank account with him. She testified that the decedent always filled out her tax forms, and that those forms indicated her marital status as single. Her driver’s license and Social Security card indicate that she never took the decedent’s last name as her own. All of Bush’s credit cards are listed in her own name. She also financed purchases of furniture and vehicles in her name only. Bush informed her employer of 26 years that she was single. The only piece of evidence Bush offered to show that she and the decedent either owned or applied for anything jointly was an application for life insurance bearing signatures purporting to be those of Bush and the decedent; however, both of the decedent’s sons testified that the signature purporting to be the decedent’s appeared to have been forged.

Laverne Pernell, a friend of the decedent’s, testified that she knew Bush and that she had thought of Bush and the decedent as having a husband/wife relationship. She stated that in her company the decedent referred to Bush as his “better half,” but that he never referred to her as his wife. Pernell testified that she knew that the decedent maintained a relationship with another girlfriend, Bessie Hinds, during the course of his relationship with Bush. Barbara Gates, a friend of Bush’s, testified that Bush and the decedent lived together “like husband and wife,” in the same residence. Gates stated that although the decedent referred to Bush as his “better half,” he never referred to her as his wife. Joyce Dawkins testified that she knew the decedent and Bush had lived together for about eight years. She also stated that the decedent referred to Bush only as his “better half.”

Raoul Gray, one of the decedent’s sons, testified that the decedent referred to Bush only as his girlfriend, not as his wife. He also stated that the decedent told him he never intended to marry more than one time (and the decedent had already been married and divorced once before he met Bush). He said he never heard the decedent or Bush refer to themselves as husband or wife. However, Raoul testified that the decedent and Bush lived together for several years. Raoul also testified that the decedent filed tax returns indicating his marital status as single and that he received bills from creditors solely in his name. Raoul explained that he knew Bush was not listed as a debtor on any of the decedent’s accounts, because he, i.e., Raoul, had paid the decedent’s bills from early 1999 until the decedent’s death in October 1999. Raoul said the only item of property that he knew the decedent and Bush owned jointly was a television, for which he said the decedent was making the payments on behalf of Bush to a finance company.

Ronald Gray, the decedent’s other son, testified that the decedent never indicated to him an intention to marry Bush. He said he never heard the decedent or Bush refer to the other as husband or wife. Ronald stated that the decedent and Bush had lived together, although it was not in a constant manner. He also stated that the decedent and Bush never had children together. Ronald also testified that during the course of the decedent’s relationship with Bush he had two other girlfriends.

Margaret Gray, the decedent’s former wife and Raoul and Ronald’s mother, testified that she and the decedent were married for 13 years before the decedent began his relationship with Bush. She stated that she never heard the decedent and Bush refer to themselves as husband and wife and never heard the decedent express an intention to marry Bush. She testified that she knew the decedent and Bush had lived together for a short time while the decedent was trying to pay off some of Bush’s debt. She said that when she asked the decedent whether he intended to marry Bush, he specifically replied, “Like a snowball in hell.” She testified that she knew that the decedent was maintaining relationships with other girlfriends during the course of his relationship with Bush. Vance Gray, the decedent’s father, testified that he never heard the decedent and Bush refer to themselves as husband and wife and never heard the decedent refer to Bush as his “better half.” He also stated that within the last two or three years of the decedent’s relationship with Bush, the decedent also dated one other girlfriend. He also testified that he did not know the decedent and Bush had ever lived together.

Josephine Gray, the decedent’s mother, testified that although she and the decedent talked about his relationship with Bush, he never told her that he considered himself to be married to Bush or that he ever intended to marry her. She said she never heard the decedent and Bush refer to each other as husband and wife. However, she testified that she knew the decedent and Bush had lived together for a few months on one occasion, but she said the decedent had explained that it was just a temporary situation. She also stated that she knew the decedent maintained a relationship with at least one other girlfriend during the course of his relationship with Bush.

Bessie Hinds testified that she and the decedent had a 20-year sexual relationship “until the day he died, really.” Hinds stated that the decedent never discussed with her his relationship with Bush except to say that they were friends. She said she never heard the decedent or Bush refer to the other as husband or wife, although she knew the decedent and Bush lived together for a while. She also testified that the decedent rented his own residence. Hinds stated that she knew the decedent was seeing another person during the course of his relationship with Bush.

Our review of the record indicates that Bush did not present clear and convincing evidence indicating she was the decedent’s common-law wife. See Stringer, supra, quoting Lofton, supra, quoting Baker, supra, citing Walton, supra. Although the evidence shows that the decedent and Bush had the capacity to marry each other after 1991, when Bush divorced her previous husband, Bush failed to produce substantial evidence indicating a present, mutual agreement to permanently enter a marriage relationship to the exclusion of all others. Bush testified that she and the decedent had at one time planned to marry and that she had converted to his religion in reliance on that plan; however, she also testified that they never went through with those plans, because of his mother’s interference. Bush presented no further evidence indicating that they ever tried or intended to marry. However, the decedent’s former wife and sons testified that the decedent never informed them of an intention to marry Bush; in fact, the evidence indicates that decedent affirmatively denied such an intention when confronted by his former wife. Furthermore, several witnesses testified that the decedent maintained relationships with other women at the time he also maintained one with Bush. See Stringer, supra, quoting Crosson, supra, citing Boswell, supra; see also Stringer, supra, citing Mickle, supra. Furthermore, Bush presented no substantial evidence indicating a public recognition of their relationship as a marriage and indicating a public assumption of marital duties and cohabitation. Although several witnesses testified that the decedent referred to Bush as his “better half,” and Bush stated that everyone in the community knew she and the decedent were together in a relationship, no one testified that they referred to themselves as, or considered themselves to be, husband and wife. See Stringer, supra, quoting Crosson, supra, citing Boswell, supra. Although we presume that a trial court’s decision based on ore tenus evidence is correct, the paucity of facts to support Bush’s claim of a common-law marriage compels us to hold that the judgment of the probate court is plainly and palpably wrong. See Stringer, supra, quoting Lofton, supra, citing Copeland, supra. Therefore, the trial court’s order — based on a finding that Bush was the decedent’s common-law wife — denying the sons’ motions to set aside or vacate its judgment or for a new trial constituted an abuse of its discretion. That order is reversed. See Barrett, supra, quoting Coker, supra; see also Owen, supra, citing Adkins, supra.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.


author: MURDOCK, Judge. THOMPSON, Judge,

text:
    AEROTEK, INC. v. Michael BURTON.
    2000123.
    Court of Civil Appeals of Alabama.
    Aug. 10, 2001.
    Rehearing Denied Nov. 30, 2001.

