author: MURDOCK, Judge.

text:
    JAMES RIVER CORPORATION v. Melvin FRANKLIN.
    2000875.
    Court of Civil Appeals of Alabama.
    June 28, 2002.

      Terry A. Moore of Vickers, Riis, Murray & Curran, L.L.C., Mobile, for appellant.
    William L. Utsey of Utsey & Utsey, Butler, for appellee.
   MURDOCK, Judge.

James River Corporation appeals from a Choctaw Circuit Court’s judgment determining that Melvin Franklin sustained a permanent total disability from alleged back injuries suffered by Franklin while he was employed by James River.

According to the trial court’s judgment, Franklin suffered a herniated disc in his back while at work on September 4, 1994. He underwent surgery and was eventually able to return to work in December 1994. While at work in July 1995, however, Franklin injured his back again, suffering a “recurrent herniation.” For several months thereafter, Franklin attempted on several occasions, without success, to return to work.

In January 1996, Franklin sued James River, alleging that he was entitled to workers’ compensation benefits for injuries to his lower back he allegedly sustained while working at James River’s mill in Naheola. Franklin had been employed by James River, or its predecessor, American Can Company, since 1972. Franklin’s case was originally set for hearing in December 1997. However, when Franklin and James River appeared for that hearing, they entered into a settlement agreement. In that agreement, James River acknowledged that Franklin had injured his back at work in September 1994 and July 1995; agreed that the Workers’ Compensation Act applied to Franklin’s claim; agreed that James River had received notice of the accident that caused Franklin’s injuries; agreed to pay Franklin total disability benefits through December 1997; and agreed to continue paying Franklin total disability benefits in the future pending the results of treatment by Dr. Kenneth Staggs and possible surgery to be performed by Dr. Orhan Ilercil. The parties apparently believed that the treatments and a second surgery might result in Franklin’s being able to return to work.

In March 1998, Dr. Ilercil performed the second surgery on Franklin’s back. After this surgery, Franklin attempted to perform the job of a machine inspector at James River. However, Franklin alleged that after six days on the job he was not able to continue working because of the pain and the limitations associated with his back injury. James River did not contact Franklin regarding additional work until April 2000, when it informed him that it had another job opening for a machine inspector. Franklin received the notice of the new job opening a few days after the trial court had set his case for a hearing regarding whether Franklin was permanently disabled.

In May 2000, the trial court held a hearing regarding whether Franklin had suffered a permanent total disability. The trial court entered a judgment in April 2001 in which it concluded that Franklin had suffered a permanent total disability, and it awarded him permanent total disability benefits. James River appeals, arguing that the trial court erred because, it says, the trial court considered a deposition and an exhibit to a deposition that had not been admitted into evidence; because, it says, the trial court’s finding that Franklin suffered a permanent total disability was not supported by substantial evidence; and because, it says, the trial court’s award of attorney’s fees to Franklin’s attorney would require James River to make payments in excess of the amount to which Franklin and his attorney were entitled under the Workers’ Compensation Act.

The review of this case is governed by the Workers’ Compensation Act, which provides that “[i]n reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.” Ala.Code 1975, § 25-5-81(e)(2); see also Ex parte Trinity Indus., Inc., 680 So.2d 262, 269 (Ala.1996). Substantial evidence is “ ‘evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” Ex parte Fryfogle, 742 So.2d 1258, 1260 (Ala.1999) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)); see also Ex parte Trinity Indus., supra. “[Tjhere is a presumption of correctness in favor of the trial judge regarding findings of fact, including the determination of disability.” Mutual Sav. Life Ins. Co. v. Hogue, 693 So.2d 530, 531 (Ala.Civ.App.1997). “ ‘This court is precluded from weighing the evidence presented before the trial court. We merely examine the record to determine if the conclusion of the trial court is reasonably supported by the evidence, and, if so, whether the trial court has drawn the correct legal conclusions therefrom.’ ” Smith v. Michelin North America, Inc., 785 So.2d 1155, 1158 (Ala.Civ.App.2000) (quoting Fryfogle v. Springhill Mem’l Hosp., Inc., 742 So.2d 1255 (Ala.Civ.App.1998), aff'd, 742 So.2d 1258 (Ala.1999)). Further, we review legal issues “without a presumption of correctness.” Ala. Code 1975, § 25-5-81(e)(1).

James River argues that the trial court erred because in its judgment the trial court relied upon the deposition testimony of Dr. Robert Allen and Exhibit 1 to the deposition testimony of Dr. Kenneth Staggs. James River argues that neither Dr. Allen’s deposition testimony nor Exhibit 1 to Dr. Staggs’s deposition testimony were admitted into evidence. It supports its argument regarding Dr. Allen’s deposition by noting that the deposition transcript is not included in the record on appeal transmitted to this court by the circuit court. According to James River, the trial court relied upon this allegedly extrinsic . evidence to determine that Franklin suffered from arachnoiditis, a disabling condition caused by an inflammation of one of the coverings that envelopes the brain and spinal cord and whose symptoms include numbness, tingling, and burning pain in the legs.

As to Dr. Allen’s deposition testimony, James River filed a motion to strike that testimony before the May 2000 trial. However, during a pretrial discussion between the attorneys for both parties and the trial court, James River also requested that, if the trial court decided to admit Dr. Allen’s deposition testimony, James River be given the opportunity to have Dr. Staggs review Dr. Allen’s medical opinion and reevaluate Franklin.

The transcript from the trial indicates that the trial court admitted Dr. Allen’s deposition testimony into evidence, without objection, as part of 24 exhibits offered by Franklin. However, at the close of the trial the court stated:

“[T]he deposition of Dr. Allen ... has been offered but it is not admitted yet.
“... What I’m going to do is read these depositions [from other physicians] and see if I can rule in this case without the testimony of Dr. Allen_ And if I can, then I’m going to do that, and then all the rest of it is moot.
“If I read those depositions and determine that I need to read Dr. Allen’s deposition, I will then admit it, read it, and then rule on [James River’s] request to have a separate evaluation.
“[James River’s Counsel]: All right, sir.”

James River argues that the trial court granted its motion to strike Dr. Allen’s testimony. However, the record contains no order granting that motion and the above discourse, along with the trial court’s discussion of Dr. Allen’s deposition testimony in its judgment, indicates that the trial court admitted Dr. Allen’s deposition into evidence and denied James River’s request for a separate evaluation. The trial court did not consider extrinsic evidence when it reviewed Dr. Allen’s deposition testimony.

As to Exhibit 1 to Dr. Staggs’s deposition testimony, the trial court stated in its judgment that that exhibit indicated that Dr. Staggs had diagnosed Franklin with arachnoiditis in 1998, approximately two years before Dr. Allen examined Franklin. The record reflects that Dr. Staggs’s deposition testimony was admitted into evidence, without objection, but that there was some confusion regarding the assembly of depositions and exhibits at the close of the trial. James River correctly notes that no exhibits are attached to Dr. Staggs’s deposition testimony in the record on appeal, although two exhibits are referred to in that deposition testimony. "While Dr. Staggs’s curriculum vitae is referred to as Exhibit 1, a composite exhibit of Dr. Staggs’s medical records is referred to as Exhibit 2.

Although no exhibits are physically attached to Dr. Staggs’s deposition testimony in the record on appeal, a composite exhibit of Dr. Staggs’s medical records is contained in the record on appeal immediately following all of Franklin’s exhibits. That composite exhibit is marked as James River’s Exhibit 2 and is located immediately behind Dr. Staggs’s curriculum vitae, which is marked as James River’s Exhibit 1. Among the records found in James River’s Exhibit 2 are two September 1998 pain-management reports from Dr. Staggs in which Dr. Staggs diagnosed Franklin with arachnoiditis. Based upon the record, it appears that the exhibits to Dr. Staggs’s deposition testimony were not placed with his deposition testimony by mistake and that the trial court looked at the wrong exhibit number in writing its judgment. However, Dr. Staggs’s 1998 diagnosis that Franklin had arachnoiditis is part of the record on appeal. James River’s argument that the trial court relied on an exhibit to Dr. Staggs’s deposition testimony that was not admitted into evidence is without merit.

