author: LYONS, Justice. WOODALL, Justice

text:
    Jeffrey Daniel APLIN v. Terry TEW and Debbie Tew.
    1010594.
    Supreme Court of Alabama.
    June 21, 2002.

      Trant Bullard of Bullard & Bullard, Do-than, for appellant.
    William L. Lee IV and William W. Nichols of Lee & Mclnish Attorneys, P.C., Dothan, for appellees.
   LYONS, Justice.

This is an appeal from a judgment as a matter of law in favor of two defendants, Terry Tew and Debbie Tew (hereinafter referred to collectively as “the Tews”). Tommy R. Aplin, Jeffrey Aplin’s father, acting as “guardian and next friend” sued the Tews, alleging that the Tews’ negligence had resulted in serious injuries to Jeffrey Aplin. The trial court granted the Tews’ motion for a judgment as a matter of law on the ground that Jeffrey Aplin was contributorily negligent.

I.

On July 5, 1996, Brad Tew, the Tews’ 14-year-old son, invited several schoolmates, one of whom was Jeffrey Aplin, to spend the night at his house. The boys were all between the ages of 13 and 14 years old. The boys obtained permission from their respective parents to spend the night at the Tews’ house. After the boys arrived at the Tews’ house, they sat around talking until late in the evening. Around 9:00 p.m., the boys decided that they wanted to shoot fireworks, and they asked Mr. Tew if he would drive them to Merritt’s Fireworks so they could purchase fireworks.

Mr. Tew agreed, and he drove the boys to Merritt’s. Mr. Tew stayed outside and talked with a friend while the boys went inside to purchase the fireworks. When Mr. Tew came into the store, the boys had picked out the fireworks they wanted to purchase and they were paying the cashier. The boys purchased both firecrackers and bottle rockets. After confirming that all of the fireworks had been paid for, Mr. Tew left the store with the boys. On the way back to the Tews’ house they stopped at a store where each boy purchased a lighter to ignite the fireworks.

After Mr. Tew and the boys arrived back at the Tews’ house, the boys began setting off the fireworks in the Tews’ backyard. Mr. and Mrs. Tew, their daughter, Tonya, and Tonya’s boyfriend Jody Medley, watched the boys light the fireworks. Mrs. Tew, Tonya, and Jody Medley eventually went inside, leaving the boys outside with Mr. Tew. The boys had some fireworks left, and Mr. Tew cut a strand of firecrackers so that the boys could light them individually instead of lighting all the firecrackers on the strand at one time. Mr. Tew then went inside to tell his wife that he was going to the front yard with the boys.

The boys divided the firecrackers that had been cut from the strand and placed them in their pockets and in the waistband of their jeans. They walked around the side of the Tews’ house toward the front yard, where they began to shoot bottle rockets. As Aplin was walking toward the front yard, one of the bottle rockets struck Aplin, igniting the firecrackers in his jeans and setting Aplin on fire. Aplin tried to put the fire out with his hands and, in his panic, fell through a glass door into the Tews’ house. Jeffrey Aplin sustained first-degree, second-degree, and third-degree burns on his hands, lower stomach, groin, and thighs as a result of the accident.

On May IS, 1998, Tommy R. Aplin, as “guardian and next friend of Jeffrey Ap-lin,” sued Terry Tew and Debbie Tew, alleging that the Tews were negligent in supervising the boys’ purchase of the fireworks, negligent in that they helped the boys put the fireworks in their pants or allowed them to do so, and negligent in supervising the boys while they were setting off the fireworks. On July 8, 1998, the Tews filed an answer denying each and every allegation of Aplin’s complaint and asserting the affirmative defense of contributory negligence. On February 23, 1999, the Tews filed an amended answer adding the affirmative defense of assumption of the risk.

On May 17, 2000, Aplin amended the complaint, adding Merritt’s Fireworks, Inc., as a defendant and alleging that Merritt’s negligently sold fireworks to a child under the age of 16 years in violation of § 8-17-222, Ala.Code 1975. On June 21, 2001, Merritt’s filed a motion for a summary judgment, arguing that the boys had been accompanied to the store by Terry Tew, that the Merritt’s store clerk recognized Tew as an adult, and, therefore, that Merritt’s had not violated § 8-17-222, Ala. Code 1975. On September 14, 2001, the trial court entered a summary judgment in favor of Merritt’s.

Before trial, the Tews filed a motion to substitute Jeffrey Aplin as the plaintiff in the case because Aplin had reached the age of 19 years. The Tews’ motion was not opposed by Tommy Aplin, and the case, with Jeffrey Aplin as the plaintiff, was tried on October 29 and 30, 2001. At the conclusion of Aplin’s case, the Tews filed a motion for a judgment as a matter of law, seeking a dismissal of Aplin’s claims on the grounds that Aplin failed to prove that they were negligent or, alternatively, that even if they were negligent Aplin was contributorily negligent and had assumed the risk. The trial court denied the Tews’ motion for a judgment as a matter of law as to their contention that Aplin failed to prove negligence; however, the court granted the motion as to the issue of contributory negligence. Jeffrey Aplin appeals.

II.

Aplin argues that the trial court erred in entering a judgment as a matter of law in favor of the Tews because, according to Aplin, the evidence did not indicate that he had a conscious appreciation of the danger presented by the firecrackers at the moment the incident occurred. Citing Central Alabama Electric Cooperative v. Janice C. Tapley, 546 So.2d 371, 381 (Ala.1989), Aplin also argues that contributory negligence is a jury question where there is a scintilla of evidence to the contrary. (We note, of course, that the scintilla-evidence rule was abrogated by § 12-21-12, Ala.Code 1975, and has been replaced by the substantial-evidence rule.) Aplin contends that, because he did not consider the possibility that the firecrackers he had placed in his waistband would be ignited by another firecracker ignited by the other boys, the question whether he was contrib-utorily negligent should have been decided by a jury.

A plaintiff cannot recover in a negligence action where the plaintiffs own negligence is shown to have proximately contributed to his injury, notwithstanding a showing of negligence on the part of the defendant. Watters v. Bucyrus-Erie Co., 537 So.2d 24 (Ala.1989); Brown v. Piggly-Wiggly Stores, 454 So.2d 1370, 1372 (Ala.1984). The question of contributory negligence is normally one for a jury. However, where the facts are such that all reasonable persons must reach the same conclusion, contributory negligence may be found as a matter of law. Brown, supra; see also Carroll v. Deaton, Inc., 555 So.2d 140, 141 (Ala.1989).

To establish contributory negligence as a matter of law, a defendant must show that the plaintiff put himself in danger’s way and that the plaintiff had a conscious appreciation of the danger at the moment the incident causing the injury occurred. See Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala.2002); H.R.H. Metals, Inc. v. Miller, 833 So.2d 18 (Ala.2002); and Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 219 (Ala.1994). Aplin testified that he had set off fireworks many times with his parents. In fact, Aplin testified that he and his family set off fireworks each year on New Year’s Eve and on the Fourth of July and that they had done so for as long as he could remember. Aplin testified that the fireworks he and the other boys picked out were the same type he had set off before and that he knew what kind they were. Even more damaging, Aplin admitted on cross-examination that he knew that placing fireworks in his waistband was dangerous and that he knew the fireworks he had

placed in his waistband would explode if they were ignited:

“Q And you put those firecrackers in your pants, didn’t you?
“A Yes, sir.
“Q And the packages was still on those firecrackers, wasn’t it [sic]?
“A Yes, sir.
“Q And you could read that label, couldn’t you, if you wanted to?
“A Yes, sir.
“Q And you were educated enough and you knew exactly what that label meant, didn’t you?
“A Yes, sir.
“Q But you still put them in your pants; isn’t that right?
“A Yes, sir.
“Q And you knew before you put those firecrackers in your pants and those bottle rockets there as well, you knew that those were dangerous, didn’t you?
“A Yes, sir.
“Q And you knew they would explode if ignited, didn’t you?
“A Yes, sir.
“Q And you knew that before you put them in your pants, didn’t you?
“A Yes, sir.”

Aplin countered by testifying that he had not read any of the labels on the firecrackers before he and the other boys started setting off the firecrackers. Aplin also testified that no adult suggested to him that he should read the labels on the firecrackers before igniting the firecrackers. However, based upon Aplin’s earlier testimony, it is clear that he was aware, before he placed the firecrackers in the waistband of his jeans, that placing firecrackers in his clothing was dangerous and that the firecrackers could explode if they were lit. The fact that Aplin did not contemplate the specific means of ignition does not save him from a finding that he was contributorily negligent as a matter of law. The evidence is undisputed that he placed himself in harm’s way by putting firecrackers in his clothing while in the presence of ignited fireworks and that he was aware of the danger of such circumstances. Thus, the trial court did not err in concluding that Aplin was contributorily negligent.