      Robin G. Laurie of Balch & Bingham, L.L.P., Montgomery, for appellant.
    Charles L. Anderson and Christine E. Tatum of The Anderson Law Firm, L.L.C., Montgomery, for appellee.
   MURDOCK, Judge.

Aerotek, Inc., sued Michael Burton, its former employee, in the Circuit Court of Montgomery County, seeking to recover liquidated damages for breach of a covenant not to compete. After an ore tenus proceeding, the trial court entered a judgment in favor of Burton. Aerotek appeals. We reverse and remand with instructions.

Aerotek is known as a “technical service firm” (a “TSF”) — a firm that acts as a middleman to provide highly skilled, technically trained workers to its clients on a contract basis. The technical-service industry is a variation of the traditional employment-services industry.

Aerotek also provides traditional employment-agency services when requested to do so. In addition, when one of Aero-tek’s clients wants to directly employ an Aerotek employee who previously has been placed with that employer on a contract basis, Aerotek charges the client a “buyout” fee of 30% of the employee’s first-year salary.

Aerotek’s clients typically have needs for highly skilled employees for periods ranging from a few days to a few years. When Aerotek is made aware of a need, it (i) conducts a search for candidates with a required skill-set, (ii) recruits those persons, (iii) internally interviews them, (iv) conducts reference checks, (v) conducts background checks, (vi) has the prospective employees tested for drugs and, assuming the results of the foregoing are satisfactory, (vii) submits a candidate’s ré-sumé and reports of its reference checks on the candidate to its client for the client’s consideration. Aerotek’s investment of time and effort is at no up-front cost to the employee or to Aerotek’s client. Assuming Aerotek’s client desires to engage the services of Aerotek, it agrees to compensate Aerotek at an agreed-upon rate that is higher than the wage Aerotek will pay to the employee, and Aerotek then enters into a contract of employment with the employee. Although the employee performs services for Aerotek’s client, typically at the client’s facility, the person is employed by Aerotek for all purposes.

In 1997, Storage Technologies and Bell-South needed a computer networking technician to work at a BellSouth facility near Birmingham for a period of one to two years. Storage Technologies is a business that manufactures and sells computer-storage products, and it had contracted to do a project for BellSouth at BellSouth’s facility. Storage Technologies contacted Enterprise Solutions to have Enterprise Solutions assist it in locating an individual to fill the position; Enterprise Solutions, in turn, contacted Southern Network Services. Eventually, Southern Network Services contacted Aerotek for assistance in filling the Storage Technologies/BellSouth position.

After Burton had had a successful interview with Aerotek, after Aerotek had gotten acceptable results in background and reference checks, and after Burton had undergone a drug test with satisfactory results, Aerotek forwarded Burton’s ré-sumé and reports of its reference checks to Southern Network Services. Burton’s ré-sumé and reference-check reports were, in turn, forwarded to Storage Technologies and to BellSouth. Ensuing interviews of Burton by Southern Network Services and Storage Technologies were positive, and, as a result, on December 8, 1997, Burton entered into the employment agreement with Aerotek, pursuant to which he then began work at the BellSouth facility. In accordance with their customary practice and the practice in the industry, Southern Network Services, Enterprise Solutions, and Storage Technologies each tacked on additional fees for Burton’s services, and the final bill was paid by BellSouth.

In consideration of being employed by Aerotek for the work at the BellSouth facility, and to protect Aerotek’s investment incurred in employing and placing Burton, Burton agreed in his employment contract with Aerotek that he would not solicit

“[Southern Network Services] or engage in a like or similar profession or occupation at [Southern Network Services’] facility or any other facility at which [Burton was] directed to or actually 'performed] services under this agreement, either directly or indirectly, for a period of one hundred eighty (180) days following the termination of [his] employment under the terms of this agreement, unless specific written authorization has been obtained from Aerotek.”

(Emphasis added.) In the event, within 180 days following the termination of his employment with Aerotek, Burton chose to engage in similar work at “any ... facility at which [he] ... actually perform[ed] services under [the] agreement,” then the agreement required Burton to compensate Aerotek pursuant to the following formula:

“An amount equal to three hundred twenty (320) hours at the hourly rate as stated in 3(a) above [$20.00/hr.] as compensation for Aerotek’s efforts and costs incurred in connection with [Burton’s] employment [under the agreement].”

Burton violated his covenant when he unilaterally terminated his employment with Aerotek in August 1998 and immediately thereafter began performing the same work at the same facility, and for the same ultimate clients, Storage Technologies and BellSouth, at which he had been placed to work as an employee of Aerotek.

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

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind otherwise than is provided by this section is to that extent void.
“(b) ... [0]ne who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city, or part thereof so long as the ... employer carries on a like business therein.”

In Clark v. Liberty National Life Insurance Co., 592 So.2d 564 (Ala.1992), our Supreme Court held:

“The courts will enforce a covenant not to compete that fits within the exception of § 8-l-l(b) only if:
“ ‘1. the employer has a protectable interest;
“ ‘2. the restriction is reasonably related to that interest;
“ ‘3. the restriction is reasonable in time and place; [and]
“ ‘4. the restriction imposes no undue hardship [on the employee].’
DeVoe v. Cheatham, 413 So.2d 1141, 1142 (Ala.1982). An interest is a protectable interest when an employer possesses ‘a substantial right in its business sufficiently unique to warrant the type of protection contemplated by [a] non-competition agreement.’ DeVoe, 413 So.2d at 1142 (quoting Cullman Broadcasting Co. v. Bosley, 373 So.2d 830, 836 (Ala.1979)). A protectable interest may exist when an employee is ‘in a position to gain confidential information, [to gain] access to secret lists, or to develop a close relationship with clients.’ DeVoe, 413 So.2d at 1143; see also Restatement (Second) of Contracts § 188, Comment B (1981).”

592 So.2d at 565-66 (emphasis added).

We note that the trial court’s judgment in favor of Burton contained no express factual findings. In the absence of express findings, this court presumes that the trial court made, from the evidence presented at trial, those findings that would have been necessary to support its judgment. See Transamerica Commercial Fin. Corp. v. AmSouth Bank, N.A., 608 So.2d 375, 378 (Ala.1992). Thus, in this case, we will presume that the trial court found that one or more of the four conditions specified in Clark, supra, was not satisfied. However, the record in this case does not support such a finding.

