author: THOMPSON, Judge.

text:
    LEGAL ENVIRONMENTAL ASSISTANCE FOUNDATION, INC. v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT et al.
    2020040.
    Court of Civil Appeals of Alabama.
    June 13, 2003.
    Certiorari Denied Dec. 12, 2003 Alabama Supreme Court 1021671.

      David A. Ludder, Tallahassee, Florida, for appellant.
    James L. Wright and Olivia Jenkins, Alabama Department of Environmental Management.
   On Application for Rehearing

THOMPSON, Judge.

The opinion of March 21, 2003, is withdrawn, and the following opinion is substituted therefor.

These parties have been before this court before. Legal Environmental Assistance Foundation, Inc. (“LEAF”), sued the Alabama Department of Environmental Management (“ADEM”), alleging that ADEM had failed to follow the Alabama Administrative Procedure Act, § 41-22-1 et seq., Ala.Code 1975 (“the AAPA”), in promulgating its Implementation Procedures for Tier 2 of the Antidegradation Policy, Ala. Admin. Code (ADEM), Rule 335-6-10-04(03), and seeking a determination that the Implementation Procedures were invalid. The trial court entered a summary judgment in favor of ADEM, and, on December 15, 2000, this court affirmed without an opinion. See Legal Envtl. Assistance Found. v. Alabama Dep’t of Envtl. Mgmt. (No. 2990902, Dec. 15, 2000), 822 So.2d 490 (Ala.Civ.App. 2000) (table). Our supreme court reversed, holding that the Implementation Procedures were “rules” under the AAPA and, therefore, that ADEM was required to follow the rulemaking provisions of the AAPA in enacting the Implementation Procedures. Ex parte Legal Envtl. Assistance Found., Inc., 832 So.2d 61 (Ala.2002).

On May 16, 2002, the trial court, on remand, entered a judgment in which it declared the adoption of the Implementation Procedures invalid and enjoined ADEM from using those procedures until such time as they were adopted in compliance with the requirements of the AAPA. (Those Implementation Procedures are hereinafter referred to as “the invalid Implementation Procedures.”) In its May 16, 2002, judgment, the trial court also enjoined ADEM from issuing permits for the discharge of pollutants into the State’s waters until such time as some implementation procedures were adopted pursuant to the requirements of the AAPA. Also in that judgment, the trial court stated that LEAF could file a motion seeking an award of an attorney fee.

On June 24, 2002, LEAF filed in the trial court a motion seeking an award of an attorney fee; LEAF argued that it was entitled to an attorney fee because, it contended, the litigation it had initiated had conferred a benefit upon the general public. LEAF sought a total attorney-fee award of $111,450. ADEM filed an opposition to LEAF’S request for an attorney fee, and LEAF responded to that opposition. On August 20, 2002, ADEM filed a “Supplemental Memorandum in Opposition to [LEAF’s] Motion for [an] Award of Attorney Fees,” in which it argued that LEAF’S claim for an attorney fee was barred by Art. I, § 14, Ala. Const, of 1901, and the doctrine of sovereign immunity. LEAF did not respond to that argument.

On August 29, 2002, the trial court entered a judgment in which it denied LEAF’S request for an attorney fee; the trial court did not state the basis for its ruling. On October 9, 2002, LEAF appealed.

The facts detailing the parties’ dispute are set forth as follows in our supreme court’s opinion in Ex parte Legal Environmental Assistance Foundation, Inc., supra:

“The Federal Antidegradation Policy, 40 C.F.R. § 131.12, requires a state to ‘develop and adopt a statewide antide-gradation policy and identify the methods for implementing such policy.’ The Federal Antidegradation Policy specifies that statewide ‘policy and implementation methods shall, at a minimum, be consistent with the following’: (1) protect existing uses of ‘instream water’ and protect the level of water quality necessary to protect the existing uses; (2) maintain and protect ‘the quality of waters exceeding] levels necessary to support propagation of fish, shellfish, and wildlife’ unless a state finds that lower water quality is necessary, but, in any event, the state must assure ‘water quality adequate to protect existing uses fully’; (3) assure that water quality and uses are not lowered below the existing statutory and regulatory requirements; and (4) maintain and protect high-quality waters where those waters constitute ‘an outstanding National resource.’ 40 C.F.R. § 131.12 (emphasis added [in Ex parte Legal Envtl. Assistance Found.]).
“ADEM revised its statewide ‘antide-gradation policy,’ Ala. Admin. Code (ADEM), Rule 335-6-10-.04, effective April 3, 1991, in response to the mandates of the Federal Antidegradation Policy. However, the amended statewide antidegradation policy adopted by ADEM did not contain any methods or procedures for implementing the policy.
“In 1995, LEAF complained to the EPA that ADEM had not adopted any methods or procedures to implement the revised antidegradation policy. In April 1997, the EPA regional administrator for Region IV in Atlanta informed ADEM by letter that he was ‘considering a recommendation’ to the EPA administrator in Washington that ‘a federal promulgation is necessary to bring the statewide antidegradation policy into compliance with the requirements of the Clean Water Act.’ He asked ADEM ‘to take appropriate actions.’ The EPA regional administrator informed ADEM that if, within 90 days of its receipt of the letter, ADEM did not submit procedures to implement the statewide anti-degradation policy, then he would recommend that the EPA administrator in Washington ‘prepare and publish proposed federal regulations setting forth a revised statewide antidegradation policy-’
“Shortly thereafter, ADEM developed and adopted the Implementation Procedures now at issue before us, which allow the maximum pollution allowable under the Federal Antidegradation Policy and which establish the criteria to be met, and the procedures to be followed to demonstrate that those criteria have been met, by applicants for permits to discharge pollutants into Alabama waterways. The Implementation Procedures contain an intermingling of forms and procedures. On August 25, 1999, the EPA regional administrator for Region IV approved the Implementation Procedures.
“In adopting the Implementation Procedures allowing the pollution and establishing the criteria and procedures for permission to discharge, ADEM did not afford the public notice or opportunity to be heard or otherwise follow the requirements of the AAPA or the [Alabama Environmental Management Act] for the promulgation of ‘rules.’ Therefore, LEAF filed its civil action for declaratory and injunctive relief against ADEM. LEAF sought to enforce the rulemaking provisions of §§ 41-22-4, -5, and -23, and §§ 22-22A-8(a) and (b), AIa.Code 1975.”

832 So.2d at 63-64.

In April 2002, ADEM adopted an “emergency” rule allowing the implementation of its antidegradation policy, which allowed it to again issue permits for the discharge of pollutants. Pursuant to the AAPA, that emergency rule was effective for only 120 days, so that the effective period of the emergency rule ended on August 6, 2002. See § 41-22-5(b), Ala.Code 1975 (providing for the emergency rule and specifying that it be effective for 120 days).

Apparently during the period in which it operated under the emergency rule, ADEM proposed the formal adoption of another set of Implementation Procedures that were substantially the same as the invalid Implementation Procedures. ADEM provided interested parties and the public the notice required under the AAPA, and it conducted a hearing to receive comments on the proposed adoption of the new proposed set of Implementation Procedures. ADEM adopted, pursuant to the provisions of the AAPA, that set of Implementation Procedures; those procedures were effective July 31, 2002. See Ala. Admin. Code (ADEM), Rule 335-6-10-.12. (Those procedures are hereinafter referred to as “the newly adopted Implementation Procedures.”)

On appeal, LEAF first argues that the trial court erred in entering a judgment denying its claim for an attorney fee because, it contends, the claim for an attorney fee is not barred by Art. 1, § 14, and the doctrine of sovereign immunity. LEAF did not present any argument to the trial court in opposition to ADEM’s assertion that LEAF’S claim for an attorney fee was barred under those theories. This court may not consider an issue raised for the first time on appeal. Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992); Smith v. Equifax Servs., Inc., 537 So.2d 463 (Ala.1988). It is not clear whether the trial court relied on this theory as the basis of its judgment. Given LEAF’S failure to properly argue this issue before the trial court, we decline to address it on appeal.

LEAF next argues that the trial court erred in failing to award the attorney fee it requested. LEAF argues that it is entitled to an attorney fee under the “common-benefit” doctrine.

“Under the American rule, the parties to a lawsuit bear the responsibility of paying their own attorney fees. However, the law recognizes certain exceptions to this rule, and attorney fees are recoverable when authorized by statute, when provided by contract, or when justified by special equity. Blankenship v. City of Hoover, 590 So.2d 245 (Ala.1991); Reynolds v. First Alabama Bank of Montgomery, NA., 471 So.2d 1288 (Ala.1985). In the latter instance, attorney fees may be awarded where the plaintiffs efforts are successful in creating a fund out of which the fees may be paid, or when the efforts of the plaintiffs attorneys render a public service or result in a benefit to the general public in addition to serving the interests of the plaintiff. City of Ozark v. Trawick, 604 So.2d 360 (Ala.1992); Brown v. State, 565 So.2d 585 (Ala.1990); Bell v. Birmingham News Co., 576 So.2d 669 (Ala.Civ.App.1991). These have been termed the ‘common fund’ and ‘common benefit’ exceptions to the American rule.
“... Whether to award attorney fees is within the sound discretion of the trial court, and the ruling on that question will not be reversed on appeal absent an abuse of discretion. Battle [v. City of Birmingham, 656 So.2d 344 (Ala.1995)]; Tuscaloosa County Comm’n v. Deputy Sheriffs’ Ass’n of Tuscaloosa County, 632 So.2d 442 (Ala.1993).”