Aplin further contends that even if this Court determines that Aplin was contribu-torily negligent, we should not hold Aplin to the same standard of contributory negligence to which we would hold an adult. Citing Lyle v. Bonier, 547 So.2d 506 (Ala.1989), and Jones v. Power Cleaning Contractors, 551 So.2d 996 (Ala.1989), Aplin argues that his young age at the time of the incident is an important factor when determining liability.

Aplin is correct that we apply a different standard to children below the age of 14. A child between the ages of 7 and 14 is prima facie incapable of contributory negligence. Superskate, Inc. v. Nolen, 641 So.2d 281, 236 (Ala.1994); Savage Indus., Inc. v. Duke, 598 So.2d 856, 858 (Ala.1992). However, at the time of the accident, Aplin was already 14 years old and was about to enter the ninth grade. Thus, Aplin was capable of contributory negligence. Aplin’s testimony indicates that he was aware before he placed the firecrackers in his waistband that doing so was dangerous and that the firecrackers would explode if lit.

The evidence indicates that Aplin had a conscious appreciation of the danger of placing firecrackers in his clothing before the accidental ignition occurred. The standard we apply to a judgment as a matter of law when contributory negligence has been raised as a defense is the functional equivalent of assumption of the risk. Justice Woodall’s dissenting opinion effectively ratchets up that standard to clairvoyance as to the precise method by which the plaintiff will be injured from the admittedly known risk. Aplin’s testimony indicates that he was sufficiently aware of the risk of injury; therefore, the trial court did not err in holding that Aplin was contributorily negligent and in entering a judgment for the Tews on that basis.

For the foregoing reasons the judgment in favor of the Tews is due to be affirmed.

AFFIRMED.

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

JOHNSTONE, HARWOOD, and WOODALL, JJ., dissent.

WOODALL, Justice

(dissenting).

I do not agree with the majority’s conclusion that “The fact that Aplin did not contemplate the specific means of ignition does not save him from a finding that he was contributorily negligent as a matter of law.” 839 So.2d at 639. Instead, I believe that that fact precludes the finding, required to establish contributory negligence as a matter of law, that Aplin had a conscious appreciation of the danger at the moment the incident occurred. Therefore, I respectfully dissent.

JOHNSTONE, J., concurs.

      . Jeffrey Aplin reached the age of majority while this case was pending in the trial court; at that time he was substituted as the plaintiff.


source: Caselaw Access Project

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

license: Public Domain

text:
    D.V.G. v. STATE DEPARTMENT OF HUMAN RESOURCES.
    2000531.
    Court of Civil Appeals of Alabama.
    Dec. 14, 2001.

      Lonzo C. Robinson, Huntsville, for appellant.
    J. Coleman Campbell and Lynn S. Merrill, asst, attys. gen., Department of Human Resources, for appellee.
   PITTMAN, Judge.

This appeal arises out of the juvenile court’s decision to issue an order terminating the parental rights of the mother, D.Y.G. (hereinafter “the mother”), to her two minor children, S.V. and M.V. The sole issue raised on appeal is whether the trial court’s order terminating the mother’s parental rights is supported by clear and convincing evidence. We affirm the decision of the trial court.

In September 1997 the Madison County Department of Human Resources (hereinafter “DHR”) filed a petition with the juvenile court, alleging dependency of the mother’s two children. The petition alleged that the mother instituted bizarre and unusual punishment against the children. A shelter-care hearing was held before a referee, who recommended that shelter-care custody of both children be placed with DHR and that physical custody of S.V. be placed with her biological father, M.L. The juvenile court upheld these recommendations. In December 1997, amid allegations of physical abuse of S.V. by M.L., DHR filed a motion for a shelter-care hearing; the hearing was held before a referee, who recommended that physical custody of S.V. be removed from M.L. and transferred to DHR. The juvenile court upheld the referee’s recommendations. In April 1998 a hearing on temporary legal custody of both children was held, and both were declared by the juvenile court to be dependent. In July 1998, October 1998, and March 1999, dispositional hearings were held. Each time the juvenile court determined that the children should remain dependent. In February 2000, DHR filed a petition requesting termination of the mother’s parental rights to both children, and, in January 2001, the juvenile court issued an order terminating the parental rights of the mother and placing permanent custody of both children with DHR. The mother now appeals.

“The termination of parental rights is a drastic measure, and the courts gravely consider such action. Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). A natural parent’s prima facie right to the custody of his or her child is outweighed only by clear and convincing evidence indicating that termination of parental rights is in the best interests of the child. L.N. v. State Dep’t of Human Resources, 619 So.2d 928, 929 (Ala.Civ.App.1993). The juvenile court considers the parent’s physical, financial, and mental abilities to care for the child, to determine the child’s best interests. J.L.B. v. State Dep’t of Human Resources, 608 So.2d 1367, 1368 (Ala.Civ.App.1992).
“The grounds upon which a court may terminate parental rights are set out in Ala.Code 1975, § 26-18-7(a):
“ ‘[T]he parents of [the] child are unable or unwilling to discharge their responsibilities to and for the child, or ... the conduct or condition of the parents is such as to render them unable to properly care for the child and ... such conduct or condition is unlikely to change in the foreseeable future.... ’
“The juvenile court is required to apply a two-pronged test in determining whether to terminate parental rights: (1) clear and convincing evidence must support a finding that the child is dependent; and (2) whether there are any viable alternatives to a termination of parental rights. Beasley, at 954.”

M.W. v. State Dep’t of Human Resources, 761 So.2d 246 (Ala.Civ.App.1999.) A trial court’s decision to terminate parental rights based on ore tenus evidence is presumed correct and will be reversed only if the record demonstrates that the decision is unsupported by the evidence and is plainly and palpably wrong. R.B. v. State Dep’t of Human Resources, 669 So.2d 187 (Ala.Civ.App.1995).

As an initial matter we note that DHR properly points out in its brief on appeal that the mother is precluded from appealing the juvenile court’s determination of the children’s dependency because that determination was made in April 1998 when the juvenile court placed temporary legal custody of the children with DHR and no appeal was taken of that order. See M.C. v. K.M., 788 So.2d 166, 169 (Ala.Civ.App.1999). Because no appeals from those orders were timely filed, we are precluded from reviewing on appeal the juvenile court’s determinations as to the dependency of the children. Thus, the only reviewable issue on appeal is whether the juvenile court erred in determining that there were no viable alternatives to a termination of parental rights. M.W., supra, quoting Beasley.

Our review of the record indicates that the juvenile court did not err in terminating the mother’s parental rights because the evidence presented reveals clear and convincing evidence indicating that termination of her rights is in the best interests of the children. See L.N., supra. Carolyn Harris, the DHR supervisor assigned to this case, testified on the basis of DHR records that both of the mother’s children are minors; S.V. was born in 1993 and M.V. was born in 1995. She stated that DHR was first notified of an allegation of inadequate supervision in the mother’s home in 1995, roughly two weeks after M.V. was born. Upon this report DHR offered and successfully provided homemaker services to the mother. In April 1997 DHR received another report of inadequate supervision occurring in the mother’s home. Harris testified that upon investigation DHR discovered the allegations to be true, and discovered bizarre and unusual punishment being inflicted on the children — the mother would leave the children locked, strapped, or tied down in car seats in the middle of the living room of her house for extended periods (i.e., while the children were watching television) and she would scream and curse at the children. Harris stated that when the mother was questioned by a social worker as to why she secured the children in the car seats in such a manner, the mother answered that she wanted to make sure that the children were learning something from the television programs (such as “Barney” and “Oscar”) that they were watching. The mother also told the social worker that she let them out of the car seats to go play in their playroom.

Harris testified that DHR offered the mother homemaker and protective services, assistance with mental health services, and family options. During a followup visit in September 1997 in which DHR again offered the mother these services, she refused, and DHR, concerned for the safety of the children, removed them from her custody. Harris stated that a shelter-care hearing was conducted and that the children were placed in the custody of DHR. S.V. was subsequently placed with her natural father, M.L. M.V.’s natural father, M.M., did not make himself available to receive placement of M.V. with him. After DHR received reports of physical abuse by M.L. upon S.V., S.V. was placed in foster care in the same residence where M.V. had been placed.