First, Aerotek had a protectable interest in being compensated for the services it provided. As noted, in hiring and placing prospective employees, Aerotek searches for and recruits candidates, interviews them, conducts reference checks and other background checks, tests for drugs, and makes the necessary arrangements for their placements, all without any up-front costs to either the prospective employee or the prospective client. Without the ability to protect itself from “disintermediation” (the employee’s leaving his employment with the agency to work directly for the client), Aerotek and other providers of such employment services would soon find themselves providing their services at no cost to employees and clients.

Burton contends that the various intermediate contracts in the chain between Aerotek and Storage Technologies serve to alter or to dilute Aerotek’s pro-tectable interest. Burton and Aerotek are not parties to those other employment contracts, however. The contract between Burton and Aerotek clearly and unambiguously provides for stipulated damages in the event Burton, within 180 days following the termination of his employment with Aerotek, engages in a similar profession or occupation at “any ... facility at which [Burton was] directed to or actually perform[ed] services under this agreement, either directly or indirectly.” This court will apply unambiguous contract language as it is written. E.g., F.W. Woolworth Co. v. Grimmer, 601 So.2d 1043, 1044 (Ala.Civ.App.1992) (“When the agreement is certain and clear ... [t]he words of the agreement are to be given their ordinary meaning, and the intentions of the parties are to be derived from the provisions of the agreement”)

Further, if Burton’s position were to be accepted, then Aerotek and other employment agencies effectively would be foreclosed from providing employees to other agencies because they could not be assured of any return on their investment. If an employment agency’s contractual rights as to its employee could be altered by the nature of “downstream” contracts in the chain between the agency and the ultimate client, then employment agencies could protect their investment of time and effort only where they supplied employees directly to the end users of the employee’s services. Such a result would work against the public interest in the efficient employment of labor recognized in cases relied upon by Burton. Employment agencies would have a disincentive to work effectively with other agencies to help satisfy employers’ needs for labor and individuals’ needs for gainful employment.

Second, the restriction placed on Burton by his employment agreement with Aerotek is “reasonably related to [Aero-tek’s] interest.” Had Burton been placed directly with Storage Technologies at the outset as Storage Technologies’ direct employee, a fee of 30% of Burton’s first year’s salary would have been payable to Aerotek under its standard agreement. The stipulated damages for which Burton is obligated under the terms of his agreement are only about half that amount — eight working weeks’ worth.

Third, the restriction at issue is reasonable in time and place. As applied to the facts of this case, it is limited not to a geographic territory, but to Burton’s work for a single employer at a single facility, and for a period of only 180 days.

Fourth, the restrictive covenant imposes no undue hardship on Burton. Upon voluntarily terminating his employment with Aerotek, Burton was free to secure similar employment with any other employer at any location in Alabama, both within and without the Birmingham area.

Applying an analytical framework parallel to that employed by Alabama courts, the United States Court of Appeals for the Eleventh Circuit, in Consultants & Designers, Inc. v. Butler Service Group, Inc., 720 F.2d 1553 (11th Cir.1983), addressed a similar restrictive covenant in a case involving the same temporary-services industry at issue in this case. In an opinion that discusses at length the nature of the industry and the risk of disintermediation by “job shoppers,” the Eleventh Circuit upheld a restrictive covenant that prevented an employee, for a period of 90 days, from terminating his employment with the TSF and accepting direct employment with the TSF’s client. Like the covenant at issue in the present case, the restrictive covenant in Butler Service Group provided that the employee could not accept employment “directly or indirectly” at the “specific client worksite at which [the TSF had] placed the individual employee.” In reversing the judgment of a lower court that had refused to enforce the covenant, the Eleventh Circuit explained that the TSF had a protectable interest as a middleman:

“In a pristine world in which information is costless, there would be no need for the essential service that Butler performs. The client firms and the prospective employees would each know what the other has to offer and could negotiate a contract instantaneously and cost-lessly. ...
“... Eliminating the middleman is at first blush a facile and attractive alternative. However, middlemen exist because they provide a useful and highly-valued service. If Butler’s covenant with its job shoppers is to have any justification, that justification must be to protect Butler’s role as a middleman in the market for information between job shoppers and client firms.
“[Once a job shopper has been placed by a technical-services firm], barring some form of contractual constraint, the client firm and the job shopper could sever their relationships with the TSF and consummate a relationship with one another. The job shoppers and client firms could thereby opportunistically appropriate the work product of the TSF without paying it the full value of its services. If the TSF is to receive a reward for the services of the job shopper proportional to the latter’s contribution to the client firm, the TSF must find some contractual means to protect its future income stream from the ravages of opportunistic disintermediation.”

720 F.2d at 1558 (emphasis added; footnote omitted).

The Eleventh Circuit also held that the restriction in Butler Service Group was reasonably related to the interest that the TSF sought to protect: “The covenant between Butler and [its client] not to hire one another’s employees and the restrictive covenants in Butler’s contracts with its job shoppers were clearly crafted to prevent such disintermediation.” Id. at 1559. Likewise, the Court of Appeals concluded that the time and area restrictions were reasonable, noting that it “would be difficult to conceive of a more limited post-employment covenant.” Id. at 1557.

Finally, the Butler Service Group court concluded that any hardship on the employee was outweighed by the potential hardship to the TSF and to the public:

“By protecting the future stream of income that Butler would receive from its job shoppers, Butler was induced to invest more in searching for job shoppers than it otherwise would. Thus the public at large can be expected to gain from the enforcement of this and similar restrictive covenants to the extent that these covenants encourage optimal investment.”

Id. at 1560.

Butler Service Group, while not binding on this court, constitutes persuasive authority.

We conclude that the trial court’s judgment in favor of Burton was “plainly and palpably wrong.” Transamerica, supra. Consequently, we reverse the judgment of the trial court and remand the cause for the entry of a judgment in favor of Aero-tek consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CRAWLEY and PITTMAN, JJ., concur.

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

THOMPSON, Judge,

dissenting.

I would affirm the judgment of the trial court because I conclude that Burton did not breach the restrictive covenant contained in the contract he executed with Aerotek. In addition, I find it doubtful, in light of the evidence presented, that Aero-tek had a protectable interest, as contemplated by § 8-1-1, Ala. Code 1975, and the cases interpreting that statute.