Ex parte Horn, 718 So.2d 694, 702 (Ala.1998) (emphasis added).

In this case, the trial court did not receive ore tenus evidence on the attorney-fee issue. Instead, it relied on the parties’ briefs and the evidence they submitted in support of those briefs. Where a trial court does not receive ore tenus evidence, the ore tenus presumption of correctness does not apply to its factual findings or to its judgment based on those findings. Ex parte Horn, supra. Therefore, this court reviews the evidence de novo. State Bd. of Educ. v. Waldrop, 840 So.2d 893 (Ala.2002); Ex parte Horn, supra. We also note, however, that a court is not compelled to award an attorney fee under the common-benefit doctrine merely because some benefit might be argued to have accrued to the public. State Bd. of Educ. v. Waldrop, supra (the court “may” award fees under the common-benefit doctrine); State Dep’t of Revenue v. Calhoun, 792 So.2d 373 (Ala.Civ.App.1998), rev’d on other grounds, 792 So.2d 380 (Ala.1999); Advertiser Co. v. Auburn Univ., 579 So.2d 645 (Ala.Civ.App.1991).

In arguing that it is entitled to an attorney fee under the common-benefit doctrine, LEAF maintains that its litigation against ADEM benefited the general public in the following ways: (1) ADEM was forced to discontinue its use of the invalid Implementation Procedures; (2) ADEM was temporarily enjoined from issuing permits for new or increased discharges into Alabama’s Tier II waters; and (3) ADEM initiated rule-making proceedings and received public comment before enacting the newly adopted Implementation Procedures, which are set forth at Ala. Admin. Code (ADEM), Rule 335-6-10-.12.

In response to LEAF’S argument that it was entitled to an attorney fee because, it contended, it had conferred a benefit upon the public, ADEM argued that the temporary cessation of its ability to issue discharge permits had disrupted or damaged some businesses that had sought those permits, and had caused a number of people employed in those businesses to lose their jobs. Also in response to LEAF’S argument that it was entitled to an attorney fee, ADEM argued that its financial budget was not sufficient to enable it to pay those attorney fees without cutting necessary public services. ADEM submitted evidence in support of its brief in opposition to LEAF’S request for an attorney fee; LEAF filed a motion to strike much of that evidence. The trial court did not rule on LEAF’S motion to strike. LEAF, on appeal, argues that the trial court erred in “denying” its motion to strike much of the evidence ADEM submitted in opposition to LEAF’S motion for an award of an attorney fee. In reaching our holding in this opinion, we have not considered the evidence ADEM submitted, and no purpose would be served by a detailed analysis of this issue. Therefore, any error the trial court might have committed in admitting the evidence to which LEAF objected, given the facts of this case, is harmless error. See Rule 45, Ala. R.App. P.

The appellate courts of this state have addressed situations in which trial courts have been asked to award an attorney fee under the common-benefit doctrine. In Brown v. State, 565 So.2d 585 (Ala.1990), the plaintiffs successfully challenged the State’s practice of prosecuting defendants in traffic-related cases based on unsworn or unverified traffic tickets. Our supreme court concluded that the litigation has “clearly resulted in a benefit to the general public” because, the court determined, “[i]t [was] unquestionable that plaintiffs’ attorneys rendered a public service by bringing an end to an improper practice.” Brown v. State, 565 So.2d at 592. Therefore, the court held that the trial court had improperly denied the plaintiffs’ request for an attorney fee based on the common-benefit doctrine.

In Bell v. Birmingham News Co., 576 So.2d 669 (Ala.Civ.App.1991), the Birmingham News (“the News”) filed a complaint seeking to enjoin the members of the Birmingham City Council from conducting elections in closed sessions or by secret ballot. The News prevailed in its litigation, and the trial court granted the News the relief it requested. The trial court also granted the News’s request for an award of an attorney fee under the common-benefit doctrine. This court affirmed the award of the attorney fee, holding that there was evidence to support the trial court’s determination that the News’s litigation conferred a benefit upon the public because it resulted in the cessation of “an improper practice.” Bell v. Birmingham News Co., 576 So.2d at 671.

In another case, however, this court affirmed the trial court’s determination not to award an attorney fee where the plaintiffs sought a fee under the common-benefit doctrine. In Advertiser Co. v. Auburn University, 579 So.2d 645 (Ala.Civ.App.1991), the parties disputed whether a certain report was a “public writing” that was subject to public disclosure under § 36-12-40, Alabama’s “Open Records Act.” 579 So.2d at 646. The report pertained to the activities of one of the employees of Auburn University who also served as a co-executor of an estate that had made a large contribution to the University. The trial court determined that the report was a public writing, and it ordered that the report be disclosed to the plaintiffs. The plaintiffs then moved for an award of an attorney fee, citing the common-benefit doctrine. The trial court denied the motion for an award of an attorney fee, and the plaintiffs appealed.

This court affirmed, noting that the decision whether to award an attorney fee under the common-benefit doctrine was within the trial court’s discretion. Advertiser Co. v. Auburn Univ., supra. The court held that an award of an attorney fee is not compelled under the common-benefit doctrine merely because there might be said to be a benefit to the public. Advertiser Co. v. Auburn Univ., 579 So.2d at 647. The court determined that the trial court could have determined that the benefit the public received from the plaintiffs’ action in that case was not “commensurate with the benefit” that resulted from the litigation in Brown, supra. The court also noted that, given the posture of the case, the trial court could have determined that the defendant University had made a reasonable legal argument in support of the position it took in the litigation, and that that conclusion supported the trial court’s refusal to award the plaintiffs’ an attorney fee. Advertiser Co. v. Auburn Univ., 579 So.2d at 649.

In State Department of Revenue v. Calhoun, 792 So.2d 373 (Ala.Civ.App.1998), rev’d in part on other grounds, 792 So.2d 380 (Ala.1999), this court affirmed the trial court’s determination that the Department of Revenue had failed to timely respond, pursuant to the Taxpayer’s Bill of Rights, to the plaintiffs administrative appeal. The trial court refused to award the plaintiff an attorney fee under the common-benefit doctrine; in his argument on appeal, the plaintiff alleged that the Department of Revenue’s actions had constituted “willful negligence.” 792 So.2d at 379. In affirming the trial court’s determination not to award the plaintiff an attorney fee, this court stated that “[t]rial courts need not award attorney fees in every instance in which there accrues a ‘common benefit’ to the general public because of the actions of a litigant; rather, they retain the discretion to do so or to refrain from doing so.” State Dep’t of Revenue, 792 So.2d at 379 (citing Advertiser Co. v. Auburn Univ., 579 So.2d at 647). This court noted that, although a common benefit might be inferred in the case, the plaintiff had failed to affirmatively demonstrate that common benefit. Id.

Our supreme court affirmed that part of our opinion in State Department of Revenue v. Calhoun that pertained to the claim for an award of an attorney fee under the common-benefit doctrine. Ex parte State Dep’t of Revenue, 792 So.2d 380 (Ala.1999). In so holding, the supreme court noted that the Department of Revenue had presented evidence explaining the delay in its response to the plaintiffs administrative appeal, and that that evidence did not support a conclusion that the Department’s delay was attributable to “willful negligence.” 792 So.2d at 384.

In a more recent case, our supreme court reversed the trial court’s award of an attorney fee under the common-benefit doctrine. State Bd. of Educ. v. Waldrop, supra. In that case, Waldrop successfully established that an enactment that had allowed local school boards to withhold up to five per cent of a teacher’s salary conflicted with a provision requiring that all teachers be paid the minimum salary schedule for their experience and length of service. Waldrop then moved for an award of an attorney fee, arguing that his litigation had conferred a common benefit on the public. The trial court awarded Waldrop $287,500 as an attorney fee. Our supreme court reversed, concluding that Waldrop had failed to show that, under the facts of that case, he had conferred a benefit on the general public. The court then went on to add:

“Finally, even if we attributed some tangential benefit to the Board as a result of the [litigation], the Board would be required to pay Waldrop’s attorney fees with funds from its annual budget. That money is allocated to the Board for the purpose of educating children enrolled in Alabama’s public schools. Thus, any award of attorney fees against the Board reduces the funds available for that purpose. We cannot conclude that Waldrop’s litigation benefited all children enrolled in Alabama’s public schools to the level required to justify an attorney-fee award under the common-benefit exception [to the American rule].”

State Bd. of Educ. v. Waldrop, 840 So.2d at 901-02 (emphasis added).