James River next argues that the trial court’s determination that Franklin suffered a permanent total disability was not supported by substantial evidence. Pursuant to the Workers’ Compensation Act, a “permanent total disability” includes, in pertinent part, “any physical injury ... resulting from an accident, which injury ... permanently and totally incapacitates the employee from working at and being retrained for gainful employment.” Ala.Code 1975, § 25-5-57(a)(4)d. We have stated that permanent total disability means “the inability to perform one’s trade and the inability to find other gainful employment.” Jim Walter Resources, Inc. v. Budnick, 619 So.2d 926, 927 (Ala.Civ.App.1993). We also have stated that permanent total disability under the Workers’ Compensation Act “does not mean absolute helplessness or entire physical disability.” Id.; see also Fryfogle, 742 So.2d at 1258.

In making a determination regarding the extent of disability, “the trial court must consider all the evidence, including its own observations, and interpret it to its own best judgment.” Cooper v. Seven Rivers, Inc., 688 So.2d 883, 886-87 (Ala.Civ.App.1997); see also Ellenburg v. Jim Walter Resources, Inc., 680 So.2d 282 (Ala.Civ.App.1996). Further, “[a]n injured employee’s own subjective complaints of pain are legal evidence which may support a finding of disability.” Jim Walter Resources, Inc., 619 So.2d at 927.

The trial court heard ore tenus testimony from Franklin; Bill Vinson, a certified vocational counselor; and Tracy Marvin, a human resources coordinator from James River. In addition, the trial court reviewed deposition testimony from seven doctors who had examined or treated Franklin between 1994 and 2000, and it reviewed numerous medical records. James River argues that the trial court made 10 factual findings that are not supported by substantial evidence and that the trial court’s determination that Franklin suffered a permanent total disability was not supported by substantial evidence.

From a review of the record it appears that James River has located some statements in the trial court’s judgment regarding what particular doctors concluded that are not supported by substantial evidence. For example, after Dr. William Bridges’s 1995 examination of Franklin, Dr. Bridges did not conclude, as the trial court stated, that Franklin suffered from nerve-root compression. Dr. Bridges testified that based upon his examination he could not definitively determine that Franklin suffered from nerve-root compression. However, we note that Dr. Donald Cook, who examined Franklin in 1996, testified that Franklin had a herniated disc and nerve-root compression, and that a radioligist’s report and MRI test results from 1994 indicated that Franklin had some nerve-root compression associated with his herniated disc after his first back injury.

Many of James River’s arguments relate to medical examinations that occurred before the parties’ December 1997 settlement and, more importantly, before Franklin’s treatment by Dr. Staggs and the 1998 surgery by Dr. Ilercil. Importantly, Franklin testified that his condition significantly worsened after his second back surgery in 1998.

The testimony from the six doctors whose depositions are included in the record on appeal is practically unanimous that Franklin suffered a substantial injury to his back that limited his ability to perform his job; that Franklin’s pain and physical limitations had restricted his opportunity for employment; that the doctors had had limited success in treating Franklin; and that his condition and pain were permanent. Reviewing the record as a whole, and particularly those determinations that the trial court specifically relied upon in concluding that Franklin suffered a permanent total disability, we conclude that the misstatements by the trial court that James River has noted constitute harmless error. See Rule 45, Ala. R.App. P.; Reed v. James R. Fincher Timber Co., 659 So.2d 660, 663 (Ala.Civ.App.1995).

As to the trial court’s determination that Franklin was permanently and totally disabled, in addition to the doctors’ deposition testimony regarding Franklin’s condition, the trial court determined that Franklin “was a very believable witness”; that he appeared to be in pain during his testimony; that he had had two back surgeries; that he was in constant pain and had burning and numbness in his leg; that he constantly felt like he was going to have a bowel movement; that he could not sit for the time necessary for him to perform sedentary work; and that he could not walk for the 6 hours per day necessary for light duty work. In its judgment, the trial court noted that Franklin had marginal academic ability and stated that

“[Franklin] is a 47 year old male who was injured six and one-half years ago, underwent intense medical care and procedures for six and one-half years ... walks with an impaired gait, has problems standing, has a severe weight lifting limit ... cannot engage in activities requiring repetitive bending, stooping, squatting, crawling, ladder climbing or prolonged standing or sitting, must change positions every 30 minutes, must have bed rest two times a day and 6 to 10 days each month has recurrent bouts with his back requiring him to be bedridden and confined to his home, has a relevant work history involving only heavy manual labor, has no transferra-ble skills, and is not a candidate for retraining.”

In addition, the trial court noted that “Bill Vinson, a certified vocational counselor, ... testified that [Franklin] was not employable, had sustained a total loss of his earning capacity, and is not a candidate for retraining.” The trial court stated:

“In conclusion, the Court finds that before his injuries, [Franklin] was a diligent worker, but now, with the injured back producing disabling pain on constant activity and with [Franklin’s] restriction of motion, it is obvious to the Court that [Franklin] has lost considerable ability to function and is not able to hold a job.”

The record also indicates that Franklin had tried to perform the job of a machine inspector for approximately six days in 1998, after he had been released for work by Dr. Staggs, but that Franklin had been forced to stop working at that position because of back pain. The record also reflects that Franklin had not been employed since that time. As noted above, James River had offered Franklin another job as a machine inspector a few days after his case was set for trial. Tracy Marvin, a human resources coordinator for James River, testified that the inspector’s job that James River had offered to Franklin involved the inspection of machines over a two-floor area; that each floor was approximately 120 yards by 100 yards in surface area; that the inspector had to climb stairs; and that the inspector had to be “on his feet” six hours per day.

Franklin testified that although he wanted to return to work, he knew that he could not perform that job because of walking and lifting requirements and because of the number of days per month when he could not even get out of bed because of back pain. Bill Vinson likewise testified that, in his opinion as a vocational counselor, Franklin could not perform the requirements of a job like machine inspector.

Based upon our review of the record, the trial court’s determination that Franklin had a permanent total disability is supported by substantial evidence and that portion of the trial court’s judgment is due to be affirmed.

James River next takes issue with that portion of the trial court’s judgment requiring James River to pay Franklin an attorney’s fee in relation to the court’s award of compensation for the 46-week period between the date of trial and the date of the trial court’s judgment. James River argues that the wording of the trial court’s judgment could require it to pay the attorney’s fee in addition to, rather than out of, the compensation awarded.

The trial court held that, among other things, Franklin was

“entitled to Forty-Six (46) weeks of total disability benefits which have accrued since the trial at the rate of Four Hundred Forty-Three and No/100 ($443.00) Dollars per week for a total of Twenty Thousand Three Hundred and Seventy-Eight Dollars ($20,378.00). If [James River] has paid same or a portion of same, credit should be given for such.”

Thus, James River correctly notes that the trial court granted it a credit for total disability benefits that it had actually paid to Franklin after the trial date, but before the date of the judgment.

Section 25-5-90(a), Ala.Code 1975, provides that the trial court “shall fix the fee of the attorney for the plaintiff for his or her legal services and the manner of its payment, but the fee shall not exceed 15 percent of the compensation awarded or paid.” Based on an award of $20,378 for the 46-week period in question, the trial court calculated an attorney’s fee of $3,056.70. Neither party on appeal argues that $3,056.70 “exeeed[s] 15 percent of the compensation awarded or paid” for the 46-week period. The only question presented is whether the way in which the trial court’s judgment is worded could result in James River being obligated to pay up to $3,056.70 in attorney’s fees in addition to its obligation to pay the $20,378 in disability benefits.

