author: CRAWLEY, Judge. MURDOCK, Judge, PITTMAN, Judge,

text:
    William Scott TENEYCK v. Christine Ann TENEYCK. Christine Ann TenEyck v. William Scott TenEyck.
    2020011.
    Court of Civil Appeals of Alabama.
    Oct. 10, 2003.
    Certiorari Denied Jan. 16, 2004 Alabama Supreme Court 1030188.

      Joshua J. Lane, Anniston, for appellant/cross-appellee William Scott TenEyck.
    George A. Monk of Brooks, Harmon & Monk, LLC, Anniston, for appellee/cross-appellant Christine Ann TenEyck.
   On Application for Rehearing

CRAWLEY, Judge.

The opinion of this court issued July 11, 2003, is withdrawn, and the following is substituted therefor.

William Scott TenEyck (“the husband”) and Christine Ann TenEyck (“the wife”) were married in October 1996 after a 12-year relationship. The parties met when both were working for a truck-driving school in Arkansas. Both parties had children from prior relationships; the husband had three sons, and the wife had a daughter, who the husband later adopted. The parties had one son, who was born in March 1997. The parties separated on December 30, 2000.

The husband has a high-school education. He is a member and owns a majority interest in Alabama Driver’s Academy, LLC (“the Academy”), which operates a truck-driving school. At the time of trial, the Academy had two campuses in Alabama — one in Eastaboga and one in Mobile. The Academy began operations in October 1996. Although the testimony on the amount of assistance provided to the Academy by the wife is disputed, the wife did assist the husband in the start-up of the business by typing school catalogs, researching financial issues, and preparing a building for use as a truck-driving school and as a dormitory for students. The husband characterized the wife’s contributions to the Academy as “slim to none,” while the wife insisted that her assistance was more substantial, stating that without her assistance and her income during the early days of the business, the Academy would not have existed.

When the Academy first opened in October 1996, the husband and two other people were members in the LLC. However, in 1997, the husband bought out the other members’ interests. He testified that he then made his wife a member of the LLC because Alabama law required two members in order to form an LLC. He testified that he assigned the wife a 1% membership in the LLC because he thought that was equal to her contribution to the Academy. He is the only other member of the LLC, retaining a 99% membership interest. The wife testified that she knew the husband had made her a member in the LLC, but she stated that she had not read the amended operating agreement and was not aware of the percentage of membership he had assigned her. She said she had trusted her husband and had been supportive of what she considered a joint enterprise, since they had discussed earlier in their relationship their dream of owning their own truck-driving school.

During the first few years of business, the Academy struggled; in 1998, for example, the Academy posted a loss of $11,000. However, in 2000, the Academy posted earnings of $336,000. The husband testified, however, that since the terrorist attacks of September 11, 2001, the Academy had experienced a dramatic decrease in enrollment. In addition, he explained that a company known as Student Financial Corporation (“SFC”), which had financed tuition for students of the Academy, had gone out of business in February 2002; he said that SFC still owed the Academy $430,000. The husband testified that the Academy had dropped its tuition from an all-time high of $7,995 to $3,995 if a student paid the tuition or $5,995 if the student financed the tuition through Partners’ Financial Services, Inc., another finance company with which the Academy did business.

The husband testified that his salary was $2,000 per week; he said that he was not always paid and that he had, shortly before the trial, reduced his salary to $1,000 per week. However, between January 2001 and August 2001, the husband withdrew from the Academy’s account $534,289. After withdrawals by the wife of $61,000 during the same period, the account still contained $132,000.

The Academy leased one parcel of property and purchased another parcel in Mobile in 2000. The husband testified that he leased the first parcel for $340,000; he testified that he paid $60,000 as a “down payment” on that property. He testified that he had not terminated his lease on the first parcel because he “had money in it.” The husband further testified that a better parcel became available shortly after he leased the first parcel, so he purchased the second parcel. The cost of the second parcel was $220,000; the husband testified that he paid $30,000 as a down payment on the second parcel and that he made monthly payments of $2,400 on what he testified was a $205,000 balance as of the date of the trial. A structure to house the Academy’s Mobile campus was built on that parcel; its cost was $163,000, of which approximately $72,000 was still outstanding.

The husband also leases a racetrack facility known as Green Valley Race Track for $500 per race. He has an option to buy the property for $400,000. During the term of his lease, which began in 1998, the husband has spent over $500,000 (some testimony in the record indicates that the husband has spent $800,000) for improvements to the racetrack property. The husband’s testimony reveals that the races at the track seldom generate profit of more than a few thousand dollars per race weekend; more often, however, the events barely break even.

The wife has a master’s degree. She taught school when the parties lived together in Indiana before moving to Alabama in 1996. She also taught in the Talladega County school system from the fall of 1986 until the end of May 2000. The wife made $36,000 per year in her last teaching position. At the time of trial she was employed part-time, teaching a calculus class for $325 per month.

The parties lived in a portion of the building used as the Academy’s Eastaboga campus. The building was an old schoolhouse consisting of three wings. The parties’ residence was in one of the wings. Accordingly, the Academy owns the parties’ residence. In addition, the Academy owns several of the automobiles used by the parties, including a 2001 Mercedes, which cost $95,000, and a 1986 Mercedes, which cost $36,000. Both cars were purchased in 2000.

After a trial, the trial court divorced the parties. In it original divorce judgment, the trial court awarded the husband all interest in the Academy. The trial court awarded the wife $500,000 as alimony in gross, which the trial court found represented her ownership interest in the Academy. The judgment also awarded the wife $700 per month in periodic alimony. The trial court permitted the wife to have the use of the marital residence until the husband had paid $100,000 of the alimony-in-gross award. The judgment required the wife to move within 60 days of receiving the $100,000. The parties were awarded joint legal custody of their son and daughter, with the wife having sole physical custody; the husband was ordered to pay $1,079 per month in child support. The judgment also awarded postminority educational support for the daughter. Both parties filed postjudgment motions. After a hearing, the trial court amended the judgment. The amended judgment awarded the wife $500,000 as alimony in gross; awarded the wife a lien against the husband individually and against the Academy to secure the alimony-in-gross award; set up a schedule whereby $25,000 of the alimony-in-gross award would be paid within 60 days of the date of the judgment and $2,500 installments would be paid monthly thereafter; and reserved jurisdiction to modify the amount of the monthly payment. The amended judgment further permitted the wife to remain in the marital residence until $25,000 of the alimony-in-gross award was paid and denied the wife periodic alimony; however, the trial court reserved jurisdiction over the issue of periodic alimony. Finally, the amended judgment denied postminority educational support for the daughter on the basis that Ex parte Bayliss, 550 So.2d 986 (Ala.1989), violates the separation-of-powers doctrine and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; the trial court specifically relied upon Chief Justice Moore’s dissent in Ex parte Tabor, 840 So.2d 115, 123 (Ala.2002) (Moore, C.J., dissenting), in which the Chief Justice attacked the holding of Ex parte Bayliss on both of those grounds. Both parties appeal.

I. The Husband’s Appeal

The husband raises three issues on appeal. He first argues that the trial court’s $500,000 alimony-in-gross award is excessive. He then argues that the alimony-in-gross award was mislabeled by the trial court and that it is, in actuality, an award of periodic alimony, which he also argues is excessive. Finally, the husband argues that the trial court lacked jurisdiction to order a lien against the property of the Academy.

A. Whether the Trial Court’s Award of $500,000 to the Wife Is Alimony in Gross or Periodic Alimony

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

Periodic alimony, on the other hand, “is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].” Ex parte Hager, 293 Ala. at 55, 299 So.2d at 750. Its purpose “is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.” O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999). The paying spouse’s duty to pay periodic alimony may be terminated by petition and proof that the recipient spouse has remarried or is cohabiting with a member of the opposite sex. Ala.Code 1975, § 30-2-55.