The contract Burton entered into with Aerotek contains the following restrictive covenant:

“In consideration of the terms of employment and the efforts and costs incurred by Aerotek, [Burton] agree[s] [Burton] shall not solicit Client [Southern Network Services] or engage in a like or similar profession or occupation at Client’s [Southern Network Services’] facility or any other facility at which you are directed to or actually perform services under this agreement, either directly or indirectly, for a period of one hundred eighty (180) days following the termination of your employment under the terms of this agreement, unless specific authorization has been obtained from Aerotek.”

Immediately following this language is a clause providing for liquidated damages in an amount equivalent to 320 hours of Burton’s services in the event of a violation of the covenant.

When interpreting a contract provision, a court gives the words of that provision their ordinary meaning, and the intention of the parties is to be derived from the provision in question and the contract considered in its entirety. Tanner v. Church’s Fried Chicken, Inc., 582 So.2d 449 (Ala.1991); City of Fairhope v. Town of Daphne, 282 Ala. 51, 58, 208 So.2d 917, 924 (1968). Interpreted literally, the employment restriction precluded Burton from engaging in a similar occupation at Southern Network Services’ facility or at any other facility at which Southern Network Services directed him to perform services under the agreement with Aerotek.

The evidence reflects that Southern Network Services did not direct Burton to perform services for Storage Technologies under the terms of the Aerotek agreement. Instead, Southern Network Services contracted separately with Enterprise Solutions to allow that company access to Burton’s services. Finally, Enterprise Solutions contracted separately with Storage Technologies for the services that Burton actually performed. When Burton terminated his contract with Aerotek, he did not resume work for the client under that contract, Southern Network Services, or work at the facility where Southern Network Services had directed him to work. He worked on an entirely new project for Storage Technologies and worked from his Montgomery home instead of commuting to the Birmingham office as he had done while the contract was in force. Strictly construing the terms of the contract that Burton executed with Aerotek, I conclude that Burton did not violate the restrictive covenant contained therein. See Russell v. Birmingham Oxygen Serv., Inc., 408 So.2d 90 (Ala.1981).

In addition, the majority opinion relies on Consultants & Designers, Inc. v. Butler Serv. Group, Inc., 720 F.2d 1553 (11th Cir.1983), as authority for the conclusion that the trial court erred in refusing to enforce the restrictive covenant against Burton. The Butler Service Group court explained the necessity for the covenant in the Butler Service Group contract by reasoning that “Butler had a legitimate interest in protecting from opportunistic appropriation its investment in acquiring the information necessary to carry on its business and the covenant [which was subject to review] was reasonably well crafted to carry out that task.” 720 F.2d at 1559.

The evidence demonstrating Aerotek’s investment, however, is not as compelling as the evidence in Butler Service Group. It is undisputed that Aerotek provided no training or instruction to Burton. Burton had been fully trained during his previous 20-year military career. Further, Aerotek presented no proof of a significant investment of time or money in locating Burton; it simply found Burton’s résumé posted on the Internet and performed interview and screening services for its client, Southern Network Services. Admittedly, the covenant under review in Butler Service Group is less restrictive. The covenant in Butler Service Group barred the worker from competing for a period of 90 days and only from performing work at the specific client worksite at which Butler had placed the worker. 720 F.2d at 1557. By comparison, the covenant contained in the Aerotek contract restricted Burton, for a period of 180 days, from working for Southern Network Services or any facility at which Southern Network Services had directed him to work. In light of the evidence, I find it highly questionable whether Aerotek established that it had a pro-tectable interest sufficient to warrant the enforcement of the restrictive covenant. Cf., e.g., Clark v. Liberty Nat’l Life Ins. Co., 592 So.2d 564 (Ala.1992)(employers have been found to have a protectable interest when they possess a substantial right in a unique business or when the employee has been allowed access to trade secrets or confidential customer lists); and Nationwide Mut. Ins. Co. v. Cornutt, 907 F.2d 1085 (11th Cir.1990)(the employer’s significant investment in its employee, in terms of time, training, and money, can also give rise to a protectable interest).

In light of Alabama’s public policy disfavoring restraints against lawful trade and the state’s strict construction of § 8-1-1, Ala. Code 1975, as well as the presumption in favor of the trial court’s factual determinations based on ore tenus evidence, I cannot say the trial court erred in entering the judgment in favor of Burton. See Construction Materials, Ltd., Inc. v. Kirkpatrick Concrete, Inc., 631 So.2d 1006, 1009 (Ala.1994).

YATES, P.J., concurs.

      . Burton testified that, from the outset of his employment with Aerotek, he understood that he was being directed to work with Storage Technologies at the BellSouth facility. Although the dissent suggests that, when Burton terminated his employment with Aerotek in August 1998, he began work on a new project out of his Montgomery home, Burton's testimony indicates that he continued doing the same work at the same location:
      "Q. Can you tell me why you stopped working with Aerotek?
      "A. Well, the folks at Storage Tech had decided that they were going to get rid of the subcontractors and just have their own employees at the location....
      "Q. And they had permanent positions open directly through Storage Tech, they were cutting out the middleman?
      "A. Yes.
      "Q. And it was the same work that you performed while you were being contracted through Aerotek?
      "A. Yes.
      "Q. I am piecing all of this together. So you commuted between Birmingham and Montgomery on a regular basis?
      "A. Yes.
      "Q. Oh goodness. And now you have a home office, you don't have to go into your Birmingham location on a regular basis?

        “A. That's correct.”
      In his brief to this court, Burton asserts only that "at the time of his deposition, Burton testified that he no longer worked at the Bell-South facility in Birmingham, although he is occasionally required to attend meetings at the Birmingham branch.” Burton’s deposition, however, was given over a year after he terminated his relationship with Aerotek and well beyond the 180-day restrictive period at issue. It also should be noted that the covenant restricts Burton from performing services at the BellSouth facility "either directly or indirectly.”'

