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

text:
    C.J.L. v. M.W.B.
    2010703.
    Court of Civil Appeals of Alabama.
    Feb. 28, 2003.
    Opinion Overruling Rehearing June 27, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021712.

      Richard Ducote, New Orleans, Louisiana; and Roianne Houlton Conner, Montgomery, for appellant.
    David B. Byrne, Jr., and Richard H. Allen of Capell & Howard, P.C., Montgomery, for appellee.
   CRAWLEY, Judge.

C.J.L. (“the mother”) and M.W.B. (“the father”) were divorced in 1999 in Georgia. The divorce judgment awarded the parties joint custody of their three minor children, M.E.B., C.N.B., and D.C.B. The mother moved with the children to Montgomery, Alabama; the father, who is in the United States Army, resides on base at Ft. Ben-ning, Georgia. Once the mother moved to Montgomery, the parties had several problems with the original custody provisions, which awarded the father custodial privileges ■ from Thursday evening through Monday morning. The Georgia- court modified the judgment to change the father’s custodial periods in an effort to better serve the interests of the children and the parties. The parties continued to share custody of the children.

In March 2000, the mother filed in the Montgomery Circuit Court a petition to modify custody. The father contested jurisdiction, and the mother’s petition was ultimately dismissed. In May 2001, the father filed a petition in the Montgomery Circuit Court seeking to have the wife held in contempt for denying him visitation with his children. The mother answered, coun-terpetitioned to hold the' father in contempt, and petitioned for a modification of custody and a suspension of the father’s visitation privileges. The father answered the mother’s petitions and also petitioned for a modification of custody. The trial court appointed a guardian ad litem for the children and appointed Dr. Karl Kirkland, a psychologist, to perform a custody evaluation to aid the court in determining custo-' dy.

After a trial, the court modified custody, awarding the father sole physical custody of the parties’ three children. The mother appeals. She first argues that.the trial court erred by admitting and relying on the testimony of Dr. Kirkland because he, according to the mother, based his recommendation on his diagnosis of parental alienation syndrome (“PAS”), which the mother contends is not widely accepted as a syndrome or diagnosis in the psychological community and therefore does not pass the “general acceptance” test for the admissibility of scientific evidence under Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923). She also argues that the trial court did not have sufficient evidence from which to find that the children were “alienated” from their father and that the trial court’s modification of custody was contrary to established law. Finally, she argues that the trial court erred by “unduly” relying on a report by the guardian ad litem, which was submitted before trial.

I. A Brief History of Events Surrounding the Original Divorce

To better understand the present case, a brief discussion of certain aspects of the history of the parties’ divorce is necessary. Before the parties separated, in September 1997, the mother told the father that M.E.B., who was four years old at the time, and C.N.B., who was not yet three years old, had indicated that their paternal grandfather, T.D.B., had sexually molested them while their paternal grandmother, J.B., watched. When the mother told the father of these allegations, the father, who was on a temporary assignment at the time, urged the mother to take the children to the base hospital at Ft. Gordon, Georgia, where the father was stationed at the time, to have them examined. The mother had the children examined by Dr. Janus Butcher at Eisenhower Army Medical Center on September 23, 1997, only 3 days after the children first made the allegations. Dr. Butcher found no physical evidence of sexual abuse. The mother, however, was not satisfied with Dr. Butcher’s opinion that no abuse had occurred, and she took the children to see Dr. Sara O’Heron on October 16, 1997, over 25 days after the alleged incidents of abuse occurred. Dr. O’Heron saw the children again on March 31, 1998. Dr. O’Heron opined that sexual abuse had occurred.

Based on Dr. O’Heron’s opinion, the paternal grandparents were arrested and, subsequently, indicted on several charges. For some reason not clear in the current record, the indictments were set aside and the case was resubmitted to another grand jury. The second grand jury “no-billed” the charges. The father strongly supported his parents through the resolution of the allegations against them, further damaging the parties’ already disintegrating marriage and resulting, ultimately, in a bitter divorce.

During the months following the first allegation of sexual abuse and during the divorce process, the children were examined by two psychologists, Dr. Greg Swanson and Dr. Joseph Frey. Both psychologists opined that the children had likely been sexually abused by their grandfather. However, Dr. Frey, who prepared a custody evaluation for the Georgia court, commented that the mother’s behavior, including “generalizing these charges onto her husband” and “her excessive reliance [on] and indulgence in what her children tell her,” had fueled inappropriate conduct by her during the pendency of the divorce proceedings. He specifically noted her zeal to have the children’s contacts with the father supervised and limited and indicated that the mother wanted the “children away from their father at any cost.” He recommended the shared custody arrangement incorporated into the Georgia court’s divorce judgment, opining that the mother “is incapable of allowing [the children] to form an appropriate relationship and attachment with their father, who has not demonstrated any defined acts of sexual or physical abuse.”

II. The Events Giving Rise to and Underlying the Present Case

The father’s contempt petition in the present case was prompted by the mother’s unilateral decision to deny the father visitation with his children beginning in April 2001. The mother admitted that she denied the father visitation first with D.C.B., a son, who was three at the time, and then with all three children. She explained that the son had returned from the spring break visitation with his father unusually “clingy” and that the son had indicated that he was upset with his father and even stated that he wanted his father dead. The mother said that such behavior was unusual because the son had always enjoyed visitation with the father. Upon her questioning of him, the son commented that the father had spanked him, so the mother inferred that the child had been punished and that he was simply upset at being punished. However, the mother noticed later that evening as she bathed the son that the son’s anal area was red and that the son complained that it hurt. When questioned about why his bottom hurt, the son, according to the mother’s testimony at trial, said that the father had “dug in his bottom.”

The mother testified that she took the son to the emergency room to be examined, but that the emergency-room physician referred her to Dr. Penny White, a pediatrician trained in examining children alleged to be victims of sexual abuse. The mother took the son to Dr. White, who testified at trial that the mother reported that the son had told her that the father “took a white thing and put it in [his] bottom and it goes all the way to God.” Dr. White testified that the results of her examination of the son were “normal” and explained that, typically, physical examinations do not yield abnormal results even if a child has been sexually abused.

In addition to having the son examined by Dr. White, the mother reported the allegation to the Department of Human Resources (“DHR”), which, in turn, contacted the criminal investigation command of the United States Army. At trial, Special Agent Charles Thomas Ames, Jr., testified regarding the Army’s investigation of the allegations against the father. Ames explained that he began working on the case approximately two months after the initial report was filed. He said that a lack of credible evidence had resulted in the Army’s closing the investigation.

When asked to explain what about the investigation led the Army to determine the allegation was unfounded, Ames recalled that when a DHR representative spoke with his predecessor about the allegations, the DHR representative expressed doubts about whether abuse had actually occurred. He also specifically mentioned the mother’s refusal to come to Ft. Benning to give a sworn statement. Ames admitted that the mother had later agreed to give a sworn statement, provided Ames or another agent came to her attorney’s office in Montgomery to take the statement. Ames also noted that the results of Dr. White’s examination of the child had been normal and that Dr. Terri Brewer, who had not supplied the Army any details of her interviews of the children, stated only that had her interviews revealed that criminal activity had occurred she would have had to notify law enforcement and that she had not done so in this case.

The mother was adamant in her belief that the son had been abused by the father, so she continued to deny him all contact with his children until the trial court, on the motion of the guardian ad litem, ordered that visitation with the father be resumed in September 2001. Although the children were at first reluctant to visit with the father, indicating that they feared him, the visitation apparently went smoothly. However, when the children first resumed visiting the father, the mother wrote her cellular telephone number and “911” in M.E.B.’s shoe and told her children to stay close to each other so their father could not hurt them. The custody evaluator, Dr. Kirkland, communicated with the father by telephone during the first weekend visitation, which took place over the Labor Day weekend 2001. The father, the children, and the father’s stepson met with Dr. Kirkland in his office on September 30, 2001, upon their return from the second visitation weekend. According to Dr. Kirkland, the father and the children informed him that the visits had been pleasant.

However, on September 20, 2001, between the father’s visits with the children, the mother had again taken the son to see Dr. White as a result of the son’s report to his preschool teacher that the father “dug in his bottom with a wiggly knife,” which, according to the record, describes an electric knife. Again, Dr. White’s physical examination was “normal,” with no indications of trauma to the anus. Dr. White said that the child appeared hesitant to report to her what he had already told his teacher, but he did tell Dr. White that he had told his teacher about what his father had done and stated that his father “was ‘bout to cut off [his] head.”