In this case, we conclude that the trial court did not err in denying LEAF’S request for an attorney fee. The record, even omitting for the sake of argument the evidence ADEM submitted and to which LEAF objected, supports a determination that LEAF was not entitled to an award of fees. One way in which LEAF maintains that its litigation benefited the general public was that ADEM was forced to refrain from using the invalid Implementation Procedures and that ADEM was enjoined, for a period of several months, from issuing permits for new or increased discharges of pollutants into the State’s Tier II waters. That period ended when ADEM adopted the emergency rule that was effective during the time it proposed and heard comments on the newly adopted Implementation Procedures. LEAF acknowledges that the cessation of ADEM’s authority to issue permits was temporary. Further, LEAF asserts only cursorily that, because of the temporary cessation of ADEM’s authority to issue permits, the public was benefited. LEAF does not argue, and did not present any evidence indicating, that the temporary cessation resulted in any lasting benefit to the public or that ADEM ultimately issued fewer discharge permits.

LEAF also argues that the public benefited from the requirement that ADEM use rule-making procedures and allow public comment before adopting the current Implementation Procedures. In making that argument, however, LEAF does not maintain that the newly adopted Implementation Procedures are different from the invalid Implementation Procedures. In fact, the newly adopted Implementation Procedures, which ADEM properly adopted pursuant to the provisions of the AAPA, are substantially similar to the invalid Implementation Procedures.

LEAF also maintains that, in initiating the litigation that resulted in the enactment of the newly adopted Implementation Procedures, it ended “unlawful conduct” on the part of ADEM. In response, ADEM contends that the record does not demonstrate that, when it improperly adopted the invalid Implementation Procedures, it acted in bad faith.

In Advertiser Co. v. Auburn University, supra, this court distinguished the facts of that case from those of Brown v. State, supra, and Bell v. Birmingham News Co., supra, on that same basis. The court noted that in Brown v. State, the State had “committed a clear violation of the law in question,” and that in Bell v. Birmingham News Co., “the city’s actions [were] an attempt to evade the provisions of a state law.” Advertiser Co. v. Auburn Univ., 579 So.2d at 649. The court noted that the trial court had found that there was arguable merit in the University’s refusal to disclose the report at issue, and concluded that “unlike the situations in Brown and Bell, there was no absence of justiciable issues.” Id.

Similarly, in this case, we conclude that ADEM’s position that the invalid Implementation Procedures were not “rules” subject to the rule-making provisions of the AAPA was, at the very least, legitimately arguable. Although our supreme court ultimately found ADEM’s interpretation to be incorrect, the determination of whether the implementation procedures constituted “rules” under the AAPA was a justiciable issue. See Advertiser Co. v. Auburn Univ., supra.

We also note that an award of attorney fees to LEAF from ADEM’s general budget would reduce ADEM’s ability to regulate such matters as the discharge of pollutants into Tier II waters. See State Bd. of Educ. v. Waldrop, supra. Given the facts and history of this case, we cannot say that LEAF’S litigation resulted in a benefit to the public that would “justify an attorney-fee award under the common-benefit exception.” Id. at 901.

We cannot say that LEAF has demonstrated that its litigation against ADEM was of such a benefit to the public as to justify an award of an attorney fee under the common-benefit doctrine. Therefore, we affirm the trial court’s judgment.

OPINION OF MARCH 21, 2003, WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED.

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

      . We recognize that the trial court entered its judgment nine days after ADEM filed its ''supplemental” opposition to LEAF'S claim for an attorney fee. LEAF did not respond to that "supplemental” opposition brief; it did not move for additional time to address that issue; and it did not file a postjudgment motion in the trial court pertaining to the issue of sovereign immunity. On appeal, LEAF has not contended that it did not have adequate time before the trial court entered its judgment in which to address that issue.

      . In its brief on application for rehearing, LEAF contends that it chose not to address the sovereign-immunity issue before the trial court because there was "no additional controlling authority” on that issue other than the cases it had already cited in support of its contention that it should be awarded an attorney fee under the "common-benefit” doctrine. In the trial court, LEAF had cited the following cases for the proposition that an attorney-fee award was appropriate under the "common-benefit” doctrine: Ex parte Horn, 718 So.2d 694 (Ala.1998); Brown v. State, 565 So.2d 585 (Ala.1990); Bell v. Birmingham News Co., 576 So.2d 669 (Ala.Civ.App.1991). LEAF also maintains in its brief on application for rehearing that "it would have served no useful purpose” for it to respond to ADEM's sovereign-immunity argument by reiterating before the trial court those same arguments.
      In its brief on appeal, however, LEAF addressed and argued the issue of sovereign immunity; it cited caselaw in support of its sovereign-immunity argument that it had failed to bring to the attention of the trial court. The authority LEAF cited for the first time on appeal included: State Bd. of Educ. v. Waldrop, 840 So.2d 893 (Ala.2002); Slawson v. Alabama Forestry Comm’n, 631 So.2d 953 (Ala.1994); State Dep’t of Human Res. v. Kelly, 623 So.2d 738 (Ala.Civ.App.1993); and Justice Maddox's dissent in State v. Brown, 577 So.2d 1256, 1260 (Ala.1996). We have again compared the arguments LEAF made before the trial court with those it asserted in its brief submitted to this court on original submission. We cannot agree with the assertion contained in LEAF'S brief on application for rehearing that, in concluding LEAF had raised an argument pertaining to the applicability of sovereign immunity for the first time on appeal, this court "overlooked” any argument on that issue that LEAF might have made before the trial court.

      . The trial court determined the appropriate attorney fee to be $115,000, and it then applied a multiplier of 2.5 to that award.

      . On application for rehearing, LEAF accuses this court of ''overlooking'' certain changes that it maintains, for the first time on application for rehearing, were made in the newly-adopted Implementation Procedures. As stated in this opinion, LEAF referenced none of those changes in its brief to this court on original submission, and it made no argument that any of the changes in the newly adopted Implementation Procedures supported its contention that it had conferred a benefit upon the public. It is not the duty or function of this court to search for evidence to support the contentions made in an appellant’s brief. See Rule 28(a)(10), Ala.R.App. P.; Ex parte Riley, 464 So.2d 92 (Ala.1985); Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Debe Hyde JONES v. William Lynn JONES. William Lynn Jones v. Debe Hyde Jones.
    2020083.
    Court of Civil Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 15, 2003.
    Certiorari Denied Dec. 12, 2003 Alabama Supreme Court 1022057.

      Lindsey Mussleman Davis of Holt, Mus-sleman & Holt, Florence, for appel-lani/cross-appellee Debe Hyde Jones.
    Robert I. Rogers, Jr., of Bedford, Rogers & Bowling, P.C., Russellville, for ap-pellee/cross-appellant William Lynn Jones.
   PER CURIAM.

This is an appeal by Debe Hyde Jones (“the mother”) from the Franklin Circuit Court’s denial of her motion to modify provisions of the parties’ divorce judgment establishing visitation for William Lynn Jones (“the father”); the mother also contends that the trial court erred in reducing the father’s child-support obligation and in failing to order the father to reimburse the mother for one-half of certain expenses. The father cross-appeals and argues that the trial court erred when it held that the father’s overpayment of child support was offset by the mother’s claim for certain unreimbursed expenses.

The father and the mother were divorced in June 2000. In the divorce judgment, the mother and the father were awarded joint legal custody of their four minor children with primary physical custody vested in the mother. In December 2000, one of the minor children died. In January 2001, the mother filed a petition to modify the father’s visitation so that, in the event of any child’s illness, all of the children would immediately be returned to her. The father filed an answer and a counterclaim in which he requested a reduction of his child-support obligation because of the death of one of the children; a modification of the summer visitation schedule; a change in the children’s college-fund status; a modification of the pertinent provision in the original judgment allocating each parent two of the children to claim as exempt dependents on that parent’s annual income-tax returns; an order that the mother be responsible for one-half of a jointly held credit-card debt; and a limitation on the amount of medical, extracurricular, and other expenses for which the father would be required to reimburse the mother.

In September 2001, the father amended his petition to add a request for primary physical custody of the oldest child; that request was withdrawn at the time of trial. The mother subsequently amended her petition to include a request that the trial court find the father in contempt for nonpayment of certain expenses incurred by the children. The trial court, in an ore tenus proceeding on May 29, 2002, heard testimony from the mother and the father regarding the issues raised in both parties’ petitions.

The trial court entered a judgment on July 25, 2002. The judgment denied the mother’s request for a modification of the father’s visitation, but it granted the father’s request that the summer visitation be modified so as to allow both parents sufficient time to take vacations with the children. The trial court reduced, retroac-five to the date of the filing of the father’s petition for modification, the father’s child-support obligation from $262 to $160.43 per week, and it concluded that the father’s overpayment of child support during the pendency of the litigation was offset by the unreimbursed expenses claimed by the mother. Finally, the judgment ordered that the children’s college fund be divided into two equal accounts, with each party to be responsible for the tax liability on one account, but that both parents would remain joint custodians of the funds.

The mother filed a postjudgment motion in which she disputed the trial court’s calculation of the father’s child-support obligation and asserted that her calculations indicated that the child-support guidelines required a $208 per week child-support payment by the father. The father filed a postjudgment motion wherein he alleged that the trial court had erred in failing to address his requests that the mother be responsible for one-half of a jointly held credit-card debt and that the trial court limit the amount of medical, extracurricular, and other expenses for which the father would be required to reimburse the mother. Following a hearing, the trial court denied parties’ postjudgment motions on September 12, 2002.