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

The husband points out that the trial court’s reservation of jurisdiction to modify the amount of the monthly payments prevents the award from being certain as to time. He also argues that this reservation of jurisdiction prevents the award from being vested. Thus, he concludes, the trial court’s award is periodic alimony.

However, the trial court’s intent to award $500,000 to the wife as alimony in gross is clearly discernable from the judgment. The trial court indicates that the parties own no real property and that the only item of substantial value in the marriage is the Academy. The trial court mentions that its $500,000 award is for the wife’s interest in the business, calls the award alimony in gross, and also addresses the issue of periodic alimony. The amount of the award, $500,000, is certain, and, despite the husband’s argument, the wife’s right to the award is vested. The reservation of jurisdiction does not prevent the award from being vested, as it reserves to the trial court the right to change the amount of the monthly payments and not the amount of the entire award. The wife’s entitlement to the $500,000 is made clear from the context of the award. The reservation of jurisdiction to modify the amount of the monthly payments, however, does prevent the award from being certain as to time. A decrease in the amount of the monthly payments would extend the period of time over which the award would be paid. Because the trial court’s award, while clearly meant to be alimony in gross, is not certain as to time, we reverse the award of alimony in gross and instruct the trial court on remand to delete from the judgment the statement in Paragraph XI.C. of the judgment reserving to the court jurisdiction to modify the monthly payments.

B. Whether the Trial Court Had Jurisdiction to Impose a Lien on the Academy’s Property

The trial court’s judgment secures the wife’s alimony-in-gross award with a lien against the husband’s individual property and against the Academy’s property. The husband argues that the trial court had no jurisdiction to impose a lien on the Academy’s property because the Academy was not a party to the divorce action and because, as an LLC, the Academy, and not the husband, owns the property subject to the lien. We agree.

The wife argues that we have affirmed judgments that have secured alimony-in-gross awards to a recipient spouse by imposing a lien against certain property. See Gibbs v. Gibbs, 653 So.2d 300 (Ala.Civ.App.1994). In Gibbs, the trial court imposed a lien on the husband’s presently owned or after-acquired real and personal property, including contract rights and accounts receivables; restrained him from disposing of any assets he owned without the court’s permission; and restrained him “ ‘from permitting the corporations which he controls through his majority ownership from transferring or disposing of any property without permission from this Court except in the ordinary course of business and under such circumstances as would not affect the net worth of any such corporation.’ ” Gibbs, 653 So.2d at 301. The wife argues that the trial court in the present case, like the trial court in Gibbs, had the power to impose a lien to secure her alimony-in-gross award. She points out that the husband is now the sole member of the LLC because her 1% interest was extinguished by the divorce judgment. Thus, she apparently reasons, the husband and the LLC are in effect the same entity.

As the husband points out, Ala. Code 1975, § 10 — 12—23(b), states that a member of an LLC has no interest in property owned by the LLC. In addition, the Academy was not a party to the divorce proceeding. It was never served; therefore, the trial court’s judgment was rendered without jurisdiction over the Academy. Cooper v. Watts, 280 Ala. 236, 240, 191 So.2d 519, 522 (1966). Although the trial court could have, like the trial court in Gibbs, ordered that the husband, as the member owning a majority interest in the Academy, dispose of no assets of the Academy that would decrease the net worth of the Academy, the trial court was without jurisdiction to impose a lien on the Academy’s property. Therefore, we must reverse that portion of the trial court’s judgment imposing a lien on the Academy’s property, and we instruct the trial court on remand to revise that portion of its judgment awarding a lien to secure the alimony-in-gross award to reflect the principles stated in this opinion.

C. Whether the $500,000 Alimony-in-Gross Award is Excessive

The husband argues that the award of $500,000 as alimony in gross to the wife is excessive. He argues that the wife’s interest in the Academy, the only significant asset of the marriage, should be limited to the 1% interest he assigned her when he bought out the other members in 1997. Thus, he says, the wife’s interest in the Academy, if the Academy is valued at $3,085,443, as the trial court expressly found in its judgment, is $30,855.

The trial court is afforded a wide degree of discretion in dividing the marital assets of the parties upon divorce. Cantrell v. Cantrell, 773 So.2d 487, 489 (Ala.Civ.App.2000). The only limitation on that discretion is that the division of property be equitable under the circumstances of the particular case, and the task of determining what is equitable falls to the trial court. Ross v. Ross, 447 So.2d 812, 813 (Ala.Civ.App.1984). In making the division, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz v. Lutz, 485 So.2d 1174, 1176 (Ala.Civ.App.1986). A property division made by a trial court will not be set aside on appeal absent a palpable abuse of its discretion. Id.

The husband says that the Academy was not in the same financial position at the time of the divorce trial as it had been during the two previous years. He says that the evidence at trial did not establish that he was able to consistently earn the amount of money he had drawn from the company in 2001. He also states that the 1% interest in the Academy that he assigned to the wife, in his opinion, corresponded to the wife’s contribution to the Academy.

The husband’s apparent belief that the 1% interest in the Academy that he assigned to the wife is conclusive of her interest in the Academy is misguided. After May 2000, the Academy generated the only income for the parties; even before the wife resigned her teaching position in May 2000, the parties used the income generated by the Academy to support the family. In 2001, the parties drew from the Academy nearly $600,000. The Academy is owned by the parties and is the only significant marital asset; the trial court was free to include its worth in its computation of the parties’ marital assets and its equitable distribution of those assets. The trial court’s alimony-in-gross award is approximately 16% of the value the trial court assigned to the Academy. Under these circumstances, we do not agree with the husband that an alimony-in-gross award of 16%> of an asset worth over $3 million is an excessive award.

II. The Wife’s Appeal

The wife appeals certain aspects of the trial court’s judgment. She argues that the $500,000 alimony-in-gross award is insufficient and inequitable. She further argues that the trial court abused its discretion in failing to award her periodic alimony in light of her being employed only part-time at the time of trial. She argues that the trial court abused its discretion in determining the child-support award, which was based on the uppermost Rule 32, Ala. R. Jud. Admin., child-support guideline amount for two children, because the parties’ income exceeds the uppermost limit of the guidelines and because she presented evidence of the children’s needs and expenses. She also argues that the trial court erred by holding Ex parte Bayliss unconstitutional and in failing to award the daughter postmi-nority educational support on that basis. Finally, the wife argues that the trial court should have ordered the husband to pay her attorney fees.

A. Whether the $500,000 Alimony-in-Gross Award Is Insufficient and Inequitable

The wife’s response to the husband’s argument that the alimony-in-gross award is excessive is to insist that the award is not sufficient. She argues that the major asset of the parties, the Academy, is worth over $3 million. The marital residence and at least two of the automobiles used by the parties are owned by the Academy, and those assets now essentially belong to the husband by virtue of the trial court’s award of the Academy to the husband. She concludes that the $500,000 award pales in comparison to the $2.5 million value of the assets the husband was awarded.