As James River notes, the trial court’s judgment does state that Franklin’s attorney shall “receive the sum of ... $3,056.70 ... as a reasonable attorney’s fee [and that] [s]aid attorney’s fees are to be paid in full and in a lump sum by [James River].” Elsewhere in the judgment, however, the trial court stated that James River was to pay Franklin “the benefit accrued as compensation for permanent total disability benefits for the period from the [date of the trial] until the date of this judgment, ... less the ... 15% ... attorney’s fee of ... $3,056.70.” (Emphasis added.)

We have stated that under the Workers’ Compensation Act an attorney’s fee is to be awarded out of, not in addition to, the compensation awarded or paid to the employee. See Liberty Trousers Div. of Walls Indus. v. Amos, 738 So.2d 1272, 1274 (Ala.Civ.App.1999). We have also stated that

“[¡'judgments are to be construed like other written instruments.... Separate provisions of judgments ... should be construed in pari materia, and the entire judgment — all provisions considered— should be read as a whole in the light of all the circumstances.”

Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991). See also Avery Freight Lines v. Persons, 250 Ala. 40, 32 So.2d 886 (1947) (favoring construction of a judgment that will support it rather than require reversal).

Based upon the foregoing, and reading the trial court’s judgment as a whole, we construe the trial court’s judgment to require James River to pay a total of $20,378 to Franklin and his attorney for the 46-week period between the date of the trial and the date of the judgment. If James River has already paid Franklin $20,378 for that 46-week period, then James River has no further obligation under this portion of the trial court’s judgment. To the extent that James River has paid anything less than $20,378 to Franklin for the 46-week period, the balance owed by James River to Franklin and his attorney shall be equal to the difference between $20,378 and the amount already paid by James River. As so construed, that portion of the trial court’s judgment awarding attorney’s fees to Franklin’s attorney is due to be affirmed.

AFFIRMED.

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

      . James River does not argue on appeal that the trial court erred in denying its motion to strike Dr. Allen's deposition or that the trial court erred in not allowing James River the opportunity to have Dr. Staggs review Dr. Allen's deposition and reevaluate Franklin.

      . As noted above, Dr. Allen’s deposition transcript is not included in the record on appeal. However, other than noting that Dr. Staggs’s 1998 diagnosis of arachnoiditis had been corroborated by Dr. Allen in 2000, it does not appear that the trial court relied upon Dr. Allen’s deposition testimony when it determined that Franklin was permanently and totally disabled.


source: Caselaw Access Project

author: THOMPSON, Judge. CRAWLEY, Judge,

license: Public Domain

text:
    L.M. v. D.D.F.
    2010595.
    Court of Civil Appeals of Alabama.
    July 12, 2002.

      Robert F. Richardson, Jasper, for appellant.
   THOMPSON, Judge.

On August 17, 2000, D.D.F. (“the mother”) filed a petition in the Walker Circuit Court for an ex parte temporary restraining order against L.M. (“the father”), a petition seeking to terminate the father’s parental rights to B.N.M. and A.M.M. (hereinafter “the children”), asserting that the father had abandoned the children, and a petition for a rule nisi. On August 17, 2000, the circuit court granted the mother’s petition for a temporary restraining order.

On December 6, 2000, the mother filed a motion seeking to sever her petition to terminate the father’s parental rights and seeking permission to refile that petition in the Walker County Juvenile Court. The circuit court granted that motion, and on December 7, 2000, the mother filed her motion seeking to terminate the father’s parental rights in the Walker County Juvenile Court (hereinafter “the trial court”). On March 16, 2001, the father filed a motion to dismiss; the trial court denied that motion. The father filed an answer, a petition seeking to have the court hold the mother in contempt, a motion to dissolve the circuit court’s August 17, 2000, temporary restraining order, and a counterpetition seeking to modify custody. On February 8, 2002, the trial court entered an order in which it terminated the father’s parental rights to the children. The father filed a postjudgment motion; the trial court denied that motion. The father appealed.

A trial court’s judgment entered following an ore tenus proceeding is presumed correct, and its decision will not be disturbed on appeal absent a showing of plain or palpable error. S.B. v. State Dep’t of Human Res., 743 So.2d 470 (Ala.Civ.App.1999). In reviewing a case that involves the termination of a parent’s parental rights, we note that

“the primary focus of a court ... is to protect the welfare of children and at the same time to protect the rights of their parents. Inasmuch as the termination of parental rights strikes at the very heart of the family unit, a court should terminate parental rights only in the most egregious of circumstances.”

Ex parte Beasley, 564 So.2d 950, 952 (Ala.1990). Therefore, this court has consistently held that “[e]very parent has a prima facie right to custody of his or her child and that right can only be overcome by a showing of clear and convincing evidence that removing the child from the parent’s custody would be in the best interests of the child.” A.R.E. v. E.S.W., 702 So.2d 138, 139 (Ala.Civ.App.1997).

When a custodial parent brings an action to terminate the other parent’s parental rights, the court must apply a two-prong test in determining whether to terminate those rights.

“First, the court must find that there are grounds for the termination of parental rights, including, but not limited to, those specifically set forth in § 26-18-7. Second, after the court has found that there exist grounds to order the termination of parental rights, the court must inquire as to whether all viable alternatives to a termination of parental rights have been considered.”

Ex parte Beasley, 564 So.2d at 954. A finding of dependency is not required when one parent seeks to terminate the other parent’s parental rights. Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).

Section 26-18-7, Ala.Code 1975, which sets forth the statutory authority for terminating parental rights, provides, in part:

“(a) If the court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents. In determining whether or not the parents are unable or unwilling to discharge their responsibilities to and for the child, the court shall consider, and in cases of voluntary relinquishment of parental rights may consider, but not be limited to, the following:
“(1) That the parents have abandoned the child, provided that in such cases, proof shall not be required of reasonable efforts to prevent removal or reunite the child with the parents.
“(2) Emotional illness, mental illness or mental deficiency of the parent, or excessive use of alcohol or controlled substances, of such duration or nature as to render the parent unable to care for needs of the child.
“(3) That the parent has tortured, abused, cruelly beaten, or otherwise maltreated the child, or attempted to torture, abuse, cruelly beat, or otherwise maltreat the child, or the child is in clear and present danger of being thus tortured, abused, cruelly beaten, or otherwise maltreated as evidenced by such treatment of a sibling.
“(4) Conviction of and imprisonment for a felony.
“(5) Unexplained serious physical injury to the child under such circumstances as would indicate that such injuries resulted from the intentional conduct or willful neglect of the parent.
“(6) That reasonable efforts by the Department of Human Resources or licensed public or private child care agencies leading toward the rehabilitation of the parents have failed.
“(7) That the parent has been convicted by a court of competent jurisdiction of any of the following:
“(8) That parental rights to a sibling of the child have been involuntarily terminated.
“(b) Where a child is not in the physical custody of its parent or parents appointed by the court, the court, in addition to the foregoing, shall also consider, but is not limited to the following:
“(1) Failure by the parents to provide for the material needs of the child or to pay a reasonable portion of its support, where the parent is able to do so.
“(2) Failure by the parents to maintain regular visits with the child in accordance with a plan devised by the department, or any public or licensed private child care agency, and agreed to by the parent.
“(3) Failure by the parents to maintain consistent contact or communication with the child.
“(4) Lack of effort by the parent to adjust his or her circumstances to meet the needs of the child in accordance with agreements reached, including agreements reached with local departments of human resources or licensed child-placing agencies, in an administrative review or a judicial review.”