Harris testified that although the mother attended individualized service plan (ISP) meetings conducted by DHR in regard to providing care and reviewing the cases of the children, who through the time of trial remained in DHR’s custody, the mother did not attend the last of these meetings. She stated that pursuant to the ISP, DHR offered services to the mother since 1997 with the intent to effectuate a reconciliation with the children. Harris stated that initially the mother visited with the children twice a week, but since the termination petition was filed and the children’s foster parents reported that the visits appeared to be upsetting the children, visits were decreased to once a week. However, she also stated that the mother had been diligent in attending the visitation sessions. When asked how the mother acted during these visits, Harris testified that “it [had been] reported” that the mother usually first checked the children for bruises and cuts to see if they have been harmed while in care of the foster parents; Harris also stated that the mother is usually “extremely critical” of the children, complains about their clothes and appearance, and often complains that S.V. exhibits “an attitude.” Harris testified that during these visits it appears that the mother has a good relationship with M.V., but S.V. appears confused and often does things to get the mother’s attention.

Harris also testified that the foster parents and officials from the children’s school have reported that the children exhibit behavioral problems after the visits. Harris elaborated that S.V. appears to be extremely hyperactive, exhibits disruptive behavior at school, constantly seeks reassurance from the foster mother that she is loved and that she-is pretty, while M.V. would sometimes vomit when it was time for him to visit with the mother. When Harris was asked if S.V.’s disruptive behavior was solely attributable to her visits with her mother, Harris answered that she believes that'the visits with the mother contribute to the problem. Harris also testified that although the children have been in good health since their placement with DHR, when they were first taken from the mother, S.V., four years old at the time, was not toilet-trained and was undergoing counseling from mental health authorities. Harris stated that although the mother expressed to DHR a concern with putting S.V. on Ritalin because she feared that S.V. would lose weight and die, the therapist at the mental health center stated that the mother had actually recommended that S.V. be prescribed Ritalin in order to calm her down. The therapist also told Harris that S.V. needed speech therapy, but that the mother had not sought such services, as had been recommended to her. Harris testified that she had been informed of incidents during visits where the mother was observed attempting to put M.V. in “time-out,” but that M.V. hit the mother, who responded by hitting M.V. When M.V. bit her, she bit him back, leaving an impression of her teeth in his arm and saying, “[t]his should stop him from biting.” On another occasion the mother “engaged in another hitting match” with M.V. and directed him to go hit a tree until he calmed down.

Harris testified that although the mother, at the time DHR became involved in this case, was already involved with mental health authorities, DHR referred her to a local psychiatrist who observed her and noted that because of her developmental history (which the psychiatrist described as being characterized by “disorganized experiences”) he would recommend that she receive continuing supervision to care for her children. Harris stated that the psychiatrist also noted that given the mother’s disorganized parenting style, it would be unlikely that her method would ever change. Harris testified that another psychiatrist observed the mother and he noted that her judgment was questionable, her level of insight was poor, and that her lack of willingness to engage in a meaningful therapeutic process indicates that her prognosis for treatment would be unfavorable. In December 1998 DHR completed a Parental Functional Assessment (“PFA”) of the mother, which indicated that although she appears to be a pleasant woman who cares for her children, she also exhibits educational deficits, reported mental disability, lack of social maturity, and a poor state of physical health (including asthma, upper respiratory problems, and Attention Deficit Hyperactivity Disorder), all of which would have a negative impact on her parenting abilities. Harris also stated that the PFA indicated that the mother has not been receptive to treatment initiatives and she greatly depends on others to care for her.

Harris testified that to the best of her knowledge, the mother was not employed at the time of trial, nor had she been employed for a majority of her life. At the time of trial the mother was 29 years old. Harris stated that DHR gives some consideration to the caregiver’s financial ability to care for children and that the mother, in this case, receives Social Security benefits in the amount of $521 per month. Although the mother has not provided financial support to DHR while it maintained custody of the children, Harris stated that the mother has brought toys and clothes to the children. The natural fathers of the children have provided no financial or other support while the children have been in DHR’s custody, nor have they participated in visitation with the children. Harris testified that since being placed in a foster home, the children appear to be doing well and are both enrolled in school programs. Harris stated that despite DHR’s efforts to locate relatives with whom the children might be placed, she has located none. Harris stated that the mother also gave birth to another daughter (who is also subject to this petition for custody) who has been placed with her paternal grandparents in Tennessee. Harris testified that on the cumulative basis of the clinical assessments and reports offered by those who had observed the mother for three years, she recommends that her parental rights to S.V. and M.V. be terminated.

Gigi Todd, who provides homemaker services and counseling for DHR, testified that the mother first exhibited a spirit of cooperation with homemaker services, followed by a lack of cooperation. The mother cancelled some meetings, saying that she did not need DHR’s additional assistance. Todd also stated that the mother’s parenting skills had improved during the times when Todd would visit, but that she had also been told by other social workers who had observed the mother that she would not exhibit those same skills in their company. Todd testified that the mother was more interactive with M.V. than with S.V. She also stated that at times S.V. appeared to want to please the mother by dressing up for her visits, but when the mother expressed disapproval, it would sadden S.V. Todd testified that on occasion the mother would compliment her children, which showed some improvement in her ability to relate to them. She also testified that the mother has a clear idea of what is important to her and her children, as well as a clear idea of dangerous situations involving the children she should avoid. Todd stated that based on her observance of the mother, as long as there is an orderly routine, the mother parents well, but Todd expressed her concern about the mother’s parenting skills when something unanticipated happens. She testified that she was present when the “bite fight” between M.V. and the mother took place, and she expressed concern that the mother never explained to M.V. what exactly he did wrong. Todd stated that despite her having worked to rehabilitate the mother’s parenting skills over the course of three years, she did not believe that without supervision or help the mother’s skills would ever improve to a point where she would feel comfortable letting the mother have custody of the children. She explained that she based her opinion on both her observance of the mother’s parental skills in regard to her own children, as well as information the mother told her about how she handled other people’s children (in a manner Todd thought inappropriate).

The mother testified that she once placed the children in their car seats when she was cleaning the floors of the house, but denied that she ever placed them in the car seats any other time. She also admitted to biting M.V. She testified that as of the time of trial she was married and living with her husband. Although he is employed, she is not, she can only read and write “some,” and she receives food stamps and Social Security benefits because of her diagnosed attention deficit disorder (“ADD”). She testified that her income is sufficient to meet her expenses, but that if she were awarded custody of the children, she would get a part-time job (despite the fact that she has not worked in over 10 years). She stated that it was difficult to keep a job for any period, given her diagnosis of ADD. The mother testified that she did not always agree with the methods of raising her children that Todd had attempted to teach her. She stated that she has complied with everything DHR instructed her to do and that there was no reason that she could not care for her own children. The mother stated that when the children were in her care, she saw to it that they were safe and properly fed. However, she admitted that despite her asthma, she smoked during all three pregnancies — up to three packs a day when she was pregnant with her third child. When asked if she had learned anything through the services provided by DHR, the mother answered that she learned that you have to watch what you say around DHR and jump through hoops around DHR. When the attorney clarified his question and asked if she had learned any specific homemaking or parenting services from DHR that she did not previously know, she answered that she had not.

Charlene Peace, the mother’s sister, testified that although she thought that the mother was adequately able to clean, cook, and raise the children, she contacted DHR because in caring for the children the mother was neglecting her own health. Peace stated that on occasion she had witnessed S.V. sitting herself in the car seat to watch cartoons. She also explained that S.V. knows how to strap herself into the car seat.

In consideration of the presumption we are to afford the trial court’s determination upon ore tenus testimony, we conclude that the record reveals that the trial court did not err in determining that there is clear and convincing evidence that termination of the mother’s parental rights is in the best interest of the children. See R.B., supra; see also M.W., supra, quoting L.N. The mother suffers from various respiratory ailments and ADD, which she admits inhibit her ability to maintain a job. Although she asserts that her income covers her expenses sufficiently, that income would only be strained more if she is granted custody of her two children, and her promise to get a job to support the children is implausible, given the fact that she cannot currently maintain a job. See M.W., supra, citing J.L.B. We determine the mother’s contention that the trial court made its decision to terminate her rights solely on the basis of her financial inabilities is without merit, given the fact that Harris testified that the financial ability of the parent is only one of several factors considered in DHR’s analysis. More importantly, both the DHR worker who personally observed the mother interact with the children and her case supervisor, as well as mental health counselors from whom she has either sought assistance or who have had occasion to observe her, all testified that given the methods she uses to care for the children and the little progress she has made towards improving those methods, she cannot adequately care for her children currently, and, given her learning curve and obstinance, there is little hope that this condition will improve. See M.W., supra, quoting § 26-18-7(a). Furthermore, Harris testified that S.V.’s father physically abused S.V. when she was placed with him, M.V.’s father has not been in contact with DHR, and she has been unable to locate any relative who might be able to provide a viable alternative placement for the children. See M.W., supra, citing Beasley. Thus, the record does not reveal that the trial court’s decision to terminate the mother’s parental rights is unsupported by the evidence or plainly and palpably wrong. See R.B., supra.

AFFIRMED.

THOMPSON, J., concurs.