This court is mindful of our supreme court’s admonition that, when reviewing a property division, we are not to substitute our judgment for that of the trial court. Ex parte Durbin, 818 So.2d 404, 409 (Ala.2001); Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000). As mentioned above, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property, when dividing the marital property. See Lutz, 485 So.2d at 1176. While the testimony at trial established that the Academy was valued at over $3 million, some evidence indicated that the Academy would not continue to generate the income it had generated in 2001. The Academy’s profitable years were 2000 and 2001, the year prior to the separation and the year prior to the divorce trial, respectively. The husband’s evidence indicating that he had reduced tuition, that enrollment had declined, and that the bankruptcy of a student-credit agency had seriously affected the trucking-school industry could have convinced the trial court that the net worth of the Academy would likely decline in 2002 and in the years ahead. In addition, the fact that the wife is only 39 years old, is in good health, has a master’s degree, and is employable as a teacher could have led the trial court to the conclusion that the earning capacities and future prospects of the parties were not so divergent that more alimony in gross was warranted to offset the parties’ disparate incomes.

The wife also argues that evidence indicating that the husband had committed adultery should have weighed in her favor in the property division. Indeed, as the wife argues, the trial court may consider the fault of the parties when dividing the marital property, even if the divorce is not granted on the basis of fault. Ex parte Drummond, 785 So.2d 358, 363 (Ala.2000). The trial court expressly declined to divorce the parties on the ground of adultery, stating that it was not required to do so “even granting for the sake of argument that [the husband’s adultery] had been proven to the satisfaction of the court.” In light of the evidence, and given the presumption in favor of the trial court’s resolution of conflicting evidence, we cannot question the trial court’s decision not to award the wife a larger amount as alimony in gross on the basis of her allegations of the husband’s adultery. Accordingly, we affirm the $500,000 award of alimony in gross.

B. Whether the Trial Court Should Have Awarded the Wife Periodic Alimony

The wife argues that the trial court should have awarded her periodic alimony. She says that the husband’s income, which the trial court determined to have been, in the past, on average, over $29,000 per month, far exceeds her own, especially since she was not employed full-time at the time of trial. The husband argues that the trial court properly declined to award the wife periodic alimony. He says that the alimony-in-gross award places the wife in a far better financial position than she was in during the marriage. He further notes that an additional award of periodic alimony would be inequitable in light of the fact that the wife has a master’s degree and is capable of being employed as a teacher while he has only a high-school education and, despite the recent success of the Academy, he has not consistently earned a large income and will likely not continue to enjoy the profits earned in 2000 and 2001 as the Academy is facing a dim financial future.

Generally, an award of alimony is entrusted to the sound discretion of the trial court, and that award will not be set aside absent an abuse of that discretion. O’Neal, 678 So.2d at 164. In making the decision to award alimony, the trial court may consider several factors, including the parties’ respective present and future earning capacities, their ages and health, their conduct, the duration of the marriage, and the value and type of marital property. Lutz, 485 So.2d at 1176. “[T]he purpose of periodic alimony is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.” O’Neal, 678 So.2d at 164.

The trial court notes in its judgment that the husband had testified that his income had decreased dramatically in the recent past. The trial court did not, however, indicate the amount of that decrease or the actual amount of income the trial court determined the husband to be earning at the time of trial. The husband had indicated on his child-support income affidavit that his current monthly income was $8,666.67. The testimony at trial revealed that the husband took large draws, seemingly at will, from the Academy.

The wife, however, although capable of earning up to $36,000 annually as a full-time teacher, made $325 per month at the time of trial. She will be required to move from the marital residence and to set up a home with the parties’ children elsewhere. She will be paid an initial $25,000 lump-sum payment of alimony in gross and will receive monthly payments of $2,500 until the alimony-in-gross award is paid in full. The wife testified that her estimated expenses for each month, based upon a projected rent or mortgage payment of $1,500, and including expenses for private-school tuition for the parties’ son, for eating out, for entertainment the family typically enjoyed, and for yearly vacations, would be $6,780.

Despite the husband’s testimony that his income has decreased dramatically, the husband’s income affidavit shows that he makes nearly triple the $3,000 per month the trial court imputed to the wife. At the time of the divorce, the wife actually earned only $325 per month. Although the $2,500 monthly alimony-in-gross payment will cover a portion of the wife’s expenses, she will encounter several expenses in setting up a new household. In addition, the wife was not employed full-time as of the date the amended judgment was entered in September 2002; because she would be seeking a job as a teacher, the wife would have faced a more difficult time finding a full-time position because the school year had already begun and the schools would have already employed teachers for the school year. Under the circumstances of this case, we see no reason for the trial court to have changed its original award of $700 per month in periodic alimony to the wife; accordingly, we reverse the trial court’s judgment insofar as its denies the wife periodic alimony, and, upon remand, the trial court may determine, based on its view of the wife’s e:xhibit outlining her expenses, what amount of periodic alimony would be appropriate to aid and support the wife as she establishes a new household for herself and the parties’ children.

C. Whether the Trial Court’s Child-Support Award Is in Error

The wife argues that the trial court’s child-support award of $1,079 per month is in error because the parties’ income exceeds the uppermost income level of the child-support guidelines and because she presented evidence of the children’s expenses at trial. The trial court found that the husband’s income had been, on average, over $29,000 per month. However, the CS-42 child-support-guideline form contained in the record computes child support based on an income of $7,000 per month for the husband and $3,000 per month for the wife. No evidence at trial indicates that the father earns $7,000 per month. The husband’s earnings are nearly impossible to compute because, in addition to his salary, which he reduced to $1,000 per week before trial and which he states he is not always paid, he apparently draws funds from the Academy at will. His income affidavit, however, does state his monthly income as being $8,666.67. At the time of trial, the wife made $325 per month for a class she taught; the $3,000 income figure for the wife on the CS-42 form is clearly imputed income based on the wife’s former salary of $36,000 per year.

At trial, the wife testified to and admitted an exhibit outlining the family expenses. Although the husband disputed some of the figures presented by the wife (for example, the wife had used an estimated house payment because she would need to find a place to live, and the husband argued that she did not actually have such an expense), the wife’s figures indicated that the children’s expenses were approximately $2,690 per month. Included in this figure were the cost of a yearly family vacation, the cost of eating out over the course of one year, the expenses associated with activities at a lake during the summer months, and other entertainment expenses throughout the year. The wife testified that the family had routinely eaten out at least once during the week, that they had often spent the weekends at a lake enjoying the use of the family’s boat and personal watercrafts, and that they had often enjoyed movies and bowling as family entertainment activities.

When the parties’ income exceeds the uppermost level of the child-support guidelines, the trial court must use its discretion in determining the amount of child support to award. Dyas v. Dyas, 683 So.2d 971, 973 (Ala.Civ.App.1995), aff'd and remanded, 683 So.2d 974 (Ala.1996).

“When the combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor’s ability to pay for those needs. To avoid a finding of an abuse of discretion on appeal, a trial court’s judgment of child support must satisfy both prongs.”

Dyas, 683 So.2d at 973-74 (footnote and internal citation omitted).

The trial court’s judgment states that “there was no evidence presented to the Court that the needs of the children exceed or are less than the maximum support pursuant to the guidelines.” Based on that statement, the trial court awarded the maximum amount of child support for two children under the guidelines. However, as mentioned above, the wife did present evidence of the expenses associated with the children. Although an award of the maximum amount under the guidelines, despite the fact that the parties’ income exceeds the uppermost limit of the guidelines, in and of itself, is not necessarily an abuse of the trial court’s discretion, see Bridges v. Bridges, 607 So.2d 289, 291 (Ala.Civ.App.1992) (affirming an award of the maximum amount of child support under the guidelines, despite the fact that the father’s income exceeded the uppermost limit of the guidelines, in consideration of the totality of the obligations owed by the father), we find that the trial court’s finding of fact in this case — specifically, that the court was not presented with evidence that the needs of the children exceeded the maximum amount of support under the guidelines — is not supported by the evidence. Therefore, we reverse the trial court’s award of child support, and we remand the case with instructions for the trial court to consider the evidence presented by the wife and to award an appropriate amount of child support based upon its view of that evidence. Our reversal is not a comment on the evidence. We express no opinion on whether the evidence submitted by the wife would require an award of child support exceeding the maximum guideline amount; such a decision is left to the trial court upon its consideration of the evidence on remand.