The mother and father separated in September 1992; at that time, the parties were living in Coconut Creek, Florida. The parties were never married. After the parties’ 1992 separation, the father moved to Hot Springs, Arkansas. Three weeks after the parties separated, the mother relocated to Ozona, Florida. The father testified that the mother did not notify him of her move or provide him with her new address and telephone number. According to the father, he located the mother by calling directory assistance “all over the state of Florida” and asking for the mother’s telephone number. The mother admitted that she did not give the father her address and phone number in Ozona. The father testified that in February 1993, after he located the mother and the children in Ozona, he drove to Ozona and visited with the children for five days. The father stated that during that period, he stayed in the mother’s house with the mother and the children.

The mother testified that after living in Ozona for one year, she and the children moved to Jasper, Alabama and that she again did not notify the father of her move, her new address, or her new telephone number. The mother married J.F. (hereinafter “the stepfather”) in July 1994. The mother testified that after she and the stepfather married, the parties moved to Florida while the stepfather sought a construction job. According to the mother the stepfather was unable to find a job, and after six months the mother, the stepfather, and the children returned to Jasper. The mother testified that she did not give the father her address or telephone number during the six months the parties lived in Florida. The father testified that he was unable to locate the children during that time. At the time of the hearing in this matter, the mother, the stepfather, and the children lived in Jasper, and the father lived in Hot Springs, Arkansas.

The father filed a petition in 1994 seeking visitation with the children; the record does not indicate the date on which the father filed that petition. The mother testified that neither she nor the children had had any contact with the father from the time she and the children initially moved to Jasper in late 1993 until the father filed his 1994 petition seeking visitation with the children. In October 1996, the trial court entered an order awarding the father one day of visitation with the children per month and four days of visitation during the Christmas holiday and ordering the father to pay child support of $248 per month. The mother testified that the father exercised his visitation rights during 1995 and 1996; that the father occasionally sent the children birthday gifts; and that the father had made some of the court-ordered child-support payments. The stepfather testified that the father “very rarely” telephoned the children between 1994 and the hearing in this matter.

The mother testified that the father exercised only the Christmas visitation with the children in 1996. According to the mother, when the father picked up the children for that visitation, the father told her that he was taking the children to Anniston to see his family. The mother testified that the father did not take the children to Anniston, but that the father took the children to Arkansas. The father admitted that he took the children to Arkansas during his 1996 Christmas visitation, but the father denied that he told the mother he was taking the children to Anni-ston. The father testified that he returned the children to the mother in Jasper within the time period proscribed for his Christmas visitation in the October 1996 order.

The mother testified that she and the father met at a mall in Jasper in 1999 to allow the father to visit with the children, but that the children “refused” to go with the father and that she would not force them to go with him. The mother testified that the father brought the children presents during that meeting.

The mother testified that she was opposed to the father’s receiving any visitation with the children, and that she felt that the children were in danger when they were with the father. The mother testified that she did not trust the father. The mother stated that the paternal grandmother accompanied the father during most of the times that he exercised visitation with the children. The mother also stated that, at the time of the hearing, she felt more comfortable about allowing the father visitation because the children were older and more mature. However, the mother testified that the children no longer wanted to visit with their father.

The mother testified that in 1991, when she was pregnant with B.M., the father physically assaulted her, and that the father spent time in jail as a result of that altercation. The father admitted that he “slapped” the mother on that occasion, and the father asserts that he was so upset by his behavior that he telephoned the police and informed them of his actions. The mother stated that the father physically assaulted her “numerous times” after the parties separated in 1992.

The father is currently employed at a grocery store/delicatessen in Hot Springs, Arkansas. The father testified that he currently fives with L.H., his fiancée, and that he and L.H. have a child together. The father testified that prior to working at the grocery store/deli, he was unemployed for several months. The father testified that during that time he cared for his and L.H.’s child. The father testified that he worked at a Pizza Hut restaurant before his several months of unemployment. The father admitted that he had not made all of the required child-support payments pursuant to the trial court’s October 1996 order. The father testified that he withheld those payments in response to the mother’s failure to comply with court’s October 1996 visitation schedule.

The father testified that his visitation with the children went well during the first year following the entry of the trial court’s October 1996 order. The father testified that one year after the trial court’s order, the mother stopped complying with the trial court’s visitation schedule. The father testified that the parties agreed that he would telephone the mother on the Thursday night before the weekend he was to exercise his visitation to confirm. According to the father, one year after the October 1996 order was entered, he began having difficulty reaching the mother by telephone to confirm his visitation. The father stated that he would leave messages on her answering machine, but that the mother never returned his telephone calls. The father testified that the parties agreed to meet at a mall in Jasper when the father picked up the children for his scheduled visitation. The father asserts that on two or three occasions the he was unable to exercise his visitation because the mother did not show up at the mall and did not call to notify him that she would not be there. The father testified that he sent gifts to the children’s school and enclosed cards with his telephone number, but that he never received a response. The father testified that on a few occasions he drove to Jasper on a date that was not his scheduled visitation date hoping to be able to see the children.

The father testified on one occasion when he drove to Jasper during a time that was not scheduled for his visitation, he located the mother and the children at a baseball field during the children’s baseball practices. According to the father, the mother allowed him to exercise visitation with the children on that occasion. The mother testified that she offered to allow the father only to take the children to lunch on that occasion, but that the father did not return the children until the next day. The father testified that he thought the mother was allowing him to exercise his normal hours of visitation with the children, which would allow him to keep the children overnight. The father testified that he, the children, and J.C., a male friend of the father’s, stayed in a hotel in Jasper during that overnight visit. According to the father, he rented the children a movie, a video-game machine, and some video games to play during their stay. The mother testified that within a few weeks of that visitation, the mother took the children to counseling. The mother stated that the children were not sleeping, that they were exhibiting aggressive behavior, and that their grades in school had dropped.

The father testified that on another occasion he located the mother and the children at the football field during B.N.M.’s football practice. The father stated that on that occasion the mother did not allow him to visit with the children, but that he stayed and watched B.N.M. practice. The mother testified that on that occasion the father was accompanied by the paternal grandmother and the father’s girlfriend. The mother testified that the girlfriend sat below the father on the bleachers and leaned back against the father’s legs, and that the father kissed the girlfriend. The mother stated that the father’s behavior was inappropriate. Audrey Taylor, a friend of the mother and the stepfather, testified that she observed the father on the occasion that he attended B.N.M.’s football practice. Taylor testified that the girlfriend sat in the father’s lap; that the father kissed the girlfriend; and that the father’s behavior was inappropriate. The father admitted kissing the girlfriend, but he denied that he and the girlfriend acted in an inappropriate manner.

The August 17, 2000, a temporary restraining order prohibited the father from exercising visitation with the children pending the outcome of the hearing. The father testified that prior to the trial court’s August 17, 2000, order suspending his visitation, his visitation with the children was sporadic. The father admitted that there were occasions that he was unable to, was late to, or did not, pick the children up for his visitation.

S.M., the paternal grandmother, testified that the father had difficulty exercising visitation on some occasions because the children had activities scheduled during the father’s visitation period. The paternal grandmother testified that the mother relocated to a different residence in Jasper and did not notify the father or her of the new address; the record on appeal does not indicate and the paternal grandmother did not testify as to the time frame of that relocation. The paternal grandmother stated that the mother’s telephone number did not change, that she telephoned the mother, and that she left several messages on the mother’s answering machine. According to the paternal grandmother, the mother did not return her telephone calls. The paternal grandmother testified that she was able to determine the name of the street where the mother’s new house was located by contacting the electric company. The paternal grandmother stated that she telephoned a florist in Jasper and asked if they could deliver flowers and candy to the children if she knew only the name of the street on which they lived. According to the paternal grandmother, an employee of the florist informed her that the street was small and that they would be able to locate the mother’s house. The paternal grandmother testified that the father has been unemployed on several occasions.