      . Burton asserts that he was actually an employee of Enterprise Solutions. He makes this assertion based on the testimony of a Storage Technologies manager who testified that, at the time he interviewed Burton, it was his “assumption that [Burton] would be working for Enterprise Solutions, who was a subcontractor to [Storage Technologies] for resources and recruitment.” However, Burton had no employment contract with Enterprise Solutions and the same manager also testified that he did not know whether Enterprise Solutions had contracted with any other party to provide Burton as an employee. Storage Technologies may have a provision in its contract with Enterprise Solutions that would allow Storage Technologies to hire employees directly after a period of six months without any additional recruiter fees. Such an agreement, however, would be solely between Storage Technologies and Enterprise Solutions. Neither Aerotek nor Burton is a party to any such agreement; the relationship between Aerotek and Burton is governed by the contract between them. The fact that Storage Technologies might have the option, as between it and Enterprise Solutions, to hire Burton without paying any additional fees to Enterprise Solutions has no bearing on Burton's obligation under his contract with his employer, Aerotek, in the event he accepts direct employment at the facility at which Aerotek was responsible for placing him.

      . For example, Burton relies upon our Supreme Court’s observation in Clark that "[c]ontracts restraining employment are disfavored 'because they tend not only to deprive the public of efficient service, but [also] ... to impoverish the individual.' " Clark v. Liberty Nat'l Life Ins. Co., 592 So.2d 564, 565 (Ala.1992) (citations omitted).

      . Although the facts of every case are different, and each case must be decided on its own merits, our courts often have upheld covenants with time and geographical restrictions that are much greater than those at issue here. See, e.g., Clark, supra (one-year limitation on solicitation of Liberty National policyholders); James S. Kemper & Co. v. Cox & Assocs., Inc., 434 So.2d 1380 (Ala.1983) (two-year restriction on solicitation of the employer's customers throughout Alabama); Rush v. Newsom Exterminators, Inc., 261 Ala. 610, 75 So.2d 112 (1954) (two-year restriction); Central Bancshares of the South, Inc. v. Puckett, 584 So.2d 829 (Ala.1991) (two-year limitation on competition in the banking business by two of a bank's top officers held to be reasonable).


author: MURDOCK, Judge. YATES, Presiding Judge,

text:
    J.W. v. D.W. and D.W. (In the matter of S.D.W., a minor).
    2000221.
    Court of Civil Appeals of Alabama.
    May 10, 2002.

      Wendy Brooks Crew of Wendy Brooks Crew & Associates, Birmingham, for appellant.
    Corey B. Moore of Weathington & Moore, P.C., Moody, for appellees.
   MURDOCK, Judge.

This matter was initiated on June 30, 2000, when B.K.W., the natural father, filed a petition seeking custody of his three-year-old daughter, S.D.W. In his petition, the father alleged that J.W., the natural mother and custodian of the child, had been neglectful in caring for the child, and that placing the child in his custody would serve the best interests of the child. Several days after he filed his petition, the mother filed a separate action seeking to establish paternity and seeking child support. The juvenile court set the father’s petition for a hearing on July 24, 2000, and appointed a guardian ad litem to represent the interests of the child in that action. The juvenile court continued the hearing on July 20, 2000, due to the maternal grandmother’s hospitalization. The hearing was continued a second time to September 25, 2000, on the mother’s motion so as to accommodate her plans concerning her impending marriage to a man domiciled in Illinois. The mother also moved to consolidate the pending custody action with the petition seeking to establish paternity and seeking child support. The juvenile court granted that motion. On September 21, 2000, the paternal grandparents, Do.W. and De.W., moved to intervene in the action to seek pendente lite custody and permanent custody of the minor child. On that same date, the parties filed a joint motion seeking a continuance of the hearing.

The hearing in this matter took place on October 3, 2000. Immediately before the hearing, the juvenile court granted the grandparents’ petition to intervene. In his opening remarks, the father’s attorney informed the court that the father was undergoing inpatient treatment for drug dependency and that he was about four weeks away from completing the program. The attorney informed the court that because of that circumstance, the father was willing to stipulate that the paternal grandparents were a better choice to be the child’s custodians than he would be. The father made it clear, however, that he was not withdrawing his petition for custody as against the mother.

The hearing proceeded, and the paternal grandmother and four “peer” witnesses, who described themselves as acquaintances of the mother, testified that the mother had been neglectful of the child’s needs. The paternal grandmother testified that the mother had resided in her home with the father for several months during the couple’s trial “engagement.” She described the mother as obsessed with communicating on the Internet to the point that she had completely ignored the child’s cries and had left the child in wet diapers. The paternal grandmother further testified that the mother had delayed seeking necessary dental treatment for the child and that the mother would commonly postpone picking up prescriptions for the child’s ear infections. The paternal grandmother testified that the mother had moved out of her home after a physical altercation between the two of them over the issue of baby-sitting for the child.

The four peer witnesses testified that they had “hung out” and “partied” with the mother and that they had witnessed the mother bring the child to parties and poker games, at which the mother had drunk alcohol to excess. One of the witnesses testified that he had seen the mother smoking pot. These witnesses provided additional testimony that the mother had ignored the child’s needs while in their presence, and that the mother had permitted the child to cry continuously without attention unless someone volunteered to assist the child. Two of the witnesses testified that they had escorted the mother to her house, which she and the minor child shared with the maternal grandmother, on occasions when she had consumed so much alcohol that she was incapable of walking the short distance to her house while carrying her child. These witnesses testified that on such occasions they would either remain at the mother’s house for the night or they would put the child in her crib while the mother went to sleep in her bed in her inebriated condition. These two witnesses testified that the mother’s home was unkempt and that the kitchen was filthy, with cockroaches crawling on the floor. In addition to the four witnesses who testified against the mother, the paternal grandparents’ attorney proffered three additional witnesses who had also socialized with the mother and who would give similar testimony; however, the parties entered into a stipulation that the testimony of those additional witnesses would be substantially similar to the other “peer” witnesses and that they therefore did not need to give testimony in the cause.

The paternal grandmother testified that the child had developed rampant decay in six of her front teeth as a result of being put to bed with a bottle. She further testified that one of those teeth had had to be extracted due to extensive decay. The paternal grandmother stated that the mother had pointed out a brown spot on one of the child’s front teeth to the paternal grandmother in October 1999. The paternal grandmother testified that she had agreed with the mother at that time that the child needed to be seen by a dentist and that, she had offered at that time to pay a portion of the child’s dental bill. She testified that she reminded the mother several times that she needed to make a dental appointment for the child, but that the mother had faded to make the necessary arrangements.

