author: LYONS, Justice.

text:
    BIRMINGHAM BOARD OF EDUCATION v. Dorothy BOYD.
    1020990.
    Supreme Court of Alabama.
    Sept. 19, 2003.

      Thomas L. Stewart and Leslie M. Klas-ing of Emond, Vines, Gorham & Waldrep, P.C., Birmingham, for appellant.
    Jerome Tucker, Birmingham; Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell & Olsen, Washington, D.C.; Charles Norton, Alabama Education Association, Montgomery; and Vance McCrary of Gardner, Middlebrooks, Gibbons, Kitt-rell & Olsen, Birmingham, for appellee.
    David R. Boyd of Balch & Bingham, LLP, Montgomery, for amicus curiae Alabama Association of School Boards, in support of the appellant.
   LYONS, Justice.

The Birmingham Board of Education (“the Board”) appeals from a permanent injunction entered by the Jefferson Circuit Court. We dismiss the appeal.

Dorothy Boyd is a school-bus driver for the Board. On August 13, 2002, the Board proposed to terminate Boyd’s employment because she was no longer insurable on account of extensive traffic violations and minor accidents. On October 8, 2002, Boyd filed a complaint in the Jefferson Circuit Court seeking a declaratory judgment, damages for breach of contract, and injunctive relief. Specifically, Boyd alleged that the Board failed to give her proper notice of her rights regarding the proposed termination. Boyd also alleged that the Board’s termination policy violated §§ 36-26-103 and -104, Ala.Code 1975, a part of the Fair Dismissal Act, § 36-26-100 et seq., Ala.Code 1975; the Alabama Constitution of 1901; and the due-process requirements discussed in Allen v. Bessemer State Technical College, 703 So.2d 383 (Ala.Civ.App.1997).

The Board filed a motion to dismiss Boyd’s complaint. In the motion, the Board asserted that Boyd had failed to exhaust all of her administrative remedies under the Fair Dismissal Act. Further, the Board stated that its termination policy (policy no. 3121) conformed with the due-process requirements of Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), and that the due-process requirements articulated in Allen were inapplicable in this case.

On October 29, 2002, the date set for the Board’s administrative hearing, the trial court granted a preliminary injunction mandating that the Board conduct Boyd’s termination hearing in compliance with several specific procedural requirements. The Board canceled the hearing and subsequently filed a motion for a summary judgment and a motion to dissolve the preliminary injunction, or, alternatively, to clarify the injunction. In its summary-judgment motion, the Board reasserted its claims that its procedures in terminating Boyd were adequate and lawful. Further, the Board stated that it could have proceeded with Boyd’s termination hearing without violating the injunction, but that it refrained from doing so to obtain clarification about the requirements of the injunction. The trial court denied the Board’s motions, stating that the Board’s termination policy was ambiguous and inadequate according to the requirements set out in Allen. Four months after it denied the Board’s summary-judgment motion, the trial court entered an order making the preliminary injunction permanent. Throughout this litigation, Boyd has been suspended with pay; her termination was never effectuated.

The Board appeals from the permanent injunction, raising two issues. However, we do not reach those issues. We dismiss the appeal because it does not present a justiciable controversy.

The Board stated in both its summary-judgment motion and its initial brief to this Court that the trial court’s preliminary injunction would not have been violated had the Board conducted Boyd’s termination hearing. In its summary-judgment motion, the Board stated:

“In fact, the Board continued Boyd’s hearing which had been set for October 29, 2002 upon its receipt of [the trial] court’s Order, not because it felt that the hearing it intended to provide Boyd would have been in violation of [the trial] court’s Order, but rather ... the Board determined that it could not proceed with the hearing without further direction from [the trial] court.”

(Emphasis added.) In its brief to this Court, the Board stated:

“While the Board believed that it could have proceeded with the hearing set for October 29, 2002, without violating the order, it continued the hearing to avoid any misunderstanding as to the requirements of the order.”

(Board’s Brief, p. 5.) (Emphasis added.) The Board later asserted in its reply brief that the injunction prevented the Board from conducting Boyd’s termination hearing:

“The Board has been enjoined from moving forward with a hearing to terminate one of its employees unless it complies with the terms of an injunction, some of which it believes to be inappropriate.”

(Board’s Reply Brief, p. 4.) (Emphasis added.)

The Board’s later statement in its reply brief is clearly inconsistent with its earlier statements. We do not permit new matters to be raised for the first time in a reply brief. Giambrone v. Douglas, 874 So.2d 1046 (Ala.2003). Even if we were disposed to do so, the injunction was not attacked in the trial court on the basis that some of its terms were “inappropriate.” We cannot reverse the trial court’s judgment on grounds not presented to the trial court. See Sanders v. Smitherman, 776 So.2d 68, 73 n. 4 (Ala.2000). Consequently, the Board’s position before this Court is the position asserted in its initial brief that “it could proceed with the hearing set for October 29, 2002, without violating the order.”

A justiciable controversy is a prerequisite to this Court’s subject-matter jurisdiction. Ex parte James, 836 So.2d 813, 825 (Ala.2002). A case is justiciable when the party “ ‘has been injured in fact.’ ” Kid’s Care, Inc. v. Alabama Dep’t of Human Res., 843 So.2d 164, 166 (Ala.2002) (quoting State v. 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999)). Moreover, a justiciable controversy requires the parties to seek remedies from having sustained damage as opposed to seeking advice from the Court. Siegelman v. Alabama Ass’n of Sch. Bds., 819 So.2d 568, 576 (Ala.2001). See also State ex rel. Baxley v. Johnson, 293 Ala. 69, 75, 300 So.2d 106, 111 (1974).

The Board contends in its reply brief that this Court has previously determined that it had subject-matter jurisdiction in such cases and given guidance as to the interpretation of injunctions.

The Board cites Auburn University v. Advertiser, Co., 867 So.2d 293 (Ala. 2003), as authority. This case, however, is distinguishable from Auburn University. In that case the defendants appealed a judgment awarding both injunctive and declaratory relief. This Court therefore properly addressed the defendants’ rights and responsibilities. Furthermore, an" actual controversy existed in Auburn University because the defendants did not claim that they could proceed with their intended actions without violating the injunction. The Board’s appeal essentially asks this Court to give it advice on the appropriate manner in which to terminate its employees where it has acknowledged that the procedural requirements in the injunction for terminating Boyd’s employment are consistent with its termination procedures. Such advisory rulings are not a proper function of this Court.

The Board has shown no cognizable injury or damage as a result of the injunction. Here, the principal damage suffered by the Board is the continuation of Boyd’s employment with pay. Under the circumstances here presented, the issuance of the injunction is not the source of the injury. After the issuance of the preliminary injunction, the Board filed a motion for a summary judgment and a motion seeking clarification of the injunction, at which time, as previously noted, the Board acknowledged that its policies and procedures complied with those mandated by the injunction. The Board’s failure to proceed with the termination hearing initially scheduled for October 29, 2002, cannot, therefore, be attributed to the issuance of the injunction.

Whether further proceedings seeking declaratory relief regarding its termination policy are available to the Board and whether the injunction is specific enough to support a citation of contempt are issues that are not presently before us. Because the Board’s appeal does not present a jus-ticiable case or controversy, it is due to be dismissed.

APPEAL DISMISSED.

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

      . Boyd’s original complaint listed Dock Stanford as a coplaintiff and the Board and Way-man Shiver as codefendants. Stanford is no longer a party to this action because the termination of his employment was rescinded. Shiver, the superintendent of the Board at the time of Boyd's suspension, is not a party to this appeal. Boyd contends that Shiver's failure to file a notice of appeal justifies a dismissal of the appeal as to him. The Board points out that the trial court's injunction applies only to the Board. We need not reach this issue, however, because we dismiss the appeal on another ground.

      . The Board petitioned for a permissive appeal of the trial court's denial of its summary-judgment motion, pursuant to Rule 5, Ala. R.App. P. This Court denied that petition. Ex parte Birmingham Bd. of Educ. (No. 1020389, January 9, 2003).

      . While the trial court denied the motion for clarification, we are not asked to reverse the injunction for want of specificity as to the act or acts sought to be restrained. See Rule 65(d)(2), Ala. R. Civ. P., and McKenzie v. Commalander, 549 So.2d 476 (Ala.1989).


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Betty CHUNN v. Kathryn WHISENANT et al.
    1021180.
    Supreme Court of Alabama.
    Sept. 19, 2003.

      Burt W. Newsome of Hubbard, Smith, Mcllwain, Brakefield & Browder, Tuscaloosa, for appellant.
    Charles H. Pullen, Huntsville, for appel-lee Kathryn Whisenant.
    Elizabeth T. Cvetetic, Huntsville, for ap-pellees Donald Morrow, Ernestine Morrow, and River Valley Properties, Inc.
   WOODALL, Justice.

Betty Chunn appeals from a summary judgment entered in favor of Kathryn Whisenant, Don Morrow, Ernestine Morrow, and River Valley Properties, Inc., in Chunn’s action seeking, among other things, an equitable lien on improvements she made to real estate as Whisenant’s lessee. We affirm in part, reverse in part, and remand.