When a trial court bases its judgment on ore tenus evidence, that judgment is presumed correct and will not be set aside on appeal, unless this court determines that it is unsupported by the evidence so as to be plainly and palpably wrong. See Berryhill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997). Specifically, modification of child support is a matter that rests within the sound discretion of the trial court, and the trial court’s decision will not be reversed absent a clear abuse of discretion. See Griggs v. Griggs, 638 So.2d 916 (Ala.Civ.App.1994).

The father and the mother had been divorced for only seven months when the mother petitioned for a modification in visitation. The father’s answer and counterclaim requested a modification of child support because one of the minor children had died since the divorce. The record on appeal does not contain the original divorce judgment; however, the evidence presented in the modification hearing indicates that neither of the parents had experienced a substantial change in income. The mother’s Form CS-41 (“Child Support Obligation Income Statement/Affidavit”) showed that she was earning a monthly gross income of $2,602, and the father’s Form CS^tl indicated his monthly gross income to be $3,705. The trial court also admitted into evidence a copy of the father’s 2001 W-2 form that indicated he had earned $47,197.27 during that year. Dividing that annual-income figure by 12 months, the trial court determined the father’s monthly gross income to be $3,933; it inserted that figure on the Form CS-42 (“Child Support Guidelines” form) that it used to compute the father’s child-support obligation.

The mother argues that the issue whether a parent, whose health-insurance premiums are set by a collective-bargaining agreement, can receive credit for health-insurance costs is an issue of first impression in Alabama. The mother argues that the manner in which the father’s health-insurance premium was treated by the trial court — i.e., allowing credit for payment of an insurance premium that the father’s employer, not the father, paid but not including this benefit in the father’s reported wages — amounts to impermissible “double-dipping” in the sense that the father has gained a benefit from the premium payment without suffering a corresponding detriment of reporting a higher gross income for purposes of calculating child support.

The father is an electrical worker who does not regularly work for any single employer. Through an agreement with his local labor union, the father is allowed to designate part of his hourly salary to pay for health insurance and apprentice fees, and to allocate another part of that salary to two pension funds. The father testified that, if he were to elect not to pay for health insurance through the union, that money would go directly into his paycheck as additional income. It is only if the father actually pays the health-insurance premium that he is entitled to a credit for it on line 9 of Form CS^42. Specifically, Rule 32(B)(7)(c), Ala. R. Jud. Admin., provides that:

“[t]he amount [of health-insurance premium] shall be deducted from the obli-gor’s share of the total child support obligation, provided the obligor actually pays said premium. If the obligee is actually paying the premium, no further adjustment is necessary.”

The father cannot claim that he is paying the health-insurance premium for purposes of line 9 (“Adjustment for Payment of Health Insurance”) of Form CS-42, and then disclaim any entitlement to the amount of that premium for purposes of lines 1 (“Monthly Gross Income”) and 4 (“Basic Child Support Obligation”) of Form CS-42. The inconsistency in the father’s position arises out of his attempt to claim the amount of the insurance premium as a credit without his first including that amount for purposes of calculating the basic child-support obligation.

Income is defined for purposes of the child-support guidelines as “actual gross income of a parent.” See Rule 32(B)(1), Ala. R. Jud. Admin. Rule 32(B)(2)(a) defines “gross income” as including “income from any source.” As this court explained in Massey v. Massey, 706 So.2d 1272 (Ala.Civ.App.1997):

“[T]he trial court must take into account all sources of income.... The trial court has no discretion in this matter.... Thus, as recognized by our Supreme Court, the guidelines require the trial court to consider the resources of the parents, and not simply their incomes, in determining child support.”

706 So.2d at 1274 (emphasis added); see also Stinson v. Stinson, 729 So.2d 864 (Ala.Civ.App.1998) (holding that the value of a car, for which the employer supplied the fuel and paid for the insurance, was part of the husband’s income).

In the present case, the trial court utilized the father’s 2001 W-2 form to determine the father’s gross income on Form CS^2; that income did not include the amount of the health-insurance premiums at issue. Therefore, it is particularly noteworthy that the father in Ennis v. Venable, 689 So.2d 165 (Ala.Civ.App.1996), “contend[ed] that the trial court should have used only the wages that were reported on his W-2 form and that were subject to income tax liability.” 689 So.2d at 166. This court responded as follows:

‘While we find no cases in which Alabama courts have specifically addressed the question whether payments into a retirement plan on which taxes are deferred, are excluded from gross income, the intent of our legislature is apparent. Rule 32(B)(1) and (2), Ala. R. Jud. Admin., provides that, for purposes of the child support guidelines, ‘income’ means actual gross income of a parent, and ‘gross income’ includes income from any source. Additionally, this court has stated on previous occasions that a divorced parent’s obligation to contribute to the support of his or her minor children is not based solely on his or her wages, but may also be based on income derived from other sources. Barnes v. State ex rel. Cassady, 636 So.2d 425 (Ala.Civ.App.1994); State ex rel. Smith v. Smith, 631 So.2d 252 (Ala.Civ.App.1993).
“... While we appreciate the ultimate tax effect of permitting a wage earner to contribute toward a retirement plan, as determined by the Internal Revenue Service, we are also mindful that allowing a parent to exclude deferred income from calculations of child support income on which taxes have been deferred could frustrate the legitimate purpose of the support orders; it would permit a parent charged with a duty of support to lower the amount that would be subject to a support order.”

689 So.2d at 166.

The same principle that governed this court’s decision in Ennis governs this court’s decision in the present case. Regardless of whether a particular payment is excludable (or deferrable or deductible) from an employee’s “income” for federal or state income-tax purposes (and therefore may be “excludable” from the employee’s “income” as shown on his federal W-2 form), if it is a payment that an employee has the power either to accept or to direct as he or she sees fit — i.e., if the employee has the power to redirect the payment so as to cause it to be included in the employee’s paycheck — then such amount must be included as part of that employee’s income for the purposes of calculating the employee’s child-support obligation.

For the foregoing reasons, we conclude that the trial court erred in understating the father's gross income and, as a result, miscalculating the amount of child support owed by the father under Rule 32. We reverse the trial court’s judgment as to this issue and remand the cause for a recalculation of the child-support obligation consistent with this opinion.

The mother next argues that the trial court erred when it refused to modify visitation to require the father to return the children if any one of them becomes ill while visiting the father. The mother made that request after the death of one of the children in December 2000. In its judgment, the trial court made a specific finding that the death of that child resulted from complications from a diabetic condition that was unknown to either parent. The trial court also stated that no change in visitation requirements would have prevented the death of that child. Instead, the trial court ordered each of the parents to notify the other “upon the necessity of any form of medical treatment within [30] minutes of seeking that treatment.”

This court has consistently held that trial courts have broad discretion when determining visitation rights. See Wallace v. Wallace, 485 So.2d 740 (Ala.Civ.App.1986). A trial court’s judgment will not be reversed on appeal unless the evidence shows it to be plainly and palpably wrong. Little v. Little, 680 So.2d 308, 311 (Ala.Civ.App.1996) (citing Wallace, supra). We cannot conclude that the trial court’s decision to require only notification to the mother in the event of an illness during visitation, rather than an automatic termination of visitation, was plainly and palpably erroneous.

The mother’s final contention is that the trial court erred in failing to order the father to pay one-half of the unreimbursed medical expenses and extracurricular-activity expenses she had incurred with respect to the children and the burial expenses she had incurred with respect to the deceased child of the parties. The mother introduced an exhibit that itemized those expenses she contended were un-reimbursed: $898.40 in extracurricular-activity expenses, $590.91 in medical expenses, and $7,303.23 in burial expenses for a total of $8,792.54. The mother asked the trial court to order the father to pay half of those expenses, or $4,396.27. The father rebutted several items listed as extracurricular expenses by producing can-celled checks for some of the listed amounts. However, the trial court stated in its judgment that “[t]he request that [the father] be ordered to pay the cost of the head stone, flowers and closing the grave is denied for lack of subject matter jurisdiction.”

We have located no Alabama cases discussing the responsibility of divorced parents for payment of the burial expenses of a minor child; however, our Supreme Court has reviewed a divorced parent’s obligation to pay third parties for supplying medical services to a minor. In Ex parte University of South Alabama, 541 So.2d 535 (Ala.1989), it was held that neither the father’s lack of consent for medical treatment of a child nor the absence of a child-support order relieved that father of liability to pay for necessary medical expenses incurred by the minor child. Similarly, in Williams v. Baptist Health Systems, Inc., 857 So.2d 149 (Ala.Civ.App.2003), this court affirmed the principle that “persons providing ‘necessaries’ of life to minors may recover the reasonable value of such necessaries irrespective of the existence, or nonexistence, of a[n agreement or] contract respecting those necessities.” Williams, 857 So.2d at 151. Although a few states have enacted statutes to expressly require both parents to be jointly and severally liable for the medical and funeral expenses of their minor children (see, e.g., Stott v. Stott, 737 N.E.2d 854 (Ind.Ct.App.2000)), some state courts have determined that such a duty exists at common law as part of the doctrine of necessaries.