The paternal grandmother testified that on June 15, 2000, she and the mother had taken the child to see Dr. Jo Anne Jackson, a pediatric dentist. The paternal grandmother stated that Dr. Jackson had recommended stainless-steel crowns for the affected teeth, but that the mother had objected to the proposed treatment because Dr. Jackson would not allow a parent to accompany the child during the procedure and because the doctor planned on restraining the child during the treatment and using only a local anesthetic rather than general anesthesia. The paternal grandmother explained that because of these objections, the mother insisted upon seeking a second opinion.

The paternal grandmother testified that she had then made a series of appointments with Dr. Michael Anglin, another pediatric dentist, but that the mother had ultimately canceled those appointments, claiming that she had scheduling conflicts that had arisen on the appointed dates.

The record reveals that several days after the father filed the petition for custody, the mother sought dental treatment for the child at the dental school at the University of Alabama in Birmingham (“UAB”). The UAB records revealed that the student dentists planned to use the same restorative procedure using the same anesthetic Dr. Jackson had initially recommended. The mother listed Medicaid as the child’s dental insurer. Dr. Robert De-Shazer, a family dentist, testified as an expert at the hearing. Dr. DeShazer had examined the child in preparation for his testimony and stated that restoration of the child’s teeth would involve the placement of stainless-steel crowns on the affected teeth, with possible nerve treatments if the decay extended into the nerves. He further testified that if the decay extended to the point beyond which this approach was feasible, the affected teeth would require extraction and replacement by a partial denture to provide space into which the child’s permanent teeth could grow.

The mother and the maternal grandmother testified on the mother’s behalf. The maternal grandmother admitted to being absent from the home a great deal for “personal” reasons, but stated that she believed that the mother was a “pretty good housekeeper” and a good mother. The maternal grandmother testified that the mother spent some time on the computer, but stated that she was unaware that the mother would take the child with her to parties and poker games where alcohol was served. The maternal grandmother further testified that she had never seen the mother consume an alcoholic beverage and that she had never seen the mother in an inebriated condition.

K.A., the mother’s new husband, testified on her behalf. He testified that he and the mother had married on August 26, 2000, and that at the time of the hearing they were residing in Illinois. He testified that he had met the mother in mid-January 2000 when he had come to Alabama looking for a job. He explained that he was living in Illinois at the time, that he had custody of his nine-year-old son from his prior marriage, that his son’s mother had been considering relocating to Florida, and that he had come to Alabama looking for a job so that his son could be closer to Florida. He testified that he had been offered a job in Alabama in July 2000 but that he had not accepted the offer because his employer in Illinois had offered him a promotion and a substantial salary increase to induce him not to leave his employ. The mother’s husband also stated that he had included the minor child on his medical and dental insurance through his employer.

The mother testified that she did attend parties with the four peer witnesses who had testified against her; however, she stated that she had never drunk to excess at these parties and that she had kept the minor child with her when she was present at the parties and the poker games. She explained that she had delayed obtaining dental care for the child because she had had problems finding a dentist with whom she felt comfortable in entrusting the child’s care. The mother stated that she felt more comfortable with the dental students she had consulted at UAB than she had with the private pediatric dentist she had consulted on the advice of the paternal grandmother.

The record reflects that the only efforts undertaken by the guardian ad litem before the hearing had been a brief interview with the parties in his office. After testimony had concluded, the juvenile court invited the guardian to state his concerns concerning the child’s welfare. The guardian expressed three concerns. The first concern was that the problem with the child’s teeth had been noticed a year earlier and “[the parents] have yet ... to make substantial progress fixing their child’s teeth.” The guardian’s second concern was that the testimony presented during the hearing concerning the supervision of the child when she was younger. The guardian’s final concern was the relative lack of evidence presented concerning the mother’s new husband and “household” in Illinois.

The juvenile court entered a judgment declaring B.K.W. to be the natural father of the child and declaring both B.K.W. and the natural mother unfit to serve as custodian for the minor child. The juvenile court awarded custody of the child to the paternal grandparents and awarded visitation to the natural parents. The juvenile court further directed each parent to pay child support in the amount of $140 per month to the paternal grandparents. The mother filed a postjudgment motion, which was denied by operation of law. Thereafter, she filed a notice of appeal to this court. The father has not appealed from the juvenile court’s judgment. The juvenile court has certified the record as adequate in compliance with Rule 28(A)(1)(a), Ala. R. Juv. P.

Matters regarding child custody are within the trial court’s discretion, and judgments pertaining to such matters will not be disturbed on appeal absent an abuse of discretion. Watson v. Watson, 634 So.2d 589 (Ala.Civ.App.1994). In addition, when evidence is presented ore tenus, as it was in this case, the trial court’s judgment based on that evidence is presumed correct and will not be disturbed on appeal unless it is determined to be unsupported by the evidence so as to be plainly and palpably wrong. S.C.S. v. S.W.S., 707 So.2d 278 (Ala.Civ.App.1997).

Here, we are reviewing the propriety of a judgment awarding custody to a grandparent over a natural parent. Alabama law requires that a nonparent may overcome a natural parent’s prima facie right to custody of his or her child only by adducing clear and convincing evidence that the parent has either voluntarily forfeited the right to custody or has neglected the child to a degree that renders the parent unfit to be entrusted with the child’s care. Ex parte Terry, 494 So.2d 628, 632 (Ala.1986).

In its judgment, the juvenile court found:

“That both the natural father, B.K.W., and the natural mother, J.W., are unfit to have the care, custody and control of the minor child. The Court bases this finding on an opening statement made by the attorney for the natural father ... wherein he stated that the natural father was in drug rehabilitation. Also, upon testimony taken ore tenus that the natural mother has neglected the minor child and has provided an unfit place for the minor child to live. The Court finds the testimony credible that she has left dirty diapers on the floor, that her home is not being cleaned, that there are dishes and food left in the sink, that she on occasions went drinking with her Mends and on several of those occasions took her minor child with her, that she spent an inordinate amount of time on the Internet leaving the minor child unattended, that she neglected the minor child’s dental care, and that extensive dental work is now needed by the minor child.”