D. Whether the Trial Court Erred in Holding Ex Parte Bayliss Unconstitutional

The wife argues that the trial court erred by denying postminority educational support for the daughter by holding Ex parte Bayliss, 550 So.2d 986 (Ala.1989), unconstitutional. The trial court’s judgment states that it adopts Chief Justice Moore’s dissenting opinion in Ex parte Tabor, 840 So.2d 115, 123 (Ala.2002) (Moore, C.J., dissenting). It further states the following:

“[T]he appellate courts have at least two options regarding this court’s ruling, which are:
“a. they can rule that this court has no authority to make this ruling and require this court to enter an order on postminority [educational] support in compliance with Bayliss; or
“b. they can address the issue as to whether the Supreme Court, as it was comprised in 1989 overstepped the constitution[al] boundary between the legislature's] duty to make laws and the court’s duty to rule on those laws.”

We choose option a. The supreme court and this court have considered and rejected the equal-protection arguments raised by the husband. See Ex parte Bayliss, 550 So.2d at 995; Stack v. Stack, 646 So.2d 51, 55 (Ala.Civ.App.1994); Entrekin v. Entrekin; 627 So.2d 955, 957-58 (Ala.Civ.App.1993); Turner v. Turner, 579 So.2d 1381, 1382 (Ala.Civ.App.1991). In addition, this court is bound by the decisions of our supreme court. Ala.Code 1975, § 12-3-16. We are not at liberty to overrule or modify those decisions. Thompson v. Wasdin, 655 So.2d 1058 (Ala.Civ.App.1995). The trial court’s judgment denying postminority educational support on the basis that Ex parte Bayliss is unconstitutional is therefore reversed, and the cause is remanded for the trial court to consider the request for postminority educational support in compliance with the principles established in Ex parte Bayliss and its progeny.

E. Whether the Trial Court Abused Its Discretion in Failing to Award the Wife Attorney Fees

The wife’s final argument is that the trial court abused its discretion by failing to award her attorney fees. The parties stipulated to the reasonableness of the attorney fees charged by the wife’s counsel. She argues that the failure to award her attorney fees, coupled with the structuring of the alimony-in-gross award, leaves her with insufficient funds to relocate her family, to pay her debts, and to pay her attorney fees.

The husband points out that the wife withdrew $61,000 from the Academy’s account during the parties’ separation. She testified at trial that she used some of that money to pay her attorney fees. The husband also testified that he had given the wife $1,500 to use to pay her attorney fees during the separation. The trial court did not attribute fault in the divorce, and the wife is capable of being employed as a teacher earning approximately $86,000 per year.

“It is well settled that the award of attorney fees in a divorce action is a matter within the sound discretion of the trial court. See Slater v. Slater, 587 So.2d 376 (Ala.Civ.App.1991); Holmes v. Holmes, 487 So.2d 950 (Ala.Civ.App.1986). In determining whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. Murphree v. Murphree, 579 So.2d 634, 637 (Ala.Civ.App.1991).”

McClelland v. McClelland, 841 So.2d 1264, 1272 (Ala.Civ.App.2002). Accordingly, we conclude that the trial court’s failure to award the wife attorney fees was not an abuse of discretion warranting reversal of the trial court’s judgment.

OPINION OF JULY 11, 2003, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.

YATES, P.J., concurs.

THOMPSON, J., concurs in the result.

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

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

MURDOCK, Judge,

concurring in part and concurring in the result in part.

I concur in all aspects of the main opinion except as it relates to whether the alimony-in-gross award is insufficient or inequitable; as to that issue, I concur in the result.

PITTMAN, Judge,

concurring in part and dissenting in part.

I agree with the main opinion that the trial court’s judgment must be reversed on the issues of retaining jurisdiction over the alimony-in-gross payments, placing a lien on the Academy’s property, and the constitutionality of Ex parte Bayliss, 550 So.2d 986 (Ala.1989).

I believe the judgment awarding $500,000 to the wife as alimony in gross, coupled with the wife’s ability to earn a steady income and the husband’s declining income, supports the trial court’s judgment declining to award the wife periodic alimony. I also believe that the holding of Dyas v. Dyas, 683 So.2d 971 (Ala.Civ.App.1995), aff'd and remanded 683 So.2d 974 (Ala.1996), cited in the main opinion, is not contrary to the trial court’s judgment; evidence at trial in this case indicated that, although the couple’s lifestyle before the divorce included numerous luxuries, the husband’s ability to pay for those luxuries was diminishing.

Moreover, to the extent that the trial court awarded the maximum amount of child support under the child-support guidelines, after imputing total gross income to the husband and to the wife that exceeded the uppermost limit of those guidelines, I cannot agree that such an award amounted to an abuse of discretion. See Bridges v. Bridges, 607 So.2d 289 (Ala.Civ.App.1992). Because I would defer to the trial court’s judgment as to the resolution of those two issues, I must respectfully dissent as to the reversal of the trial court’s judgment on those issues.

      . Presumably, the wife's master's degree is in education. The record does not clearly indicate that fact, however.

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


source: Caselaw Access Project

author: MURDOCK, Judge.

license: Public Domain

text:
    Yvette R. DICKERSON v. Harry L. DICKERSON.
    2020274.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2003.
    L. Scott Johnson, Jr., Montgomery, for appellant.
    Glenn D. Zimmerman of Zimmerman & Rothschild, LLC, Montgomery, for appel-lee.
   MURDOCK, Judge.

Yvette R. Dickerson, the mother, filed a motion in the Montgomery Circuit Court, requesting the reinstatement of the post-minority-educational-support obligation of Harry L. Dickerson, the father, after that obligation had been terminated by an earlier judgment. The trial court dismissed the mother’s motion for lack of jurisdiction and assessed attorney fees against her under the Alabama Litigation Accountability Act, Ala.Code 1975, § 12-19-270 et seq. (the “ALAA”). The mother appeals.

The parties married in 1979. They had two children, a daughter and a son. In October 1996, a divorce judgment was entered by the Montgomery Circuit Court divorcing the parties and awarding the mother primary physical custody of the children. The trial court reserved the determination of postminority educational support for the children.

In 2001, when the parties’ son prepared to enter college, the mother filed a petition requesting that the trial court require the father to pay a portion of the son’s college education costs. After holding a hearing on the mother’s petition, the trial court entered a judgment in October 2001 establishing each parent’s postminority-edu-cational-support obligation at approximately $1,481.50 per semester beginning in January 2002. The October 2001 judgment required the son to maintain a “C” average and to take a full course load, and it limited the parents’ support obligation to a period of four years. Paragraphs 4 and 6 of the October 2001 judgment also required the son to provide both parents with a copy of his class schedule and grades for each semester and to notify them of any grants and scholarships that he might receive. Paragraph 7 of the October 2001 judgment stated that “[i]n the event the son fails to comply with any of the terms specified above, then the legal obligations of the [mother] and [father] shall cease.”

In April 2002, the mother filed a petition to show cause alleging, in part, that the father had failed to pay postminority educational support in the amount of $1,481.50. The mother requested that the father be required to show cause why he should not be held in contempt of the trial court’s October 2001 judgment. The father was served with a copy of the mother’s petition. However, he failed to appear at the hearing on the petition; the mother appeared at the hearing, pro se. No transcript was made of the proceeding. After the hearing, the trial court entered an order on May 13, 2002, assessing court costs of $149 against the father “in addition to the $1,481.50 as prior ordered.” The trial court ordered that the father be incarcerated “until he ha[d] paid the court costs of $149.00 plus the $1,481.50 as prior ordered, for a total of $1,630.50.”