For example, an Ohio appellate court addressed the issue whether a divorced parent is responsible to pay for burial expenses in In re Terrell, 48 Ohio App.2d 352, 357 N.E.2d 1113 (1976). In that case, the court discussed the principle that a parent’s duty to support his or her child is also a duty owed to the state. Id., 48 Ohio App.2d at 354, 357 N.E.2d at 1115. The opinion then discussed the liability of a parent to pay third parties for furnishing services to the minor, citing Illinois and previous Ohio eases applying the doctrine of necessaries. Ultimately, the court concluded that a parent’s duty to support a minor child includes the obligation to pay reasonable funeral expenses for any child who dies before reaching the age of majority. Id., 48 Ohio App.2d at 355, 357 N.E.2d at 1116.

In other states, appellate courts have applied the doctrine of necessaries as obligating a parent to pay for the expenses incurred by his or her child, including medical and funeral expenses. See, e.g., Kaplon v. Harris, 567 N.E.2d 1130 (Ind.1991); Rose Funeral Home v. Julian, 176 Tenn. 534, 144 S.W.2d 755 (1940); and Graul v. Adrian, 32 Ill.2d 345, 205 N.E.2d 444 (1965). After reviewing these decisions in the light of Alabama law regarding the doctrine of necessaries as espoused in Ex parte University of South Alabama, supra, and Williams v. Baptist Health Systems, supra, we conclude that reasonable burial expenses are also an obligation that a parent may be required to pay on behalf of a minor child. We further conclude that the trial court erred in determining that it had no subject-matter jurisdiction to direct the father to reimburse the mother for paying his share of those expenses.

By its terms, the trial court’s judgment in this case holds that the only potential unreimbursed expenses the mother could claim were one-half of the children’s extracurricular-activity and medical expenses, or, at most, $744.65. At trial, the father argued that he had paid reasonable burial costs; however, the mother disputed that contention and introduced an itemized list of unreimbursed funeral expenses. In deciding that it did not have subject-matter jurisdiction, the trial court did not address the arguments presented by the father and the mother regarding their respective contributions towards the reasonable costs of necessary burial expenses. Because we conclude that the burial expenses could correctly be considered by the trial court in making its determination of any moneys that the father owed the mother, we reverse the trial court’s judgment to the extent that the trial court concluded that it did not have jurisdiction to consider burial costs, and we remand the cause for the trial court to determine what amount, if any, is due the mother for the unreim-bursed burial expenses of the parties’ minor child.

The father argued in his cross-appeal that the trial court erred in finding that the father’s overpayments of child support during the pendency of the modification were offset by the unreimbursed expenses claimed by the mother. Because we are reversing the trial court’s judgment relating to the issues of burial expenses and child-support calculation, and because that reversal directly implicates the parties’ relative obligations to each other, we cannot address at this time whether the trial court abused its discretion in concluding that the father’s overpayment was completely offset by the mother’s reimbursement claims. On remand, the trial court may properly consider the overpayment when making a determination regarding the unreimbursed burial expenses. See Ravenel v. Ravenel, 835 So.2d 1069 (Ala.Civ.App.2002). The trial court’s judgment is reversed as to the calculation of child support and as to the issue of payment of burial expenses; as to all other issues raised on appeal, the trial court’s judgment is affirmed.

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

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

      . We note that a modification petition cannot revive claims of error as to the judgment sought to be modified; therefore, we will not address the arguments of the father regarding the credit-card debt and the lack of limits on unreimbursed expenses that were not presented in a timely appeal from the June 2000 judgment. See McQuinn v. McQuinn, 866 So.2d 570 (Ala.Civ.App.2003) (plurality opinion holding that mother’s failure to appeal from original judgment regarding stepson visitation precluded later attack in modification proceeding). See also G.P. v. A.A.K., 841 So.2d 1252 (Ala.Civ.App.2002) and Greenhill v. Bear Creek Dev. Auth., 519 So.2d 938 (Ala.1988).

      . The mother has attached what appears to be a copy of the original divorce judgment as an appendix to her appellate brief; however, this court cannot consider any matter that is not contained in the record on appeal. See Adams v. Sanders, 811 So.2d 542 (Ala.Civ.App.2001); Davis v. Davis, 753 So.2d 513 (Ala.Civ.App.1999).


author: MURDOCK, Judge. YATES, Presiding Judge,

text:
    Melissa Adams BERRYMAN v. Susan ADAMS et al.
    2010991.
    Court of Civil Appeals of Alabama.
    Sept. 26, 2003.
    Certiorari Denied Dec. 19, 2003 Alabama Supreme Court 1030045.

      Mark “Bo” Ritter, Florence, for appellant.
    Lindsey Mussleman Davis of Holt, Mus-sleman & Holt, Florence, for appellees.
   MURDOCK, Judge.

Melissa Adams Berryman appeals from a judgment entered by the Lauderdale Circuit Court imposing a constructive trust on life-insurance benefits she collected upon the death of her husband and awarding $59,764.46 of those benefits to Susan Adams on behalf of her two sons. We reverse and remand.

Richard Adams (“Richard”) and Susan Adams (“Susan”) were married; they divorced on May 21, 1996. Two sons (“the minor children”) were born of the marriage. The judgment divorcing Richard and Susan provided that Richard was to maintain life insurance on his life for the benefit of the minor children. The divorce judgment provided, in pertinent part:

“In Order to secure the payment of child support in the event of the death of [Richard], [Richard] shall maintain and keep paid up to date a policy of insurance on his life in a face benefit amount of $50,000, with the children named as irrevocable beneficiaries. The policy shall be delivered to [Susan] within 45 days of the date of this order. [Richard] shall send to [Susan] written proof of the renewal of the policy within 30 days before the policy’s anniversary date during the children’s minority. After the support obligation is ended, then [Susan] shall return the policy to [Richard]. The cash surrender or loan value of the policy shall not be obtained by [Susan] during the existence of the support obligation except by order of the Court.”

At the time of the divorce, Richard had two life-insurance policies in effect. Both policies had been issued by State Farm Insurance Company, and each policy had a face value of $150,000 (“the original State Farm policies”); those policies named Susan as beneficiary and one of the minor children as contingent beneficiary. Following the entry of the divorce judgment, Richard provided the original State Farm policies to Susan. At trial, Susan testified as follows when asked about the fact that she and Richard went back to the court on one occasion following their divorce:

“Q. [Berryman’s Counsel:] Did you at that point demand that he give you a copy of the life insurance policies naming the children as irrevocable beneficiaries?
“A. [Susan:] No. I did not demand anything he could give me, because I already had two copies of the policy itself in my possession.
“Q. Did he ever deliver to you a policy naming the children as irrevocable beneficiaries within 45 days of the original decree?
“A. No, he did not.
“Q. And you didn’t petition the Court?
“A. I asked Richard about that, after the fact. And he told me that it was taken care of. That is all I knew was what he told me, because I already had the two policies in my hand.”

Susan also testified that, to her knowledge, the original State Farm policies “were not replaced”:

“Q. [Berryman’s Counsel:] Did [State Farm] ever send you any documents regarding [the original State Farm] policies in the mail?
“A. [Susan:] ... I never received anything from State Farm. I called and talked with Steve Pierce [a State Farm agent] regarding the policies.
“Q. So you never received anything saying that those policies were in effect?
“A. No. I never received anything.
“Q. Have you subpoenaed any documents that would reflect that those documents were no longer in force and effect?
“A. I don’t know. Don’t think so.
“Q. To your personal knowledge, those policies were not replaced?
“A. To my knowledge, those were the original policies. They were not replaced.”

Melissa Berryman married Richard on April 4, 1998. They mutually decided to purchase life insurance to cover the expenses, should one of them die, for a new house they were building. Accordingly, in 1998, Richard obtained a $150,000 policy from State Farm Insurance Company payable to Berryman (“the 1998 policy”). Berryman testified that she did not know whether the 1998 policy was a new policy or a replacement policy because she did not accompany Richard when he went to obtain the policy. Berryman also testified that the initial payment and the subsequent premium payments for the 1998 policy were drafted from her checking account.

Richard died on November 15, 1998. On December 16, 1999, Berryman received the $150,000 in proceeds from the 1998 policy. Berryman testified that she applied those proceeds to the expenses of building the house, as had been intended by Richard. The two minor children were not named as beneficiaries of the 1998 policy and did not receive any proceeds from it.

In December 1999, Susan’s attorney wrote a letter to Berryman informing her that Susan believed the minor children were entitled to a portion of the proceeds of the 1998 policy. Berryman refused to pay any benefits to Susan. (Berryman eventually testified at trial that she had not known about her husband’s insurance obligation to the minor children until after his death and that she had paid the premiums for the 1998 policy herself.) On August 29, 2000, Susan filed, as next of friend of the minor children, a suit against Berry-man seeking to impose a constructive trust on the life-insurance proceeds that Berry-man had received.