The two children born of the parties’ relationship were 10 years old and 12 years old at the time of the hearing in this matter. The court took the children’s testimony in chambers. A.M.M. testified that she was nine years old when the father took them for the unscheduled overnight visit after the baseball practice. According to A.M.M., when they arrived at the hotel, she asked J.C., the father’s friend if she could telephone her mother. A.M.M. testified that the father’s friend told her that he did not know how to make a local telephone call from the room. A.M.M. testified that she pushed him out of the way and told him she was going to the front desk to ask how to make the telephone call. According to A.M.M., the father’s friend told her that he would figure out how to make the call and that she could not go to the front desk. A.M.M. testified that the father’s friend did not allow her to telephone her mother and that he spanked her.

A.M.M. testified that on the occasion that the father came to B.N.M.’s football practice, she was sitting in the stands and was playing with a small blackboard. According to A.M.M., she wrote the words “freak, I hate you” on the blackboard and held it up to show the father.

When asked whether the children would like the court to end their visitation with the father, the children stated that they would. When the court inquired as to the children’s reasons, A.M.M. stated “we don’t even get to see him anyway, we haven’t seen him in two years.”

The record indicates that the stepfather filed a petition seeking to adopt the children, and that that petition was pending in the probate court awaiting the outcome of this hearing. The mother testified that the father informed her that he had signed the paperwork necessary to permit the stepfather to adopt the children and that he had mailed it to her a few days before the hearing. The father testified that he asked the mother to send him the paperwork so he could look at it; that he did not tell the mother that he had signed the paperwork; and that he had not signed the paperwork. The father stated that he did not feel it was in his children’s best interest to terminate his parental rights.

The record contains a printout of the court’s record of the father’s child-support payments. That printout is dated October 10, 2001, and indicates that the father made child-support payments during six months of 1996, two months of 1997, and one month of 1999. The printout indicates that the father began making regular monthly payments in November 2000, and that he consistently paid monthly child support from that month until April 2001. According to the printout, the father did not pay child support form May 2001 through October 2001, just before the hearing in this matter.

The trial court’s order states, in pertinent part,

“[t]hat, although he is an able-bodied man capable of working and earning income, [the father] has failed to provide financial support for [the children]. That [the father] is unable or unwilling to discharge his parental responsibilities. That [the father] has withheld from [the children], without good cause or excuse, his presence, care, love, protection, maintenance, or the opportunity for the display of filial affection. That [the father] has failed to claim the rights of a parent and has failed to perform the duties of a parent. That [the father] has been unavailable or unwilling to discharge his responsibilities to and for said children. That the present situation or conduct is such as to render him unable to properly care for his children and that such situation or conduct is unlikely to change in the foreseeable future.
“That [the father’s] contacts, by letter, telephone, or in person with the children ... has been sporadic since the entry of the [October 1996] order. That [the father] habitually allows more than six (6) months to elapse between his contact with the children. That, on at least one occasion, [the father] removed the children from the state of Alabama during a visitation and did not advise [the mother] of his intentions to do so. That on a later occasion [the father] took the children for an unauthorized overnight visitation after telling [the mother] that he was taking them to eat and then he did not allow the children to call and tell their mother where they were spending the night. [The mother] testified that, subsequent to this occasion, she had to seek mental health counseling for the children.
“The Court finds that after hearing the testimony of the various witnesses on behalf of [the mother] and [the father], that it is in the best interest of [the children] to terminate the parental rights of [the father]. The court further finds that [the father] has not maintained steady employment over the past several years and has not provided financial support for his children. That [the father] has not maintained consistent physical contact with the children and that on some occasions of visitation did place the children at risk or engaged in behavior which caused the children mental anguish, such that their mother was compelled to seek mental health counseling for them.”

On appeal, the father asserts that the trial court erred in terminating his parental rights because its decision was not supported by clear and convincing evidence. Although § 26-18-7, Ala.Code 1975, provides several factors a court may consider in determining whether to terminate a parent’s parental rights, it appears that “abandonment” is the only factor from the list that the trial court indirectly noted as the basis for its decision to terminate the father’s parental rights to the children. Section 26-18-3(1), Ala.Code 1975, defines “abandonment” as “[a] voluntary and intentional relinquishment of the custody of a child by a parent, or a -withholding from the child, without good cause or excuse, by the parent, of his presence, care, love, protection, maintenance or the opportunity for the display of filial affection, or the failure to claim the rights of a parent, or failure to perform the duties of a parent.” “Clear and convincing evidence” is

“[e]vidence that, when weighed against evidence in opposition, will produce in the mind of the trier of fact a firm conviction as to each essential element of the claim and a high probability as to the correctness of the conclusion. Proof by clear and convincing evidence requires a level of proof greater than a preponderance of the evidence or the substantial weight of the evidence, but less than beyond a reasonable doubt.”

§ 6-11-20(4), Ala.Code 1975.

The record indicates that the father sought and received visitation rights with the children; that the father exercised visitation with the children consistently for the first year after he was granted visitation; and that the father’s visitation with the children grew infrequent. However, the father testified that his infrequent visitation with the children was a result of many factors, including the fact that the mother failed to return his telephone calls when he called to confirm his visitation and that, on two or three occasions, he drove from Arkansas to Alabama and the mother did not show up to exchange the children for visitation. Further, the record reveals that the mother relocated several times without notifying the father of her new address and telephone number and that the father made efforts to locate the children following the mother’s reloca-tions. According to the record, the father sent the children birthday gifts and cards, and the father made child-support payments, although infrequently.

Abandonment implies an intentional act on the part of the parent. § 26-18-3(1), Ala.Code 1975. Due to the serious nature of the action of terminating a parent’s parental rights, this court must carefully review the unique set of facts established in each ease in determining whether clear and convincing evidence was presented to support the termination of those rights. This court does not condone either parent’s behavior; however, a father’s right to be a parent to his children is fundamental and a court should terminate those rights “only in the most egregious of circumstances.” See Ex parte Beasley, 564 So.2d at 952. This court recognizes the legal principles that govern a parental rights termination case and the presumption of correctness attached to the trial court’s judgment when that judgment is based on ore tenus evidence. However, after reviewing the record, this court must conclude that the trial court’s judgment terminating the father’s parental rights is not supported by clear and convincing evidence. See § 26-18-3(1), Ala.Code 1975; § 6-11-20(4), Ala.Code 1975.

The father asserts that the trial court erred in terminating his parental rights because the trial court failed to consider other viable alternatives to the termination of his parental rights. Because we conclude that the record did not contain clear and convincing evidence to support the termination of the father’s parental rights, we pretermit the discussion of this issue on appeal. However, this court does note that the problem with the visitation in this case might be addressed by the trial court’s imposing a more restrictive visitation schedule.

The trial court’s order terminating the father’s parental rights is reversed and the case is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

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

CRAWLEY, J., concurs specially.

CRAWLEY, Judge,

concurring specially.

I concur in the reversal, except to the extent that the majority opines that “the problem with the visitation in this case might be addressed by the trial court’s imposing a more restrictive visitation schedule.” In my view, this court should not suggest to a trial court a particular resolution of an issue not presented for appellate review, especially in a case where there is evidence that the custodial parent, rather than encouraging and facilitating visitation, has repeatedly made efforts to prevent contact between the noncustodial parent and the children.

      . The record does not specify the exact date that the mother and the children moved to Jasper; however, the record indicates that they moved to Jasper sometime in late 1993.


text:
    Robert Dale ROBINSON v. Teresa Dale ROBINSON.
    2001131.
    Court of Civil Appeals of Alabama.
    July 12, 2002.

      Jacqueline E. Austin, Wetumpka, for appellant.
    Jeffrey J. Courtney of Enslen, Johnston & Pinkston, L.L.P., Wetumpka, for appel-lee.
   MURDOCK, Judge.