MURDOCK, J., concurs in the result.

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

MURDOCK, Judge,

concurring in the result.

Because I find in the record sufficient evidence of dependency to warrant deference to the trial court’s judgment that was based on evidence received ore tenus, I concur in the result.

CRAWLEY, Judge,

dissenting.

I dissent from the affirmance of the trial court’s judgment terminating the parental rights of D.V.G. (the “mother”). I conclude that the record does not contain clear and convincing evidence supporting a finding that the children are dependent. See Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990); and L.N. v. State Dep’t of Human Res., 619 So.2d 928, 929 (Ala.Civ.App.1998). My review of the record indicates that the worst parenting skills displayed by the mother are keeping the children in car restraints while she cleans the house and not cleaning the house well. My review of the evidence indicates that neither of these shortcomings has endangered the children’s health or safety. The mother’s housecleaning skills have not caused health problems to the children. The evidence indicates that the mother has been uncooperative with, and rude to, DHR representatives; however, that, without evidence of harm to the children, is not a reason to terminate the mother’s parental rights. Therefore, I must dissent.

YATES, P.J., concurs.

      . Harris testified that the mother, on her own accord, informed her that she had not attended her mental health counseling sessions for some time prior to trial.

      . The mother testified that she was educated in special education classes and remained in school through the eighth grade.

      . We note that the trial transcript contained in the record reflects that testimony was received that indicated that the mother was diagnosed with Attention Deficit Disorder and Attention Deficit Hyperactivity Disorder.


author: JOHNSTONE, Justice.

text:
    Ex parte D.V.G. (In re D.V.G. v. State Department of Human Resources).
    1010695.
    Supreme Court of Alabama.
    June 28, 2002.
    Lonzo C. Robinson, Huntsville, for petitioner.
    Bill Pryor, atty. gen., and J. Coleman Campbell, deputy atty. gen., and Lynn S. Merrill, asst. atty. gen., Department of Human Resources, for respondent.
   JOHNSTONE, Justice.

The petition for the writ of certiorari is denied.

Our denial of certiorari review should not be construed as an expression of opinion on the holding by the Court of Civil Appeals that the mother’s failure to appeal prior dependency orders foreclosed the dependency prong of the Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990), test for termination of parental rights and left at issue only the prong of whether there were any viable alternatives to a termination of parental rights.

WRIT DENIED.

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

MOORE, C.J., dissents.


author: CRAWLEY, Judge.

text:
    TOWN OF STEVENSON v. William SELBY.
    2000648.
    Court of Civil Appeals of Alabama.
    Dec. 21, 2001.
    Rehearing Denied March 22, 2002.
    Certiorari Denied June 14, 2002 Alabama Supreme Court 1011328.

      John H. Graham, Scottsboro, for appellant.
    Stephen M. Kennamer, Scottsboro, for appellee.
   CRAWLEY, Judge.

In February or March 1999, William Selby and his business partner, Charles William Hall, entered into a contract to purchase some property located in the Town of Stevenson (the “Town”) upon which to construct an office for their real estate business. The property, which fronted U.S. Highway 72, was zoned for residential use, so Selby sought either a variance or to have the property rezoned for light business use. After consideration by the Town’s Zoning Board of Adjustment, Selby’s request was denied. He then brought a declaratory judgment action in the circuit court against the Town, arguing that the Town’s zoning ordinance was invalid because the Town had not complied with the notice provisions of Ala. Code 1975, §§ 11-52-77 and -78. The trial court held that the ordinance was invalid. The Town appealed.

The Town first argues that because Selby did not own the property in question at the time he requested it be rezoned, he lacked, and continues to lack, standing in this action. Selby argues that, regardless of whether he lacked standing when he first sought to rezone the property, he was the owner of a one-half undivided interest in the property at the time he filed the present declaratory-judgment action seeking to have the ordinance declared invalid, and, thus, that he had standing to bring that action and this appeal. We agree that Selby has standing to maintain the present action. See Ala.Code 1975, § 6-6-223 (defining those who are permitted to seek declaratory relief as, among others, a person whose rights are affected by an ordinance).

The Town also argues that the trial court’s failure to make findings of fact that the Zoning Board of Adjustment’s failure to rezone was arbitrary and capricious is reversible error. See, e.g., Budget Inn of Daphne, Inc. v. City of Daphne, 789 So.2d 154, 158 (Ala.2000) (explaining that courts afford deference to a municipality’s zoning ordinance, reviewing it only to determine if it is arbitrary and capricious). This argument appears to be based on its erroneous belief that this case is essentially an appeal of the denial of the rezoning request. However, Selby filed a declaratory-judgment action, arguing not that his property should be rezoned, but that the ordinance was invalid because it was adopted without compliance with the notice requirements contained in §§ 11-52-77 and -78.

Pursuant to § 11-52-77, the Town was required to publish or post the ordinance, once in full and once in synopsis form, one week apart; both publications or postings must have occurred at least 15 days before the ordinance was passed. The Town did publish the proposed ordinance in full in the local newspaper on November 9, 1995, and published a synopsis of the proposed ordinance on November 16. Both publications were more than 15 days in advance of the adoption of the ordinance in its final form on December 4. However, the proposed ordinance was changed, based upon public comment. The section on subdivisions, which was a part of the proposed ordinance, was not adopted as a part of the final ordinance; in addition, other, smaller changes were made to at least three provisions. The Town did not post or publish the ordinance in its final form in full at any time before its adoption.

Our supreme court had stated that a municipality must strictly comply with § 11-52-77. See Kennon & Assocs., Inc. v. Gentry, 492 So.2d 312, 315 (Ala.1986). The court has also held that changes to a proposed ordinance made after the first publication are “amendments,” which under § 11-52-78 are also subject to the publication or posting requirements of § 11-52-77. Ex parte Bedingfield, 782 So.2d 290, 293-94 (Ala.2000). Because the Town failed to publish the amended ordinance before its adoption in its final form, the trial court’s invalidation of the ordinance was in accord with the law.

The Town further argues that Charles William Hall, the owner of the other one-half undivided interest in the property, was a necessary party under Rule 19, Ala. R. Civ. P.

“Rule 19, Ala. R. Civ. P., provides for joinder of persons needed for just adjudication. Its purposes include the promotion of judicial efficiency and the final determination of litigation by including all parties directly interested in the controversy. Hooper v. Huey, 293 Ala. 63, 69, 300 So.2d 100, 105 (1974), overruled on other grounds, Bardin v. Jones, 371 So.2d 23 (Ala.1979). Where the parties before the court adequately represent the absent parties’ interests and the absent parties could easily intervene should they fear inadequate representation, no reason exists why the trial court could not grant meaningful relief to the parties before the court. Ross v. Luton, 456 So.2d 249, 257 (Ala.1984). Also, joinder of the absent parties is not absolutely necessary where determination of the controversy will not result in a loss to the absent parties’ interest or where the action does not seek a judgment against them. Morgan Plan Co. v. Bruce, 266 Ala. 494, 497-98, 97 So.2d 805, 808 (1957). A defendant’s delay and its self-serving purpose for raising the issue have also been held to be proper considerations in determining whether a judgment is proper in the absence of a particular party. J.R. McClenney & Son, Inc. v. Reimer, 435 So.2d 50, 52 (Ala.1983). See also, Geer Bros., Inc. v. Walker, 416 So.2d 1045, 1050 (Ala.Civ.App.1982).”

Byrd Cos. v. Smith, 591 So.2d 844, 846 (Ala.1991).

Although Hall has an ownership interest in the property that Selby sought to have rezoned, his interest in the property is not impacted in any way by the declaratory-judgment action Selby instituted in the circuit court. Again, we point out that Selby sought a determination of whether the ordinance was validly enacted. Hall’s interest in the action, if contrary to that of Selby, would have been the same as any citizen of the Town who wished to have the action of its municipality in enacting the ordinance upheld; that interest was adequately protected by an existing party— the Town itself. Thus, we conclude that Hall was not a necessary party to this lawsuit.

AFFIRMED.

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

      . Rule 19 reads as follows:
      "(a) Persons to Be Joined if Feasible. A person who is subject to jurisdiction of the court shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
      "(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder."


author: MURDOCK, Judge.

text:
    Cindi Schrimscher Long DiIORIO v. James Darren LONG.
    2991193.
    Court of Civñ Appeals of Alabama.
    Dec. 21, 2001.
    Rehearing Denied April 5, 2002.
    Certiorari Denied June 14, 2002 Alabama Supreme Court 1011425.

      William P. Gray, Jr., of Gray & Associates, Birmingham; and Candace J. Shockley of Holliman, Shockley & Kelly, Pelham, for appellant.
    William E. Swatek, Pelham, for appellee.
   MURDOCK, Judge.