After the hearing on the mother’s petition to show cause, a writ of arrest was apparently issued against the father and he was arrested and incarcerated in the Montgomery County Detention Facility. On May 17, 2002, the trial court entered an order releasing the father from the custody of the detention facility. The order also stated that the father “shall appear before the undersigned Judge on Friday, May 24, 2002 ... and bring with him the amount of ... One Thousand Six Hundred Thirty Dollars and Fifty Cents ... to bring him in compliance with this Court’s prior orders.” A copy of the order was mailed to the mother.

On May 24, 2002, the trial court entered the following order:

“THIS MATTER comes before the Court upon the Petition for Contempt filed by the [mother].
“On the date and time of hearing there appeared in Court the [father]. The [mother] failed to appear.
“Upon consideration of same, it is hereby ORDERED as follows:
“1. That the college obligation of the [father] to the son is hereby terminated for the failure of the son to comply with the Court’s Order.
“2. That the Petition for Contempt filed by the [mother] is hereby dismissed for the [mother’s] failure to appear.
“3. That a copy of this Order shall be transmitted to counsel for and/or the parties.”

No transcript was made of the May 24, 2002, hearing. A copy of the May 24, 2002, order was mailed to each of the parties.

On June 5, 2002, the mother filed a second petition to show cause requesting that the father be ordered to show cause why he should not be held in contempt of court for allegedly failing to pay $1,481.50 in past-due postminority educational support and for failing to pay the $149 in court costs from the trial court’s May 13, 2002 order. The second petition to show cause was assigned a different case number, DR-96-735.06, than the number assigned to the mother’s first petition to show cause, DR-96-735.05; all pleadings, motions, and orders filed after the mother filed her second petition to show cause were filed in case number DR-96-735.06. The father did not file a responsive pleading to the mother’s second petition to show cause.

On August 16, 2002, the trial court held a hearing on the mother’s second petition to show cause, at which both the father and the mother appeared pro se. No transcript was made of the proceedings. On August 19, 2002, the trial court entered a judgment stating, in part:

“After hearing testimony and upon consideration of same, the Court ORDERS as follows:
“1. That the [father] shall pay to the [mother] by 4:00 p.m. today, August 16, 2002, the sum of $1,481.50 for the college tuition, plus $149.00 court costs.”

A copy of the August 19, 2002, judgment was mailed to each of the parties.

After the entry of the August 19, 2002, judgment, the father apparently paid the mother $1,630.50. However, a few days after the father made the payment to the mother, he retained legal counsel and, on August 23, 2002, filed a postjudgment motion seeking relief from the August 19 judgment. The father contended that the trial court’s May 24, 2002, order had terminated his postminority-educational-support obligation and that it had dismissed the mother’s first petition to show cause. The father also contended that the mother’s second petition to show cause “did not allege a new arrearage, as post-minority support was terminated and there was no request to reinstate or jurisdiction over the now adult ‘child.’ ” The father further asserted that his legal obligation for post-minority educational support had ceased upon the son’s alleged failure to provide him with the information required by the October 2001 order. The father requested that the trial court order the repayment of the “$1,630.50 paid to purge contempt on this frivolous and nonmeritorious claim under the Alabama Litigation Accountability Act” and that it require the mother to pay him “reasonable attorney fees, as a result of having to respond to what was and is a frivolous claim.”

The trial court held a hearing on the father’s postjudgment motion, at which the father and his counsel appeared; the mother appeared pro se. No transcript was made of the proceedings. On September 9, 2002, the trial court entered an order stating, in part:

“After hearing argument and having viewed the case law submitted the Court does find that the prior Court Order should be amended, especially in light of the fact that previous Orders of this Court had dismissed the obligations of either party as it related to the college education of the child.
“Upon consideration of same, the Court ORDERS as follows:
“1. That the legal obligation of each parent to support the child in college is hereby terminated. In hereby doing so, the Court respectfully requests of the parties that they contribute to aiding this child toward the child’s college education.
“2. All other Orders as it relates to the obligations of the [father] to the [mother] are hereby terminated.”

The September 2002 order did not require the mother to pay the father $1,630.50 and it did not award the father attorney fees.

After the entry of the September 2002 order, the mother retained counsel. Thereafter, she filed a motion to alter, amend, or vacate the judgment or, in the alternative, to “correct an oversight in [the trial court’s] order, pursuant to Rule 60(a), Ala. R. Civ. P.” The mother alleged, in part, that:

“1. [The September 2002 order] refers to previous orders that had dismissed the obligations of either party as it related to the college education of the child, when in actuality the court’s only order of dismissal was the order, dated May 24, 2002, which dismissed a Petition to Show Cause filed by [the mother], for what should have been the sole reason that the [mother] failed to appear, and no facts should have been found for lack of a prosecuting petitioner.
“2.... The [mother’s] failure to appear should only have affected her efforts to have the [father] held in contempt for failing to pay the court-ordered monies of $1,481.50.
“3. By her notarized signature below, the [mother] hereby swears to the fact that the son was in full compliance with the [October 2001 judgment].... ”

The mother requested that the trial court

“upon hearing evidence from both sides, ... reinstate[ ] the obligation that each Party pay for one half of the son’s college education, with a system of accountability that will ensure proof that grades and courses have been sent, as well as proof that grades and courses have been received, so that no Party can claim otherwise.”

On October 14, 2002, without holding a hearing, the trial court entered an order granting the mother’s postjudgment motion and stating that “the obligation of both parties to pay toward the son’s education is hereby reinstated.”

After the entry of the October 14, 2002, order, the father filed a motion making many of the same allegations, verbatim, that he had made in the August 23 motion he filed seeking relief from the trial court’s August 19 judgment. The father’s October motion added, among other things, the following:

“6. That the [father] would aver that [the mother] in her Motion to Alter, Amend, or Vacate did not allege sufficient grounds to alter, amend, or vacate the Court’s order.
“7. That the [father] would aver that the Court did not terminate postminority support in its [September 2002 order], but only clarified its earlier dismissal order, dated May 24, 2002.
“8. That the [father] would remind the Court that its order of May 24, 2002, was clear and unambiguous [‘That the college obligation of the [father] to the son is hereby terminated for failure of the son to comply with the Court’s orders.’]
“9. That the effect of said order was to divest this honorable Court of jurisdiction in this matter. Although this honorable Court held hearings on contempt, it did not reinstate the order and the only amendment by the Court was of the subsequent orders, pursuant to the [father’s first postjudgment motion].”

The father also alleged that, at the hearing that resulted in the September 2002 order, the mother had “stated the son had not presented the [father] the bills for college. She cannot come back now and say the opposite. This would be perjury.” The father again requested that the trial court order the mother to repay the $1,630.50 that he had paid to the mother and he requested “reasonable attorney fees, in the amount of $1,500.00 [to this point in the litigation].”

The trial court entered an order setting the father’s October motion for a hearing on November 4, 2002. The order reflects that a copy of the order was forwarded to counsel for both parties.

The mother filed a response to the father’s October motion, attaching an affidavit from the son in which the son stated that he had complied with the trial court’s October 2001 judgment and that he had supplied the father with notice of his college schedule, grades, and other information. In her response, the mother also requested that the trial court order the father to pay an additional $1,481.50 for the son’s college expenses for the fall 2002 semester.