This is the second time this appeal has been before this court. See Robinson v. Robinson, 795 So.2d 729 (Ala.Civ.App.2001) (“Robinson I”). The wife, age 42, sued the husband, age 39, for a divorce, seeking custody of the parties’ minor son, a division of the marital property, alimony, and child support. The trial court awarded joint custody of the son to the parties, with primary physical custody in the wife, and awarded visitation privileges to the husband. As periodic alimony, the trial court ordered that the husband pay health insurance for the wife for a period of 36 months. The trial court further ordered the husband to pay child support in the monthly amount of $582.

The parties’ marital residence is located on an 8.2 acre parcel of property on which are also located a plant nursery business operated by the wife and a recycling business operated by the husband. In the trial court’s original judgment the wife was awarded the following property: the parties’ martial residence, which was valued at $81,000, but which was subject to a first mortgage indebtedness of $50,000 for which the wife was ordered to be responsible; two parcels of property in Coosa County that were together valued at $30,000, but that were subject to a mortgage indebtedness of $10,000 for which the wife was ordered to be responsible; the wife’s plant nursery business, valued at $15,000; and $51,820 out of the husband’s retirement account. The husband received his recycling business, valued at $25,000, located on the marital property and which he would have to move at his own expense, and the remainder of his retirement account, valued at $46,680. The husband also was made responsible for paying a $30,000 second mortgage indebtedness on the marital home.

This court reversed the trial court’s judgment and remanded the cause to the trial court for it to recalculate the amount of child support in compliance with Rule 32(E), Ala. R. Jud. Admin., or to enter a written finding indicating why an application of those guidelines would be inequitable. In addition, the trial court was directed on remand to fashion a more equitable property division that would comply with § 30-2-51, Ala.Code 1975.

On remand, the trial court 'entered an order modifying the property division and the child-support obligation as follows: The wife was awarded the marital residence and the nursery business and the land on which the residence and both the nursery and recycling businesses are currently located. The wife was obligated to pay the first mortgage on the marital residence, as well as $6,000 of the principal balance owed on the second mortgage indebtedness applicable to the marital residence. The husband was obligated to pay the remainder of the principal balance owed on that mortgage indebtedness, or approximately $24,000. The wife was awarded the Coosa County property valued at approximately $30,000, and subject to a $10,000 mortgage. The husband was awarded the recycling business and was given six months to move the business from the property at his expense. The husband was directed to transfer to the wife $30,894 from the husband’s retirement account by a Qualified Domestic Relations Order. The husband retained the remaining $67,606 of his retirement account. In addition, the husband was directed to pay to the wife the sum of $3,957 as an attorney fee. The trial court further directed the husband to pay the amount of $465 per month as child support.

The husband filed a postjudgment motion asserting that the trial court’s modified property division, combined with the original alimony award, was inequitable. The trial court never ruled on the husband’s motion. On August 6, 2001, several days before the date on which the husband’s postjudgment motion would have been denied by operation of law, the husband filed a motion to stay the trial court’s judgment and the trial court granted that motion on the same date. Also on that date, the husband filed a notice of appeal, contesting the property division and the apportionment of debt, the wife’s attorney fee, and the alimony award. No appeal was taken from the child-support provision of the trial court’s order after remand.

The case action summary sheet reflects that on September 6, 2001, the trial court purported to rule on the husband’s postjudgment motion, entering an order directing him to pay the amount of $200 per month toward satisfaction of the first mortgage indebtedness applicable to the marital home. The record reflects that the trial court failed to rule on the husband’s postjudgment motion within 90 days from the date it was filed — i.e., on or before August 13, 2001. The record contains no indication that the parties consented to an extension of time for the trial court to rule on the husband’s motion. See Rule 59.1, Ala. R. Civ. P. Consequently, the husband’s postjudgment motion was deemed denied by operation of law under Rule 59.1, Ala. R. Civ. P., and the trial court lost jurisdiction to rule on it. Ex parte Hornsby, 663 So.2d 966, 967 (Ala.1995); Ex parte Johnson Land Co., 561 So.2d 506 (Ala.1990). Therefore, the September 6, 2001, order is a nullity.

The husband contests the alimony award, which consists of monthly healthcare insurance premiums, and the revised property division and debt allocation; the husband argues that these provisions, combined, are unjust and inequitable.

We first note that the reduced award to the wife of approximately one-third of the husband’s retirement plan through a “Qualified Domestic Relations Order” (“QDRO”) complies with § 30-2-51, Ala. Code 1975, and seems reasonable in light of the fact that the parties were married for 13 years and the fact that the wife had liquidated her retirement plan to make a down payment on the marital home. Further, the trial court’s use of a QDRO will protect the husband against any unintended tax penalty. In addition, the wife was ordered to pay an additional $6,000 of the second mortgage, reducing the husband’s debt obligation to $24,000. Finally, the husband was ordered to pay to the wife an attorney fee in the amount of $3,957.

Matters such as alimony and property division are within the sound discretion of the trial court, and that court’s rulings on such matters will not be reversed absent a showing of plain and palpable error. Montgomery v. Montgomery, 519 So.2d 525 (Ala.Civ.App.1987); Parrish v. Parrish, 617 So.2d 1036 (Ala.Civ.App.1993). On appeal, because a division of marital property and an award of periodic alimony are interrelated, those issues must be considered together. Barnes v. Barnes, 521 So.2d 58 (Ala.Civ.App.1988); Montgomery, supra. The trial court’s rulings on those issues will not be reversed absent a finding that the rulings are not supported by the evidence and, thus, that they amount to an abuse of discretion. Parrish, supra. A division of property is not required to be equal, but it must be equitable, according to the particular facts and circumstances of the case. Golden v. Golden, 681 So.2d 605 (Ala.Civ.App.1996); Parrish, supra. In dividing the marital property, the trial court should consider “the ages and health of the parties, the length of their marriage, their station in life and their future prospects, their standard of living and each party’s potential for maintaining that standard after the divorce, the value and type of property they own, and the source of their common property.” Covington v. Covington, 675 So.2d 436, 438 (Ala.Civ.App.1996). Further, no rigid standard governs what a trial court may award in a property division; the trial court is free to consider the unique facts and circumstances of each individual case in fashioning an award. Brewer v. Brewer, 695 So.2d 1 (Ala.Civ.App.1996). Finally, this court must accord the trial court’s judgment with a presumption of correctness because it bases its judgment on factual findings based on evidence presented in ore tenus proceedings. The ore tenus rule is based on the trial court’s unique position to observe witnesses and to evaluate their demeanor and credibility. Kennedy v. Kennedy, 743 So.2d 487 (Ala.Civ.App.1999).

The record reflects that the marital residence is located on an 8.2-acre tract of land. Both the recycling business and the nursery business are located on the property. The wife uses a- pond that is connected to a pump and an irrigation system on the property to water her nursery plants. At the trial of this matter, the wife and her business partner testified that the husband, as a means of harassing the wife, continually interfered with her business operation by obstructing the drive to her business, cutting off the power source to the pump to the pond and locking it down, placing the garden inventory at risk, and placing unsightly scrap metal around the nursery. The husband did not deny these allegations. The trial court could have concluded that, based upon expert witness testimony, although some cost was attached to moving the scrap-metal business, the recycling building was built of “bolt together construction” and would be a simple matter to relocate.

Although the wife submitted no CS^41 income affidavit, the parties did submit annual net income figures based on their 1997 and 1998 income tax returns. The wife earned $8,587 in 1997 and $12,456 in 1998. The husband earned $39,238 in 1997 and $63,933 in 1998. It is clear from the evidence presented that the husband earns approximately three times the annual income the wife earns.