On appeal the mother claims that the juvenile court’s finding that she was unfit was unsupported by clear and convincing evidence. She points out that the evidence presented at the hearing pertained to the mother’s care of the child as an infant, and contends that that evidence was not material to her current capacity to care for the child, who was three years old at the time of the hearing. We note that all of the evidence presented at the hearing was admitted without objection from the mother to preserve the issue of its materiality for appellate review. “Even in juvenile cases, proper and timely objections are required.” M.W. v. State, 571 So.2d 361, 362 (Ala.Crim.App.1990). Further, not all of the testimony presented was limited to the earlier time period; the testimony concerning the condition of the child’s teeth pertained to the child at the time of the hearing. In addition, one of the peer witnesses who testified against the mother stated that he had most recently seen the mother about two months before the hearing when she awakened him from sleep to ask him to testify in favor of her as the custodial parent. This witness further stated that he had visited in the mobile home she had occupied just before she moved to Illinois; he testified that although he had found the mobile home to be somewhat cleaner than the apartment the mother and the child had previously occupied, the kitchen of the mobile home had been dirty and insect-infested. He also stated that he had “partied” with the mother as recently as the summer preceding the October hearing. From a complete review of the evidence, we conclude that the juvenile court did not plainly and palpably err in determining that the mother was an unfit parent.

The mother also claims that she was unduly prejudiced by the juvenile court’s allowing the paternal grandparents to intervene on the day of the hearing. She states that, because of her alleged lack of notice of the paternal grandparents’ intervention, she was unable to conduct pertinent discovery pertaining to the paternal grandparents and was unable to properly prepare to defend a custody case against them. The mother states that she had expected to defend a custody battle against only the father, who was a known drug abuser. In support of her argument that the juvenile court denied her rights to due process by permitting the paternal grandparents to intervene on the date of the hearing, the mother cites Rule 24(A), Ala. R. Juv. P.

The mother’s contention fails for several reasons. First, Rule 24(A) simply directs the juvenile court to ascertain, at the beginning of a hearing, whether “all necessary parties are present and ready to proceed”; it does not address the scope of any particular hearing. The mother was aware of the pending motion to intervene more than two weeks before the hearing and was sufficiently aware of the possibility that the motion would be granted to alert her to prepare her case against the paternal grandparents. Further, nothing in the record indicates that the mother contested the grandparents’ motion to intervene. Moreover, the mother failed to challenge the juvenile court’s ruling on the paternal grandparents’ motion for intervention and has therefore not preserved the issue of intervention for appellate review. See M.W., supra.

While the paternal grandparents’ motion was styled as a “Petition to Intervene and Motion for Custody, Pendente Lite,” the substance of the motion, rather than its style, is controlling. See Evans v. Waddell, 689 So.2d 23, 26 (Ala.1997). The motion states, in pertinent part:

“(13) That the [paternal grandparents] request the Court for permission to intervene as parties in the above case for the purposes of being considered for custody of the minor child.
“WHEREFORE, PREMISES CONSIDERED, [the paternal grandparents] move this Honorable Court to allow said [paternal grandparents] to intervene in the custody proceedings before this Court, award the care, custody, and control of the minor child to the [paternal grandparents] pendente lite, award the [paternal grandparents] custody of the minor child upon a final hearing in this case, and to award [the paternal grandparents] such other, further, and different relief to which they may be entitled.”

(Emphasis added.) The wording of the motion itself advised the mother that the paternal grandparents were seeking custody of the minor child “upon a final hearing.”

The trial court initially set the case for a final hearing on July 24, 2000. Thereafter, the trial court continued the trial several times by entering various notations on the case action summary sheet: “7/24/00 Cont. trial 8/7/00 9 A.M.”; “8/7/00 Cont. for trial 9/25/00 9 A.M.”; and “9/25/00 Continued for trial til 10/3/00 at 9 A.M. Pell City.” Notice of the October 3 trial setting was provided to “Stevens [attorney for the minor child], Church [attorney for the father], Poole [attorney for the mother], Moore [attorney for the paternal grandparents], and father.” Therefore, the mother was on notice that the “trial” setting on October 3, 2000, was for the purpose of conducting a final hearing.

Finally, the mother made no objection at trial to the court’s consideration of the grandparents’ petition for permanent custody of the child and the grandparents’ presentation of evidence in support of that petition. She therefore acquiesced in the trial court’s consideration of that petition and that evidence, and she cannot now be heard to complain of it on appeal. See, e.g., M.W., supra.

In light of the foregoing, the juvenile court’s judgment is due to be affirmed.

AFFIRMED.

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

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

I believe that the trial court abused its discretion in granting the grandparents’ petition to intervene on the day of the hearing. I also believe that the trial court erred in granting permanent custody to the paternal grandparents when the only petition before the court by the grandparents was a petition for custody pendente lite.

On June 30, 2000, the father petitioned for custody of the child. Before the father filed his petition, the three-year-old child had been living with her mother. On September 15, 2000, the mother petitioned to establish paternity and child support. On September 21, 2000, the grandparents filed a motion “to intervene and motion for custody, pendente lite.” On October 3, 2000, the day of the hearing, the trial court granted the paternal grandparents’ motion to intervene. Before the day of trial, the custody dispute was between the mother and the father, who was an admitted drug user. Although the trial court states in its order awarding the grandparents permanent custody that it granted the motion to intervene before the hearing in this matter, it is clear from the transcript that the motion was granted on the day of the hearing, giving the mother no time to prepare. At the hearing, counsel for the father stated that the father was participating in a drug-rehabilitation program. Counsel further stated that, as between the mother and the father, the father would be the most fit person. Counsel stated that as between the father, the mother, and the grandparents, the grandparents would be “most suited” to have custody of the child. Additionally, counsel stated that counsel would prefer the grandparents to have the child as opposed to the father. It appears from counsel’s statements that the father, for all intent and purposes, was withdrawing his petition, although counsel stated that he was not withdrawing the petition, “I am just stipulating to the Court that if it stands between my client and the biological mother, we are better than she is.” Tellingly, the father did not appear, nor did he call any witnesses. Following the hearing, the trial court found both the mother and father unfit, and awarded permanent custody to the grandparents. Both the mother and the father were awarded unsupervised visitation with the child.

It appears that counsel for the mother and the grandparents believed that the hearing was a pendente lite hearing and not a hearing for permanent custody. The grandparents’ motion indicates that they were seeking pendente lite custody and subsequently to be awarded “custody of the minor child upon a final hearing in the cause.” At the hearing, counsel for the grandparents stated:

“[The grandparents] are not out here seeking the added burden in their life to raise a child. This child at this point in its life needs that lady over there [the grandmother]. Maybe not forever, but for right now. Get these teeth fixed. If this young lady demonstrated that she is caring and capable to take care of this child, let her have the child. But for right now, the child needs to be here and get the care the child (INAUDIBLE).”