On November 5, 2002, the trial court entered an order in which it specifically determined that the mother and her counsel had failed to appear at the November 4, 2002, hearing after they had been “properly noticed with the date, time, and place of hearing.” No transcript was made of the hearing. The November 2002 order further stated, in part:

“4. That this Court did not terminate postminority support in its [September 2002 order], but only clarified its earlier dismissal order, dated May 24, 2002.
“7. That the [mother’s] Motion to Alter, Amend or Vacate was filed on October 9, 2002. This is beyond the time allowed to challenge the May 24, 2002 order.
“Upon consideration of the same, the Court ORDERS as follows:
“1. That the legal obligation of each parent to support the child in college was terminated in this Court’s Order of May 2Jf, 2002.
“2. All other Orders as it relates to obligations of the [father] to the [mother] are hereby terminated.
“3. That the [mother] is taxed with the costs of this action and with the attorney fees of the [father] in the amount of $2,500, under the provisions of the Alabama Litigation Accountability Act.”

(Emphasis added.)

The mother filed a second postjudgment motion requesting that the trial court hold a hearing on her motion, that it vacate its November 2002 order, and that it order the father to pay her $1,481.50 for the son’s fall semester college expenses. The trial court set the mother’s second post-judgment motion “for oral argument, lawyers only” on December 16, 2002. No transcript was made of the December 16, 2002, hearing. Thereafter, the trial court held a hearing and entered an order denying the mother’s second postjudgment motion. No transcript was made of the hearing on the mother’s second postjudgment motion. The mother appeals.

The mother raises the following two issues on appeal:

“[1.] The trial court committed reversible error by entering a judgment against [her] in its [November 2002 order] which incorrectly reversed its [October 2002 order], which correctly reversed the [September 2002 order], which incorrectly reversed the [August 2002 order], which followed an ore tenus hearing with both parties, appearing pro se.
“[2.] The trial court committed reversible error by entering a judgment against [her] in its [November 2002 order], assessing attorney fees and court costs against her merely for filing a Motion to Alter, Amend, or Vacate, the [September 2002 order] that reversed the favorable [August 2002] order.”

The mother has also requested that this court award her attorney fees because, she says, “there is sufficient evidence in the record for this court to enumerate the grounds and evidentiary support for granting her attorney fees, pursuant to the [ALAA].” The father requests that this court hold the mother “liable for double damages” under Rule 38, Ala. R.App. P.

As evidenced by the various pleadings, motions, and trial-court orders in this case, there has been substantial disagreement and a fair amount of confusion as to the import of those orders. The disposition of this appeal depends on a proper assessment of the procedural history of this case and the posture of this case as presented to us on appeal.

In April 2002, the mother filed a petition that initiated a new action, albeit one that sought to require the father to show cause why he had not complied with a previous judgment (the trial court’s October 2001 judgment). This action was docketed as DR-96-735.05. The trial court’s May 13, 2002, order granting this petition constituted a final judgment. However, on May 24, 2002, within 30 days of the entry of its May 13 judgment, the trial court vacated that judgment and entered a new judgment (1) terminating the father’s postmi-nority-educational-support obligation and (2) dismissing, with prejudice, the mother’s first petition to show cause. No post-judgment motion or notice of appeal was filed as to this May 24, 2002, judgment.

The mother’s second petition to show cause, filed on June 5, 2002, also initiated a separate action, although, like the April petition, it too sought to require the father to show cause why he should not be held in contempt for his failure to pay an allegedly past-due postminority-educational-support obligation. The mother’s June 5 petition also requested that the father show cause as to why he should not be held in contempt for his failure to pay court costs as allegedly required by the trial court’s May 13, 2002 order. The mother’s June 5, 2002, petition ignored the effect of the trial court’s May 2k, 2002, final judgment and did not request that the trial court alter, amend, or vacate that judgment.

The trial court held a hearing on the mother’s second petition to show cause, at which it received ore tenus evidence. Thereafter, it entered its August 19, 2002, judgment requiring the father to pay the mother $1,481.50 for past-due postminority educational support and $149 for court costs, i.e., the same amounts that had been awarded to the mother in the previously vacated May 13, 2002, judgment. Contrary to the mother’s argument in her appellate brief, the trial court did not purport to reinstate the father’s postminority- educational-support obligation in its August 2002 order.

The. father paid the mother $1,630 as required by the August 19, 2002, judgment. After the father made this payment, he retained legal counsel and, thereafter, filed a motion on August 28, 2002, alleging, for the first time so far as the record reflects, that he had a meritorious defense to the mother’s second petition to show cause. The father requested that the mother be required to repay him the $1,630 that he asserted he had paid in order to purge himself of contempt on what he contended had been a “frivolous and nonmeritorious claim under the Alabama Litigation Accountability Act.” He also asked that the mother be required to pay him “reasonable attorney fees, as a result of having to respond to what was and is a frivolous action.”

After holding a hearing on the father’s first postjudgment motion, the trial court entered an order on September 9, 2002, amending its August 19, 2002, judgment by purportedly terminating “the legal obligation of each parent to support the child in college” and terminating “[a]ll other Orders as it relates to obligations of the [father] to the [mother].”

In the wake of the trial court’s entry of its September 9, 2002, order, on October 9, 2002, the mother filed a postjudgment motion. Among other things, she requested that the trial court enter an order “reinstating the obligation that each party pay for one-half of the son’s college education.” This October 9, 2002, motion is the first time the mother attempted to have the trial court vacate the May 24, 2002, judgment that had terminated the father’s postminority-educational-support obligation.

Because a timely postjudgment motion was not filed as to the May 24, 2002, judgment, the trial court had no jurisdiction to alter, amend, or vacate that judgment by “reinstating” the father’s postmi-nority-educational-support obligation when it purported to do so in its October 14, 2002, order. See Superior Security Serv., Inc. v. Azalea City Federal Credit Union, 651 So.2d 28, 29 (Ala.Civ.App.1994) (holding, in the context of a “motion to reinstate” a judgment, that “[i]t is well settled that after 30 days elapse following the entry of a judgment, the trial court no longer has authority to correct or amend its judgment, except for clerical errors”).

As noted, the father then filed a motion seeking relief from the trial court’s October 14, 2002, order and, on November 4, 2002, the trial court held a hearing on that motion. The mother and her counsel failed to appear at that hearing. After that hearing, the trial court entered its November 2002 judgment in which it correctly recognized that the father’s postmi-nority-educational-support obligation had been terminated by its May 24, 2002, judgment and that the mother had not filed a timely postjudgment motion seeking relief from that judgment. The trial court further taxed the mother with “costs of this action and with attorney fees of the [father] in the amount of $2,500.00, under the provision of the Alabama Litigation Accountability Act.”

The mother argues that the trial court’s November 5, 2002, order should be reversed. We will not specifically address all of the eight arguments that the mother makes in her brief on appeal to this court, all of which are related. The key to the mother’s numerous arguments is her contention that the August 19, 2002, judgment in DR-96-735.06, vacated or reversed the trial court’s May 24, 2002, judgment in DR-96-735.05 and reinstated the father’s postminority-educational-support obligation. However, the August 19, 2002, judgment only required the father to pay the mother a past-due postminority-edu-cational-support obligation of $1,481.50 and court costs of $149. This was the only relief the mother requested in the petition to show cause that she filed on June 5. The fact remains, however, that the trial court’s August 2002 judgment made no mention of the trial court’s May 24, 2002, judgment terminating the father’s postmi-nority-educational-support obligation and did not purport to modify that judgment. Consistent with this observation, the trial court itself recognized in its November 5, 2002, order that its May 24, 2002, judgment terminated the father’s postminority-educational-support obligation and that that judgment was not the subject of a timely postjudgment motion. Accordingly, the trial court’s conclusion in its November 2002 judgment that it had no jurisdiction to vacate or reverse the May 24, 2002, judgment and to “reinstate” the father’s postminority-educational-support obligation is due to be affirmed.