The facts material to this appeal are undisputed. In 1991, Whisenant owned a building in Huntsville, in which an adult lounge had operated for several years. By an instrument dated August 1, 1991, Whi-senant agreed to lease the property to Chunn for six months. Chunn began operating an “adult cabaret” on the premises, known as “Chick’s Lounge.” By its terms, the lease expired on January 31, 1992; it was never renewed in writing. However, Chunn continued to operate the lounge under an oral arrangement (“the arrangement”) until 1997.

On April 13, 1997, the property was damaged by a fire. Because the property was uninsured and unusable in its damaged state, Chunn and Whisenant discussed the future of the arrangement. When Whisenant indicated that she did not intend to repair the building, they discussed whether Chunn could pay for the repairs. Whisenant described the conversation as follows:

“[Chunn] said: ‘Can I repair it; would you let me stay there?’
“And I said: “Yes, as long as I own the building, you can stay there as a lounge as long as you keep a clean operation until I decide to do something else with the building or sell it.’ ”

During that same conversation, Whisenant also said that if she ever sold the property, she would give Chunn the “first opportunity to buy it.”

Subsequently, Chunn paid $42,514 for repairs to the building. In June 1997, the lounge reopened and continued in operation for the next four years.

By an instrument dated August 24, 2001, Whisenant agreed to sell the property to Ernestine Morrow and her husband, Don Morrow, for $119,270. It is undisputed that Whisenant never offered to sell the property to Chunn for that price. According to the unrefuted testimony, at or about the time of the offer to the Morrows, Whi-senant offered to sell the property to Chunn for $179,000. Chunn declined the offer and did not discover the substance of the offer to the Morrows until after the sale.

Subsequently, in October 2001, discussions occurred between the Morrows and Chunn regarding the future of Chick’s Lounge. At that time, according to Don Morrow’s deposition, he proposed to Chunn that she sell him “her equipment,” including poker machines, a cooler, tables and chairs, and liquor. He presented Chunn with an instrument, styled “Agreement for Purchase and Sale of Assets” (“the Agreement”), pursuant to which he agreed to buy the equipment for $19,000. Morrow told her that if she did not sign the Agreement, she would have to remove her equipment from the premises.

During the discussion, Chunn asked Morrow about the $42,514 she had invested in the premises. Morrow told her that he “didn’t know anything about that, [and that] she would have to take that up with [Whisenant].”

Chunn did ask Whisenant to reimburse her for the improvements, and Whisenant refused to pay her anything, stating: “I didn’t tell you to put it in there, you done it on your own.” Chunn and Don Morrow signed the Agreement on October 15, 2001.

On February 7, 2002, Chunn sued Whi-senant and Don Morrow. The complaint, as last amended, named as defendants Whisenant; Don Morrow and Ernestine Morrow; and River Valley Properties, Inc., which, it was alleged, was owned by the Morrows and had some interest in the property. The complaint contained claims against Whisenant alleging (1) fraud, (2) misrepresentation, (3) breach of contract, (4) a quasi-contract theory of recovery, (5) “interference with contractual or business relations,” and (6) promissory estoppel. It contained claims against Ernestine Morrow alleging breach of contract, and against Don Morrow and Ernestine Morrow alleging (1) breach of fiduciary duty and (2) “interference with contractual or business relations.” It sought various species of equitable relief, including (1) an “equitable lien against the premises,” (2) damages in quantum meruit, and (3) annulment of the sale of the premises to the Morrows.

On August 29, 2002, Chunn moved for a summary judgment on her breach-of-contract and promissory-estoppel claims against Whisenant. On November 18, 2002, Don Morrow and Ernestine Morrow moved for a summary judgment as to Chunn’s claims against them and River Valley Properties. On February 25, 2003, Whisenant moved for a summary judgment. Whisenant’s motion challenged specifically only the breach-of-contract claim, asserting that the claim was barred by the Statute of Frauds, Ala.Code 1975, § 8-9-2. As for the remainder of Chunn’s claims, Whisenant’s motion stated:

“Chunn sold to Donald and Ernestine Morrow all of her rights in the subject property, including any rights she might have had as a tenant, prior to filing ... this action. As a result, all of Chunn’s claims, if any at all ever existed, were assigned to the Morrows, and Chunn is barred from asserting those claims.”

(Emphasis added.) On February 28, 2003, the trial court — citing only the Agreement — granted the motions of the Morrows and Whisenant and denied the motion of Chunn.

Chunn appealed, contending that the Agreement did not release or extinguish any claims she has against Whisenant. She insists that Morrow and she never intended for the Agreement to encompass her claims for the recovery of funds she expended on improvements to the leased premises following the fire in April 1997. Moreover, she argues, Whisenant never paid any consideration for the Agreement, and, therefore, Whisenant is “not entitled to ... benefit from any purported release language contained in the Agreement.” Brief of Chunn, at 46.

The Agreement provides:

“AGREEMENT FOR PURCHASE AND SALE OF ASSETS
“THIS AGREEMENT is made at Huntsville, Alabama, this 15 day of October 2001 by BETTY CHUNN (hereinafter referred to as ‘Seller’), ... and DONALD W. MORROW (hereinafter referred to as ‘Purchaser’)....
“RECITAL
“The Purchaser desires to purchase and receive from the Seller, and the Seller desires to sell and assign to the Purchaser, Seller’s below-named properties, assets and business as a going concern.
“AGREEMENT
“THEREFORE, in consideration of the mutual promises and conditions contained in this Agreement, the parties hereby agree as follows:
“PURCHASE AND SALE
“1. Upon the terms and conditions in this Agreement and the performance by each party of their respective obligations, the Purchaser agrees to purchase from the Seller, and the Seller agrees to sell and deliver to the Purchaser on the closing date, all the herein-described Seller’s properties, assets and business as a going concern other than her accounts receivable, corporate books, records, and seal, all of which shall be retained by the Seller.
“PURCHASE PRICE
“2. Subject to the terms and conditions of this Agreement, and in full consideration for the conveyance, transfer and delivery of the Seller’s herein-described properties, assets and business to the Purchaser at the closing:
“(a) The purchase price is NINETEEN THOUSAND AND NO/100 DOLLARS ($19,000.00).
“(b) The Purchaser will deliver the sum of FIFTEEN THOUSAND AND NO/100 DOLLARS ($15,000.00) in- certified funds upon execution of this Agreement. The Seller expressly agrees that she has already received the sum of ONE THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS ($1,800.00) through October 15, 2001, as pre-payment herein.
“(c) Seller agrees to pay to Purchaser the balance of TWO THOUSAND TWO HUNDRED AND NO/100 DOLLARS ($2,200.00) in certified funds in regular weekly payments of TWO HUNDRED AND NO/100 DOLLARS ($200.00). Payments shall continue until paid in full, with the final payment due no later than the 31st day of December 2001. Purchaser has the right to pre-pay the balance prior to December 31, 2001, without penalty.
“INVENTORY
“3. The foregoing purchase price shall be given in consideration of the sale, transfer and conveyance of the following:
“(a) the business currently operated as ‘Classic Country’ (a/k/a Chick’s Lounge), located at 12531 Memorial Parkway South, Huntsville, Alabama 35803; and
“(b) the goodwill, office supplies, inventory, and attachments of said business.
“4. It is expressly understood and agreed by the parties hereto that the above does not include those machines provided by Clayton Amusement Company.
“DEBTS
“5. The Seller agrees to be and is hereby solely responsible for all previous debts of' ‘Classic Country’ and will hold Purchaser harmless from same. The said debts includes but is not limited to past accounts payable, rent, utilities, payroll, and state, federal, and local taxes.
“LICENSURE
“6. The Seller agrees to allow the Purchaser to operate under its Business and Alcohol license through the 31st day of December 2001.
“ASSIGNMENT OF LEASE
“7. The Seller hereby assigns to Purchaser her rights in the lease she previously entered into with the owner of the premises located at 12531 Memorial Parkway South.
“WARRANTY
“8. The Seller hereby warrants that the leasehold being transferred, 12531 Memorial Parkway South, is free and clear of all claims including but not limited to those specified in Paragraph 5, herein.
“FINAL AGREEMENT
“9. This Agreement constitutes the entire agreement between the parties hereto, and there are no agreements, understandings, restrictions, warranties of representations between the parties other than those set forth herein or herein provided for.
“IN WITNESS WHEREOF, the undersigned Seller and Purchaser each set their hand and seal on this 15 day of October 2001, at Huntsville, Alabama.”

Citing paragraphs 1 and 7 of the Agreement, the appellees argue that “Chunn clearly and unequivocally sold or assigned all of the rights she might have had in the property or the purported lease to Morrow.” Brief of appellees, at 17-18 (emphasis added). “That assignment,” they insist, “included her right to bring the instant action against the appellees.” Id. at 18 (emphasis added). “As a result,” they argue, “the trial court’s entry of summary judgment was correct and is due to be affirmed.” Id. For the following reasons, we disagree with these contentions.