Cindi Schrimscher Long Dilorio (“the mother”) and James Darren Long (“the father”) were divorced by the Shelby County Circuit Court in 1995, and were awarded “joint custody” of their daughter (“the child”), who was then one year old. The divorce judgment ordered physical custody of the child to be divided equally between the mother and the father, with each having physical custody for alternating seven-day periods. After the parties’ divorce, from August 1995 until January 1997, the child resided with the mother 50 percent of the time and with the father 50 percent of the time, pursuant to the terms of the divorce judgment.

As a result of a petition to modify the custody arrangement filed by the mother, the trial court conducted a hearing and, in January 1997, found that “the parties obviously cannot make this joint custody arrangement work without the details being spelled out.” Accordingly, the court entered an extensive order providing “details” of the parties’ physical-custody arrangement. The order stated that “the primary residence” of the minor child would be with the mother, but also described at length and in great detail, the periods during which each parent would have “physical custody.” In addition, the order admonished the parties that the physical-custody rights for the father as set out in the order were intended to be “the minimum physical custody schedule to which the father is entitled,” and “encouraged [the parties] to extend [the] father’s physical custody” consistent therewith. Consistent with the court’s order, from January 1997 until the trial in August 2000, the father maintained actual physical custody approximately 45 percent of the time.

At some time in or before March 2000, the mother made plans to marry a resident of Chicago, Illinois, and to move to Chicago with the child; in March 2000, the father brought an action in which he sought sole legal and physical custody of the child. On March 28, 2000, the trial court entered an order restraining and enjoining the mother from removing the child from the jurisdiction of the court until the trial of the case. Between the entry of that order and the trial of the cause in August 2000, the mother proceeded with her plans to move to Chicago and remarry.

The trial court required the father to satisfy the “material promotion” standard recognized in Ex parte McLendon, 455 So.2d 868 (Ala.1984). Under the principles established in Ex parte McLendon, the presumption in favor of a natural parent’s custody of his or her child is enhanced if (1) he or she has custody pursuant to a “voluntary forfeiture of custody” by the other parent or “a prior decree removing custody” from the other parent, 455 So.2d at 865, and (2) the custodial parent has “acted upon” such voluntary forfeiture or judicial decree “to the manifest interest and welfare of the child” by providing a stable, secure, and nurturing environment in which the child has “put down ... those roots necessary for the child’s healthy growth into adolescence and adulthood,” id. at 865-66. In order to overcome this enhanced presumption in favor of the custodial parent, the noncustodial parent must demonstrate that the proposed “change of custody ‘materially promotes’ the child’s best interests and welfare,” “more than offset[ing] the inherently disruptive effect caused by uprooting the child.” Id.

The trial court determined that the father had satisfied the McLendon standard and it entered a judgment awarding sole legal and physical custody of the child to the father. The court found that there had been a material change in circumstances and stated:

“Based upon the evidence received, the Court hereby finds that the change of custody to the father will materially promote the child’s best interests and that the benefits of changing custody to the father far outweigh and offset the inherently disruptive effect that will be caused by the child being uprooted from her mother. These findings are based upon observation of the parties and the minor child and other evidence received during two days of testimony.”

(Emphasis added.) The trial court’s judgment also stated:

“That evidence included the fact that the mother has had multiple boyfriends over the last three years. She has exposed the minor child to at least four boyfriends with whom she has had significant relationships. That does not include her present husband. She has also violated the Court’s previous orders by having some of these boyfriends as overnight guests while the minor child was in her home. At least two of these boyfriends ... have recently been convicted of crimes involving controlled substances.
“The change in custody is also supported by the testimony of the licensed marriage and family therapist.... Her conclusion was that the change brought about by a move to Chicago would be very traumatic for the minor child. She testified that [the minor child] particularly does not adjust well to change. She further testified that to uproot the child from this area and the contacts that she has here would be more detrimental than would separating her from her mother in an award of custody to the father.
“While the mother gave glowing testimony about the benefits of moving the child to Chicago and having the child enrolled in the same school where she would be teaching, the Court finds that those benefits are far outweighed by the detrimental effect of separating the child from her father, members of her extended family, numerous childhood friends and other contacts she has made here in Alabama.
“Based upon this Court’s findings, some of which are set out above, the Court hereby GRANTS [the father’s] Petition to Modify and hereby modifies the terms and conditions of the Final Decree of Divorce.”

(Emphasis added.) The mother appeals from that judgment.

A judgment of a trial court based on evidence received in an ore tenus proceeding is presumed correct, and the court’s findings will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence. Anderson v. Lee, 621 So.2d 1305 (Ala.1993) (quoting McCoy v. McCoy, 549 So.2d 53 (Ala.1989)). Where the evidence has been presented ore tenus, a presumption of correctness attends the trial court’s conclusions on issues of fact, and an appellate court will not disturb the trial court’s conclusion unless it is clearly erroneous and against the great weight of the evidence, but will affirm the judgment if, under any reasonable aspect, it is supported by credible evidence. Raidt v. Crane, 342 So.2d 358 (Ala.1977). See also Ex parte Walters, 580 So.2d 1352 (Ala. 1991); Howard v. Howard, 608 So.2d 753 (Ala.Civ.App.1992); Kellam v. Kellam, 587 So.2d 355 (Ala.Civ.App.1991); and Smith v. Smith, 448 So.2d 381 (Ala.Civ.App.1984).

The ore tenus rule recognizes that the trial judge is better able than is the appellate court to determine the credibility of the witnesses. The trial judge has the discretion of accepting or rejecting testimony of a witness and of giving appropriate weight to testimony because he or she is in a better position to consider the demeanor of the witness and that witness’s candor and/or evasion. If the judge has determined that a witness has lied or is lying under oath, he or she can take that fact into consideration when weighing other evidence presented by that witness. See James v. James, 532 So.2d 1031 (Ala.Civ.App.1988). “The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and witnesses and to hear the evidence; additionally, the perception of an attentive trial judge is of great importance, particularly in child custody eases.” Williams v. Williams, 402 So.2d 1029 (Ala.Civ.App.1981); Smith, supra; Ex parte Walters, supra; and Lucero v. Lucero, 485 So.2d 347 (Ala.Civ.App.1986).

In awarding custody of the child to the father, the trial court relied, among other things, on the fact that the mother had moved to Chicago and that she proposed to move the child to Chicago. Although this court has held that a “change in the custodial parent’s residence is only one factor to be considered in determining the outcome of a [custody] modification petition and does not necessarily justify a change in custody,” a change in a child’s residence nonetheless is a valid factor. See Scacca v. Scacca, 694 So.2d 1, 4 (Ala.Civ.App.1997) (emphasis added).

The trial court also had before it substantial evidence that a particularly close relationship had developed between the child and her father. See generally Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (Ala.Civ.App.1975). There likewise was evidence of a very close relationship between the child and her paternal and maternal grandparents, all of whom live with the father or close to his residence. See Ex parte Monroe, 727 So.2d 104 (Ala.1999) (evidence of a strong relationship between a minor son and his father and his father’s extended family, with evidence that such relationships were in the best interests of the child, was held to be sufficient to support modification of custody after the child’s mother decided to move out of state).

The trial court found that the detrimental effect of separating the child from her father, grandparents, friends, and physical environment far outweighed the detrimental effect of separating the child from her mother. In support of this conclusion, the court had before it the testimony of several witnesses, including the father and a licensed marriage and family therapist.

In Ex parte Murphy, 670 So.2d 51 (Ala.1995), the Supreme Court had before it a case in which the parties had agreed to joint custody of their son, with the mother having physical custody and the father having reasonable and liberal visitation rights. 670 So.2d at 52. When the mother decided to remarry and take the child to Texas with her, the father petitioned to modify the joint-custody provision. In reversing this court’s judgment and upholding the trial court’s order changing custody to the father, our Supreme Court noted:

“The case before us is unusual, in that the father is seeking a change of physical custody for the purpose of preventing the disruptive effect of uprooting the child from a very strong family support network. That network includes the child’s maternal and paternal grandparents, as well as paternal great-grandparents, all of whom live in Lauderdale County, Alabama. All four of the child’s grandparents testified about their involvement and interaction with this child and the care they have provided to him since his birth. Although a change of residence is only one factor for the court to consider in making a change-of-custody decision, it is a factor to be considered.”

Id. at 53.