The mother next argues that the trial court erred by assessing attorney fees against her under the ALAA because, she says, “it fail[ed] to find that [her] actions were brought without substantial justification, and it failed to enumerate the grounds and evidentiary support for such a finding.” Section 12-19-273(a) of the ALAA states:

“[I]n any civil action commenced or appealed in any court of record in this state, the court shall award, as part of its judgment and in addition to any other costs otherwise assessed, reasonable attorneys’ fees and costs against any attorney or party, or both, who has brought a civil action, or asserted a claim therein, or interposed a defense, that a court determines to be without substantial justification, either in whole or part.”

The ALAA further provides:

“The phrase 'without substantial justification’, when used with reference to any action, claim, defense or appeal, including without limitation any motion, means that such action, claim, defense or appeal (including any motion) is frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose, including without limitation, to cause unnecessary delay or needless increase in the cost of litigation, as determined by the court.”

Ala.Code 1975, § 12-19-271(1); see also Ala.Code 1975, § 12-19-273 (“[w]hen granting an award of costs and attorneys’ fees, the court shall specifically set forth the reasons for such award and shall consider” a detailed list of enumerated factors, among others).

In Pacific Enterprises Oil Co. v. Howell Petroleum Corp., 614 So.2d 409 (Ala.1993), our Supreme Court stated:

“[W]e will require a trial court making the ‘without substantial justification’ determination to make its determination, the ground or grounds upon which it relies, and the legal or evidentiary support for its determination, a part of the record, either by drafting a separate written order or by having these findings transcribed for the official record.”

Id. at 418; see also Morrow v. Gibson, 827 So.2d 756, 761 (Ala.2002) (“Pacific Enterprises cannot be cited for the proposition that the phrase ‘without substantial justification’ is talismanic[;] ... [but it] does stand for the proposition that the trial court must give a basis for its ruling.”).

Although the trial court made some fact findings in its November 2002 post-judgment order, we cannot determine which of the grounds described in § 12-19-271(1) the trial court relied on in making its attorney-fee award. Rather than remanding this cause for the trial court to modify its judgment so as to state the grounds upon which it purported to rely in making its attorney-fee award, however, we find it more appropriate based on the record before us in the present case simply to reverse the judgment and instruct the trial court to enter a new judgment that does not make an attorney-fee award. We reach this conclusion based upon the confusion that obviously prevailed throughout the history of this case, the uncertainty among the parties, the changes of position by the trial court as to the import of its various orders, and the fact that the mother’s successive petitions and motions consistently met with success until the trial court entered its November 5, 2002, judgment. In reference to her efforts during the course of this litigation to obtain a reinstatement of the trial court’s August 19, 2002, judgment, the mother argues with some justification that “it is inconceivable that the court would consider her efforts to restore the court’s [own] prior order as a frivolous action.” Based on our careful review of the procedural history of this case, although we conclude that the mother’s efforts to obtain reinstatement of postminority educational support ultimately must fail, we do not think it can be concluded that the mother asserted positions that were so frivolous, groundless, vexatious, or improper as to justify the award of attorney fees under the ALAA.

Accordingly, the trial court’s judgment is affirmed except insofar as it awarded attorney fees under the ALAA; as to the award of attorney fees, we reverse the trial court’s judgment, and remand the cause to the trial court for the entry of a judgment consistent with this opinion.

The mother’s request for the award of an attorney fee on appeal is denied. In light of our disposition of this cause, the father’s request for double damages under Rule 38, Ala. R.App. P., is also denied.

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

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

      . Since no transcript was made of the May 24, 2002, proceeding, it is not clear whether the father made an oral request that the May 13, 2002, judgment be vacated and that he be relieved of his postminority-educational-sup-port obligation or whether the trial court acted on its own initiative. See generally Ex parte Owen, 420 So.2d 80 (Ala.1982) (describing a trial court’s authority to amend a judgment on its own initiative).

      . In addition, the mother has not argued that her June 5, 2002, petition constituted a motion under either Rule 59, Ala. R. Civ. P., or Rule 60, Ala. R. Civ. P., for relief from the May 24 judgment.

      . The trial court never addressed the father’s postjudgment request that the mother be ordered to repay the father the $1,630 that he had paid pursuant to the court’s August 19, 2002, judgment. Thus, that portion of the relief requested by the father in his August 23 motion was denied as a matter of law pursuant to Rule 59.1, Ala. R. Civ. P.

      . We also note that the son had become an adult before the mother requested the reinstatement of the father's postminority-edu-cational-support obligation.

      . The father chose to pay this sum before challenging his obligation to do so in his August 23 motion. Despite the trial court’s ultimate conclusion in its November 5, 2002, order that the father’s postminority-edu-cational-support obligation was terminated by the May 24, 2002, judgment, the trial court never addressed the father’s motion seeking the reimbursement of his payment. The father has chosen not to seek appellate review of the trial court’s failure to address his motion and, therefore, this issue is not before us.


text:
    WAL-MART STORES, INC. v. Dianne Lynn GARDNER.
    2020282.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2003.

      Tara Waller, Joseph H. Driver, and Kelly P. Lowery of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for appellant.
    William T. Coplin, Jr., Demopolis, for appellee.
   MURDOCK, Judge.

Wal-Mart Stores, Inc. (“Wal-Mart”), appeals from a judgment awarding Dianne Gardner workers’ compensation benefits. We reverse and remand.

Both parties agree that on September 17, 1999, Gardner, an employee of Wal-Mart, sustained an injury to her left foot while working at a Wal-Mart store hanging purses on a rack. The parties stipulated to all issues except the percentage of Gardner’s disability and whether her injury was limited to the schedule in § 25-5-57(a)(3)a.l4, Ala. Code 1975.

Gardner received treatment from several physicians after the injury. A bone scan taken on October 1, 1999, revealed a possible fracture of Gardner’s left foot. Dr. William Krauss prescribed a CAM walking boot to be worn at all times and advised Gardner not to work until her next bone scan. A second bone scan was taken on October 13, 1999; this scan was “essentially negative,” and Dr. Krauss released Gardner to return to work at full capacity. Gardner continued to experience pain in her foot and after seeing a couple of other physicians, she was referred to Dr. David Moorthi, a pain-management specialist. During Gardner’s first visit to Dr. Moorthi on December 22, 1999, he diagnosed her with Reflex Sympathetic Dystrophy (“RSD”); however, in a subsequent visit on January 21, 2000, Dr. Moorthi changed his diagnosis to arthritis because the treatments he prescribed did not improve Gardner’s condition. Dr. Moorthi acknowledged in his deposition testimony that Gardner seemed to experience “some severe pain” at times. (Plaintiffs exhibit 1, p. 51.)

Gardner saw Dr. Wesley Spruell on February 18, 2000. Dr. Spruell found Gardner to be inconsistent in her presentation and her answers regarding her condition. Dr. Krauss continued to see Gardner as well and, in a visit to him on April 5, 2000, Dr. Krauss noted Dr. Spruell’s findings and concluded, based on his own eval-nation, that Gardner had “no objective symptoms or signs” of a problem, but that she walked with a cane. (Defendant’s exhibit 3.) Dr. Krauss stated that he felt there was nothing more that he could do for Gardner and determined that his opinion she had reached maximum medical improvement. Id. However, he arranged for a Functional Capacities Evaluation (“FCE”) to be administered by Andy McGill, a physical therapist, at Tuscaloosa Therapy.