First, the appellees exaggerate the scope of paragraph 1. They read it as though it said: “[Chunn] agrees to sell and deliver to [Morrow] on the closing date, all [of Chunn’s] properties, assets and business as a going concern.” Actually, the paragraph states:

“Upon the terms and conditions in this Agreement and the performance by each party of their respective obligations, [Morrow] agrees to purchase from [Chunn], and [Chunn] agrees to sell and deliver to [Morrow] on the closing date, all the herein-described [Chunn’s] properties, assets and business as a going concern other than her accounts receivable, corporate books, records, and seal, all of which shall be retained by [Chunn].”

(Emphasis added.) In other words, the appellees ignore the clear language of paragraph 1, which limits the scope of the sale to those assets “herein described,” that is, to those assets actually described in the document.

Those assets are listed in paragraph 3(a) and (b), under the heading, “Inventory.” They consist of “the business” and the “goodwill, office supplies, inventory, and attachments of said business.” Conspicuously absent from this list — and from every other paragraph in the instrument — -is reference to any legal or equitable interest in real estate.

According to the familiar principle of noscitur a sociis, “where general and specific words which are capable of an analogous meaning are associated one with the other, they take color from each other, so that the general words are restricted to a sense analogous to that of the less general.” Winner v. Marion County Comm’n, 415 So.2d 1061, 1064 (Ala.1982). Nothing in the Agreement evidences an intent to include within the terms “assets” or “business” the transfer or assignment of an interest, or a right to assert an interest, in real estate.

This is especially significant in light of the fact that the real estate was then owned by the Morrows. The appellees argue: “Summary judgment was properly entered in favor of the appellees as to all of Chunn’s claims because, prior to her initiation of this action, Chunn sold the subject business along with all of her rights therein, including any rights she might have had as a tenant, to Morrow.” Brief of appellees, at 16. The appellees’ argument invites the conclusion that Morrow purchased the right to assert an equitable lien against property owned by him.

We cannot reach this conclusion. The purchase of such a right would have been in essence a “release.” However, the Agreement does not purport to be a “release.” The word, “release,” like the phrase “real estate,” appears nowhere in the Agreement.

Equally unavailing is the appellees’ reliance on paragraph 7, which states: “[Chunn] hereby assigns to [Morrow] her rights in the lease she previously entered into with [Whisenant].” (Emphasis added.) The “lease” expired on January 31, 1992. From then until Whisenant sold the property, Chunn operated Chick’s Lounge by the amorphous oral permission of Whi-senant. Presumably, it was this arrangement to which paragraph 7 referred.

In any ease, Whisenant’s promise to give Chunn the “first opportunity to buy” the property was not a “lease” in any sense, but a “right of first refusal” in the form of a side agreement. It was supported by consideration independent of the lease, namely, Chunn’s promise to repair the real estate. Thus, paragraph 7, by its express reference to the lease, did not purport to assign or transfer any interest arising from the right-of-first-refusal side agreement. In short, the Agreement has no effect on claims arising out of the alleged breach of the right of first refusal, and the trial court erred in relying on the Agreement as a basis for its summary judgment.

It is undisputed that the Agreement was the sole basis for the summary judgment. The effect of the Agreement on Chunn’s claims is the sole issue addressed in the appellees’ brief. Indeed, the purported assignment is the only argument ever directed to all of Chunn’s claims. More specifically, Whisenant’s summary-judgment motion did not otherwise challenge Chunn’s claims of fraud, misrepresentation, quasi-contract, interference with contractual or business relations, or promissory estoppel. Because the trial court considered those claims only in the context of the Agreement, and erred in so doing, we reverse the summary judgment in favor of Whisenant, and remand the case for further proceedings.

We hasten to point out, however, that Chunn makes no argument and cites no authority in support of any of her claims against the Morrows or River Valley Properties. Thus, we deem as abandoned any challenge to the summary judgment in favor of the Morrows and River Valley Properties. Tucher v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317 (Ala.2003); Bettis v. Thornton, 662 So.2d 256, 257 (Ala.1995) (an argument not made on appeal is abandoned or waived); Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) (“Issues not argued in the appellant’s brief are waived.”). The summary judgment in favor of Don Morrow, Ernestine Morrow, and River Valley Properties is, therefore, affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

HOUSTON, LYONS, JOHNSTONE, and STUART, JJ., concur.

      . The complaint, as last amended, asserted no claims specifically against River Valley Properties.

      . On appeal, Chunn makes no argument and cites no authority in support of her claims against the Morrows and River Valley Properties; thus, she has abandoned any challenge to the summary judgment in their favor.

      . Indeed, the word "release” never appears in the brief the appellees filed in this Court. Otherwise stated, the appellees do not argue that the Agreement constitutes a "release.”


author: THOMPSON, Judge.

text:
    Angela D. STEED v. Ronnie Lee STEED.
    2020501.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Yvonne Gabrielson, Dothan, for appellant.
    Kevin Walding of Hardwick, Hause & Segrest, Dothan, for appellee.
   THOMPSON, Judge.

Angela Steed (“the mother”) appeals from a divorce judgment of the trial court awarding custody of the parties’ son and daughter to Ronnie Steed (“the father”).

The father sued the mother for a divorcé and for custody of the son and daughter on August 27, 2002. The mother filed her answer and a counterclaim for divorce. The trial court entered a temporary order in which it gave the father custody of the children and ordered the mother to pay child support. The trial court received ore tenus evidence and the parties stipulated as to the division of marital property with the exception of the division of the father’s retirement account.

On January 28, 2003, the trial court entered its final judgment divorcing the parties and awarding them joint custody of the children, with the father having primary physical custody. The trial court awarded the mother standard visitation and ordered the mother to pay $375 per month in child support. The trial court found that the mother was not entitled to a portion of the father’s retirement account. The mother appealed.

Where á trial court receives ore tenus evidence, its judgment based on that evidence is entitled to a presumption of correctness on appeal and will not be reversed absent a showing that the trial court abused its discretion or that the judgment is plainly and palpably wrong. Scholl v. Parsons, 655 So.2d 1060 (Ala.Civ.App.1995). “The presumption of correctness is based in part on the trial court’s unique ability to observe the parties and the witnesses and to evaluate their credibility and demeanor.” Littleton v. Littleton, 741 So.2d 1083, 1085 (Ala.Civ.App. 1999). In addition, when the trial court’s judgment does not contain specific findings of fact, this court must assume that the trial court made those findings of fact necessary to support its judgment. Ex parte Bryowsky, 676 So.2d 1322 (Ala.1996). This court is not permitted to reweigh the evidence on appeal and to substitute its judgment for that of the trial court. Somers v. McCoy, 777 So.2d 141 (Ala.Civ.App.2000); see also Ex parte Perkins, 646 So.2d 46 (Ala.1994).

The mother and the father were married on March 25, 1994. At the time of the parties’ marriage, the daughter was two years old. The daughter was born of a previous relationship of the mother’s. The father legally adopted the daughter when she was two years old, and he treated the daughter as his biological child. Neither party told the daughter that she was adopted. The daughter used the father’s last name. In October 1997, the mother gave birth to the son. At the time of trial, the daughter was 10 years old and the son was 5 years old.

Both parties worked full-time during the marriage. At the time of the trial, the father was employed at Louisiana Pacific. The mother had worked at SpectraCare until January 2002, when she went to work in a dental office. The mother went back to work at SpectraCare in September 2002, during the pendency of the divorce proceeding. Evidence in the record indicated that both parents took an active role in raising the children. The mother admitted that she had engaged in at least one extramarital affair during the parties’ marriage.

In her brief on appeal, the mother argues that the trial court erred by awarding custody of the children to the father because, she argues, there was insufficient evidence to support a finding that placing the children with the father was in the children’s best interests. The determination of an award of child custody is within the sound discretion of the trial court. Pierce v. Helka, 634 So.2d 1031, 1032 (Ala. Civ.App.1994). A trial court’s custody determination following the presentation of ore tenus evidence is presumed correct, and that judgment will not be set aside on appeal absent a finding that the trial court abused its discretion or that its determination is so unsupported by the evidence as to be plainly and palpably wrong. Pierce v. Helka, supra.

When the trial court makes an initial custody determination, neither party is entitled to a presumption in his or her favor, and the “best interest of the child” standard will generally apply. Nye v. Nye, 785 So.2d 1147 (Ala.Civ.App.2000); see also Ex parte Byars, 794 So.2d 345 (Ala.2001). In making an initial award of custody based on the best interests of the children, a trial court may consider factors such as the “ ‘characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.’ ” Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)(quoting Ex parte De-vine, 398 So.2d 686, 696-97 (Ala.1981)). The adulterous conduct of a parent is one factor the trial court may consider in making an award of custody; however, a parent will not be denied custody for every act of indiscretion. Murphree v. Mur-phree, 579 So.2d 634 (Ala.Civ.App.1991). Other factors the trial court may consider in making a custody determination include “the sex and age of the [children], as well as each parent’s ability to provide for the [children’s] educational, emotional, material, moral, and social needs.” Tims v. Tims, 519 So.2d 558, 559 (Ala.Civ.App.1987). The overall focus of the trial court’s decision is the best interests and welfare of the children.