III. The Custody Evaluation■/

The court appointed Dr. Kirkland to perform a custody evaluation in this case. To aid him in this task, D^.' Kirkland" administered psychological tests to the mother, the father, and the father’s wife, L.B., as a part of his custody evaluation. He also interviewed the mother, the father, L.B., and the children. Dr. Kirkland also used projective drawings and therapeutic play with the children.

According to Dr. Kirkland, the psychological testing of the mother yielded an invalid profile on the Minnesota Multipha-sic Personality Inventory 2 (“MMPI-2”) because the mother was consciously attempting to present herself in a positive light. Dr. Kirkland stated that the mother “responded in a naive and defensive manner” and that her profile “is characterized by emotional immaturity, self-centeredness, and a tendency to overreact with emotion to difficulties without fully investigating details.” He noted that “she has a hard time seeing how she has contributed to any of the negative outcomes that have been involved [in this case].” Although Dr. Kirkland determined, based upon the results of the parental stress inventory (“PSI”), that the mother was a competent parent with “a well-informed and thorough parenting style,” he noted what he described as a “glaring exception” to her competency — “her inability to see around and beyond the current and past accusations of child abuse [in this case].”

Dr. Kirkland opined that the mother’s “continued fueling of the fire surrounding this issue is significant enough to warrant serious questioning of her overall parental capacity.” He further stated that, even throughout the custody evaluation, when she was under extreme scrutiny, the mother continued to act in a way that was not in the best interest of her children by continuing in what Dr. Kirkland concluded was an all-out campaign to undermine, if not totally destroy, the children’s relationship with the father. His written evaluation reveals that the mother believes the father “is at worst dangerous and at best neglectful” and that “[s]he indicated that termination of his parental rights would be the only way in which she would feel completely comfortable.”

The father’s MMPI-2, by comparison, yielded a valid profile. Although the MMPI-2 and his interview revealed that the father “may be overly rigid in his communication style” and that “[h]e may be seen by others as being somewhat cynical and perfectionistic,” Dr. Kirkland concluded that the father was better able to provide structure and discipline for the children. Dr. Kirkland also noted that the father, although aware of and quite disturbed at the mother’s efforts to destroy his relationship with the children, expressed no desire to remove the mother completely from the children’s lives. In fact, Dr. Kirkland opined that the father would be able to promote the mother’s role in the children’s lives if he were awarded custody.

Dr. Kirkland testified about his conclusion that the mother’s behavior in this case had alienated the children from their father. He recalled that the children, when he first interviewed them on August 1, 2001, indicated that they did not wish to visit with their father, and, in fact, reported that they feared their father. After visitation resumed, however, Dr. Kirkland noted that the children reported to him that they had enjoyed the weekend visitations and that they appeared comfortable and affectionate around the father on the afternoon they returned from the second weekend visitation.

Dr. Kirkland testified that he was most concerned that the children’s drawings upon return from visiting with the father were inconsistent with their attitude concerning and their self-reports of visitation with their father. He explained that, when requested to draw a picture of his family, the son drew a picture of several faces; when Dr. Kirkland asked for an explanation of the drawing, the son reported that “Daddy is an ugly man.” M.E.B., when asked to draw a picture of her family doing something together, drew a group of children, representing her, her siblings, and her stepbrother, on a trampoline fighting.

Other drawings by the children appeared, according to Dr. Kirkland, to demonstrate that the children were experiencing some alienation from their father. Dr. Kirkland specifically referenced a drawing by M.E.B., who was eight years old, showing the father pushing the mother into the wall while she was pregnant with D.C.B. According to Dr. Kirkland, it would be highly unusual for a child encouraged simply to draw a picture of her family doing something to draw such a picture. He also noted that M.E.B. would have been only four years old at the time of such an event.

Dr. Kirkland’s written evaluation also revealed statements by the children before visitation resumed that indicated that they were angry with or fearful of their father. M.E.B. stated that “there was no safe way to visit her father” and said that he had caused her to have attention deficit disorder by throwing her on the bed and kicking her when she was a baby. She also said she wanted to change her last name so that she would not have her father’s last name. Both daughters said “if we don’t see him, we won’t have to get hurt.” The son said, “I don’t like my dad, he’s mean to me.”

In his written evaluation, Dr. Kirkland recommended that the father be granted sole physical custody and that the mother be awarded supervised visitation. Dr. Kirkland stated the following in support of his recommendation:

“[The mother] has consciously or unconsciously chosen the path of alienating the children’s affection from their father. Regardless of whether we label it a particular syndrome, the alienating and destructive behaviors are obvious, persistent, chronic, and pervasive. This is certainly one of the worst, if not the worst, examples of that type of parental behavior that this examiner has ever encountered. Even when there is a custody issue pending, this mother has persisted in destructive behavior with regard to the children’s relationship with their father. The extremity of her position has caused this examiner to be of the opinion that this situation cannot be turned around without a reversal of custody. ... In my opinion, the degree of alienating behavior on the part of the mother in this case is significant enough to warrant the recommendation of a change in custody.”

(Emphasis added.)

Dr. Kirkland was questioned at trial at length about his understanding of, and reliance on, what is known as parental alienation syndrome (“PAS”). He agreed that the term PAS was coined by Dr. Richard Gardner. However, Dr. Kirkland explained that the concept of parental alienation has been researched by other professionals, including Joan Kelley and Judith Wallerstein, for over 20 years. Dr. Kirkland said that he considered PAS, or, more correctly, the behaviors that form what has been labeled PAS, to be a form of parenting style that has been considered to have long-term ill effects on the children of divorce.

Dr. Kirkland testified that he had found evidence indicating that the children were “alienated or at least partially so” because their drawings indicated distress that they did not outwardly demonstrate when they were in the presence of their father. He also explained that, to determine if alienation is indeed occurring, he would consider the parents’ self-reports and the children’s self-reports, and compare the children’s projective drawings to the reports of their behavior during visits. He said that he was particularly concerned in this case, as he was in most post-divorce custody evaluations, with each parent’s ability to present the other parent in a positive, or at least neutral, fight. He said that, although he explained that concept to the mother, she appeared unable to control her desire to damage the children’s relationship with their father. When questioned about whether a less drastic alternative than a change of custody would be appropriate in this case, such as a therapy plan with the family, Dr. Kirkland stated that he had considered such an approach and had even come close to recommending such a course until the second allegation of sexual abuse of the son was made in September 2001.

TV. Testimony Critical of PAS

The mother presented the testimony of Dr. Greg Swanson, a psychologist, to refute the general acceptance of PAS in the scientific community. He said that PAS was not included as a diagnosis in the Diagnostic and Statistical Manual IV (“DSM-IV”), that the syndrome, developed by Dr. Richard Gardner, had not been thoroughly researched, and that Gardner’s own studies on PAS had not been published in peer-review journals. He did, however, acknowledge that patterns of behaviors that might be referred to as PAS, like bitter fighting between divorced parents and accusations concerning the other parent, occur in post-divorce settings. He also admitted that Dr. Kirkland had not used the term PAS in his custody evaluation and had instead focused on the alienating behavior of the mother.

Dr. Swanson also testified that he did not think a change of custody was a “cure” for PAS or that such a change was necessary in this case. In his opinion, Dr. Kirkland’s custody evaluation was “a bit hasty and ... could easily be biased.” However, Dr. Swanson admitted that he had not been appointed as a custody evaluator and that he was not testifying as to which parent should be awarded custody.

V. The Mother’s Arguments on Appeal

A. The Admission of Testimony Relating to PAS

The mother’s first argument on appeal is that the trial court erred by admitting and relying on Dr. Kirkland’s custody evaluation and testimony. She argues that PAS, which she says Dr. Kirkland used in making his evaluation, does not meet the Frye test for admissibility because it is not generally accepted in the scientific community. See, generally, Hill v. State, 507 So.2d 554, 555 (Ala.Crim.App.1986) (“expert testimony concerning a scientific or medical principle will be admissible only when the proponent of the evidence establishes that the principle has achieved general acceptance in the scientific field to which it belongs”); see also Hoosier v. State, 612 So.2d 1352, 1353 (Ala.Crim.App.1992). Therefore, she concludes, the trial court should be reversed because it relied on Dr. Kirkland’s custody recommendation, which was based, she says, on a diagnosis of PAS.

However, a close reading of Dr. Kirkland’s report reveals that he does not make a diagnosis of PAS. Dr. Kirkland describes what he calls the mother’s alienating behavior and describes the children as becoming alienated or being partially alienated from their father. However, although he lists several articles concerning PAS in his evaluation as sources he consulted, he does not specifically mention PAS in his custody evaluation or recommendation.