Although it applied a “best interest” standard rather than a McLendon presumption, we find the Supreme Court’s discussion of the facts before it in Ex parte Couch, 521 So.2d 987 (Ala.1988), to be instructive. In Couch, a father sought a change in custody in connection with the mother’s planned move to New York. The parents had previously been awarded joint legal and physical custody of the children. The mother had maintained primary actual physical custody of the children for approximately one year immediately before the trial. Under these facts, our Supreme Court concluded that the McLendon presumption was not applicable. In considering whether the trial court reached the right result under the best interests standard, however, the Supreme Court stated that

“The policy considerations of McLendon ... — the trauma of uprooting the children and the resulting benefits of the move — might still have been valid considerations for the trial court.
“But the facts of this particular case make the situation even more unusual. The children would have been ‘uprooted’ even if they had stayed with their mother. They would have had to move from Alabama to New York, thus changing schools, churches, and activities, and they would also have had to adjust to a stepfather.”

Ex parte Couch, 521 So.2d at 990. Substituting “Chicago” for “New York,” the same could be said in the present case.

In addition, the child in this case actually lived with the father 45% of the time during the three years between the parties’ previous custody judgment and the trial of this case in August 2000 (and 50% of the time for the two years before that). As McLendon indicates, whether a change in circumstances is material and whether the promotion of a child’s welfare that will result from a custody modification will be material are both measured against the disruption that will be caused by uprooting the child from the existing custodial arrangement:

“ ‘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.’
“... It is important that [the party seeking a change of custody] show that the child’s interests are promoted by the change, ie., that she produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ”

McLendon, 455 So.2d at 865-66 (emphasis added; quoting Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976)). See also Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996) (“informal arrangement to care for a child ... and its impact on the child [are] factors to be considered in determining whether a transfer of custody from the mother to the father would materially promote the child’s welfare”).

The father is a registered pharmacist, earning approximately $43,000 per year. The child has frequently spent time with the father at his place of business. The father’s normal workday hours are flexible, and he can usually leave work early. The father also testified regarding differences in the child’s physical environments in Alabama and Chicago. Among other things, he noted that the mother and her new husband live in a “loft” apartment in an urban area of Chicago, whereas at the father’s home the child has a neighborhood and a large front yard in which to play. As noted, there was substantial evidence of a very strong bond between the father and the child, as well as his substantial involvement in her activities. Even the mother testified that the father was a good father, and that her home was not better suited for the child than the father’s.

In 1998, the father took the child to a physician because she was having night terrors and bad dreams regarding a couple of the mother’s boyfriends. The child complained of headaches, stomachaches, bad dreams, and nightmares on some occasions following her return to the father after being in the mother’s physical custody. There was substantial evidence that, over the last several years, the mother has had several boyfriends and that, in violation of the court’s previous orders, she had allowed some of these boyfriends to stay overnight with her and the minor child. The court also found that at least two of the mother’s boyfriends had been convicted of crimes involving controlled substances.

The trial court also had before it substantial additional testimony from more than one witness, testimony that was in many cases unrefuted, regarding the mother’s moral character and lifestyle choices as they related to and reflected upon her capacity and interest in providing for the emotional, social, and moral needs of her child. See generally D.N. v. J.H., 782 So.2d 323 (Ala.Civ.App.2000). With respect to such matters, there was evidence that the mother gave inconsistent testimony and testimony that was contradicted by the father’s evidence, in such a manner as to raise credibility concerns. The record is such that the trial court could have drawn adverse inferences as to the mother’s credibility as it related to her testimony concerning such matters and, therefore, concerning other matters as well. See James, supra (“if the trial court believed from the evidence that the wife willfully and corruptly swore falsely as to ... a material fact involved in the custody and other issues, the trial court as the trier of the facts had a discretion to exercise as to whether it should disbelieve and disregard all, or any other portions, of the mother’s testimony”).

The court therefore had before it substantial evidence to support its finding that material changes in circumstances had occurred since its initial custody order in 1995; likewise, it had substantial evidence of various factors that were not before the court at the time it entered its* original custody order. See generally Sain v. Sain, 426 So.2d 853 (Ala.Civ.App.1983). Under the ore tenus rule, we cannot say that the trial court’s judgment that the child's interests and welfare will be “materially promoted” by remaining with the father was plainly and palpably wrong.

This case is not one like Scacca, in which the parent who wanted to move with the child had had actual physical custody for most of the child’s life. 694 So.2d at 2-3. Moreover, in Scacca, this court simply held that a parent’s move is not necessarily enough to meet the “material promotion” standard of Ex parte McLendon. Here, however, there is enough.

In this case, the mother and father were awarded joint legal custody, and the father maintained actual physical custody some 45 to 50% of the time before trial. There is substantial evidence of a very close relationship between the father and the child. The mother chose to proceed with her move to Chicago, even after a court order and the fact of this litigation cast doubt on whether the child would ever be able to join her, and the child thereafter lived with the father. Awarding the exclusive physical custody of the child to the mother would not only uproot the child from her relationship with her father, but also from her well-established relationships with extended family, her friends, and her physical environment here in Alabama. In addition, there was substantial evidence impugning the mother’s moral character and lifestyle choices as they related to her capacity to provide for, and her interest in providing for, the emotional, social, and moral needs of her child. Further, there was substantial evidence from which the trial court could have drawn negative inferences regarding the mother’s credibility as to the testimony she offered throughout the trial.

“There is sound reasoning behind [the ore tenus] standard, which recognizes the trial court’s unique position to observe the parties and to hear their testimony.” Ex parte Murphy, 670 So.2d 51, 52 (Ala.1995).

“[The trial judge] is the one closest to the scene and the protector of the children until they become adults. That responsibility is awesome and must weigh heavily upon the bearer. It is in recognition of that burden, that our appellate courts presume that the trial judge, who observed the parties and heard the testimony of the witnesses, correctly discharged his responsibility. In only the instance of clear and palpable abuse of the discretion granted, should a reviewing court on appeal disturb the judgment of the trial court.”

Smith v. Smith, 448 So.2d 381, 383 (Ala.Civ.App.1984).

In this case, there was substantial evidence to support the trial court’s judgment. We therefore affirm that judgment.

Both parties’ requests for attorney fees on appeal are denied.

AFFIRMED.

PITTMAN, J., concurs.

YATES, P.J., and CRAWLEY and THOMPSON, JJ., concur in the result.

      . Unlike the “normal” custody-modification proceeding that can end simply with a denial of the modification petition if the stringent McLendon standard is not met, thus leaving the parties with the same respective custody/visitation arrangement they had before the action was commenced, a decision by one parent to move out of state (or some other considerable distance) almost inevitably requires a significant disruption in the child’s custody or visitation with one parent or the other.
      In the present case, the father has maintained actual physical custody of the child approximately 45% of the time during each of the last several years before trial. Now that one of the parents is moving out of state, awarding primary physical custody to either parent will be somewhat disruptive to the child; however, awarding primary physical custody to either parent will not be as disruptive as in a typical McLendon situation.

      . The transcript of the hearing in this case was 483 pages long. The majority of that transcript contains testimony and other evidence supporting the father’s contentions that it would materially promote the child's best interests for the child to remain in Alabama with the father and the remainder of the extended family, rather than moving to Chicago to join the mother and her new husband.


text:
    ELMORE COUNTY BOARD OF EDUCATION v. Dianne THORNTON.
    2000308.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    David R. Boyd and J. Beth Moscarelli of Balch & Bingham, L.L.P., Montgomery, for appellant.
    Kathryn Dickey of McPhillips, Shin-baum & Gill, L.L.P., Montgomery, for ap-pellee.
   MURDOCK, Judge.

Dianne Thornton was dismissed from employment by the Elmore County Board of Education. She filed a four-count complaint in the Elmore Circuit Court claiming, among other things, that her dismissal had been improper under the Fair Dismissal Act, §§ 36-26-100 through -108, Ala.Code 1975 (hereinafter referred to as “the Fair Dismissal Act” or “the Act”). The Board filed a motion for a summary judgment on all of Thornton’s claims, and Thornton filed a motion for a summary judgment on, among other things, her claim alleging improper dismissal under the Act. The trial court granted Thornton’s summary-judgment motion as to her claim alleging improper dismissal under the Act and denied the Board’s summary-judgment motion as to that claim; its one-sentence judgment in favor of Thornton did not include findings of fact or conclusions of law. The Board appeals.

Thornton was employed by the Board as a full-time bus driver for the 1995-1996 school year, beginning September 28,1995. She was rehired for the 1996-1997, 1997-1998, and 1998-1999 school years. She was terminated without a hearing on September 21, 1998, effective October 14, 1998. Thornton also had been employed by the Board as a full-time bus driver for approximately two months during 1976.