The parties do not dispute that the mother engaged in an adulterous affair. While the trial court did not state its particular reasons for holding that it was in the best interests of the children to place them in the physical custody of their father, it was proper for the court to consider the evidence of the mother’s adulterous affair.

The mother testified that the father was a good and fit parent. The father testified that he often fed and bathed the children and put them to bed. The father testified that the mother went out at night five to six times per week with friends. The mother denied those allegations.

The father testified that he suffered from epilepsy. The mother testified that the father’s epilepsy could place the children in harm’s way. However, the mother admitted that there had never been an incident where the father had had a seizure and hurt a child. The mother also admitted that she suffered from medical problems. The mother testified that she takes medication for depression and that she has had “sharp, radiating pain from the neck — from the shoulder all the way down to the hand.”

There was ample evidence in the record from which the trial court could have found that the children’s best interests would be served by awarding the father physical custody of them. Although the trial court did not indicate what factors it used to award physical custody of the children to the father, this court will assume that the trial court made those findings of fact necessary to support its custody judgment. See Ex parte Bryowsky, supra.

We further note that the record reveals that the trial court conducted an in camera interview with the daughter in this case, but a transcript of that interview is not before us on appeal. This court held in Ezell v. Hammond:

‘Alabama has long recognized that judges may conduct in camera interviews with minor children, who are the subject of divorce custody proceedings,’ provided that the parties have consented thereto. Anonymous v. Anonymous, 353 So.2d 515, 517 (Ala.1977). If neither party requests that a transcript be made of the interview, however, the record on appeal of such case is incomplete, and therefore, an affirmance is mandated by the rule stated in Eaton v. Shene, 282 Ala. 429, 430, 212 So.2d 596, 598 (1968)(‘[W]here there was evidence before the trial court and not before [the appellate court], which may have influenced [the trial court] at arriving at the conclusion it reached, we cannot disturb that finding’). Accord, Johnson v. Johnson, 395 So.2d 1043 (Ala.Civ.App.1981).”

Ezell v. Hammond, 447 So.2d 766, 768-69 (Ala.Civ.App.1984). Given the evidence presented to the trial court and the record before us on appeal, we cannot say that the trial court erred in awarding physical custody of the children to the father.

The mother also argues that this court should consider the fact that she is the daughter’s biological mother in determining child custody. The mother specifically contends that Alabama caselaw gives preference to “blood relation,” and, therefore, she argues, her biological tie to the daughter warrants preferential treatment. Section 26-10A-29(a), Ala.Code 1975, provides that an adopted child “shall be treated as the natural child of the adopting parent ... and shall have all rights and be subject to all of the duties arising from that relation.” In Douglas v. Harrelson, 454 So.2d 984, 986 (Ala.Civ.App.1984), this court held:

“In Alabama adoption is a status created by the state acting as parens patri-ae, the sovereign parent. Ex parte Bronstein, 434 So.2d 780 (Ala.1983). The policy of the adoption statute is to treat adopted children in all respects as natural children. Ex parte Bronstein, supra. One of the rights vested in the adoptive parents is the right to custody. Jones v. Jones, 215 Kan. 102, 523 P.2d 743, cert, denied, 419 U.S. 1032, 95 S.Ct. 515, 42 L.Ed.2d 307 (1974).
“The presumption is strong that a child’s best interests lie with its natural parents, and the authority of the parents will not be interfered with except for gross misconduct or where the parents lack the capacity or the means to properly care for the child. Ex parte Sullivan, 407 So.2d 559 (Ala.1981). Where the dispute over a child’s custody arises between the natural parents and a third person, the superior claim is with the parents, and that custody will not be disturbed unless it plainly appears that a custody change is required. 407 So.2d 563, supra.
“Since adoptive parents stand in the shoes of natural parents so far as custody of a child is concerned, the ■ above propositions apply as well to ■ adoptive parents.” .

Thus, the father stands- on equal footing with ■ the mother because he legally adopted the daughter. Therefore, we cannot say that the trial court' abused its discretion in treating the adoptive father like a natural parent in making its custody determination.

The mother next argues that the trial'court erred by failing to award her a portion of the father’s retirement account. In its divorce judgment, the trial court held that the mother had no claim to the father’s retirement benefits. Section 30-2 — 51(b) provides:

“(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
“(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
“(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
“(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court.”

(Emphasis added.)

In Smith v. Smith, 836 So.2d 893 (Ala.Civ.App.2002), this court held that Section 30-2-51, Ala.Code 1975, only applied to parties that had been married over 10 years. This court stated:

“The husband argues that because he and the wife had not been married for 10 years'at the time the divorce action was filed, it was error for the trial court to award any of his retirement benefits to the wife. We agree. Although § 30-2-51 is not a model of legislative clarity, we conclude that it requires that the parties must have been married for at least 10 years on the date the action for divorce is filed.”

Smith, 836 So.2d at 899.

The mother and the father had not been married for 10 years at the time the father filed the complaint for divorce in August 2002. At that time, the parties had been married for only eight years. Thus, the trial court lacked the discretion to award the mother a portion of the father’s retirement benefits pursuant to § 30-2-51, Ala. Code 1975.

The mother argues that the trial court erred in awarding the father $375 per month in child support when the mother was required to pay only $358 per month pursuant to the Uniform Child Support Guidelines.

“[T]his court has consistently held that the application of Rule 32[, Ala. R. Jud. Admin.,] is mandatory in child-support actions filed on or after October 9, 1989. A trial court may deviate from the child-support guidelines in determining a child-support amount; however, any deviation is improper if it is not justified in writing....
“Compliance with Rule 32(E) is mandatory, even though the trial court may find that the application of the guidelines would be unjust or inequitable. When the court determines that application of the guidelines would be manifestly unjust or inequitable, and then deviates from the guidelines in setting a support obligation, the court must make the findings required by Rule 32(A)(ii), Ala. R. Jud. Admin. When Rule 32(E) has not been complied with and child support is made an issue on appeal, this court may reverse the judgment of the trial court and remand the case for further proceedings in compliance with Rule 32.”

Thomas v. Norman, 766 So.2d 857, 859 (Ala.Civ.App.2000) (citations omitted).

The record indicates that the parties filed the appropriate CS-41 and CS-12 forms pursuant to Rule 32, Ala. R. Jud. Admin. Both parties testified at trial that the child-support obligation was properly set at $358 per month in the trial court’s temporary order. The father and the mother both assert on appeal that the trial court incorrectly determined the mother’s child-support obligation. The child-support-guidelines forms supplied by the parties before trial support their contention an appeal. The trial court’s judgment failed to indicate a reason for a deviation from the guidelines. Therefore, we reverse the judgment of the trial court insofar as it establishes child support at $375 per month, and we remand this cause to the trial court for it to determine an appropriate child-support award consistent with the Uniform Child Support Guidelines or, in the alternative, to enter findings justifying a deviation from those guidelines.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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


author: THOMPSON, Judge. MURDOCK, Judge,

text:
    Carlos O’Dell SPEARS, Jr. v. Peggy Sue Spears WHEELER.
    2020583.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Connie Cooper, Phenix City, for appellant.
    Peggy Sue Spears Wheeler, pro se.
   THOMPSON, Judge.

Carlos O’Dell Spears, Jr. (“the father”), and Peggy Sue Spears Wheeler (“the mother”) divorced in March 1992. The mother was awarded custody of the couple’s only child. After the divorce, the mother and the child moved to Connecticut.

In August 2001 the father filed a petition to modify custody and visitation in the Russell Circuit Court (“the trial court”). The mother petitioned for a stay of the proceedings, but her petition was denied. The mother failed to appear in court, and the father was awarded custody by a default judgment entered on August 22, 2001. However, for reasons that are not clearly indicated in the record, the child remained with the mother in Connecticut.

On March 14, 2002, the mother filed a petition to modify custody and for a rule nisi in the trial court, seeking to regain custody of the child. The court received ore tenus evidence at a hearing in February 2003, and, on February 18, 2003, it awarded custody of the child to the mother. The father appealed.

The father argues on appeal that the trial judge failed to apply the child-custody-modification standard set forth in Ex parte McLendon, 455 So.2d 863 (Ala. 1984), and, therefore, that it erred in awarding custody to the mother. Generally, the judgment of a trial court based on ore tenus evidence is presumed correct, and the judgment will not be set aside absent a finding that its determination is so unsupported by the evidence as to be an abuse of discretion. Porter v. Porter, 477 So.2d 433 (Ala.Civ.App.1985). However, where a trial court bases its custody determination on an improper custody-modification standard, that judgment is due to be reversed. See Ex parte S.T.S., 806 So.2d 336 (Ala.2001); B.S.L. v. S.E., 826 So.2d 890 (Ala.Civ.App.2002); C.P. v. M.K, 667 So.2d 1357 (Ala.Civ.App.1994). .