Berryman filed a motion for a summary judgment on August 31, 2001, which was denied by the trial court. A trial was held on February 22, 2002, at which evidence was received ore tenus. On March 21, 2002, the trial court entered its written final judgment imposing a constructive trust on the 1998 policy proceeds in the amount of $50,000 and awarding prejudgment interest from November 15, 1998, through March 14, 2002, in the amount of $9,764.46. Berryman filed a motion to alter, amend, or vacate the judgment on April 19, 2002; that motion was denied by the trial court on May 2, 2002. Berryman appeals from the imposition of a construction trust as to the 1998 policy proceeds and the award of prejudgment interest.

“A constructive trust is a creation of equity that operates to prevent unjust enrichment; such trust may be imposed when property interest has either been acquired by fraud, or where, in the absence of fraud, it would be inequitable to allow property interest to be retained by the person who holds it.”

Rau v. Rau, 429 So.2d 593, 595 (Ala.Civ.App.1982) (citing Coupounas v. Morad, 380 So.2d 800 (Ala.1980)).

“ “When a trial judge exercises his equitable discretion and imposes a constructive trust, we will not disturb his decision unless it is clearly erroneous.... “The issue of whether or not a constructive trust results is one of fact and ... when the evidence is [presented] ore tenus the trial court’s finding of fact will not be disturbed unless it is clearly erroneous or manifestly unjust.” ’ ”

Davis v. Barnfield, 833 So.2d 58, 64 (Ala.Civ.App.2002) (quoting Holman v. Kruk, 485 So.2d 715, 716 (Ala.1986)).

Berryman contends that the trial court improperly imposed the constructive trust on the proceeds of the 1998 policy essentially arguing, among other things, that Susan did not demonstrate that the minor children had a vested equitable interest in the 1998 policy. Susan counters that the constructive trust at issue was properly imposed by the trial court, relying largely on the decisions of our Supreme Court in Williams v. Williams, 276 Ala. 43, 158 So.2d 901 (1963), and Brown v. Brown, 604 So.2d 365 (Ala.1992). See also Frawley v. U.S. Steel Mining Co., 496 So.2d 731 (Ala.1986) (relying on Williams), and Posey v. Prudential Ins. Co. of America, 383 So.2d 849 (Ala.Civ.App.1980).

In Williams, the husband and his wife had two minor children. In the parties’ divorce judgment, the trial court ordered the husband to change the beneficiary of a particular, then-existing $1,000 life-insurance policy (insuring his life) by naming the parties’ minor children as the irrevocable beneficiaries thereof and to keep that policy in effect during the minority of the children. 276 Ala. at 45, 158 So.2d at 902. At the time of the divorce judgment, the policy named the wife as the beneficiary; pursuant to the divorce judgment, the husband changed the policy to name his children as the sole beneficiaries.

A few years after the parties were divorced, however, the husband again changed the $1,000 insurance policy, this time designating his mother as the sole beneficiary of the policy. Subsequently, when the husband died, the minor children (through their mother, the former wife) and the husband’s mother both filed claims with the insurer seeking the proceeds due under the insurance policy. The insurer filed an interpleader action to obtain a determination as to who should receive the proceeds of the policy. The trial court held that the children were entitled to the proceeds of the policy and ordered that a constructive trust be placed on the proceeds.

In affirming the trial court, our Supreme Court held:

“An agreement by an insured, in consideration of the settlement of property rights by which he agrees to make his children the sole irrevocable beneficiaries of a policy of life insurance, vests them with an equitable interest therein ivhich may not be defeated without their consent, and the insured cannot defeat the equitable right of a beneficiary by failing to act. He could not, in equity, be allowed to take advantage of his own wrong in breaching the property settlement and his estate is in no better position ....
“The legal consequence of the decree in the divorce suit was to give the children a vested equitable interest in the policy, and the subsequent change of beneficiary did not establish superior rights in the new beneficiary. In violation of the agreement and the decree, the insured wrongfully attempted to deprive his children of the proceeds of the policy by an attempted change of beneficiary. Equity will intervene and declare them the beneficiaries in the policy.”

Williams, 276 Ala. at 46-47, 158 So.2d at 903 (emphasis added).

Similarly, in Brown, 604 So.2d 365, a husband and wife were married in 1976 and had one child. During the marriage, the husband maintained two policies insuring his life, one through his employer and one with Liberty National Life Insurance Company. Each policy named the wife as its beneficiary. The parties divorced in 1978, and, under the divorce judgment, the husband was required to maintain those two policies and to

“ ‘assign to the minor child ... and make him irrevocable beneficiary on the life insurance policy [the policy number] carried through his employer American Cast Iron Pipe Company [“ACIPCO”] in the sum of [$12,000]; Defendant shall also assign to the minor child and make him irrevocable beneficiary on the life insurance policy [the policy number] carried through Liberty National Life Insurance Company in the sum of [$15,-000].’ ”

604 So.2d at 366. The husband was also required to continue paying premiums on the policies until the minor child reached the age of majority. The husband designated the minor child as the beneficiary under both policies soon after the divorce judgment.

Subsequently, the husband remarried and changed the ACIPCO policy by designating his second wife as the beneficiary thereof. He also allowed the $15,000 Liberty National policy to lapse, and he purchased a replacement policy from Alfa Insurance Company with a value of $25,000, again naming his second wife as the beneficiary. The husband died a few years later. The husband’s first wife filed an action on behalf of the minor child, requesting that a constructive trust be placed on the proceeds of the two policies. The trial court imposed a constructive trust on all of the proceeds of the ACIPCO policy and on $15,000 of the proceeds of the Alfa policy.

Our Supreme Court affirmed the trial court’s judgment, holding that the minor child had acquired a “vested equitable interest” in the ACIPCO policy, citing to Williams, supra. 604 So.2d at 367. The husband’s second wife contended that the Liberty National policy had lapsed and that the minor child had no vested interest in the proceeds of the Alfa policy. The Supreme Court rejected this argument, finding that the evidence was clear that the Alfa policy was a replacement for the Liberty National policy because the husband had purchased the Alfa policy at the same time he allowed the Liberty National policy to lapse and because his second wife admitted in testimony that the husband intended it to be a replacement policy. Consequently, “[b]ecause Williams, supra, would require that [the minor child] receive the proceeds of the $15,000 Liberty National policy, if it were still in effect, the trial court acted within its equitable discretion in imposing a constructive trust on $15,000 of the $25,000 proceeds of the Alfa policy....” 604 So.2d at 368. While the facts in Williams and Brown certainly are not without some similarity to those in the present case, those cases are distinguishable from the present case. In Williams and Brown, the divorce judgments identified particular, then-existing life-insurance policies as to which the children in those cases were to be named irrevocable beneficiaries. In both cases, the husband eventually either changed the beneficiary on the applicable policy so as to designate someone other than the child as the beneficiary or obtained a policy replacing the one specified in the divorce judgment, naming a different beneficiary on the new policy. The Supreme Court in Williams and in Brown reasoned, therefore, that the children in those cases had obtained vested equitable interests in the particular life-insurance policies at issue. In contrast, neither the original State Farm policies nor the 1998 policy were specifically referenced in the judgment divorcing the parties in the present case.

Nonetheless, one might argue that, through his actions, Richard identified the original State Farm policies to the divorce judgment, thus laying the foundation for a claim that the children did acquire a vested equitable interest in those policies. Even assuming the identification of the original State Farm policies to the divorce judgment, the fact remains that Susan is attempting to make a claim against the 1998 policy, not those original State Farm policies. Further, after careful consideration of the evidence presented in this case, we must conclude that that evidence is not sufficient to establish the same sort of relationship or connection between the 1998 policy and the original State Farm policies as existed between the Alfa policy and the Liberty National policy at issue in Broim. Instead, we find the state of the record in the present case to be more akin to that which was presented in the case of Rau v. Rau, 429 So.2d 593.

In Rau, a husband and wife were divorced in June 1971. The judgment divorcing the parties order the husband to “keep in force and effect a then existing life insurance policy on his life with the parties’ minor children named as irrevocable beneficiaries_” 429 So.2d at 594. The husband remarried in September 1971, and in 1976, after changing jobs and companies, his new employer took out a $10,000 insurance policy on his life. The husband named his second wife as the sole beneficiary of that insurance policy. The husband subsequently died in 1979, and his second wife received the proceeds of the employer-funded insurance policy. The husband’s minor children, through their mother as next friend, filed suit against the second wife, claiming, among other things, ownership to $5,000 of the insurance proceeds paid to the second wife. The trial court found in favor of the children and imposed a constructive trust on $5,000 of the insurance proceeds paid to the husband’s second wife, basing the decision squarely on Williams, supra.