The trial court’s judgment does contain a reference to PAS. The court states that the mother had demonstrated “a determined effort to destroy any relationship with [the father] and the paternal family.” The judgment further reads “[t]his attitude is known as ‘parental alienation syndrome,’ a condition as to which the experts differ.” The first of these statements indicates that the trial court determined that the mother had chosen to alienate the children from their father. The second statement seems to indicate that the trial court believed that this pattern of behavior was known as PAS.

Because, as will be discussed further in Part V.B. of this opinion, the evidence supports the trial court’s determination that the mother had attempted to alienate the children from their father and, more specifically, that the mother had repeatedly demonstrated that she was unable to promote the father’s role in the children’s lives, we do not believe that the trial court’s reference in its judgment to PAS necessitates a reversal. We instead conclude that Dr. Kirkland’s written custody evaluation and his testimony at trial were not based on a diagnosis of PAS as much as they were based on the mother’s repeated and admitted inability to promote, or to at least be neutral concerning, the father’s role- as parent. This behavior, which pervaded both the Georgia proceedings and the current modification proceedings, has bred in the children, according to Dr. Kirkland, a potential for alienation. He decidedly states that the mother’s continued campaign against the father is not in the children’s best interests.

Dr. Swanson admitted that the concept of alienation in post-divorce cases was not new to psychological literature. He explained that he thought that, in some divorce situations, parents become bitterly angry with each other, are unable to relate to each other amicably, and are unable to make the children feel like they are supportive of each other as parents. He summed up his thoughts on PAS by stating that he thought that the above described behavior “might be referred to as parental alienation syndrome, things like that happen after you divorce.”

Although we might, if faced squarely with the question whether evidence concerning an actual diagnosis of PAS was admissible under Frye’s “general acceptance” test, be inclined to agree with the mother and find that PAS had not been generally accepted in the scientific community, we do not need to make that decision in this case. The trial court was presented with a myriad of evidence that the mother desired to end all contact between her children and their father — even to the point of expressing a desire for termination of his parental rights. This court has commented that

“[i]n some instances the custodial parent, in defiance of court-granted visitation rights, uses his or her position to alienate the other parent from the affections of the child, or to create fear of the non-custodial parent in a child, or by his or her words or actions actually encourages a child not to visit with the other parent.”

Hagler v. Hagler, 460 So.2d 187, 189 (Ala.Civ.App.1984).

Dr. Kirkland’s evaluation and testimony indicate that the mother is participating in the above-described conduct. He says she is on a campaign to undermine the children’s relationship with their father, that she is unsupportive of his role as a parent, and that she is attempting to alienate the children from their father. That course of conduct and the mother’s attitude, according to Dr. Kirkland, is damaging to the children, and, he concludes, it is not in their best interest to be raised by a mother who is so bitterly opposed to the children’s father. Dr. Swanson admitted that the concept of such alienating behaviors by bitter divorced parents was not new or novel to psychiatry. In fact, he admitted that such behavior occurred.

The evidence that the mother was behaving in such a way as to damage the children’s relationship with their father, while perhaps at times a basis for a diagnosis of PAS, is not, in this case, subject to Frye’s “general acceptance” standard. We see Frye as serving to prevent the admission of testimony that, by its very nature, removes the necessity for finding individual facts to support a conclusion. As a point of comparison in domestic law, the “tender-years” presumption was similar in that it, in nearly all circumstances, made the custody determination regarding a child of tender years automatic. After the presumption was abolished in Ex parte Devine, 398 So.2d 686 (Ala.1981), some of the factors that made up the tender-years presumption — age and gender — were still factors for the trial court to consider, but these particular factors no longer mandated a particular custody determination and instead required a trial court to make each custody determination in an individualized manner. Likewise, in this case, the evidence concerning the mother’s behavior, its impact on the children, and the parties’ respective parenting abilities and shortcomings make the underlying decision by the trial court appear not to have been automatic as a result of some mention of PAS, but instead to have been the culmination of a careful consideration of the many factors at work in this case.

B. The Sufficiency of the Evidence

The mother also argues that the trial court did not have sufficient evidence from which to determine that the children were alienated from their father or to modify custody under existing law. She first contends that the children are not suffering from alienation because the father, Dr. Kirkland, and the guardian ad litem all report that the children are comfortable and affectionate with the father. Thus, she concludes, the children have not suffered alienation from the father and the trial court erred by using that rationale as a basis for modifying custody. The only remaining basis, she says, that the trial court has for modifying custody is her denial of visitation, which, under existing law, has been held insufficient as a basis for modifying custody. See, generally, Vick v. Vick, 688 So.2d 852, 856 (Ala.Civ.App.1997). Accordingly, the mother urges us to reverse the trial court’s judgment.

The parties had joint custody of their children pursuant to the Georgia judgment. Therefore, this case is not subject to the standard set out in Ex parte McLendon, 455 So.2d 863 (Ala.1984). Instead, the father was required to prove' that “a change in circumstances has occurred such that it was in the child[ren]’s best interests that the [judgment] be modified to transfer [sole] physical custody.” Means v. Means, 512 So.2d 1386, 1388 (Ala.Civ.App.1987).

The trial court’s judgment notes that, in one respect, a change of circumstances has not occurred because the mother has continued her previous course of conduct. However, the trial court noted that, in its opinion, the mother’s assurances to the Georgia court that she would no longer practice such damaging behavior prevented her from asserting that her resumption of her pre-divorce conduct was not a change in circumstances. We tend to agree in this particular case.

The father presented sufficient evidence from which the trial court could have determined that the children were suffering the effects of alienation, or, in the words of Dr. Kirkland, “at least partially so,” because of Dr. Kirkland’s testimony that the children’s projective drawings and early statements concerning their father were markedly inconsistent with their attitude during or immediately upon the return from a visit with the father. In addition, the other factor that appears to have weighed heavily on the trial court was the fact that the guardian ad litem and Dr. Kirkland indicated that the father, unlike the mother, was able to promote the mother’s role as a parent despite her continued efforts to undermine his role as a parent. The trial court admitted that it had considered maintaining the existing custody arrangement provided the mother encouraged a good relationship between the father and the children, as she indicated she would because, she said at trial, she realized that her past behavior was inappropriate. However, the trial court clearly-stated that it had decided against that course because it doubted the mother’s sincerity.

The mother argues that the trial court’s modification of custody is actually founded on punishing her for what is essentially a visitation dispute. Our decisions have consistently indicated that a change of custody is not an appropriate sanction for visitation problems. Kelley v. Akers, 793 So.2d 821, 826-27 (Ala.Civ.App.2001); Vick v. Vick, 688 So.2d 852, 856 (Ala.Civ.App.1997); Means v. Means, 512 So.2d 1386, 1389 (Ala.Civ.App.1987); Pons v. Phillips, 406 So.2d 932, 935 (Ala.Civ.App.1981). Howr ever, although the impetus for the father’s original petition was the mother’s outright denial of all contact with the children, we do not believe that this case concerns only a visitation dispute. The mother’s actions in making what have been determined to be unfounded accusations against the father, her then denying the father any contact with the children, and her campaign to undermine the father’s parental role, has, according to Dr. Kirkland, endangered the children’s well-being and, in his opinion, “is tantamount to abuse.”

The record supports the trial court’s adoption of Dr. Kirkland’s criticisms of the mother, who wrote her cellular telephone number and “911” in M.E.B.’s shoe and told her children to stay close to each other so their father could not hurt them when they resumed visitation with the father despite the lack of credible evidence that he had sexually abused any one of the children. In her zeal to protect her children, the mother has become blind to the reality that the evidence does not support the allegations she has made against the father. She testified that the father was a good father, yet she persists in the firm conviction that he may have sexually abused his own son. All of the mother’s behaviors were present in Georgia, where the trial court cautioned in its final judgment that interference with visitation could result in harsh sanctions against the offending parent. The Georgia court even went so far as to state in its custody judgment that it “had serious concerns about [the mother’s] ever allowing [the father] to have a meaningful relationship with the children.” Dr. Kirkland stated in his recommendation that “[c]learly, two extended court battles in two different states should be enough to convince the court that [the mother] is incapable of providing and/or promoting that level of parental support and related parenting that would lead toward healthier relationships with all concerned parties.” The trial court was so convinced, and, given the evidence presented, we cannot say that its decision to modify custody is plainly and palpably wrong.