Where a prior custody judgment exists, a party seeking a change in custody must show that the change will materially promote the child’s best interest and that the benefits of the requested change will more than offset the inherently disruptive effect caused by uprooting the child. Ex parte McLendon, supra.

In this case, the most recent custody judgment is the August 2001 default judgment awarding custody to father. The mother did not seek to set aside that judgment but, instead, sought to modify it. Therefore, she was required to meet the McLendon standard. We are unable to ascertain from the trial court’s judgment the standard it applied in reaching its February 18, 2003, custody determination. From comments in the transcript, it appears that the trial court may have applied the “best interests” standard set forth in Ex parte Couch, 521 So.2d 987 (Ala.1988).

Given this court’s inability to determine the standard used by the trial court in reaching its custody decision and the facts presented before us in the record on appeal, the judgment of the trial court is reversed, and the cause is remanded to allow the trial court to evaluate the evidence in accordance with the standard set forth in Ex parte McLendon and, if appropriate, to make findings of fact in support of its custody determination. Martin v. Payne, 739 So.2d 510 (Ala.Civ.App.1999); Dodd v. Dodd, 655 So.2d 1000 (Ala.Civ.App.1994); Clayton v. Clayton, 598 So.2d 929 (Ala.Civ.App.1992).

REVERSED AND REMANDED.

CRAWLEY and PITTMAN, JJ., concur.

YATES, P.J., and MURDOCK, J., dissent.

MURDOCK, Judge,

dissenting.

The father was awarded custody pursuant to a default judgment entered on August 22, 2001, but he never actually had primary physical custody of the child. As I read it, the custody presumption articulated by our Supreme Court in Ex parte McLendon, 455 So.2d 863 (Ala.1984), therefore does not apply in favor of the father under the particular facts of this case.

Our Supreme Court, in Ex parte McLendon, stated as follows:

“A natural parent has a prima facie right to the custody of his or her child. However, this presumption does not apply after a voluntary forfeiture of custody or a prior decree removing custody from the natural parent and awarding it to a non-parent. Ex Parte Mathews, 428 So.2d 58 (Ala.1983); Ex Parte Berryhill, 410 So.2d 416 (Ala.1982); Horton v. Gilmer, 266 Ala. 124, 94 So.2d 393 (1957); Lewis v. Douglass, 440 So.2d 1073 (Ala.Civ.App.1983).
“The correct standard in this case is: “ ‘Where a parent has transferred to another [whether it be a non-parent or the other parent], the custody of h[er] infant child by fair agreement, which has been acted upon by such other person to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless [s]he can show that a change of the custody will materially promote, h[er] child’s welfare.’
“Greene v. Greene, 249 Ala. 155, 157, 30 So.2d 444, 445 (1947), quoting the Supreme Court of Virginia, Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 687, 40 L.R.A. 623 (1898).
“Furthermore,
‘[This] is a rule of repose, allowing the child, whose welfare is paramount, the valuable benefit of stability and the right to put down into its environ ment those roots necessary for the child’s healthy growth into adolescence and adulthood. The doctrine requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child. Frequent disruptions are to be condemned.’
“Wood v. Wood, 338 So.2d 826, 828 (Ala.Civ.App.1976).”

Ex parte McLendon, 455 So.2d at 865-66 (emphasis added).

The child has lived with the mother continuously for the past 12 years, including the 18 months between the August 22, 2001, default judgment in favor of the father and the February 18, 2003, judgment awarding custody of the child once again to the mother. Thus, for whatever reason, the father never “acted upon [the court order] ... to the manifest interest and welfare of the child,” and the child never put down “roots” with the father as contemplated by Ex parte McLendon.

The “McLendon” rule, both in its underlying policy and its literal language, is a “rule of repose” concerned with the “uprooting” of a child from a stable home and a relationship in which the child has put down “roots” in the wake of a voluntary forfeiture or a court order transferring custody. It is therefore inapplicable in this case.

In Ex parte K.T.G., 749 So.2d 458 (Ala. 1999), then Chief Justice Hooper stated:

“The rationale behind the McLendon standard is to prevent children from being uprooted from a stable home unless the move will substantially benefit the child. In the present case, the child did not live with the parent who had legal physical custody, but had always lived with the petitioning parent. The rationale of McLendon is inapplicable because the child would not be uprooted if the petitioning parent were given legal physical custody.”

749 So.2d at 459 (Hooper, C.J., concurring specially) (emphasis added). See Ex parte Weiss, 718 So.2d 44, 44-45 (Ala.1998) (Maddox, J., dissenting from denial of cer-tiorari, joined by Hooper, C.J.) (recognizing policy underlying McLendon standard as one of minimizing disruption to the child and questioning whether the McLendon standard should apply when that purpose is not served); Pickett v. Pickett, 792 So.2d 1124, 1129 (Ala.Civ.App.2001) (Murdock, J., concurring specially); Grant v. Grant, 820 So.2d 824, 829-30 (Ala.Civ.App.2001) (Murdock, J., dissenting).

The McLendon presumption was not adopted for the purpose of enabling parents to vindicate their rights. (If it were, the conduct of the parents might more logically and more readily affect the application of that standard.) As made clear by the manner in which our Supreme Court in Ex parte McLendon articulated the presumption, and by their explanation of the rationale underlying that presumption, and as acknowledged by Chief Justice Hooper in his special writing in Ex parte K.T.G. and by Justice Maddox in his special writing in Ex parte Weiss, the concern of the McLendon presumption is the best interest of the children.

“The McLendon presumption is for the benefit of the child, not the parent. When, for whatever reason, a stable, nurturing home in which the child has put down roots necessary for his or her healthy growth does not exist with a particular parent, there is no ‘inherently disruptive effect’ in not awarding physical custody of the child to that parent; the McLendon presumption logically cannot apply in such a case.”

Grant v. Grant, 820 So.2d at 829-30 (Murdock, J., dissenting) (emphasis omitted). See Pierce v. Pierce, [Ms. 2010940, July 11, 2003] — So.2d -, - (Ala.Civ.App.2003) (Thompson, J., concurring in the result) (“It is the child’s best interest that is sought to be. protected by the application of the McLendon standard in a custody determination; that standard is not for the benefit or the convenience of the child’s parents.”). See generally Smith v. Smith, 865 So.2d 1207, 1211 (Ala.Civ.App.2003) (Murdock, J., concurring in the result); R.K. v. R.J., 843 So.2d 774 (Ala.Civ.App. 2002).

I therefore respectfully dissent.

      . This is not to say that the August 22, 2001, judgment awarding custody to the father, from which the mother did not appeal, was without any legal effect vis-á-vis the mother's subsequent March 2002 petition for modification of custody. The August 22, 2001, judgment became final, thereby requiring the mother to show a material change of circumstances in order to obtain any subsequent custody modification. This is a different standard, however, than that which would be imposed under Ex parte McLendon. Well before Ex parte McLendon was decided, our courts held that it was “axiomatic to review of decrees of modification as to custody of children that such a decree should be entered only upon proof of a material change of circumstances of the parties since the prior decree, which change of circumstances is such as to affect the welfare and best interest of the child or children involved.... The burden of showing a change of circumstances which affects the best interest and welfare of the children is upon the petitioner.” Ponder v. Ponder, 50 Ala.App. 27, 30, 276 So.2d 613, 615 (Civ.1973).


author: YATES, Presiding Judge.

text:
    H.K. v. G.S.F. and M.A.F.
    2020439.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.
    Seth B. Thompson of Thompson & Thompson, Cullman, for appellant.
    Submitted on appellant’s brief only.
   YATES, Presiding Judge.

This is a child-custody-modification case.

H.K. (“the mother”) and G.S.F. met in November 1999. The mother became pregnant shortly thereafter. She subsequently met another man and married him in March 2000. The child was born prematurely on September 6, 2000. G.S.F. elected to take a paternity test, which indicated that he was the biological father of the child. After experiencing problems when attempting to visit the child, G.S.F. (“the father”) subsequently petitioned for custody of the child. On February 13, 2001, the trial court entered an order in which it awarded temporary physical custody of the minor child to the mother and supervised visitation to the father. On October 26, 2001, the father petitioned the court for a rule nisi, seeking custody of the child and child support; in support of his petition, the father cited the mother’s failure to permit him visitation with the child and her refusal to disclose where she and the child were living. On May 14, 2002, the paternal grandparents, M.A.F. and J.D.F., moved to intervene and requested custody of the child, alleging that the mother was unfit and that it was not in the child’s best interests to remain in the mother’s custody. Following ore tenus proceedings, the court, on January 15, 2003, awarded the mother and the paternal grandmother joint physical and legal custody of the child, with the father receiving visitation when the child was in the paternal grandmother’s custody. The court also reduced the father’s child-support obligation. The court otherwise denied the father’s petition. On January 21, 2003, the mother moved to alter, amend, or vacate the judgment, citing the court’s failure to determine the father’s child-support ar-rearage and its failure to determine which parent would receive the dependency deduction for income-tax purposes. The court amended its judgment on January 31, 2003, to. reflect the father’s child-support arrearage. On February 10, 2003, the mother again moved to alter, amend, or vacate the judgment, asserting that the court had impermissibly granted the paternal grandmother joint legal and physical custody of the child without first determining that the mother was unfit. That motion was denied as a matter of law. The mother appeals.