In light of the disparity of incomes, the investment of the proceeds from the wife’s retirement fund into the marital estate, the evidence of the husband’s continuous harassment of the wife’s business and the relative ease of relocating the scrap metal business, and taking into consideration the ore tenus presumption accorded the trial court’s factual findings, we cannot say that the trial court was plainly and palpably wrong in dividing the marital property, allocating the marital debt, and maintaining the alimony award from the original divorce judgment.

As for the attorney fee awarded to the wife, it is well-established that attorney fees in divorce actions rest within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Campbell v. Tolbert, 656 So.2d 828 (Ala.Civ.App.1994). The trial court’s order after remand is due to be affirmed.

The wife’s request for the award of an attorney fee on appeal is denied.

AFFIRMED.

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

      . The evidence presented at trial demonstrated that the second mortgage was really an equity line of credit, which was taken out to provide capital to start the husband’s recycling business.

      . This amount reflects a downward adjustment from the monthly $582 child-support amount ordered in the initial divorce judgment. This court’s order on remand directed the trial court to enter an order that complied with Rule 32, Ala. R. Jud. Admin., or to enter a written finding showing why the application of the guidelines would work an injustice. The mother never filed a CS-41 income affidavit; however, both parties allege in their pleadings and briefs to this court that after the judgment on remand was entered, they entered into an agreement to change physical custody of the minor son to the father; the parties further agreed that the father would cease paying child support and that the mother would begin paying child support in the amount of $250 per month. In any event, because neither party has appealed from the trial court’s child-support provision of its order after remand, that issue is not before this court.


author: SHAW, Judge.

text:
    Cleon Nicholas FIELDS v. STATE of Alabama.
    CR-00-2085.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 2002.
    Rehearing Denied April 5, 2002.
    Certiorari Denied June 14, 2002 Alabama Supreme Court 1011424.

      James Russell Pigott, Foley, for appellant.
    Bill Pryor, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.
   SHAW, Judge.

Cleon Nicholas Fields appeals from the trial court’s order revoking his probation.

On May 26, 2000, Fields was convicted of altering a firearm, a violation of § 13A-11-64, Ala.Code 1975. He was sentenced to five years’ imprisonment; the sentence was suspended and he was placed on probation for three years. On March 6, 2001, Fields’s probation officer, Mary Andriano-poulos, filed a delinquency report alleging that Fields had violated the terms and conditions of his probation by (1) having contact with illegal drugs; (2) being in possession of or consuming alcoholic beverages; and (3) frequenting establishments whose principal source of income is the sale of alcoholic beverages. After a probation-revocation hearing, the trial court found that Fields had violated the terms and conditions of his probation, and it revoked his probation.

Fields contends that the trial court erred in allowing his probation officer to testify that he had admitted to her that he had consumed alcohol and cocaine and that he had patronized a local nightclub. According to Fields, his admissions to his probation officer were inadmissible at the probation-revocation hearing because, he says, he was never advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Initially, we note that the State argues that this issue was not preserved for review because, it says, Fields did not object to the probation officer’s testimony on the ground that he had not received Miranda warnings. We disagree.

During the probation officer’s testimony, the following occurred:

“[Prosecutor]: Have you had an occasion to test him for cocaine?
“[Probation officer]: I did.
“[Prosecutor]: What were the results of that test?
“[Fields’s counsel]: Objection. The test is not here. It has not been shown the test has any degree of reliability. It would be hearsay as to the admission of any results of any tests or instruments.
“THE COURT: Overrule the objection.
“[Prosecutor]: What were the results of his test, ma’am?
“[Probation officer]: Positive for cocaine.
“[Prosecutor]: Did he make any admission with regard to that cocaine? “[Probation officer]: He did.
“[Fields’s counsel]: I object again. May I have a continuing objection because I don’t think it’s been shown to any degree of reliability of the test, what test was given, or any other of the matters that would allow that to be heard in evidence before the Court.
“THE COURT: Overrule the objection.
“[Prosecutor]: What, if any, admission did the defendant, Cleon Fields, make to you at this time?
“[Probation officer]: He stated that there was no excuse. I asked him what he meant. He said about a month ago he used cocaine.
“[Field’s counsel]: Again, my objection — I just have it as continuing, Your Honor, because it starts from the faulty premise and a continuation from the faulty premise and a continuation from the hearsay and was obtained, I think, improperly in this case.
“THE COURT: All right. Overruled.
“[Prosecutor]: While observing and being over him as a probation officer, did you have an occasion to interview him about going into bars and night clubs?
“[Probation officer]: I did.
“[Prosecutor]: And what, if any, admissions did he make to you with regard to frequenting night clubs while on probation?
“[Fields’s counsel]: Same objection. Again, if the probation officer is attempting to trap the defendant into an admission of guilt without informing him that anything he says can and mil be used against him, I think that that is a matter that is objected to and should not be considered in evidence against this defendant.
“THE COURT: All right. Overrule the objection.
“[Prosecutor]: Ma’am, can you answer the question?
“[Probation officer]: On March the 5th, he made a statement that he admitted that he had been going into a club prior to the time that I had spoken to him and instructed him February of 2001.”

(R. 5-7.) (Emphasis added.) During cross-examination, the probation officer testified that she had not advised Fields of his Miranda rights before Fields admitted to using cocaine and frequenting a nightclub. Fields’s counsel then renewed his objection to the probation officer’s testimony. The objection was overruled.

We agree with the State that Fields did not object to the testimony of his probation officer regarding his admission that he had used cocaine on the ground that he had not been advised of his Miranda rights. Therefore, as to that testimony, Fields’s claim that he should have been advised of his Miranda rights is not properly before this Court for review. See Ex parte Frith, 526 So.2d 880, 882 (Ala.1987) (“The statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial.”). However, the record reflects that Fields did object to the testimony of his probation officer regarding his admission that he had frequented a nightclub on the ground that he had not been advised of his Miranda rights; therefore, as to that portion of the probation officer’s testimony, this issue was properly preserved for review.

The question before this Court is whether a probationer’s statement to his or her probation officer in which the probationer admits to violating one or more of the terms and conditions of probation is admissible in a probation-revocation proceeding when the probation officer had not given Miranda warnings to the probationer. We hold that it is.

It is well settled that Miranda warnings are not required unless the person is under arrest or subject to custodial interrogation. See State v. Smith, 715 So.2d 925 (Ala.Crim.App.1998); State v. Jude, 686 So.2d 528 (Ala.Crim.App.), cert. quashed, 686 So.2d 536 (Ala.1996); Smolder v. State, 671 So.2d 757 (Ala.Crim.App.1995); and Hooks v. State, 534 So.2d 329 (Ala.Crim.App.1987), aff'd, 534 So.2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S.Ct. 883, 102 L.Ed.2d 1005 (1989). “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (footnote omitted).

“ ‘A determination of “custody” is not based on “the subjective evaluation of the situation by the defendant or the police officers.” Davis [v. Allsbrooks, 778 F.2d 168, 171 (4th Cir.1985)]. Where there has not been a formal arrest (as here), an objective test is used to determine whether the suspect’s freedom of action has been restricted by the police in any significant manner. Davis, supra at 171; [United States v.] Miller, [587 F.Supp. 1296, 1299 (W.D.Pa.1984)]; Warrick [v. State, 460 So.2d 320, 322 (Ala.Crim.App.1984)]; Hall [v. State, 399 So.2d 348, 351 (Ala.Crim.App.1981)]. “The only relevant inquiry is how a reasonable man in the suspect’s position would have understood his position.” United States v. Jonas, 786 F.2d 1019, 1022 (11th Cir.1986)(quoting Berkemer v. McCarty, 468 U.S. 420 [442], 104 S.Ct. 3138, 3152, 82 L.Ed.2d 317 (1984)).’ ”

Smolder, 671 So.2d at 760, quoting Hooks, 534 So.2d at 347-48. See also Smith, 715 So.2d at 927.