C. The Trial Court’s Acceptance of and Reliance upon the Guardian ad Litem’s Report

The mother also argues that the trial court erred by admitting and relying upon the guardian ad litem’s report. At trial, the mother’s counsel made the following statements in regard to the guardian ad litem’s recommendation, which is contained in the record:

“We need to get on the record in regards — Judge, we respectfully take issue with some of the findings of the guardian ad litem. I know it’s probably inappropriate for counsel to cross-examine the guardian ad litem, but I think the Court can take notice that in light of the testimony that’s been elicited and the things that have been shown over the past two days that possibly the findings of the Court-ordered therapist, of Dr. Kirkland, have been disputed by the testimony elicited on behalf of the [mother]. And, as a result, the guardian ad litem — whether—the guardian ad li-tem’s report was, I think, somewhat influenced by the findings of Dr. Kirkland.
“We would certainly take issue with that, and we would note for the Court and the record that we do take issue with the findings of the guardian ad litem.”

The mother cites two law review articles in support of her argument that the use of guardians ad litem in custody cases violates her rights to due process and that the procedure of using guardians ad litem should be abolished because their reports are replete with hearsay, they are not subject to cross-examination, and they act as fact-finder and judge. See Richard Du-cote, Guardians ad Litem in Private Custody Litigation: The Case for Abolition, 3 Loy. J. Pub. Int. L. 106 (Spring 2002); Raven Lidman and Betty Hollingsworth, The Guardian ad Litem in Custody Cases: The Contours of Our Legal System Stretched Beyond Recognition, 6 Geo. Mason L.Rev. 255 (1998).

However, Alabama law clearly permits the use of a guardian ad litem in a custody case. See Ala.Code 1975, § 12-15-1(8). The cases addressing the use of a guardian ad litem make it clear that a trial court may consider, although it is not bound to follow, a recommendation made by a guardian ad litem. Moody v. Nagle, 811 So.2d 546, 548 (Ala.Civ.App.2001).

“Moreover, the authority of a guardian ad litem to make a recommendation as to custody, and the trial court’s ability to consider that recommendation, are inherent in the definition of a guardian ad litem. See § 12-15-1(8), Ala.Code 1975 (a guardian ad litem is ‘[a] licensed lawyer appointed by the court to defend or represent a child in any action to which such child may be a party’).”

G.C. v. G.D., 712 So.2d 1091, 1095 (Ala.Civ.App.1997); see also S.D., Jr. v. R.D., 628 So.2d 817, 818 (Ala.Civ.App.1993) (“The guardian ad litem correctly observes that he is an officer of the court and is entitled to argue his client’s case as any other attorney involved in the case.”). We decline to reconsider the longstanding use of guardians ad litem by the trial courts of this state.

VI. Conclusion

In conclusion, we have determined that the modification of custody in this case was warranted and supported by the evidence. Although we might agree with the mother that testimony concerning a diagnosis of PAS is not admissible under the Frye “general acceptance” test, we do not believe that the Frye test should be applied to Dr. Kirkland’s custody evaluation or testimony in this particular case. Because Dr. Kirkland did not actually diagnose PAS and because his custody evaluation and testimony indicated several underlying reasons for his conclusion that the mother’s behavior was alienating the children from their father and was calculated to undermine and destroy the father’s relationship with the children, we do not believe that the references to PAS in the titles of articles he consulted in compiling his evaluation and in the trial court’s judgment indicate that either Dr. Kirkland or the court was relying on the syndrome. Instead, it appears that Dr. Kirkland and the trial court considered the behaviors engaged in by the mother, both in Georgia and in Alabama, to be severe enough and to have continued long enough so as to warrant a change in custody. Based on our review of the record, the father proved a change in circumstances and that the best interests of the children would be served by a change of custody. Finally, we decline to reverse the trial court’s judgment because it used the services of a guardian ad litem, which Alabama law permits. Accordingly, we affirm the judgment modifying custody.

AFFIRMED.

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

MURDOCK, J., dissents.

On Application for Rehearing

CRAWLEY, Judge.

The application for rehearing is overruled. However, we feel compelled to address the mother’s argument that there was abundant evidence that the children were abused by their father. The mother comments in her brief on rehearing that our opinion on original submission “cata-logues a number of expert opinions given the mother that her children were indeed sexually abused as they reported to her.” Indeed, we commented on several experts’ opinions indicating that the children were molested by their paternal grandparents. However, we stated later in the opinion that there was a lack of credible evidence that the father had abused the children. Although Dr. White testified that the son’s anus was “blunted,” the results of her examination' were “normal.” The Army investigation into whether the father had abused the son was closed because of a lack of credible evidence. The Army investigator testified that a Dr. Terri Brewer had reported to him that she would have reported any criminal activity to law enforcement, but that she had not made any reports as a result of her interviews with the children. Despite the evidence the mother relies on concerning the abuse that the children allegedly suffered at the hands of the paternal grandparents, we agree with the trial court’s conclusion that she did not present evidence that the children were abused by the father.

This very determination — that the father has not molested his children— supports this court’s conclusion that the trial court’s judgment is not based on evidence concerning Parental Alienation Syndrome. In fact, the trial court determined that no evidence supported the mother’s allegations against the father. Trial courts are presented with allegations of all kinds; it is their duty to determine which allegations are supported by the facts presented and which are not. This court is not permitted to question those determinations unless a trial court’s determination is so unsupported by the evidence that we conclude that it is plainly and palpably wrong. See Ex parte Fann, 810 So.2d 631, 633 (Ala.2001). Our limited review is based on the fact that, as an appellate court, we do not observe the witnesses and have no way to assess their credibility. Ex parte Fann, 810 So.2d at 633. Our supreme court has noted that the “opportunity to observe witnesses is especially important in child custody cases.” Id. In this case, the mother’s allegations against the father were not so overwhelmingly supported by the evidence presented that we must conclude that the judgment of the trial court is plainly and palpably wrong. We, therefore, decline to reconsider our affirmance of the trial court’s judgment.

APPLICATION OVERRULED.

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

MURDOCK, J., dissents.

MURDOCK, Judge,

dissenting.

I would grant the mother’s application for rehearing; therefore, I respectfully dissent.

The trial court decided this case largely in reliance on Dr. Kirkland’s opinion that the mother unjustly attempted to alienate the children from the father. Such an opinion necessarily had to be based upon the premise that the mother did not have a reasonable basis to believe that the father had sexually abused the parties’ son because, if a mother had such a reasonable basis, one certainly would expect (indeed, the law would expect) her, if she is a loving and fit parent, to react strongly in such circumstances. In other words, unless we are willing to substitute the courts for parents when it comes to deciding what is reasonably necessary for the protection and best interests of the parents’ own children, the issue cannot be whether a father actually commits sexual abuse in a case such as this. In my view, therefore, the trial court’s opinion in the present case can only be sustained if the mother did not have a reasonable basis for believing the father abused the parties’ son. This was a factual issue for the trial court itself, not an expert, to decide.

I thus see two problems with the result reached in this case. First, I simply do not see how the information available to the mother was not sufficient to give her a reasonable basis for her beliefs. I take no comfort in Dr. White’s testimony that her examination of the child’s anus was normal, because she also testified that such “normal” examinations were typical in sexual-abuse cases. Moreover, the mother testified that, upon return from visitation with the father, the son’s anus was red and he complained that it was sore, that he was “clingy,” and that the son told her that the father “had dug in his bottom.” The mother also testified that the son had described a white thing put into his anus by the father that “goes all the way to God,” and that the son had told his preschool teacher that the father had “dug in his bottom with a wiggly knife.” Furthermore, Dr. White testified at trial concerning her conversation with the child.

“Q. And what were his — what did he relate to you?
“A. He said, I told my teacher about my Dad — and then he kind of paused— about something that’s bad. What my dad hit, is what I believe he said. And then he paused and then said, he was about to cut my head off.
“He just kind of talked slower and slower. His little face looked so — I say worried or serious. And then he just stopped. He didn’t say anything else. So that’s what he told me.”

Dr. Swanson, a psychologist, testified at trial:

“Q. Would you anticipate or do you have an opinion of whether or not [the mother] believes today whether her [daughters] have been sexually abused?
“A. When I — let me say that at the time that I was working with them, I think that [the mother] was convinced that they were sexually abused, and from what brief contact I’ve had with her since then, I think she’s very concerned that [the son] has been.
“Q. Do you believe that based upon all of the opinions that have been elicited with regard to the abuse of [the daughters], specifically the opinion of four medical providers — specifically Dr. O’Haron — that the abuse occurred, that [the mother] in this case is being irrational?
“A. I myself am convinced that the abuse occurred with [the daughters] and have that reflected in my progress notes with various things that have happened. And I can understand where [the mother] would be concerned; if [the son] gets to be the same age if there’s some kind of symptoms or something he’s talking about, that she would be very concerned about that.”