The mother argued in her motion to alter, amend, or vacate the judgment, that the trial court erred in awarding permanent custody to the grandparents, because the only petition before the court at the hearing was the grandparents’ motion for custody pendente lite. The mother’s motion stated:

“That on October 3, 2000, this Court, by granting custody to the paternal grandparents, clearly denied due process to your Petitioner herein. Further, at the time this Court granted custody to the paternal grandparents, the only pleading pending was their Petition for Custody Pendente Lite. There was no petition for the paternal grandparents to take full custody of the minor ehild[;] consequently, your Petitioner herein, at the time of the Pendente Lite hearing, had not ‘completed the discovery necessary to adequately defend a claim for full custody. Further, your Petitioner herein had no notice that the paternal grandparents were requesting full custody of the minor child or that the October 3, 2000 hearing was anything other than a temporary hearing.”

To satisfy the essential requisite of procedural due process, parties must be given timely notice of a hearing, and that notice must adequately inform the parties of the specific issues they must prepare to meet. Ex parte Shuttleworth, 410 So.2d 896, 899 (Ala.1981). “Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy.” In re Gault, 387 U.S. 1, 19-20, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Pendente lite orders awarding custody to a nonparent do not defeat the mother’s presumptive superior right to custody of a child over that of the nonparent. Ex parte R.C.L., 627 So.2d 920 (Ala.1993). Consequently, the ramifications of litigating a petition seeking pendente lite custody as opposed to one seeking permanent custody are substantial. I note that this was an initial custody determination and that the father had not yet been adjudicated to be the father of the child. It appears that both counsel for the mother and counsel for the grandparents believed that the hearing was a pendente lite hearing — not a hearing at which permanent custody must be determined. Although I recognize that the mother did not object when the grandparents were included as intervenors on the day of the hearing, this, I think, was because of her belief that the hearing was set only for pendente lite custody. Therefore, I believe that the mother was not afforded due process when the trial court failed to give her prior notice that it was considering the grandparents as permanent custodians for the child. She was denied the opportunity to present evidence challenging the suitability of a nonparent when the trial court entered a permanent order of custody after the father essentially withdrew his petition for custody in open court and the grandparents had petitioned only for custody pendente lite.

      . Those witnesses were all approximately 22 years old at the time of the hearing.


text:
    PROVIDENCE HOSPITAL v. Patricia MABINS.
    2010164.
    Court of Civil Appeals of Alabama.
    May 10, 2002.

      William R. Lancaster and Louisa Long Stockman of Helmsing, Leach, Herlong, Newman & Rouse, P.C., Mobile, for appellant.
    Submitted on appellant’s brief only.
   YATES, Presiding Judge.

Patricia Mabins injured her left shoulder, arm, and neck on June 18, 1999, during the course of her employment with Providence Hospital. On May 25, 2000, Mabins and Providence petitioned the court, seeking approval of their settlement agreement. The parties agreed that Providence had paid all of Mabins’s medical costs related to her workplace injury up to the date of the settlement agreement; that the parties desired to settle any and all claims arising out of the workplace injury; that Providence would pay Mabins $6,000 in full settlement and for her release of any and all claims arising out of the accident, or any resulting disability, or injuries; and that for a period of one year from the date of the settlement agreement Providence would continue to pay the cost of all medical expenses for which it was liable under the Workers’ Compensation Act. The court entered an order on May 25, 2000, approving the settlement agreement.

On June 14, 2001, Mabins moved the court to enforce the settlement agreement, or, in the alternative, to set aside the settlement agreement. Mabins alleged that although Providence had agreed to pay all of her medical costs for which it was liable, it had refused to pay for certain treatments related to her spine that, she says, was injured in the workplace accident that occurred on June 18, 1999. On June 27, 2001, Providence responded to Ma-bins’s motion, contending that it had declined to pay for medical treatment that was not related to Mabins’s workplace accident, that it had declined to pay for medical treatment after May 25, 2001, and that Mabins’s motion was not timely, because she had failed to file it within the six-month period provided by § 25-5-56, Ala.Code 1975.

Following a hearing, the trial court entered the following order:

“This cause came before the Court on Plaintiffs motion to enforce or set aside a worker’s compensation settlement agreement entered into by the Plaintiff and Defendant in May 2000, and following arguments of counsel and a review of excerpts of the deposition testimony of Plaintiffs treating physician, the Court determines that the settlement agreement should be enforced, and it is hereby ORDERED AND ADJUDGED as follows:
“1. That the cervical epidural block recommended by Dr. Thomas Barbour in December 2000, was consistent with the overall medical treatment rendered to Plaintiff since July 1999, and paid for by the Defendant’s insurance carrier due to Plaintiffs on the job injury; and,
“2. That the medical benefits provided for in the settlement agreement between the parties are hereby extended for a six (6) month period commencing on the date Plaintiffs treating physician is next able to see her, but no later than November 12, 2001.
“3. That all other aspects of the settlement agreement are hereby affirmed.”

Providence appeals.

Providence argues that the trial court’s order fails to comply with the mandate of § 25-5-88, Ala.Code 1975. We agree. This court has stated:

“Section 25-5-88, Ala.Code 1975, provides that a judgment in a workers’ compensation case ‘shall contain a statement of the law and facts and conclusions as determined by [the trial] judge.’ The purpose of § 25-5-88, Ala.Code 1975, is to ‘ensure sufficiently detailed findings so that the appellate court can determine whether the judgment is supported by the facts.’ Substantial compliance with this requirement is sufficient. ‘If the trial court’s findings are meager or omissive, this court may look to the record to determine if the trial court’s judgment should be upheld.’ However, ‘[i]f a judgment entered in a [workers’] compensation case fails to include a finding of facts and conclusions of law, the matter must be reversed.’ ”

Danley v. Dorsey Trailers, Inc., 784 So.2d 1052, 1053-54 (Ala.Civ.App.2000) (citations omitted).

The trial court’s order fails to set forth any findings of fact and conclusions of law as to whether Mabins’s cervical injury, for which she sought treatment in December 2000, was related to her June 1999 workplace injury. Accordingly, we must reverse the judgment and remand the cause for the trial court to comply with § 25-5-88.

REVERSED AND REMANDED.

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

MURDOCK, J., concurs in the result.

      . Mabins has not filed a brief on appeal.