This court reversed the trial court, finding that the evidence failed to support the result. Specifically, this court observed:

“The evidence fails to identify the policy of insurance for $5,000 referred to in the agreement of the parties and the subsequent decree. There is no indication that it was a policy issued at the husband’s place of employment.... [The former wife] did not know if the beneficiary was ever changed or whether the policy was issued through her husband’s employment' — whether it was cancelled for nonpayment or lapsed when the husband left his then place of employment shortly after the divorce. She made no inquiries about it until after his death and learning that the children received nothing under his will.
“The present wife had no knowledge of the provisions of the divorce relating to insurance. She knew of no policy other than the $10,000 policy involved in this case which was not issued until 1976.... The premiums were fully paid by the employer.... The proceeds had been invested in real estate.
"... [W]e are unable to find any property interest, either legal or equitable, of appellees in the proceeds of a policy of insurance which did not exist at the time of the decree of divorce. There is no evidence other than speculation as to the fate of the policy in which the appel-lees did acquire an equitable interest under the holding in Williams. There is no evidence that that policy was intentionally dropped and the present policy purchased in its place in order to fraudulently evade the children’s interest and the court’s decree. To the contrary, it is undisputed that the policy here was issued as an employment benefit without cost to the father and at a time of some five years subsequent to the decree. There is no evidence of an unjust enrichment to the appellant of property which should equitably belong to appel-lees. No fraud can be ascribed to appellant. We therefore can find no basis in equity for attachment of a constructive trust to the proceeds of the insurance policy.”

Rau, 429 So.2d at 595 (emphasis added).

In the present case, as in Rau, there is no evidence other than speculation as to the fate of the original State Farm policies. There is no evidence that the policies were intentionally dropped and the 1998 policy purchased in their place. (Indeed, as noted, Susan’s testimony tends to indicate that the original State Farm policies were not replaced.) In Rau, the policy in question was paid for by a third party without cost to the husband or to his former wife; in the present case, the policy in question was paid for by Berryman, herself, and not by Richard or Susan. Further, just as the second wife in Rau had no knowledge of the husband’s insurance obligation to his children under the divorce judgment, Berryman had no knowledge of Richard’s obligation under the divorce judgment until after his death. As in Rau, we cannot find sufficient basis in the particular evidence presented in this case to uphold a finding of unjust enrichment or a finding that the minor children had a vested interest in the 1998 policy so as to justify the imposition of a constructive trust on the proceeds of that policy.

Among other things, Berryman also argues that Susan failed to demonstrate that there was not an adequate remedy at law for any financial harm suffered by the children. “A constructive trust may be found only where a fraud or an inequity demand a result that may not be had at law.” Davis, 833 So.2d at 64 (citing Ran, 429 So.2d 593); see, e.g., American Family Care, Inc. v. Irwin, 571 So.2d 1058, 1061 (Ala.1990). Berryman argued at trial, and points out in her brief on appeal, that Richard owned several properties at the time of his death that might be worth an amount sufficient to cover the $50,000 insurance obligation under the divorce judgment. In light of our disposition of this case on the above-discussed grounds, we pretermit consideration of this and other arguments raised by Berryman on appeal.

On the basis of the foregoing, the trial court’s judgment imposing a constructive trust on the insurance proceeds received by Berryman is reversed, and the cause is remanded for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY and PITTMAN, JJ., concur.

THOMPSON, J., concurs in the result.

YATES, P.J., dissents.

YATES, Presiding Judge,

dissenting.

Following ore tenus proceedings, the trial court made the following findings of fact:

“1. Susan Adams and Richard Adams were the parents of the minor children.... Susan and Richard divorced in May, 1996.
“2. The Father, Richard Adams died November 15, 1998. He died intestate and no administration has been filed with regard to his estate.
“3. The Final Decree provided that the Father was to provide life insurance for the benefit of the children:
“ ‘In Order to secure the payment of child support in the event of the death of the Father, the Father shall maintain or obtain and keep paid up to date a policy of insurance on his life in a face benefit amount of not less than $50,000.00 with the children named as irrevocable beneficiaries. The policy shall be delivered to the Mother within 45 days of the date of this order. The Father shall send to the Mother written proof of the renewal of the policy within 30 days before the policy’s anniversary date during the children’s minority. After the support obligation is ended, then the Mother shall return the policy to the Father. The case surrender or loan value or the policy shall not be obtained by the Mother during the existence of the support obligation except by order of the Court.’
“4. Richard Adams represented to Susan Adams that he had insurance policies in effect through State Farm at the time of the divorce. At no time did he advise her that he had changed or canceled those policies.
“5. At the time of his death, Richard Adams had a life insurance policy for $150,000.00 payable to his new wife, Melissa (Adams) Berryman. In addition, he left other policies through his employment totaling $35,000.00 to Melissa (Adams) Berryman, as well. Hence, Melissa (Adams) Berryman received $185,000.00 in insurance proceeds.
“6. The children did not receive nor were they named beneficiaries on any life insurance policies at the time of their Father’s death.
“7. The Court finds that failing to designate the children as beneficiaries in accord with the Final Decree of Divorce was violative of said Decree.
“8. The Court finds that the children acquired a vested right in the insurance proceeds heretofore paid to Melissa (Adams) Berryman in that there were no other insurance proceeds designated for the children as required under the Final Decree of Divorce.
“9. The Court hereby imposes a constructive trust upon the insurance proceeds received by Melissa (Adams) Ber-ryman in the amount of $50,000 plus prejudgment interest of $9,764.46.”

Our supreme court in Brothers v. Fuller, 607 So.2d 135, 137 (Ala.1992), stated:

“The determination of whether a constructive trust results is one of fact. Thus, where a trial court makes a factual finding based on evidence presented ore tenus, as to whether a constructive trust has resulted, the court’s finding shall not be disturbed on appeal unless ‘it is clearly erroneous or manifestly unjust.’ ”

(Quoting Brothers v. Moore, 349 So.2d 1107, 1108 (Ala.1977).)

At the trial, Susan testified that, at the time of their divorce, there were two life insurance policies on Richard’s life. She stated that Richard had given her the two State Farm life insurance policies with a face amount of $150,000 each. Susan stated that Richard never told her that the policies had been replaced or canceled. She testified that after Richard’s death, she learned that the two policies were no longer in effect.

Berryman testified that she was not present when Richard obtained the 1998 life-insurance policy naming her as beneficiary. She stated at the trial that she did not know whether that policy was a replacement policy for the two previous policies. The two policies Richard gave to Susan were issued by State Farm, as was the 1998 policy under which Berryman collected $150,000. Berryman testified that payment for an insurance premium was drafted from her checking account each month, but that she did not know for which policy this payment was made, how Richard paid for the two previous policies, or if the premium she was paying was for the 1998 policy naming her as beneficiary.

The majority relies on Rau v. Rau, 429 So.2d 593 (Ala.Civ.App.1982), in reversing the judgment of the trial court, stating that “[tjhere is no evidence that the policies were intentionally dropped and the 1998 policy purchased in their place.” 883 So.2d at 220. However, our supreme court in Brown v. Brown, 604 So.2d 365, 368 (Ala.1992), did not adopt all of the reasoning of the Rau court, and it further stated with regard to the Rau opinion that “[t]he intent of the insured to evade the court order by replacing the court-ordered policy may not be as important as the fact of the violation of the order.” In the present case, there was no evidence that the two original policies were intentionally dropped and the present policy purchased to evade the court’s order; nonetheless, the trial court’s divorce judgment was violated.

Sometime after the divorce judgment had been entered, the then-existing insurance policies were canceled or permitted to lapse. It does not appear from the record why or when it happened, but there is evidence to support the trial court’s finding that the policies were not in existence at the time of Richard’s death. In the interim, Richard acquired another life-insurance policy, which did not name his sons as beneficiaries. At the time of his death, Richard had violated the divorce judgment by failing to “maintain” life insurance naming his sons as beneficiaries. While it would be easier if we could trace the sons’ equitable interest in the 1998 policy by showing that it replaced the two previous policies, the inability to trace their equitable interest should not mean that it cannot be recognized. I also disagree with the majority’s implication that Berryman’s payment of an insurance premium from her checking account transformed her into a bona fide purchaser, thus defeating the children’s claim for a constructive trust. Berryman testified that she was not present when Richard obtained the 1998 policy and that she was not sure what policy the insurance premium she was paying was for.

Because the ore tenus rule applies in this case, I believe that there is sufficient evidence to support the trial court’s findings of fact and its imposition of a constructive trust.

      . For purposes of our analysis, we further assume that Richard’s failure to change the policies so as to designate both of the minor children as the beneficiaries thereof is not an impediment to the trial court's ability to find that both of the children had an equitable interest in those policies.

      2. It is true, as Susan points out in her brief to this court, that our Supreme Court "[did] not necessarily adopt all of the reasoning of the Court of Civil Appeals in Rau. The intent of the insured to evade the court order by replacing the court-ordered policy may not be as important as the fact of the violation of the order." Brown, 604 So.2d at 368 (emphasis added). However, the Brown Court did not overrule Rau but, in fact, distinguished Rau from Brown in ways that mirror the differences between the present case and Brown, as discussed in the text, infm.


author: MURDOCK, Judge. CRAWLEY, Judge,

text:
    Freida Patterson LINDSEY v. Lloyd Michael PATTERSON.
    2020008.
    Court of Civil Appeals of Alabama.
    Dec. 12, 2003.