Dr. Kirkland testified with respect to all three children: “I cannot find any credible evidence to support abuse by any person.” I find this statement to be contrary to the record before us, much of which is outlined in the opinion on original submission. Furthermore, such a statement reveals that Dr. Kirkland’s ultimate conclusion was based, at least in part, on a premise that no sexual abuse actually occurred. The issue in evaluating the mother’s actions, however, is whether the mother had a reasonable basis for believing that abuse had occurred.

Second, I am concerned that the trial court failed to directly confront the aforesaid issue. Specifically, it appears that the trial court preempted its consideration of this issue by giving weight to Dr. Kirkland’s opinion that the mother had acted unreasonably. Logically, the opinion expressed by Dr. Kirkland would have to be premised on a negative answer to the question whether the mother had reason to believe the father had committed sexual abuse. This was an issue within the province of the trial court, not one to be decided by an expert, and the trial court should have directly decided the issue based on the evidence presented to it.

I respectfully dissent.

      . The father’s petition uses the term "visitation” although, as we have noted, he was awarded joint custody of his children, making the time he is with his children his custodial period as opposed to simply "visitation.” For consistency, and because of the phrasing of one of the mother's arguments, we will continue to refer to the father's custodial periods as “visitation.”

      . Alabama has not abandoned the Frye test, except in cases involving the admission of DNA evidence. See Southern Energy Homes, Inc. v. Washington, 774 So.2d 505, 517 n. 5 (Ala.2000) (citing Ala.Code 1975, § 36-18-30).

      . The allegations were essentially that the grandfather had "bitten M.E.B. on the bottom” and that M.E.B. had watched her grandfather "bite C.N.B. on the bottom” and that the grandmother, who had watched the above-described events, had told the grandfather not to bite them on the bottom, put Tabasco sauce on his tongue, and put him in "big timeout.”

      . Apparently, the children, in the first few days after reporting the incident, were interviewed by someone affiliated with the Georgia Department of Family and Children's Services, the Georgia equivalent of Alabama's Department of Human Resources, who, from what we infer from other items in the record, concluded that it was very likely that the children were sexually molested.

      . The record does not disclose what type of medical or mental health professional Dr. Brewer is. Nor does the record indicate exactly when or which of the children were interviewed by her.

      . In fact, Dr. Kirkland’s conclusion that M.E.B. would have been four years old when her mother was pregnant with D.C.B. is incorrect. Because M.E.B. was bom in June 1993, she would have turned four after D.C.B. was bom in February 1997.

      . We realize that the Dr. Kirkland, the guardian ad litem, and the trial court indicated that they also believed that the allegations of abuse made against the paternal grandparents were also false. However, we need not pass judgment on that particular fact. It has no bearing on whether the mother’s behavior toward the father since the divorce has either alienated the children from their father or has attempted to undermine the father's relationship to such an extent that a custody modification is warranted.

      . As indicated by Dr. Swanson, the prior abuse of the mother’s daughters by a member of the father’s family serves as a predicate in evaluating the mother’s reaction to the circumstances at issue involving the son.


source: Caselaw Access Project

author: PITTMAN, Judge. PITTMAN, Judge. THOMPSON, Judge,

license: Public Domain

text:
    Charles Greg BRADFORD v. Denise Renee Bradford JAMES.
    2011140.
    Court of Civil Appeals of Alabama.
    May 2, 2003.
    Opinion Overruling Rehearing Aug. 1, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021759.

      Lindsey Mussleman Davis of Holt, Mus-sleman & Holt, Florence, for appellant.
    Daniel G. McDowell of McDowell & Bea-son, Russellville, for appellee.
   PITTMAN, Judge.

In June 2001, Charles Greg Bradford (“the father”) filed in the Franklin Circuit Court a petition to modify the custody of the two minor children born of the father’s marriage to Denise Renee Bradford James (“the mother”) and to modify the child-support provisions of the parties’ divorce judgment. The mother filed a motion to dismiss, which the trial court denied, and an answer generally denying the allegations of the father’s complaint; the mother later filed an amended answer that also contained a counterclaim. The mother’s counterclaim alleged that the father was in arrears in his child-support payments and asked that he be held in contempt. After an ore tenus proceeding, the trial court issued its judgment on March 21, 2002. The trial court refused to modify custody or to modify the child-support provisions in the divorce judgment. Both parties filed postjudgment motions that were denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The father appealed.

“When [an appellate court] reviews a trial court’s child-custody determination that was based upon evidence presented ore tenus, we presume the trial court’s decision is correct: ‘ “A custody determination of the trial court entered upon oral testimony is accorded a presumption of correctness on appeal, and we will not reverse unless the evidence so fails to support the determination that it is plainly and palpably wrong....” ’ Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994), quoting Phillips v. Phillips, 622 So.2d 410, 412 (Ala.Civ.App.1993) (citations omitted). This presumption is based on the trial court’s unique position to directly observe the witnesses and to assess their demeanor and credibility. This opportunity to observe witnesses is especially important in child-custody cases. ‘In child custody cases especially, the perception of an attentive trial judge is of great importance.’ Williams v. Williams, 402 So.2d 1029, 1032 (Ala.Civ.App.1981). In regard to custody determinations, this Court has also stated: ‘It is also well established that in the absence of specific findings of fact, appellate courts will assume that the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).”

Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

I.

The father first argues that the trial court erred when it failed to modify the previous custody order and grant him joint custody of the parties’ two minor children. The father argues that he has met the burden established in Ex parte McLendon, 455 So.2d 863 (Ala.1984), for a change in custody. We have long held:

“[W]hen a noncustodial parent seeks to modify the custody provision of a prior judgment, the evidentiary standards set forth in Ex parte McLendon, 455 So.2d 863 (Ala.1984), must be applied. The petitioning parent must show that a change in custody will materially promote the child’s best interests and welfare. Id. That parent must also show that the good brought about by the change in custody would more than offset the inherently disruptive effect caused by uprooting the child. Butts v. Startley, 600 So.2d 310 (Ala.Civ.App.1992).”

Etheridge v. Etheridge, 712 So.2d 1089, 1091 (Ala.Civ.App.1997). The father described his reasons for wanting to gain custody of his children as follows:

“I filed [the motion to modify custody] because I’ve lost five years of time being with my children and experiencing things with them that a father or any parent in general would want to take and experience with them. I’ve been limited on what I can do with them because I’m always having to run and make up the income on seven days and work. Take off weekends I could take and spend some time with my children. I’m missing time with them and I’m not getting to spend — five more years it would be over. I mean, I won’t be able to — they will be 18, 19 years old, they would spend more time with their stepfather than they did their own natural father.”

Additionally, the father argues that the mother has interfered with his ability to exercise his visitation with the parties’ minor children and that she has attempted to destroy or diminish the children’s relationship with the father. The father cites Calabrisi v. Boone, 470 So.2d 1255 (Ala.Civ.App.1985), for the proposition that interfering with custody may provide a valid reason for a change of custody. What the father fails to note is that, while that general proposition is true, this court, in Cala-brisi, found that the evidence in that case did not show that the mother had a plan to destroy or diminish the children’s relationship with the father. Here, we find the evidence also shows no intent on the part of the mother to destroy or diminish the relationship between the father and the parties’ children. In fact, as far as visitation is concerned, there is some evidence showing that the mother had extended the father’s visitation on a number of occasions when she was not obligated to. Also, the children’s testimony shows that while each child has a favorite parent, their attitudes toward, and relationship with, each parent seem to be affectionate and appropriate.

Having carefully reviewed the record in its entirety, we conclude that the trial court properly could have concluded that a change in custody would not materially promote the children’s best interests and that any good brought about by the change in custody would not offset the inherently disruptive effect caused by uprooting the children. Therefore, we find no error as to the trial court’s judgment concerning custody of the parties’ children.

II.