Based on the FCE test results, McGill assigned Gardner a 13% impairment to her left foot, a 9% impairment to the left lower extremity, and a 4% impairment to the body as a whole. (Defendant’s exhibit 1, p. 39.) Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and based on Gardner’s feedback, McGill gave Gardner a pain rating of 5 on a scale of 1 to 5, with a 5 being the worst pain level. McGill found that Gardner presented signs of inconsistent physical effort throughout the evaluation and recommended that she undergo another FCE, but Gardner refused.

After looking at the results of the FCE, Dr. Krauss, on May 8, 2000, rated the impairment of her lower extremity to be 14% and her impairment to the body as a whole to be 6%. (Defendant’s exhibit 3.) Dr. Krauss stated that he felt Gardner was “able to complete a light physical demand level”; he encouraged her to discontinue using the CAM walking boot, but noted that he found it appropriate that she continue to use the cane. Id.

Gardner was first cleared to return to work three days after her accident, and, aside from a two-month period during which she received medical treatment and recovered disability benefits, she has worked at Wal-Mart since that time. Currently, Gardner is a fitting-room associate and her duties include sitting in the fitting room, answering phones, and opening fitting-room doors for customers when necessary. The parties agree that Gardner earns more now than she did before the accident.

Gardner testified at trial that she endures severe pain due to her injury, rating it at an 8 out of 10, with 10 being the worst pain, and she complained that the pain was constant. She testified that she can stand only for five minutes at a time and can sit for only 30 minutes at a time. She claims that she can no longer sing in her church’s choir because of the standing required and she testified about a cruise she went on to the Bahamas in 2001 on which she had to have the special accommodation of a wheelchair to be able to able to get around the ship. Gardner also testified that she sometimes has a friend drive her to work, and that she has a nurse come to her home to cook and clean for her because she cannot do those things on her own.

Gardner filed her complaint for workers’ compensation benefits against Wal-Mart in the Marengo Circuit Court. The trial court received both oral and written evidence at the trial on June 12, 2002. The trial court entered its judgment, finding in favor of Gardner, on December 6, 2002.

Section 25 — 5—57(a)(3)i., Ala.Code 1975, commonly referred to as the “return-to-work” provision of the Workers’ Compensation Act, provides, with certain exceptions, that

“[i]f, on or after the date of maximum medical improvement, except for scheduled injuries as provided in Section 25-5 — 57(a)(3), an injured worker returns to work at a wage equal to or greater than the worker’s pre-injury wage, the worker’s permanent partial disability rating shall be equal to his or her physical impairment and the court shall not consider any evidence of vocational disability.”

In its judgment, the trial court evinced concern with the applicability of the Act’s return-to-work provision:

“It is the conclusion and finding of this Court, after having observed [Gardner], her demeanor, and heard her testimony under oath, that she has suffered a 90% physical impairment as a consequence of this accident. The case is governed by § 25 — 5—57(a)(3)(i) of the Alabama Code. That Code section states that a worker’s permanent partial disability rating shall be equal to his or her physical impairment and the Court shall not consider any evidence of vocational disability. The Court has not considered any vocational evidence and has not considered [Gardner’s] age, education, training, or work experience.”

(C. 33.)In explaining its award of a 90% physical impairment, the trial court observed that

“[t]his Court is not bound by the physician’s medical impairment rating. Compass Bank v. Glidewell, 685 So.2d 739 (Ala.Civ.App.1996). It is the duty of this Court to determine the extent of disability suffered by [Gardner] as a result of her job injuries and in making this determination all evidence has been considered, including the Court’s personal observations and interpretation of the evidence as presented.”

(C. 33.)

The trial court awarded Gardner $21,046.61 in accrued benefits and approximately $124 per week for approximately 148 weeks in future benefits. Wal-Mart appeals, contending that the physical impairment rating is not supported by substantial evidence and that the trial court improperly went outside the schedule set forth in § 25-5-57(a)(3)a., Ala.Code 1975, in its award of benefits.

The percentage of Gardner’s physical impairment with which the trial court concerned itself is only relevant if Gardner’s claim for compensation is not governed by reference to the schedule set out in § 25-5-57(a)(3)a. Section 25-5-57(a)(3)a. provides, in part:

“For permanent partial disability, the compensation shall be based upon the extent of the disability. In cases included in the following schedule, the compensation shall be 66 2/3 percent of the average weekly earnings, during the number of weeks set out in the following schedule:
“14. For the loss of a foot, 139 weeks.
“16. For the loss of a leg, 200 weeks.”

Further, § 25-5-57(a)(3)d., Ala.Code 1975, provides:

“Loss of Use of Member. — The permanent and total loss of the use of a member shall be considered as equivalent to the loss of that member, but in such cases the compensation specified in the schedule for such injury shall be in lieu of all other compensation, except as otherwise provided herein. For permanent disability due to injury to a member resulting in less than total loss of use of the member not otherwise compensated in this schedule, compensation shall be paid at the prescribed rate during that part of the time specified in the schedule for the total loss or total loss of use of the respective member which the extent of the injury to the member bears to its total loss.”

The proper application of § 25-5-57(a)(3)a. and d. was addressed by our Supreme Court in Ex parte Drummond Co., 837 So.2d 831 (Ala.2002), in which, among other things, the Court noted:

“In Bell v. Driskill, 282 Ala. 640, 213 So.2d 806 (1968), this Court established an exception that removes certain injuries from the workers’ compensation schedule. This Court held in Bell:

“ ‘[AJlthough the injury itself is to only one part or member of the body, if the effect of such injury extends to other parts of the body, and produces a greater or more prolonged incapacity than that which naturally results from the specific injury, or the injury causes an abnormal and unusual incapacity with respect to the member, then the employee is not limited in his recovery under the [Workers’] Compensation Law to the amount allowed under the schedule for injury to the one member.’
“... Specifically, the Bell test permitted an injury to a scheduled member to be compensated outside the schedule if the effect of the injury extends to other parts of the body and produces a greater or more prolonged incapacity than that which naturally results from the injury to the specific member.”

837 So.2d at 833-34 (emphasis in original) (citations omitted). The Court then renewed its commitment “to the policy that underlay the Bell test.” 837 So.2d at 834. Quoting 4 Lex K. Larson, Larson’s Workers’ Compensation Law § 87.02 (2001), the Supreme Court concluded:

“ ‘The great majority of modern decisions agree that, if the effects of the loss of the member extend to other parts of the body and interfere with their efficiency, the schedule allowance for the lost member is not exclusive.’ ”
“(Footnote omitted.) This language remains unchanged from the edition of the Larson treatise on which this Court relied in Bell. Because of the confusion that has developed surrounding the Bell test, we today adopt the language recited above from Larson, Workers’ Compensation Law § 87.02, as the test for determining whether an injury to a scheduled member should be treated as unscheduled.”

Drummond Co., 837 So.2d at 834-35.

The trial court’s judgment contains no mention of the so-called “Bell test” or the rule articulated by our Supreme Court in Drummond Co.; there is no determination of the applicability of the provisions of § 25-5-57(a)(3)a. and d. It is not the role of this court to make the findings contemplated by Drummond Co., or by those statutory provisions; that is the task of the trial court. Ex parte R. T.S., 771 So.2d 475, 477 (Ala.2000). Accordingly, the trial court’s judgment is reversed, and the cause is remanded for the trial court to enter a judgment consistent with this opinion and with the holding of our Supreme Court in Drummond Co.

REVERSED AND REMANDED.

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

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