On appeal, the mother argues, among other things, that the trial court improperly awarded joint legal and physical custody to the paternal grandmother, without first determining that the mother was unfit. We agree.

“[I]n order to award custody of the child to the paternal grandmother, a nonparent, the trial court was required to apply the standard set forth in Ex parte Terry, 494 So.2d 628 (Ala.1986). In Ex parte Terry, our supreme court held that in a custody dispute between a parent and a nonparent, a trial court may not award custody to a nonparent absent a finding, supported by clear and convincing evidence, that the parent is unfit; the exceptions to the rule that a parent has a prima facie right to custody of his or her child arise when a prior custody judgment transfers custody from the parent or where the parent voluntarily forfeits custody of the child.”

A.L. v. S.J., 827 So.2d 828, 833-34 (Ala.Civ.App.2002).

The record supports the trial court’s findings that the mother had lived in and had been evicted from several residences, had a poor work history, had remained in an abusive relationship with her husband for an extended period, and had only a “marginal home.” However, despite those problems, the record further reflects that the mother had otherwise properly cared for the child; had maintained stable housing for approximately one year before the hearing; had separated from her husband in October 2000 and had subsequently filed for a divorce; and had also obtained stable employment, working as a cashier and as a housekeeper. The mother pays for day care for the minor child and for another child of hers. She has also attended parenting classes since approximately July 2002. The trial court, without having found the mother to be unfit, awarded the grandmother joint physical and legal custody of the child. The record does not reflect that a prior custody judgment divested the mother of custody of the child or that the mother relinquished custody of the child. Therefore, we must conclude that the trial court erred in granting the paternal grandmother joint physical and legal custody.

Accordingly, we reverse the judgment and remand the case for further proceedings consistent with this opinion. Based on our reversal, we pretermit discussion of the other argument raised by the mother.

REVERSED AND REMANDED.

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

      . The paternal grandmother did not file a brief with this court.


author: CRAWLEY, Judge.

text:
    Linda C. MAY v. T. Michael BUCHANAN and Amy B. Buchanan. Michael May v. T. Michael Buchanan and Amy B. Buchanan.
    2020524 and 2020575.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.
    Michael L. Fondren, Pascagoula, Mississippi, for appellant Linda C. May.
    Leonard F. Mikul, Bay Minette, for appellant Michael May.
    Michelle M. Hart and Michelle A. Meurer of Pearson, Cummins & Hart, L.L.C., Spanish Fort, for appellees.
   CRAWLEY, Judge.

Linda May and Michael May appeal from the trial court’s denial of a motion to compel arbitration. We reverse and remand as to Linda’s appeal and dismiss as to Michael’s appeal.

Michael and Amy Buchanan purchased a house from Linda and Michael; after their purchase of the house, the Buchanans sued Linda, Michael, and other defendants, alleging that the fact that the house had suffered previous termite infestation and damage had not been disclosed to them. Linda and. Michael filed separate answers; Linda subsequently filed a motion to dismiss or, in the alternative, a motion to compel arbitration and to stay proceedings pending arbitration, relying upon a provision of the purchase agreement signed by the Buchanans and Linda that stated:

“24. ARBITRATION: In the event of any dispute, claim, question, or disagreement arising out of or relating to this Agreement, or the breach thereof, the parties hereto shall use their best efforts to settle such disputes, claims, questions, or disagreement. To this effect, they shall consult and negotiate in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of sixty (60) days, then upon notice by either party to the other, disputes, claims, questions, or differences shall be finally settled by arbitration in accordance with the rules of the American Arbitration Association. Within fifteen days after the commencement of arbitration, each party shall select one person to act as arbitrator, and the two selected shall select a third arbitrator within ten days of their appointment. Each of the arbitrators appointed shall be actively engaged in the business of real estate and have expertise in the process of deciding disputes and interpreting real estate contracts and transactions. Each of the arbitrators appointed shall take an oath of impartiality. The arbitration shall be held in Baldwin County, Alabama, or at such other place as may be selected by mutual agreement. The arbitrators will have no authority to award punitive damages or any other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement. All fees and expenses of the arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs.”

Linda supported her motion with a brief in which she contended that the purchase agreement evidenced a transaction that substantially affected interstate commerce, relying on Sisters of the Visitation v. Cochran Plastering Co., 775 So.2d 759 (Ala.2000); submitted with the brief were evidentiary exhibits including an affidavit by Linda; the purchase agreement; a seller’s real property statement; company information on Re/Max International, Ser-viceMaster Company, and Countrywide Financial Corporation; the Buchanans’ mortgage on the home; a settlement statement; and a wood-infestation inspection report provided by Terminix International Company.

The trial court set a hearing on Linda’s motion to compel arbitration; the record contains no filings or evidentiary materials filed by the Buchanans in response to Linda’s motion. After conducting a hearing, the trial court denied Linda’s motion; both Linda and Michael then filed notices of appeal to this court. Although originally submitted to this court, the appeals were transferred to the supreme court due to lack of subject-matter jurisdiction. These appeals were then transferred to this court by the supreme court, pursuant to § 12-2-7(6), Ala.Code 1975.

As to Michael’s appeal, the record on appeal contains no motion to compel arbitration filed by him. He states in his brief to this court that during the trial court’s hearing on Linda’s motion to compel arbitration “[e]ounsel for Michael May appeared at the, hearing and made an ore tenus [mjotion to [c]ompel [arbitration on behalf of Michael May and argued in support of an [ojrder to [c]ompel [arbitration.” Accordingly, we would conclude that this assertion could have been supported had Michael ensured that the trial court’s hearing on Linda’s motion to cpm-pel arbitration was transcribed, with the reporter’s transcript being submitted as part of the record on appeal. However, because there is nothing in the record on appeal to affirmatively show that Michael did indeed make, or argue in support of, a motion to compel arbitration, we cannot determine that he has in fact suffered a judgment that would support an appeal. See Aaron v. Aaron, 350 So.2d 1060, 1062 (Ala.Civ.App.l977)(quoting Old Southern Life Ins. Co. v. Spinato, 57 Ala.App. 416, 419, 329 So.2d 106, 108 (Civ.l976)(“ The burden is always on the appellant to perfect his appeal in the manner required by law, and it is his duty to sée that all the evidence before the trial court is in the record on appeal. The reason for this is that the appellate court is confined to the record before it in deciding the appeal. The record on appeal does not contain the transcript of evidence and, in view of the issues presented for decision, raises nothing that can be decided by this court.’ ”)(internal citations omitted)). Therefore, we dismiss Michael’s appeal.

As to Linda’s appeal, Linda argues that the trial court erred in its judgment denying her motion to compel arbitration based upon the “substantial effect on interstate commerce” standard that was adopted by our supreme court in Sisters of the Visitation, supra. On the other hand, the Bu-chanans argue that the trial court' correctly applied the standard set out in Sisters of the Visitation and, properly denied Linda’s motion to compel arbitration. However, the standard set out in Sisters of the Visitation is no longer proper as a result of the United States Supreme Court’s opinion in Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003). In Huntsville Utilities v. Consolidated Construction Co., 876 So.2d 450 (Ala.2003); our supreme court discussed the Alafabco decision as follows:

“However, in [Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037 (2003),] the United States Supreme Court ... recognized that the ‘substantial effect’ test adopted in Sisters of the Visitation ‘gave inadequate breadth’ to the language of the [Federal Arbitration Act (‘FAA’)]. The United States Supreme Court stated:

“ ‘We have interpreted the term “involving commerce” in the FAA as the functional equivalent of the more familiar term “affecting commerce”— words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power. Allied-Bruce Terminix Cos.[ Inc. v. Dobson], 513 U.S. [265], at 273-274, 115 S.Ct. 834 [(1995)]. Because the statute provides for the “enforcement of arbitration agreements within the full reach of the Commerce Clause,” Perry v. Thomas, 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426 (1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually “in commerce”— that is, “within the flow of interstate commerce,” Allied-Bruce Terminix Cos., supra, at 273, 115 S.Ct. 834 (internal quotation marks, citation, and emphasis omitted).
. “ ‘The Supreme Court of Alabama was therefore misguided in its search for evidence that a “portion of the restructured debt was actually attributable to interstate transactions” or that the loans “originated out-of-state” or that “the restructured debt was inseparable from any out-of-state projects.” 872 So.2d at 805. Such evidence might be required if the FAA were restricted to transactions actually “ ‘in commerce,’ ” Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195-196, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974), but, as we have explained, that is not the limit of the FAA’s reach.
“ ‘Nor is application of the FAA defeated because the individual debt-restructuring transactions, taken alone, did not have a “substantial effect on interstate commerce.” 872 So.2d at 808. Congress’ Commerce Clause power “may be exercised in individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent “a general practice ... subject to federal control.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219, 236, 68 S.Ct. 996, 92 L.Ed. 1328 (1948). See also Perez v. United States, 402 U.S. 146, 154, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); Wickard v. Filbum, 317 U.S. Ill, 127-128, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Only that general practice need bear on interstate commerce in a substantial way. Maryland v. Wirtz, 392 U.S. 183, 196-197, n. 27, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37-38, 57 S.Ct. 615, 81 L.Ed. 893 (1937).’
“Alafabco, 539 U.S. at 56-57, 123 S.Ct. at 2040.
“Thus, in light of the United States Supreme Court’s decision in Alafabco, we no longer apply the substantial-impact-on-interstate-commerce test adopted in Sisters of the Visitation, supra. As the United States Supreme Court stated, the FAA is triggered even in ‘“individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent a general practice ... subject to federal control.’ Alafabco, 539 U.S. at 56-57, 123 S.Ct. at 2040. Therefore, a ‘ “party seeking to compel arbitration has the burden of proving the existence of a contract calling for arbitration and proving that the contract involves a transaction affecting interstate commerce.” ’ Tefco Fin. Co. v. Green, 793 So.2d 755, 758 (Ala.2001) (quoting Ex parte Caver, 742 So.2d 168, 172 n. 4 (Ala.1999)).
“... [In the event the existence of a contract calling for arbitration has not been challenged,] we need determine only whether [the] transaction affected interstate commerce or if the economic activity in question represents a general practice subject to federal control. If either of these questions can be answered affirmatively, the FAA is triggered. Alafabco, supra.”

876 So.2d at 453-55 (footnote omitted).

The Buchanans do not contest the fact that there is a contract in place that calls for arbitration; rather, they argue that Linda failed to meet her burden of proving that the transaction had a substantial effect on interstate commerce. Clearly that is no longer the test. Linda presented evidentiary submissions to the trial court indicating that the financing of the purchase of the house by the Buchanans was by a Georgia bank. We conclude that Linda therefore met her burden of proving that the purchase agreement involved a transaction that affected interstate commerce. Further, these financing activities represent a general practice subject to federal control. See Alafabco, 539 U.S. at 58, 123 S.Ct. at 2041 (“ ‘[Bjanking and related financial activities are of profound local concern.... Nonetheless, it does not follow that these same activities lack important interstate attributes.’ ”)(quoting Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 38-39, 100 S.Ct. 2009, 64 L.Ed.2d 702 (1980)). The trial court’s.denial of Linda’s motion to compel arbitration is therefore reversed, and the cause is remanded for the trial court to proceed in a manner consistent with this opinion.

2020524 — REVERSED AND REMANDED.

2020575 — APPEAL DISMISSED.

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

      . At one time, Linda and Michael May were married; however, they are no longer married. Linda and Michael each filed a separate appeal from the trial court’s judgment. Their appeals were consolidated by order of this court.


author: MURDOCK, Judge.

text:
    Ioana Naumescu PREDA v. Adrian PREDA.
    2010822.
    Court of Civil Appeals of Alabama.
    Oct. 24, 2003.

      Jack E. Held and Anthony R. Smith of Sirote & Permutt, P.C., Birmingham, for appellant.
    John M. Wood and Brian D. Turner, Jr., of Wood & Shaw, L.L.C., Homewood, for appellee.
   MURDOCK, Judge.

Ioana Naumescu Preda, the mother, appeals from a judgment of the Jefferson Circuit Court, arguing that the trial court abused its discretion by awarding Adrian Preda, the father, additional visitation with the parties’ two children, that it erred in its award of child support, and that it abused its discretion by denying her request for attorney fees.

The parties married in 1992 in Romania. Soon after their marriage, the parties had a son. In 1994, the parties moved to New York, where the mother had been accepted into a hospital residency program. Because of financial constraints, the parties’ son remained in Romania with the maternal grandparents for approximately six months. Thereafter, he spent approximately four to six months each year in the United States with his parents and the remainder of the year in Romania with the maternal grandparents.

In 1995, the parties had a daughter; the daughter lived with the parties for approximately one year and then moved to Romania to live with the maternal grandparents. Also in 1995, the mother’s residency program ended and she accepted employment as a psychiatrist in Texas. The father remained in New York. After the mother moved to Texas, the son moved from Romania to live with her, though he apparently continued to spend a considerable amount of time in Romania as well. The parties’ daughter remained in Romania, though she visited the mother and the father in the United States.

In 1998, the mother and son moved to Birmingham; the daughter also moved at that time from Romania to Birmingham to live with the mother. Also in 1998, the father filed a petition for a divorce in Romania. The parties were divorced pursuant to a judgment entered by a Romanian court in October 1999. The judgment awarded custody of the children to the mother and ordered the father to pay the mother child support equal to approximately $30 per month in United States currency. The judgment made no provision for visitation by the father. However, in July 1998, the mother had executed an affidavit which stated that, upon the entry of a judgment of divorce, the father would have visitation “every second and fourth Sunday and Saturday of the month” and “during the scholastic holidays for a period of up to half of the holidays, and up to four weeks of the summer holidays.”

In June 2001, the father filed a petition to enroll the parties’ Romanian divorce judgment in the Jefferson Circuit Court. He attached to his petition a certified copy of that judgment, translated into English. In his petition, the father also requested that the trial court modify the Romanian judgment by awarding joint legal custody of the children to the parties and by awarding to him “standard out-of-state” visitation with the children. The mother filed an answer to the father’s petition, contesting his requests for joint legal custody and for additional visitation. The mother also filed a counterclaim, requesting, in part, that the trial court increase the father’s child-support obligation and award her attorney fees. The mother did not contest the enrollment of the Romanian judgment.

In December 2001, the father filed a motion alleging that the mother had refused to allow him to visit with the children during the Christmas holidays. The father requested that the trial court order the mother to allow him to bring the children to Connecticut for Christmas visitation. The mother denied the father’s allegations. Thereafter, the trial court entered an order granting the father the right to visit with the children in Birmingham for portions of five days during the Christmas holidays. However, because of the father’s work schedule, he was only able to visit with the children on some of the scheduled days.

The trial court held a hearing in January 2002, at which it received both ore tenus and documentary evidence. Thereafter, the trial court entered a judgment awarding the father visitation during the 2002 spring-break holiday, during the 2002 Thanksgiving and Christmas holidays, and for three weeks during the summer of 2002. The judgment also awarded the father the right to exercise “reasonable visitation” when he was in Birmingham, provided he gave the mother 48 hours’ notice that he wanted to visit with the children and that the visitation lasted no longer than 48 hours. The trial court ordered that the father’s 2002 spring-break visitation be conducted within 100 miles of Birmingham. It also ordered that, during the father’s 2002 spring-break visitation, the father, the mother, and the children participate in family counseling with Dr. Elizabeth Cates, a clinical psychologist who had examined the children and who had testified at the trial. Further, the trial court ordered that five days of the father’s three-week summer visitation be conducted within 100 miles of Birmingham.

.The judgment provided that beginning in 2003 the father’s visitation rights would include visitation for six weeks each summer, visitation each Christmas for approximately one week beginning on December 26 of each year, visitation during the spring-break holiday of odd-numbered years, visitation during the Thanksgiving holiday of even-numbered years, and reasonable visitation when the father was in Birmingham, provided he gave the mother 48 hours’ notice that he wanted to visit with the children and that the visitation lasted no longer than 48 hours.

In regard to the modification of the father’s child-support obligation, the judgment stated:

“[T]he child support ordered to be paid by the [father] to the [mother] for the support and maintenance of the minor children of the parties be and it hereby is increased to [$750] per month effective February 15, 2002. The child support is not set pursuant to Rule 32 Child Support Guidelines, Rules of Judicial Administration due to the travel costs associated with [the father’s] exercising his visitation with the minor children.”

The trial court denied the mother’s request for attorney fees, and it denied all other requested relief.

The trial court amended its judgment to clarify that the father’s visitation during the 2002 Thanksgiving and Christmas holidays must be conducted within a 100-mile radius of Birmingham and to clarify certain other aspects of visitation. The mother appealed.

The mother first argues that the trial court abused its discretion by awarding the father “excessive visitation” with the parties’ two children. The mother’s rendition of the evidence in her brief on appeal to this court is basically an attempt to have this court reweigh the evidence, based on all evidence that is potentially favorable to her, and to ignore substantial ore tenus evidence that supports the trial court’s determination as to the father’s visitation rights. There was evidence that the father had visited with the children each year since 1995 and that he talked to the children on the telephone once a week for about one-half hour. The mother emphasizes the limited nature of the father’s visitation with the children; however, there also was evidence indicating that the father had requested additional visitation with the children each year from 1997 through 2001 but that the mother had refused to permit him additional visitation. There was also evidence indicating that the mother had interfered with recent attempts by the father to visit with the children.