Next, the father contends that the trial court erred in failing to modify the child-support provisions in the parties’ divorce judgment; he asserts that the necessary child-support-guideline forms do not appear in the record to support the trial court’s conclusion that the child-support award should not be modified. We agree. This court has consistently held that where the record does not reflect compliance with Rule 32(E), Ala. R. Jud. Admin, (which requires the filing of “Child Support Obligation Income Statement Affidavit” forms (“CS-41 forms”) and a “Child Support Guidelines” form (“CS-42 form”)), and where child support is made an issue on appeal, this court will remand or reverse and remand for compliance with the rule. Martin v. Martin, 637 So.2d 901, 903 (Ala.Civ.App.1994).

The record on appeal contains each parties’ CS-41 form; however, there is no CS — 42 form prepared by either the court or the parties in the record.

“Rule 32(E), Ala. R. Jud. Admin., requires that ‘[a] standardized “Child Support Guidelines” form and a “Child Support Obligation Income Statement/Affidavit” form shall be filed in each action to establish or modify child support obligations and [that those forms] shall be of record and shall be deemed to be incorporated by reference in the court’s child support order.’ ”

Nelson v. Landis, 709 So.2d 1299, 1300 (Ala.Civ.App.1998). We conclude that reversible error occurred when the trial court failed to file a CS-42 form or to incorporate one into its child-support judgment. See Fomby v. Fomby, 840 So.2d 919 (Ala.Civ.App.2002); Fowler v. Fowler, 773 So.2d 491 (Ala.Civ.App.2000).

The trial court’s judgment specified that there would be no modification of the father’s original weekly support payment of $139. However, the information given in the parties’ CS-41 forms shows deductions by both parties for the children’s insurance and also indicates that, if the income numbers were to be applied as they would be in a properly calculated CS-42 form, the support amount would have to change at least somewhat. Without speculating on what the proper child-support amount should be, we simply note that “[t]his court has unsuccessfully attempted, based on the evidence in the record, to determine the manner in which the trial court determined the father’s child support obligation.” Nelson, 709 So.2d at 1300-01. The reason we are unable to do so is because of the absence from the record of a CS-42 form containing proper calculations. Therefore, the trial court’s judgment on the issue of child support is due to be reversed and the cause remanded for that court to complete a properly calculated CS-42 form in order to comply with Rule 32(E), Ala. R. Jud. Admin.

Based on the above, we affirm the trial court’s judgment as to the issue of child custody, and we reverse that portion of the judgment concerning the child-support award. On remand, the trial court should complete a properly calculated CS-42 form in order to comply with Rule 32(E), Ala. R. Jud. Admin.

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

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

On Application for Rehearing

PITTMAN, Judge.

Charles Greg Bradford has filed an application for rehearing in which he challenges provisions of a purported judgment entered by the Franklin Circuit Court on May 6, 2003. That purported judgment was entered in response to this court’s opinion of May 2, 2003, in which this court indicated that the judgment of the trial court was due to be affirmed in part and reversed in part and the cause remanded for further proceedings. Because this court has not issued its certificate of judgment pursuant to Rule 41, Ala. R.App. P., the trial court lacked jurisdiction to enter a valid judgment on May 6, 2003. Therefore, the trial court’s purported May 6, 2003, judgment is void for lack of jurisdiction. See Ex parte Tiongson, 765 So.2d 643 (Ala.2000).

APPLICATION OVERRULED.

YATES, P.J., and MURDOCK, J., concur.

CRAWLEY and THOMPSON, JJ., concur specially.

THOMPSON, Judge,

concurring specially.

I agree with the main opinion’s determination that the trial court lacked jurisdiction to enter a “judgment” on remand before this court issued a certificate of judgment. I note that arguments pertaining to that “judgment” are not appropriate in an application for rehearing of this court’s May 2, 2003, opinion.

In addition to the issue pertaining to the May 6, 2003, “judgment,” the father, in his brief on application for rehearing, argues that this court should have, in its original May 2, 2003, opinion, reversed the trial court’s denial of his petition to modify custody; it is appropriate for this court to consider that issue on application for rehearing. -1 believe that this court’s opinion on original submission adequately addressed the father’s arguments as to the custody issue. Therefore, I concur in the main opinion’s overruling of the father’s application for rehearing.

CRAWLEY, J., concurs.


author:
THOMPSON, Judge.
     CRAWLEY, Judge,

text:
    Mark Raymond WELLS and Steakout v. Mohammad A.H. MOHAMMAD.
    2010975.
    Court of Civil Appeals of Alabama.
    May 16, 2003.
    Rehearing Denied June 27, 2003.
    Certiorari Denied Oct. 10, 2003 Alabama Supreme Court 1021716.

      R. Brian Allison of Joe C. Carroll & Associates, Birmingham, for appellants.
    D. DeLeal Wininger, Jr., of The Wining-er Law Firm, L.L.C., Birmingham, for ap-pellee.
   THOMPSON, Judge.

On August 25, 1999, Mohammad A.H. Mohammad (“Mohammad”); Sana M. Mohammad (“Sana”); and Amin (“Amin”) and Imad (“Imad”) Mohammad, through their father, Mohammad, filed a complaint against Mark Raymond Wells and his employer, Steakout, seeking damages for injuries they allegedly sustained in an automobile accident involving the Mohammads’ van and Wells’s automobile. At the time of the accident, Wells was working delivering food for Steakout. The case was tried before a jury. The jury returned verdicts in favor of the Mohammads and awarded each of the Mohammads damages. The trial court entered a judgment on those verdicts.

The Mohammads filed a motion for a new trial, maintaining that the award of damages was inadequate as a matter of law. After conducting a hearing on that motion, the trial court entered an order denying the motion for a new trial as to Sana, Amin, and Imad, but granting it as to Mohammad. Wells and Steakout (hereinafter together referred to as “Wells”) appealed.

The accident occurred on March 20, 1999. The Mohammads’ van was stopped in traffic when Mark Wells’s automobile struck the rear of the van. Mark Wells testified that he had been traveling at a rate of 45 miles per hour, but that he applied his brakes shortly before the impact. Mark Wells stated that he could not estimate how much his vehicle might have slowed after he applied his brakes. The parties submitted photographs of the damage to the two vehicles; those photographs depict slight damage to each of the vehicles. None of the parties requested medical treatment at the time of the accident.

Approximately three weeks after the accident, on April 7, 1999, Mohammad and Imad sought treatment from Dr. Scott Duca, a chiropractor. Shortly thereafter, Dr. Duca also began treating Sana and Amin. Dr. Duca treated the family for several months. Dr. Duca testified that the symptoms Sana, Imad, and Amin experienced either resolved themselves or became much improved. However, according to Dr. Duca, Mohammad did not progress as expected, and Dr. Duca advised Mohammad to see a medical doctor.

Mohammad first sought treatment from Dr. Hasham Hakim, a neurologist, on May 15, 1999. Dr. Hakim’s deposition was read into evidence during the trial of this matter. Dr. Hakim testified that, when he first examined Mohammad, Mohammad had pain in his neck and back and that he complained of dizziness. A magnetic-reso-nanee-imaging test, or an “MRI,” performed on Mohammad in July 1999, indicated normal results except for some “partially reduced osteophytes.” Dr. Hakim testified that the osteophytes “could” be caused by a trauma such as an automobile accident.

In August 1999, Mohammad was involved in another rear-end collision (hereinafter referred to as “the second accident”). In the second accident, the vehicle Mohammad was driving was struck from behind three times by another vehicle. Mohammad testified that, after the second accident, he learned that the other driver had suffered a heart attack while driving and had lost control of his vehicle. Mohammad testified that his pain was worse for several days after the second accident, but that his symptoms were the same as those he suffered after the March 20, 1999, accident. Because Dr. Hakim was on vacation, Mohammad saw a Dr. Wang, apparently a colleague of Dr. Hakim’s, for treatment of his injuries after the second accident.

Dr. Hakim testified that the results of a September 2000 myelogram test on Mohammad were normal. Therefore, he opined that, with regard to Mohammad, “we are dealing with a soft tissue problem.” Dr. Hakim first testified that there was no difference between MRIs performed on Mohammad in July 1999 and in January 2001; he originally testified that the July 1999 MRI showed no disk herniation, but he later testified that that MRI did show a slight herniation that was still present at the time of the January 2001 MRI.

Dr. Duca testified that Mohammad’s symptoms were the same after the second accident as they had been after the March 20, 1999, accident. However, on cross-examination, he admitted that his office notes indicate that Mohammad’s neck pain and headaches were worse after the second accident. Dr. Duca first stated that none of the tests performed on Mohammad revealed any positive or objective finding of an abnormality. He then testified that the X-rays did show that Mohammad had a misaligned spine. Dr. Duca testified that several factors could cause a misaligned spine, but he was not asked what those factors might be. On redirect, Dr. Duca testified that the injuries sustained by the Mohammads were consistent with those suffered by people involved in rear-end collisions, “with the exception of Mr. Mohammad, who did not really progress the way I would have liked him to.”