      Wanda J. Batson, Sylacauga, for appellant.
    Dianne James Davis, Alexander City, for appellee.
   MURDOCK, Judge.

Freída Patterson Lindsey, the mother, appeals from a judgment of the Clay Circuit Court requiring her to pay $2,000 per semester as postminority educational support for her son, Jeremy Patterson.

The mother and Lloyd Michael Patterson, the father, were divorced by a judgment entered by the Clay Circuit Court in 1992. Pursuant to the divorce judgment, the father was awarded custody of the parties’ three children, including the parties’ oldest son, Jeremy. In November 2001, the trial court entered an order requiring the mother to pay 50% of Jeremy’s college expenses “after all scholarships, grants, financial assistance, aid and benefits have been applied for and exhausted.” At that time, Jeremy resided with the father and was attending Southern Union Junior College on a scholarship. His only unpaid college expenses were the costs for books and certain fees. The mother’s payments for Jeremy’s postminority educational support at Southern Union totaled approximately $120 per semester.

In April 2002, the mother filed a petition to modify her postminority-educational-support obligation. The mother alleged that at the time the trial court entered its November 2001 order the parties had expected Jeremy to attend Jacksonville State University after he completed his studies at Southern Union. She alleged that Jeremy had subsequently decided to attend the University of Alabama. In her petition, the mother alleged that the costs for tuition, books, and room and board at the University of Alabama were considerably more than the same costs for Jeremy to attend Jacksonville State University or the University of Alabama at Birmingham. She also alleged that if Jeremy attended the University of Alabama at Birmingham he could live with her and the parties could save the costs associated with room and board. Further, she alleged that even if Jeremy attended the University of Alabama he could live with her brother, who resided approximately 20 miles from campus, and the parties could thereby substantially reduce the costs of room and board.

The mother alleged that she did not have sufficient funds to pay 50% of Jeremy’s postminority educational expenses if he attended the University of Alabama. She requested that the trial court either reduce or eliminate her obligation to pay postminority educational support for Jeremy if he attended the University of Alabama, require Jeremy to live with her brother if Jeremy attended the University of Alabama, require Jeremy to attend Jacksonville State University, or require Jeremy to live with her and attend the University of Alabama at Birmingham.

The father filed an answer denying most of the substantive allegations contained in the mother’s petition. He also filed a petition requesting that the mother’s summer visitation with the parties’ other two children be modified, but not reduced, so that those children could participate in summer sporting activities.

The trial court held a hearing on the parties’ petitions in June 2002. The only-evidence presented at trial was the testimony of the mother and documentary evidence that she introduced in support of her petition. At trial, the mother admitted that Jeremy would complete two years of study at Southern Union in the summer of 2002, that Jeremy had not applied to any school other than the University of Alabama, that he had been accepted at the University of Alabama, and that he was scheduled to begin his studies at the University of Alabama in the fall of 2002.

Approximately two months after trial, the trial court entered its judgment, stating, in part:

“Testimony was that the mother has known that she would be required to pay a percentage of [Jeremy’s] college expenses for a number of years. At one point, the percentage of the cost was greater than fifty percent (50%). The mother has failed to save for the minor child’s college expenses. In fact, the mother has purchased a residence, an automobile, along with contributing to her 401k plan. The last hearing on this matter was November 5, 2001 and there was no limitation as to where the child would live or what school the child would attend. The University of Alabama is the only college that the child ... has applied and been accepted and the court finds that the costs for living and college expenses would be approximately $4,000 per semester.”

The trial court ordered “[t]hat the mother ... pay $2,000 per semester beginning August 1, 2002 and will continue thereafter no later than the 1st day of the month of which each semester is to begin.” The trial court denied the father’s request to modify the mother’s summer visitation with the other children. The mother appeals.

The mother makes several arguments as to why she believes the trial court erred by ordering her to pay $2,000 per semester for Jeremy’s college expenses. However, only two of the mother’s arguments merit discussion — that the trial court’s award would cause her undue financial hardship and that the trial court failed to set reasonable limitations on her responsibility for Jeremy’s postminority educational support.

When a trial court receives evidence ore tenus, as it did in this case, its judgment is presumed to be correct and will not be disturbed on appeal unless it is unsupported by the evidence so as to be plainly and palpably wrong. Bishop v. Pierce, 726 So.2d 663, 664 (Ala.Civ.App.1998). Also, the modification of a child-support order rests soundly within the trial court’s discretion and will not be disturbed on appeal absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong. Berryhill v. Reeves, 705 So.2d 505 (Ala.Civ.App.1997).

This court has stated that a trial court, in reaching its decision as to postmi-nority educational support, “ ‘shall consider all relevant factors that shall appear reasonable and necessary, including primarily the financial resources of the parents and the child and the child’s commitment to, and aptitude for, the requested education.’ ” Thompson v. Thompson, 689 So.2d 885, 887 (Ala.Civ.App.1997) (quoting Ex parte Bayliss, 550 So.2d 986, 987 (Ala.1989)).

“A parent has a legal duty to provide or aid in providing a college education for his/her child if the child demonstrates the ability and willingness to attain a higher education and the parent has sufficient estate, earning capacity, or income to provide financial assistance without undue hardship to himself.”

Thrasher v. Wilburn, 574 So.2d 839, 841 (Ala.Civ.App.1990); see also Fielding v. Fielding, 843 So.2d 766, 769 (Ala.Civ.App.2002).

The mother argues that the trial court’s order requiring her to pay $2,000 per semester as postminority educational support imposes an undue financial hardship on her. The mother testified that she had not had sufficient income to save for Jeremy’s postminority education. However, the mother had managed to “recently” begin making contributions to her 401k retirement account, which contained approximately $19,000. Further, in November 2001, when the trial court first modified the mother’s postminority-educational-sup-port obligation, Jeremy had attained the age of majority, and, in its November 2001 order, the trial court reduced the mother’s child-support obligation from $800 per month, which she had been paying for several years, to $526 per month. There was no evidence that the mother had been unable to afford the $800 per month child-support obligation.

The mother also testified that she only had $145 per week in disposable income after the deduction of certain living expenses and legal obligations. She testified that, at the time of trial, she could not pay more than $120 per month for Jeremy’s postminority education. However, based on the above-described evidence and other evidence presented by the mother, the trial court could have concluded that any difficulty the mother might have in contributing financially to Jeremy’s postmi-nority education would not be as great as the mother testified. Based on the record presented, we cannot conclude that the trial court’s judgment was plainly and palpably wrong insofar as it requires the mother to pay $2,000 per semester as post-minority educational support.

The mother also argues that the trial court erred because it did not set reasonable limitations on her obligation to pay postminority educational support. This court has held “that the trial court must set reasonable limitations on the parent’s responsibility for postminority educational support, because the failure to do so may impose an undue hardship on the paying parent.” Hertzberg v. Gainey, 855 So.2d 561, 564 (Ala.Civ.App.2003); see, e.g., Penney v. Penney, 785 So.2d 376 (Ala.Civ.App.2000); and Kent v. Kent, 587 So.2d 409 (Ala.Civ.App.1991) (reversing the judgment and remanding the case for the trial court to set a reasonable time limitation on the obligation to pay postminority educational support, to require that the child maintain at least a “C” average, and to require that the child be enrolled as a full-time student). In this case, the trial court failed to incorporate any temporal and academic restrictions in its award of postmi-nority educational support.

The judgment of the trial court is affirmed insofar as it orders the mother to pay $2,000 per semester for postminority educational support. However, the judgment is reversed insofar as it fails to incorporate reasonable temporal or academic restrictions in its award of postminority educational support, and the cause is remanded for the trial court to incorporate such restrictions in its judgment.

The mother’s request for the award of an attorney fee on appeal is granted in the amount of $750.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

CRAWLEY, J., concurs in part and dissents in part, with writing.

CRAWLEY, Judge,

concurring in part and dissenting in part.

I concur with the main opinion on the issue of incorporating limitations on the mother’s responsibility for payment of college expenses.

I dissent from the main opinion on the issue of the mother’s postminority-edu-cational-support obligation. The trial court should give the mother credit for the cost of room and board while the child attends the University of Alabama. The trial court’s 1999 order regarding postmi-nority educational support stated that room and board would not be considered as an expense if the child resided with either parent. There was no evidence that the mother’s offer to allow the child to live with her and to attend the University of Alabama at Birmingham was unreasonable.

      . The November 2001 order modified an earlier order of the trial court that had required the mother to pay 56% of Jeremy’s postminority educational expenses.

      . The mother submitted evidence that the estimated costs for Jeremy to attend the University of Alabama were $4,251 per semester, including tuition and room and board. In her petition, the mother requested that the trial court reduce or eliminate her postminority-educational-support obligation if Jeremy attended the University of Alabama. She had no objection, however, to his attending Jacksonville State University (she actually requested that the trial court order Jeremy to attend Jacksonville State University), where his educational expenses would have been approximately $2,795 per semester. The mother’s support obligation if Jeremy had attended Jacksonville State University would have been approximately $1,397.50 ($2,795 -s- 2) per semester.