At trial, the mother requested that, of the children’s 12-week summer vacation, the father be awarded 4 weeks of visitation so that she and the maternal grandparents could each have 4 weeks of summer vacation with the children. Thus, the mother’s argument is essentially about whether an additional two weeks of summer visitation should have been awarded to the father in lieu of the children’s spending additional time in the summer with the maternal grandparents. Dr. Elizabeth Cates, a clinical psychologist who examined the children at the mother’s request, testified as follows:

“It’s my opinion because of the instability that [the children] have experienced in their childhoods that they would be best served to have a period in which they get to know their father better and are able to see him as frequently as possible. I think for at least some period of time that would be best served with him seeing — coming to see them here near home. I think that after they become a little bit more secure, then traveling to Connecticut shouldn’t be a problem.
“Another issue, however, is their strong attachments to their grandparents. They have spent so much time with their grandparents that they are as bonded to their grandparents, it appears, as parents. So I think it is important that they spend' — that they are able to remain — you know, to continue contact with them also.”

Dr. Cates further testified that a three-week or six-week visitation period with the father should not adversely affect the children’s relationship with them grandparents “unless there is some reason the grandparents can’t come here and the children would have to go there.”

There was evidence indicating that the maternal grandmother, who had been the children’s primary caregiver in Romania, had visited the children in Birmingham on a regular basis and that, in the past, she had spent “three or four months a year at [the mother’s] place” and had helped the mother care for the children. The maternal grandmother also testified that she planned to visit the children in the United States on a yearly basis. Further, the mother admitted that there were times other than the summer when she could take the children to Romania, and the father testified that he was willing to take the children to Romania during a portion of his visitation.

Based on the foregoing, and on other evidence contained in the record, a further discussion of this issue is unnecessary. We cannot conclude that the trial court clearly abused its discretion as to the amount of visitation awarded to the father.

The mother next argues that the trial court erred as to its child-support award. Based on the CS-41 income statements submitted by the parties and the CS-42 child-support guideline statement prepared by the trial court, see Rule 32, Ala. R. Jud. Admin., the parties’ combined gross income was $9,834 per month and the parties’ combined basic child-support obligation was $1,532 per month. Under the child-support guidelines, the father’s portion of the child-support obligation was approximately $1,057 per month. As noted above, the trial court ordered the father to pay $750 in child support and specifically stated that “[t]he child support is not set pursuant to Rule 32 Child Support Guidelines, Rules of Judicial Administration due to the travel costs associated with [the father’s] exercising his visitation with the minor children.”

The mother makes several arguments regarding the trial court’s child-support calculation that we have concluded are without merit and that we will not discuss. However, for the reasons hereinafter stated, we conclude that the trial court abused its discretion by deviating from the Rule 32 child-support guidelines.

“Actions concerning child support, although guided by the mandatory application of Rule 32, are still committed to the sound discretion of the trial court, and its decision on such matters will not be disturbed on appeal absent an abuse of discretion.” Hamilton v. Hamilton, 647 So.2d 756, 758 (Ala.Civ.App.1994); see also State Dep’t of Human Res. v. J.B., 628 So.2d 889 (Ala.Civ.App.1993). Rule 32(A), Ala. R. Jud. Admin., states, in part:

“There shall be a rebuttable presumption, in any judicial ... proceeding for the establishment or modification of child support, that the amount of the award which would result from the application of these guidelines is the correct amount of child support to be awarded. A written finding on the record indicating that the application of the guidelines would be unjust or inappropriate shall be sufficient to rebut the presumption if the finding is based upon:
“(ii) A determination by the court, based upon evidence presented in court and stating the reasons therefor, that application of the guidelines would be manifestly unjust or inequitable.
“(1).... Reasons for deviating from the guidelines may include, but are not limited to, the following:
“(b) Extraordinary costs of transportation for purposes of visitation borne substantially by one parent;
“The existence of one or more of the reasons enumerated in this section does not require the court to deviate from the guidelines, but such reason or reasons may be considered in deciding whether to deviate from the guidelines.”

(Emphasis added.)

The father had requested that the trial court deviate from the child-support guidelines based upon the costs of return-trip airline tickets for the children from Birmingham to Connecticut and his rental car and hotel expenses when he had to come to Birmingham to retrieve and return the children during extended visitations. He also requested that the trial court consider his long-distance telephone expenses for one hour of telephone visitation each week.

The father offered an exhibit listing his anticipated expenses for the children’s airfares ($2,000 per visitation), his automobile rental expenses and hotel expenses for a two-day stay on each trip to Birmingham to retrieve and return the children ($210 per visit), and his long-distance telephone expenses for one hour of telephone visitation each week ($40 per month, $480 per year). The expenses totaled $7,110 or $9,320, depending on whether he had three or four extended visits with the children each year. However, the father admitted that his estimated airline ticket price was based upon an estimate of approximately $450-$500 per adult ticket and that, in the past, he had obtained airline tickets for the children for as little as $271 per round trip.

At the time of the trial, the father was 35 years old and he had not remarried. His gross income from Yale University was approximately $6,751 per month or $81,012 per year. The mother was 34 years old. She resided in Jefferson County, along with the children, but she had remarried and had two children by her current spouse as well. In addition to caring for her four children, the mother worked part-time, up to 20 hours per week, as a psychiatrist for Psychiatry Associates, P.C. The mother had a gross income of approximately $3,083 per month or $36,996 per year.

The difference between the amount of the father’s child-support obligation as provided by the child-support guidelines— $1,057 — and the child support the trial court ordered the father to pay — $750— was $307 per month or $3,684 per year. Although this was a smaller adjustment than the father requested, the father offered no evidence that he could not afford to make the full child-support payment required by the application of the child-support guidelines; he offered no evidence that the amount of child support required by the guidelines would substantially affect his ability to pay his living expenses or other legal obligations; and he offered no evidence that the amount of child support required by the guidelines exceeded the needs of the children. Compare Hamilton, 647 So.2d at 758 (stating that “[a] parent’s inability to pay child support is a proper basis for deviating from the guidelines” and holding that deviation from the guidelines was warranted based on “substantial hardship” where the mother’s gross monthly income was $840, she had recently moved into an apartment with a rent of $430 per month, and her prior rent had been only $120 per month); accord State ex rel. Whitlock v. Bottoms, 651 So.2d 1 (Ala.Civ.App.1994); Hannah v. Hannah, 582 So.2d 1125 (Ala.Civ.App. 1991). See also Comment, Rule 32, Ala. R. Jud. Admin. (“[t]he guidelines will provide an adequate standard support for children, subject to the ability of their parents to pay, and will make awards more equitable by ensuring more consistent treatment of persons in similar circumstances”) (emphasis added). We further note that the mother offered undisputed testimony that, despite having substantially less gross income, she had paid travel expenses for thq children when they visited Romania and had paid her mother’s travel expenses when the mother came from Romania to assist with the children.

Based on the foregoing, we conclude that the trial court abused its discretion by deviating from the child-support guidelines because there was insufficient evidence that the application of the guidelines was “manifestly unjust or inequitable” under the particular facts of this case. The trial court should have established the father’s child-support obligation based on the application of the child-support guidelines.

The mother next argues that the trial court abused its discretion by denying her request for attorney fees. “[A] trial court may award an attorney fee in a child support modification proceeding; the decision to award such a fee and the amount of the fee are within the discretion of the trial court.” Curry v. Curry, 716 So.2d 707, 710 (Ala.Civ.App.1998). “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.” McClelland v. McClelland, 841 So.2d 1264, 1272 (Ala.Civ.App.2002). We note that the father was successful as to his petition for additional visitation, but he testified that he only filed his petition because the mother would not permit him to have more visitation with the children. Likewise, the mother was successful in seeking an increase in the father’s child-support obligation, although the father testified that, as of the date of the trial, he had paid her approximately $10,000 in child support since the divorce, instead of only approximately $840 that he could have paid pursuant to the Romanian judgment. At trial, each side sought a $10,000 award of attorney fees from the other party. Based on the evidence before the trial court, we cannot conclude that the trial court abused its discretion by denying the mother’s request for attorney fees.

Those portions of the trial court’s judgment increasing the father’s visitation and denying the mother’s request for attorney fees are affirmed. That part of the judgment awarding child support based on a deviation from the Rule 32, Ala. R. Jud. Admin., child-support guidelines is reversed, and the cause is remanded for the entry of a judgment applying those guidelines.

The mother’s request for the award of an attorney fee on appeal is granted in the amount of $2,000. The father’s request for the award of an attorney fee on appeal is denied.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

      . The mother did not argue at trial and does not argue on appeal that there had not been a material change of circumstances warranting a change in the father's visitation rights. See McQuinn v. McQuinn, 866 So.2d 570 (Ala.Civ.App.2003). Instead, both parties argue merely as to whether the visitation awarded is in the children’s best interests.