With regard to medical expenses, Dr. Duca testified that the cost of his treatment for Amin was $705; the cost for Imad was $885; and the cost for Sana was $3,614. Dr. Duca testified that that treatment was reasonable and necessary for treating their symptoms. Dr. Duca .also testified that his treatment of Mohammad had been more extensive because Mohammad had not responded to treatment in the manner in which Dr. Duca had hoped. The cost of Mohammad’s treatment from Dr. Duca was $4,739; Dr. Duca testified that that treatment was reasonable and necessary.

We note that Sana, Imad, and Amin each asserted claims based on their pain and suffering and mental anguish; they did not individually seek to recover the costs of their medical expenses. Rather, Mohammad sought to recover the cost of all of the Mohammads’ medical expenses under the theory that he was the party financially responsible for those expenses.

Wells presented documentary evidence that Sana had signed a lien in favor of Dr. Duca on any award in her favor. Dr. Duca testified at trial that he had a lien on any award in favor of Mohammad as well.

The jury initially returned a verdict in favor of each of the Mohammads, but it awarded damages only to Mohammad. The record contains no evidence pertaining to the amount of damages the jury originally awarded Mohammad. The trial court instructed the jury that its verdicts as they related to Sana, Amin, and Imad were inconsistent, and it requested that the jury deliberate further as to the amount of damages to award to those plaintiffs. The jury ultimately returned verdicts in favor of the Mohammads, awarding Mohammad $6,595, Sana $500, and Imad and Amin $250 each. The trial court entered a judgment on those verdicts.

In its order granting the motion for a new trial as to Mohammad’s claims, the trial court stated:

“The Court is mindful that the assessment of damages is essentially committed to the discretion of the jury and is presumed correct. However, a jury is not [at] liberty to ignore undisputed evidence. In this action, [the Mohammads] were occupants in an automobile that collided with [Wells’s] vehicle. All of [the Mohammads] were treated by Dr. Scott Duca, who testified that the treatments were necessary because of injuries received in the accident and that his bills were reasonable and necessary. The total of his bills was Eight Thousand Three Hundred Forty Seven Dollars ($8,347). All of [the Mohammads] claimed compensatory damages for physical pain and suffering and mental anguish, and [Mohammad] claimed additional damages for medical expenses that he was caused to incur for the care and treatment of him and his family. [Wells] did not offer contradictory evidence as to the special damages, but attempted to create conflicts and weaknesses in [the Mohammads] case through cross-examination of the witnesses, including [the Mohammads]. The testimony, however, as to the necessity and reasonableness of Dr. Duca’s bill was largely uncontradicted. These bills alone were in excess of the verdict for [Mohammad] without considering any additional amount for his pain and suffering. Where liability is established, as was done ... in this case, the assessment of damages must include an amount at least as high as the uncontra-dicted special damages, as well as a reasonable amount as compensation for pain and suffering. If a jury’s damages award is inadequate, a trial court has a duty to grant a new trial. Accordingly, the Motion for a New Trial is GRANTED as to the plaintiff [Mohammad].
“The verdicts as to the remaining Plaintiffs were based upon their claims of physical pain and suffering and mental anguish, and are within the discretion of the jury and are supported by the evidence. Accordingly, the Motion for a New Trial by ... [Sana], [Amin], and [Imad] are [DENIED].”

Wells contends that the trial court erred in granting the motion for a new trial as to Mohammad’s claims. Wells contends that his cross-examination of the witnesses created factual questions and exposed weaknesses in the Mohammads’ case and that, therefore, the evidence supported the jury’s verdict.

Jury verdicts are presumed to be correct and will be set aside on the ground of an inadequate award of damages only where the award is so inadequate as to indicate that the jury was influenced by passion, prejudice, or improper motive. Helena Chem. Co. v. Ahern, 496 So.2d 12, 14 (Ala.1986).

“Where there is a dispute regarding the damages the plaintiff incurred as a proximate result of the defendant’s wrongful conduct, the determination of a damages award is exclusively within the discretion of the jury and the jury’s assessment should be afforded a strong presumption of correctness. Sizemore v. Patel, 702 So.2d 172, 174 (Ala.Civ.App.1997); Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990); Nemec v. Harris, 536 So.2d 93, 94 (Ala.Civ.App.1988). Furthermore, in exercising its discretion, a jury has the exclusive right to weigh evidence, give credibility (or not) to witnesses, and draw inferences from the evidence before it. Brannon, 562 So.2d at 1339; Slaughter v. Burrell, 669 So.2d 954, 955 (Ala.Civ.App.1995).”

Savoy v. Watson, 852 So.2d 137, 140 (Ala.Civ.App.2002).

It is well settled that a jury is not required to award the plaintiff damages representing medical expenses merely because those medical expenses were incurred. Savoy v. Watson, supra; Sizemore v. Patel, 702 So.2d 172 (Ala.Civ.App.1997); Bennich v. Kroger Co., 686 So.2d 1256 (Ala.Civ.App.1996); Brannon v. Webster, 562 So.2d 1337, 1339 (Ala.Civ.App.1990). When evidence pertaining to medical expenses is admitted, the jury is free to conclude that some or all of those expenses were unnecessary, or that those expenses were not incurred as a result of the negligence of the defendant. Savoy v. Watson, supra (citing Kite v. Word, 639 So.2d 1380 (Ala.Civ.App.1994), and quoting Bennich v. Kroger Co., supra). “A jury may question the ‘reasonableness and necessity of expenses and determine whether the claimed medical expenses are proximately caused by the negligence of the defendant.’ ” Kite v. Word, 639 So.2d at 1381 (quoting Vinzant v. Hughes, 579 So.2d 681, 683 (Ala.Civ.App.1991)).

In this case, Wells cross-examined the medical experts concerning their possible biases. The testimony elicited on cross-examination served to disclose that, although he did not know the Mohammads well, Dr. Hakim attended the same mosque as the Mohammads. Wells’s’ cross-examination of the Mohammads’ witnesses also revealed that Dr. Duca had a financial interest in the outcome of the Moham-mads’ action against Wells.

Wells also cross-examined the witnesses about the evidence pertaining to a second automobile accident in which Mohammad was involved. Although Mohammad testified that his symptoms were not worsened by the second accident, some of the medical records indicate that he did complain of increased pain as a result of the second accident.

Also, Wells questioned the medical experts about the necessity of the treatment for Mohammad. The testimony elicited on cross-examination indicated that the tests, such as the MRIs and the myelogram, had normal results and that, although an X-ray revealed that Mohammad had a misaligned spine, there were several possible explanations for that abnormal result. Wells also emphasized that none of the Mohammads sought medical treatment immediately following the March 20, 1999, accident and that they first sought treatment nearly three weeks after that accident.

Wells cites Stricklin v. Skipper, 545 So.2d 55 (Ala.Civ.App.1988), in which the trial court charged the jury that “ ‘the reasonableness of and- the necessity of such [medical] expenses are matters for [the jury’s] determination from the evidence.’ ” 545 So.2d at 56. In that case, there was conflicting evidence on the'issue of the proximate cause of some of the plaintiffs injuries.- This court concluded that because the plaintiff in that case did not object to that jury instruction, “whether the plaintiffs medical expenses were proximately caused by the automobile accident and the negligence of the defendant was a question for the, jury.” Id. This court concluded: “[T]he jury was charged that the reasonableness and the necessity of the expenses were for its determination. As no objection was made to this charge, plaintiff is now precluded from arguing this on appeal.” Id. at 57.

In this case, the trial court’s charge to the jury included an instruction similar to the instruction at issue in Stricklin v. Skipper. With regard to the measure of damages for medical expense, the trial court charged the jury that “the reasonableness of and the necessity for such expenses are for your determination.” Neither party objected to that instruction; therefore, the determination of the reasonableness and necessity of the medical expenses for the Mohammads was an issue to be resolved by the jury.

Further, the presentation of conflicting medical evidence was not required in order for the jury’s determination to be deemed supported by the evidence. This court has held that “[cjonflicts and weaknesses in the plaintiffs case may also be created through cross-examination of the plaintiffs witnesses.” Bennich v. Kroger Co., 686 So.2d at 1257 (citing Brannon v. Webster, 562 So.2d at 1338).