The Board makes all hiring and firing decisions with respect to all employees in the Elmore County school system. When Thornton was hired by the Board for the 1995-1996 school year, she and the Board entered into an employment contract for the 1995-96 school year. The contract was entitled: “Elmore County Board of Education — Specific Letter of Appointment— Non-Tenured Support Personnel,” and stated, in pertinent part:

“School Year: 1995-96
“Beginning Date: September 28,1995
‘Tears of Experience: none
“Annual/Monthly Salary: 7857.77/668.88
‘Tour employment is considered probationary and temporary until such time as you earn permanent status in compliance with state law. Your employment shall not constitute a contract beyond this one school year.
“I understand that the information that I have provided the Elmore County Board of Education is in the nature of a representation, and if incorrect on a material fact, will constitute sufficient cause for cancellation of this contract.... I hereby accept this position offered to me in the Elmore County school system for the 1995-96 school year with the understanding that I adhere to all board policies and procedures.”

Near the end of the term of school in each of the 1995-1996, 1996-1997, and 1997-1998 school years, the superintendent sent Thornton a memorandum requesting information concerning whether Thornton intended to work in the Elmore County school system during the following year. Each memorandum was addressed to “[a]ll Bookkeepers, Bus Drivers, Custodians, Maintenance, Secretaries, and Teacher Aides in the Elmore County schools.” Although the record contains copies of only two memoranda regarding “Plans for 1996-97” and “Plans for 1997-98,” the Board submitted, in support of its summary-judgment motion, an affidavit of the associate superintendent indicating that Thornton had also received, signed, and returned a similarly worded memorandum at the conclusion of the 1997-1998 school year indicating her desire to continue working as an employee of the school system during the 1998-1999 school year. The two memoranda included in the record are identical except for the dates and the school years referenced. The memorandum regarding “Plans for 1997-98” states:

“Each year at this time we request information from each employee relative to his/her working in Elmore County the next year.
“Please indicate below whether or not you plan to work in the Elmore County School System during the 1997-98 school year. A negative reply will be considered equivalent to a resignation at the end of this scholastic year, 1996-97. “Please check one of the following and return this form to your principal so that it may be returned to the county office by April 15, 1997.
“() I plan to continue working in the Elmore County School System next year, 1997-98.
“() I do not plan to work in the Elmore County School System next year, 1997-98.
“() I plan to retire at the end of the 1996-97 school year.”

It is undisputed that, during the summer months, Thornton continued to receive a paycheck and to accrue annual leave and sick leave; continued to have mandatory contributions to the Teachers’ Retirement System of Alabama (“TRS”), § 16-25-1 et seq., Ala.Code 1975, deducted from each paycheck; and remained covered under the Public Education Employees’ Health Insurance Plan (“PEEHIP”), § 16-25A-1 et seq., Ala.Code 1975.

The Board’s payroll coordinator explained in a deposition that the salaries of all school employees who work during the nine-month term of school are paid over a period of 12 months so that those employees will continue to receive a paycheck during the summer months when school is not in session. She explained that all nine-month employees receive their final paycheck for the previous nine months of work at the end of August of each year.

The Board submitted an affidavit of the director of benefits for the TRS, explaining that creditable service for purposes of an employee’s retirement-account statement includes all months in which contributions are deducted from a paycheck. The Board also submitted an affidavit of the director of insurance for PEEHIP, explaining how benefits are allocated under that plan so that employees who are not employed during the summer months remain covered under that plan during the summer.

The Board contends on appeal that Thornton was a probationary-status employee under § 36-26-101(a), Ala.Code 1975, and that she therefore was not entitled to a pretermination hearing under § 36-26-103, Ala.Code 1975. The Board contends that Thornton was not employed during the summer months, and that she had therefore not obtained nonprobation-ary, or “tenured,” status at the time she was terminated. Specifically, the Board contends that Thornton had been employed for a total of 29 months at the time of her termination, 7 months less than the 3 years required to become tenured under § 36-26-101(a) and -102.

Thornton contends that she was improperly dismissed without a pretermination hearing because, she says, she had been employed for more than three years at the time of her termination and thus had obtained tenured status at the time she was terminated. With respect to her employment from 1995 through 1998, Thornton contends that, for purposes of § 36-26-101(a), she was employed by the Board one week less than “three years,” i.e., that she was continuously employed from September 28, 1995, until she was terminated on September 21,1998, including the summer months. She contends that that amount of time, plus her two months in 1976, exceeds the three-year threshold for tenured status. We agree that Thornton has attained tenured status, and therefore affirm the trial court.

The nature of Thornton’s job as a bus driver was such that, like a teacher, the period during which her duties had to be performed corresponded to the nine-month period during which school was in session. Thornton argues that because she never submitted a negative response to the memorandum she received each spring from the superintendent, she was not considered to have resigned at the end of a scholastic year and that she therefore remained employed year-round. Thornton points to the following facts as additional support for her position: she continued to receive a paycheck and to earn annual leave and sick leave during the summer months; she and her family continued to remain covered under PEEHIP; and her TRS account statement dated June 30, 1999, reflected three years and three months of creditable service.

There is no dispute that Thornton is an employee covered under the Fair Dismissal Act. The “probationary period” for employees covered under the Act is set forth in § 36-26-101, Ala.Code 1975, which provides, in pertinent part:

“(a) All employees as defined in Section 36-26-100 shall be deemed employed on a probationary status for a period not to exceed three years from the date of his or her initial employment, or a lesser period which may be fixed by the employing authority.
“(c) At any time during the employee’s probationary period, the employing authority may remove an employee by furnishing said employee written notification at least 15 days prior to the effective day of termination.”

(Emphasis added.) Upon the completion by an employee of his or her three-year probationary period, “said employee shall be deemed employed on a nonprobationary status.” Ala.Code 1975, § 36-26-102. Employees on nonprobationary status may not be terminated without, among other things, an opportunity for a hearing. See Ala.Code.1975, § 36-26-103 through -106.

We note that just as § 36-26-101(a) uses the measure of three “years” for an employee’s probationary period, the contracts at issue in the present case applied consecutively to the 1995-1996, 1996-1997, and 1997-1998 “school years.” We conclude that by the use of the word “years” in § 36-26-101(a), the Legislature intended, at least in the context of facts such as those presented in this case, that the duration of an employee’s employment should be measured without gaps for the summer months falling between the consecutive nine-month “school terms” in question.

In Uwakolam v. Huntsville City Board of Education, 554 So.2d 1036 (Ala.Civ.App.1989), this court concluded that the term “years” under § 36-26-101(a) means “calendar years”. Id. at 1037. Relying on the definition of “year” under § 1-1-1(16), Ala. Code 1975 (defining the term “year,” in pertinent part, as “mean[ing] a calendar year”), we held that “the legislature intended the language ‘three years’ contained in § 36-26-101(a) to mean three calendar years.” 554 So.2d at 1037.

In Uwakolam, we stated that “[t]he employees dealt with under §§ 36-26-100, et seq., are nonteachers employed year round.” Id. at 1038. In that case, a non-teacher employee was hired from April 26, 1983, until January 10, 1984, a period of almost nine months if the inclusive summer months are counted, and from October 1, 1985, until July 2, 1987, a period of 21 months if the inclusive summer months are counted. Based on those employment periods, this court concluded that the “actual length of time employed” in that case was 30 months. Id.

In Ex parte McLeod, 841 So.2d 260 (Ala. 2001), the Supreme Court reiterated the method of calculating the requisite service time to achieve tenured status, stating that “[u]nder the [Fair Dismissal Act], [an employee] must have three years of full-time employment to be entitled to tenure. See § 36-26-101, Ala.Code 1975.” 841 So.2d at 264. On remand from the Supreme Court, this court asked the parties to brief, among other things, the issues of “how many ‘school terms’ ha[d] [the plaintiff] been employed full-time” and “[d]oes that number of ‘school terms’ amount to three years within the meaning of § 36-26-101.” Young v. McLeod, 841 So.2d 268, 272 (Ala.Civ.App.2002). Based on the responses of the parties, this court summarily disposed of the latter issue by noting as follows:

“The parties agree that a ‘school term’ at the college was, at the times relevant to this appeal, an academic quarter; that [the employee] was employed for more than 9 quarters, ...; and that 9 quarters qualifies as ‘three years’ within the meaning of § 36-26-101 and Ex parte Clayton, 552 So.2d 152, 154-55 (Ala.1989) (holding that, for purposes of the [Fair Dismissal Act], an employee’s three-year time of service need not be continuous or consecutive).”

Young v. McLeod, 841 So.2d at 273 (emphasis added; footnote omitted).