Our research has revealed no Alabama cases directly addressing this issue. However, in Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), the United States Supreme Court was presented with a similar issue — specifically, whether a probationer’s admission to his probation officer that he had committed a murder some seven years before he had been placed on probation was admissible against that probationer in the trial for that murder in the absence of Miranda warnings. The Court held that Miranda warnings were not required in such a situation because a meeting with a probation officer is not a “custodial interrogation.” The Court stated:

“Custodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess. Miranda v. Arizona, 384 U.S. at 456-457[, 86 S.Ct. 1602], It is unlikely that a probation interview, arranged by appointment at a mutually convenient time, would give rise to a similar impression. Moreover, custodial arrest thrusts an individual into ‘an unfamiliar atmosphere’ or ‘an interrogation environment ... created for no purpose other than to subjugate the individual to the will of his examiner.’ Id., at 457[, 86 S.Ct. 1602]. Many of the psychological ploys discussed in Miranda capitalize on the suspect’s unfamiliarity with the officers and the environment. Murphy’s regular meetings with his probation officer should have served to familiarize him with her and her office and to insulate him from psychological intimidation that might overbear his desire to claim the privilege. Finally, the coercion inherent in custodial interrogation derives in large measure from an interrogator’s insinuations that the interrogation will continue until a confession is obtained. Id., at 468[, 86 S.Ct. 1602]. Since Murphy was not physically restrained and could have left the office, any compulsion he might have felt from the possibility that terminating the meeting would have led to revocation of probation was not comparable to the pressure on a suspect who is painfully aware that he literally cannot escape a persistent custodial interrogator.”

465 U.S. at 433, 104 S.Ct. 1136 (footnote omitted). The Court went on to explain that Murphy’s failure to assert his Fifth Amendment privilege against self-incrimination when speaking with his probation officer did not fall within any of the recognized exceptions to the general rule that a person must assert the privilege or lose its benefit. The Court specifically noted:

“A State may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution. There is thus a substantial basis in our cases for concluding that if the state, either expressly or by implication, asserts that invocation of the privilege would lead to revocation of probation, it would have created the classic penalty situation, the failure to assert the privilege would be excused, and the probationer’s answers would be deemed compelled and inadmissible in a criminal prosecution.”

465 U.S. at 435, 104 S.Ct. 1136 (footnote omitted). In an accompanying footnote, the Court stated:

“The situation would be different if the questions put to a probationer were relevant to his probationary status and posed no realistic threat of incrimination in a separate criminal proceeding. If, for example, a residential restriction were imposed as a condition of probation, it would appear unlikely that a violation of that condition would be a criminal act. Hence, a claim of the Fifth Amendment privilege in response to questions relating to a residential condition could not validly rest on the ground that the answer might be used to incriminate if the probationer was tried for another crime. Neither, in our view, would the privilege be available on the ground that answering such questions might reveal a violation of the residential requirement and result in the termination of probation. Although a revocation proceeding must comport with the requirements of due process, it is not a criminal proceeding. Gagnon v. Scarpelli, 411 U.S. 778, 782[, 93 S.Ct. 1756, 36 L.Ed.2d 656] (1973); United States v. Johnson, 455 F.2d 932, 933 [(5th Cir.)], cert. denied, 409 U.S. 856[, 93 S.Ct. 136, 34 L.Ed.2d 101] (1972). Just as there is no right to a jury trial before probation may be revoked, neither is the privilege against compelled self-incrimination available to a probationer. It follows that whether or not the answer to a question about a residential requirement is compelled by the threat of revocation, there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings.”

465 U.S. at 435-36 n. 7, 104 S.Ct. 1136 (emphasis added).

Several jurisdictions have followed the Supreme Court’s statements in Minnesota v. Murphy and have held that a probation officer is not required to give Miranda warnings to a probationer during routine interviews and that admissions by probationers to probation officers in the absence of Miranda warnings are admissible against the probationers in probation-revocation proceedings. See United States v. Nieblas, 115 F.3d 703, 705 (9th Cir.1997) (holding that a probationer’s statement to her probation officer was admissible against the probationer in a probation-revocation proceeding because “a probationer generally has no Fifth Amendment privilege regarding questions relevant to the status of her probation”); United States v. Rea, 678 F.2d 382, 390 (2d Cir.1982) (holding that a probationer’s statement to his probation officer is admissible against the probationer in a probation-revocation proceeding despite the fact that the probationer requested an attorney during the interview because a probationer has “no right to have a lawyer present during an interview with his probation officer”); and United States v. MacKenzie, 601 F.2d 221 (5th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980) (holding that a probationer is not entitled to Miranda warnings before being interrogated by his probation officer regarding violations of the terms and conditions of his probation). See also Simpson v. State, 252 Ga.App. 1, 555 S.E.2d 247 (2001); State v. Cossin, 110 Ohio App.3d 79, 673 N.E.2d 649 (1996); State v. Aldape, 14 Kan.App.2d 521, 794 P.2d 672 (1990); Cleveland v. State, 557 So.2d 959 (Fla.Dist.Ct.App.1990); Hughes v. Gwinn, 170 W.Va. 87, 290 S.E.2d 5 (1982); Alspach v. State, 440 N.E.2d 502 (Ind.Ct.App.1982); State v. Joao, 61 Haw. 571, 606 P.2d 1332 (1980); Childers v. Commonwealth, 593 S.W.2d 80 (Ky.Ct.App.1979); State v. Generoso, 156 N.J.Super. 540, 384 A.2d 189 (1978); State v. Lassai, 366 So.2d 1389 (La.1978); State v. Rivera, 116 Ariz. 449, 569 P.2d 1347 (1977); People v. Hardenbrook, 68 Mich.App. 640, 243 N.W.2d 705 (1976); and State v. Johnson, 9 Wash.App. 766, 514 P.2d 1073 (1973).

We join these jurisdictions and hold that a probationer is not entitled to Miranda warnings before or during required meetings with his or her probation officer because those meetings are not custodial interrogations, and that a probationer’s admission, during such a meeting, to his or her probation officer that the probationer has violated one or more of the terms and conditions of probation is admissible against that probationer in a probation-revocation proceeding. Because Fields’s meetings with his probation officer were not custodial interrogations, Fields was not entitled to Miranda warnings before he spoke with his probation officer, and the trial court did not err in allowing Fields’s probation officer to testify regarding Fields’s admission that he had frequented a local nightclub in violation of the terms and conditions of his probation.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB and WISE, JJ., concur.

BASCHAB, J., recuses herself.

      . Fields’s probation officer testified at the revocation hearing only that Fields had admitted to her that he had used cocaine; she did not testify that Fields had admitted to her that he had consumed alcohol. However, in her delinquency report, she stated that Fields had admitted to her that he had "got drunk.” (C. 4.)

      . We have found only two cases with facts similar to those in the present case. In Dill v. State, 600 So.2d 343, 370 (Ala.Crim.App.1991), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993), this Court was faced with the question whether Miranda warnings were required during an interview with a parole officer conducted for purposes of compiling a presentence report. Although we held that any error in the trial court's considering the presentence report and the appellant's admissions to his parole officer was harmless, we pointed out that some federal jurisdictions have held that Miranda warnings were not required during presen-tence interviews. In addition, in Thompson v. State, 356 So.2d 757 (Ala.Crim.App.1978), this Court held that the appellant’s statement to a law-enforcement officer admitting that he had been involved in a murder and an attempted murder was admissible in the appellant’s revocation proceedings. Although in Thompson, the appellant had been given his Miranda warnings before his admission, this Court noted in dicta that "the exclusionary rule in Miranda does not apply to probation revocation proceedings.” 356 So.2d at 761.