The decision whether to grant a motion for a new trial is within the discretion of the trial court; however, a trial court’s order granting a motion for a new trial may be reversed where the jury’s verdict is supported by the evidence and the trial court is plainly and palpably wrong in granting the new trial. Savoy v. Watson, supra.

“When reviewing a motion for new trial on the grounds of inadequate damages, the reviewing court must consider whether the verdict is so opposed to the clear and convincing weight of the evidence as to clearly fail to do substantial justice, and whether the verdict fails to give substantial compensation for substantial injuries. Orr v. Hammond, 460 So.2d 1322 (Ala.Civ.App.1984). In addition, the reviewing court must keep in mind that a jury verdict is presumed to be correct and will not be set aside for an inadequate award of damages unless the amount awarded is so inadequate as to indicate that the verdict is the result of passion, prejudice, or other improper motive. Orr v. Hammond, supra.

Helena Chem. Co. v. Ahern, 496 So.2d at 14 (emphasis added).

It is the job of the jury, and not the appellate courts, to evaluate the credibility of the witnesses. Scott v. Farnell, 775 So.2d 789 (Ala.2000). The function of the appellate courts is to determine whether the jury’s verdict is supported by the evidence. Id. (citing Jawad v. Granade, 497 So.2d 471 (Ala.1986)). After reviewing the record, we conclude that Wells’s cross-examination of the Mohammads and their witnesses was sufficient to call into question the reasonableness and necessity of the Mohammads’ medical expenses. See Bennich v. Kroger Co., supra. A reasonable juror could have questioned whether all of the medical expenses the Moham-mads claimed were reasonable and necessary and whether some of those expenses were a result of the March 20, 1999, accident. Therefore, we cannot say that the jury’s verdict was “so opposed to the clear and convincing weight of the evidence” as to be clearly incorrect. Helena Chem. Co. v. Ahern, 496 So.2d at 14. In this case, as in Savoy v. Watson, supra, “the damages award is one that reasonable jurors could have made based on the particular record presented.” 852 So.2d at 141. Therefore, we conclude that the trial court erred in granting the motion for a new trial as to Mohammad’s claims.

REVERSED AND REMANDED.

PITTMAN and MURDOCK, JJ., concur.

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

CRAWLEY, Judge,

dissenting.

I respectfully dissent. This court has stated:

“Granting or denial of a motion for new trial is in the trial court’s discretion. The exercise of that discretion carries a presumption of correctness and will not be disturbed by this court absent plain and palpable error in exercise of the trial court’s discretion and abuse of some legal right. Educators’ Investment Corp. v. White, 374 So.2d 905 (Ala.Civ.App.1979). When the trial court grants a motion for new trial, without specifying the grounds, this court will presume that the lower court granted the new trial on the ground of inadequacy of damages. Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (Ala.Civ.App.1973).
“Defendant asserts that the jury verdict should not be disturbed as being inadequate unless the verdict was produced by passion, prejudice, improper motive or influence on the jury. Montgomery Light and Traction Co. v. King, 187 Ala. 619, 65 So. 998 (1913); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, 52 Ala.App. 651, 296 So.2d 739 (Ala.Civ.App.1974). Absent evidence of improper motive, prejudice or improper influence on the jury — and there is none in this case— however, the question in the case of inadequate damages is: does the verdict fail to give substantial compensation for substantial injuries? Smith v. Winkles, supra. The trial court should only use its power to set aside a jury verdict when it is apparent that injustice will result if another jury does not examine the facts. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, supra; Watts v. Pettway, 49 Ala.App. 324, 272 So.2d 251 (Ala.Civ.App.1973).
“Plaintiffs argue, as has been mentioned earlier, that the court’s granting of a new trial is in its discretion and is presumed correct. Hubbard Brothers Construction Co. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975). When the trial court grants a new trial on the ground of inadequate damages, this court must indulge this presumption unless the evidence plainly and palpably supports the verdict. Curry v. Griffith, 52 Ala.App. 644, 296 So.2d 733 (Ala.Civ.App.1974).”

Cannon v. Jones, 426 So.2d 439, 440-41 (Ala.Civ.App.1983). See also Merritt v. Roberts, 481 So.2d 909 (Ala.Civ.App.1985).

The trial court’s order granting a new trial specifically stated that the reasonableness and necessity of Dr. Duca’s medical bills were “largely uncontradicted,” and it determined the jury’s verdict to be inadequate because the amount awarded to Mohammad was less than the amount of those bills. The majority opinion makes reference to facts that were not essential to the trial court’s granting of a new trial or that were not specifically relied on by the defendants to support their argument that they sufficiently contradicted the reasonableness and necessity of Dr. Duca’s bills. In their appeal to this court, the defendants specifically argue that they sufficiently contradicted the plaintiffs evidence of damages by questioning Dr. Duca during cross-examination about liens that had been signed by Mohammad and his wife concerning their medical bills with Dr. Duca, in response to which Dr. Duca acknowledged that he had a financial interest in the outcome of the case, and by pointing out a conflict between Dr. Duca’s testimony during direct examination at trial and information in one of his medical notes.

At trial, Dr. Duca testified, during direct examination, in regard to his medical charges:

“Q. What were your total charges for Amin [Mohammad’s child] during the time when you saw him?
“A. Looks like its $705.
“Q. Were those charges reasonable and necessary for [Amin’s] treatment?
“A. Yes....
“Q. What were Imad’s [Mohammad’s child] bill totals?
“A. Looks like Imad’s [were] $885.
“Q. Were his bills reasonable and necessary for the treatment of his symptoms?
“A. Yes they were.
“Q. Were the injuries that they sustained or the symptoms that you saw consistent with injuries that you have seen in your practice of a rear-end collision?
“A. Yes.
“Q. And were the injuries that [Sana, Mohammad’s wife,] sustained in this wreck consistent with those of a rear-end collision?
“A. Yes.
“Q. What was your total bill for treatment of Sana?
“A. Sana’s was $3,614.
“Q. Were those charges reasonable and necessary for her treatment?
“A. Yes.
“Q. Okay. At some point during the late summer or early fall [of 1999]—
“A. Uh-huh.
“Q. —is it your understanding that [Mohammad] was involved in another rear-end collision?
“A. Yes.
“Q. Tell us, Doctor, were the symptoms that he suffered after the second collision any different from the symptoms he was suffering after the collision in March of 1999?
“A. No, they were the same.
“Q. Okay. How much were your total bills for Mr. Mohammad?
“A. For Mr. Mohammad, they were $4,739.
“Q. Were those bills reasonable and necessary for his treatment?
“A. Yes....”

The total amount charged to the plaintiffs by Dr. Duca, as established by his testimony and exhibits admitted into evidence, was $9,943.

On cross-examination, Dr. Duca testified, in pertinent part:

“Q. Doctor, I think [the plaintiffs’ counsel] asked you if [Mohammad’s] symptoms were different after the second accident than they were before. What was your response?
“A. I believe I said they were the same.
“Q. Okay. But would you turn to your notes for August 23, 1999? Do you have your file with you?
“A. I have — you had probably better give me what you have.
“Q. Right there on top, August 23rd. That’s this note right here. Was rear-ended Friday August 20, pain in the neck worse, headaches worse than before.’
“That is a little bit different than what you just told the jury, is it not?
“A. Well, the symptoms were the same, 'and he had headaches and neck pain from the first injury.
“I don’t understand what you’re asking me.
“Q. Was there a difference between his pain beforehand, before August 20th and after?
“A. Yeah.
“Q. Now, I also want to ask you about what I’ve marked as Defendant’s Exhibit 4 [a lien, which was admitted into evidence but which does not appear as an exhibit to the record on appeal], and ask you is that something that you had Ms. Sana Mohammad fill out?
“A. Yes.
“Q. And did you have Mr. Mohammad fill out that, as well?
“A. I believe so.
“Q. And that document gives you a direct financial interest in this trial, does it not?
“A. Well, of course.”

Keeping in mind that the trial court’s grant of a new trial carries a presumption of correctness, Hubbard Brothers Construction Co. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975), I conclude that the evidence relied upon by the defendants does not contradict the necessity for, and reasonableness of, the amount of Dr. Duca’s medical charges incurred by the plaintiffs and cannot be said to “plainly and palpably” support the jury’s verdict. Curry v. Griffith, 52 Ala.App. 644, 296 So.2d 733 (Ala.Civ.App.1974).

YATES, P.J., concurs.

      . This case was originally assigned to another judge on this court; it was reassigned to Judge Thompson on April 1, 2003.