In Kirkland v. Davis, 682 So.2d 1366 (Ala.Civ.App.1996), this court, in the context of addressing Alabama’s Teacher Tenure Act, noted that there had been much confusion arising from the interpretations of the terms “school year,” “scholastic year,” and “school term” in the Teacher Tenure Act, Ala.Code 1975, § 16-24-1 et seq. For purposes of the Teacher Tenure Act, the Legislature has defined “scholastic year” as “begin[ning] with the first day of July and end[ing] with the thirtieth day of June each year.” Ala.Code 1975, § 16-1-1(4). This court held in Kirkland that, in the absence of a school-term designation by a board of education, the last day of the school term within the meaning of § 16-24-12, Ala.Code 1975, is the day when activities relating to attendance of the students and/or the teachers for that school year are concluded; in other words, the term of school ends when both students and teachers are dismissed from further duty for that year. Kirkland, 682 So.2d at 1367. In this regard, we note that the Fair Dismissal Act provides that it applies to full-time bus drivers and other employees whose duties require 20 or more hours of work “in each normal working week of the school term.” Ala.Code 1975, § 36-26-100 (emphasis added).

In Estill v. State Tenure Commission, 650 So.2d 890, 891 (Ala.Civ.App.1994), this court construed “succeeding year” under § 16-24-5 to mean “succeeding scholastic year.” A careful reading of Estill reveals that this court attributed the same meaning to the terms “school year” and “scholastic year,” but a different meaning to the term “school term.” In Estill, this court held:

“ ‘Generally, when a statute speaks of a year, twelve calendar ... months are intended.’ Black’s Law Dictionary 1615 (6th ed.1990). We must give words their natural and ordinary meaning in ascertaining legislative intent, and a court is bound to interpret language to mean exactly what it says. IMED Corp. v. Sys. Eng’g Assocs. Corp., 602 So.2d 344 (Ala.1992). We find that if the legislature had intended that a ‘succeeding year’ mean something less than twelve calendar months, i.e., ‘school term,’ then § 16-24-5 would have read ‘succeeding school term’ instead of ‘succeeding year.’ When the statutory language is clear and unambiguous, there is no room for judicial construction. Parker v. Hilliard, 567 So.2d 1343 (Ala.1990).”

650 So.2d at 892 (footnote omitted).

In Estill, this court concluded that because the term “school year” and the term “school term” are used in different parts of the Alabama Code under the Teacher Tenure Act, the legislature intended the terms to have different meanings.

The foregoing distinction between “school year” and “school term” is consistent with an earlier opinion of our Supreme Court, Marshall County Board of Education v. State, 252 Ala. 547, 42 So.2d 24 (1949), wherein the Supreme Court held that “school year” under § 298, tit. 52, Ala.Code 1940 (now § 16-28-4, Ala.Code 1975), meant “scholastic year” as defined under § 1, tit. 52, Ala.Code 1940 (now § 16-1-1). In Marshall County, the Supreme Court stated:

“It is a matter of common knowledge that public elementary schools are not open for instruction during the entire twelve-months period. They usually open in August, September, or October, and generally instruct for a period of nine months thereafter. But the dates on which schools open and close do not determine a ‘school year.’ As before indicated, a ‘school year’ and a ‘scholastic year’ are the same. Such we think is the clear legislative intent.”

252 Ala. at 550, 42 So.2d at 26.

In light of the foregoing authorities, we conclude that the “school years” for which Thornton was employed were, for purposes of the measurement of “years” in § 36-26-101(a), not limited to the nine-month “school terms” falling within those years, but necessarily included the summer months falling between those nine-month school terms. Accordingly, we conclude that Thornton was employed for three or more school years and therefore should not have been treated as a probationary employee under § 36-26-101(a). The judgment of the trial court is due to be affirmed.

AFFIRMED.

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

      . All other claims by Thornton were disposed of in favor of the Board, either at a pretrial conference or by the entry of a partial summary judgment in the Board's favor.

      . The Board claims to have voted to terminate Thornton at its September 21, 1998, meeting. Thornton notes that the Board's minutes of that meeting contain no reference to such a vote. However, Thornton requested to appear, and in fact appeared, before the Board at its October 26, 1998, meeting in an effort to change the Board's determination; the Board did not alter its decision to terminate Thornton.

      .The memorandum makes no reference to the probationary or nonprobationary status of the employees to whom it is addressed.

      . The Board calculates 29 months as follows: September 28, 1995 through May 1996 (eight months), plus August 1996 through May 1997 (nine months), plus August 1997 through May 1998 (nine months), plus August 1998 until September 21, 1998 (one month), plus August 1976 through October 1976 (two months). The Board concedes that, for purposes of obtaining tenured status, Thornton can count the two months in 1976 during which she was employed as a bus driver. See note 6, infra.

      . As noted previously, the effective date of Thornton's termination was October 14, 1998. Nonetheless, in their briefs to this court, the parties treat September 21, 1998, as the termination date for purposes of calculating the duration of Thornton’s employment. In light of Thornton’s two months of employment by the Board in 1976, the outcome of this case does not depend upon whether Thornton’s employment included the period from September 21, 1998, to October 14, 1998. See Ex parte Clayton, 552 So.2d 152, 154-55 (Ala.1989) (holding that, for purposes of attaining nonprobationary status under § 36-26-101 and -102, the period(s) of an employee’s three-year time of service need not be continuous or consecutive).

      . For purposes of the Fair Dismissal Act, the term "employees" is defined at § 36-26-100, Ala.Code 1975, which provides, in pertinent part:
      "The term ‘employees,’ as used in this article, is deemed to mean and include all persons employed by county and city boards of education, ... who are so employed as bus drivers, lunchroom or cafeteria workers, maids and janitors, custodians, maintenance personnel, secretaries and clerical assistants supervisors.... Only full-time employees who are not otherwise covered by the state Merit System, [or] the teacher tenure law ... are intended to be covered by this article. Full-time employees include (a) adult bus drivers and (b) other employees whose duties require 20 or more hours in each normal working week of the school term, employing board holidays excepted. Substitute teachers and substitute employees are excluded from the article.”

      . As previously noted, the Alabama Supreme Court in Ex parte Clayton, 552 So.2d 152 (Ala.1989), held that, for purposes of attaining nonprobationary status under § 36-26-101 and -102, the period of an employee’s three-year time of service need not be continuous or consecutive. See note 5, supra. Clayton, however, did not address the proper method of calculating an employee's time of service when that service is continuous and consecutive. Nor did Clayton address the specific issue of whether summer months falling within consecutive “school years” in which an employee is employed should be counted in determining the employee's time of service.

      . Because of this and the fact that the parties had in fact stipulated that the employee had been employed less than three years, the employee properly remained classified as a probationary employee. Uwakolam, 554 So.2d at 1038.


text:
    Bradley S. MOSER v. Jamie Lynn MOSER.
    2000999.
    Court of Civil Appeals of Alabama.
    June 28, 2002.
    Bradley S. Moser, pro se.
    Ellen T. Turner, Mobile, for appellee.
   CRAWLEY, Judge.

Bradley S. Moser (“the father”) appeals from the trial court’s denial of his motion filed pursuant to Rule 60(b), Ala. R. Civ. P. The father and Jamie Lynn Moser (“the mother”) were divorced on August 2, 2000. The divorce judgment awarded custody of the parties’ minor daughter to the mother.

The father filed a postjudgment motion on August 17, 2000. That motion was, by handwritten notation on the motion itself, granted in part and denied in part on September 6. However, no indication that the motion was disposed of appears on the case action summary sheet. On November 13, 2000, the father filed another motion, which he based on Rule 59, Ala. R. Civ. P., and Rule 60(b)(2), (3), and (6). If the father’s original motion had not yet been disposed of, it was denied by operation of law on November 15. On that date, the father’s November 13 motion would have ripened into a Rule 60(b) motion.

On December 11, 2000, the trial court denied the father’s Rule 60(b) motion. The father filed a “motion to reconsider” that denial on January 8, 2001. Such a motion is not authorized by the Rules of Civil Procedure and does not toll the time for taking an appeal. Ex parte Keith, 771 So.2d 1018 (Ala.1998). The father should have appealed the denial of his Rule 60(b) motion within 42 days of its denial on December 11, or by January 22, 2001. See Rule 4(a).

In August 2001, the mother filed a motion to dismiss the appeal, arguing that the appeal was untimely. This court denied that motion on September 4, 2001, because, at that point, we were uncertain exactly which issues the father would address in his brief and because we did not have the benefit of the record to determine the course of the proceedings below. After reviewing the record, and after determining that the father’s arguments concern only the denial of his Rule 60(b) motion, we are of the opinion that this appeal must be dismissed.

The mother’s request for sanctions is denied. The mother’s request for an attorney fee on appeal is granted in the amount of $1,000. In light of our dismissal, we deny all other pending motions as moot.

APPEAL DISMISSED.

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

      . Before November 13, the motion could have been treated as, if allowed by the trial court, an amendment to the original Rule 59 motion. See City of Rainsville v. State Farm Mut. Auto. Ins. Co., 716 So.2d 710, 711 (Ala.Civ.App.1998) (quoting Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426, 428 (Ala.1983)).