author: LYONS, Justice.

text:
    Ex parte Warren SMITH, Edward Croft, John Berg, Michael Lazarus, and Randall Haines. (In re Charles R. Goldstein, Chapter 7 bankruptcy trustee for Just For Feet, Inc., et al. v. Harold Ruttenberg et al.).
    1050607.
    Supreme Court of Alabama.
    May 12, 2006.
    James W. Gewin, Marc James Ayers, and Dylan C. Black of Bradley Arant Rose & White, LLP, Birmingham, for petitioners Michael Lazarus, John Berg, Edward S. Croft, and Warren C. Smith.
    James R. Carroll and M. Machua Millett of Skadden Arps Slate Meagher & Flom, LLP, Boston, Massachusetts, for petitioner Warren C. Smith.
    Bruce Rogers of Bainbridge, Mims, Rogers & Smith, LLP, Birmingham, for petitioner Randall Haines.
    Duncan Y. Manley and Deborah Alley Smith of Christian & Small, LLP, Birmingham; and William F. Ryan, Jr., and Paul M. Nussbaum of Whiteford, Taylor & Preston, L.L.P., Baltimore, Maryland, for respondents.
   LYONS, Justice.

Warren Smith, Edward Croft, John Berg, Michael Lazarus, and Randall Haines, a group of directors of Just For Feet, Inc. (“the outside directors”), petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order directing the outside directors to produce to Charles Goldstein, the bankruptcy trustee for Just For Feet, Inc., documents containing what the outside directors contend are privileged communications between the outside directors and the law firm of Skadden, Arps, Slate, Meagher & Flom (“the Skadden law firm”).

I. Facts and Procedural History

On November 4, 1999, in the United States Bankruptcy Court for the District of Delaware, Just For Feet, Inc. (“JFF”), and its subsidiaries filed for protection under Chapter 11 of the United States Bankruptcy Code. The proceedings were ultimately converted to a Chapter 7 liquidation. On November 2, 2001, Goldstein, the Chapter 7 bankruptcy trustee for JFF and its subsidiaries (“the trustee”), sued JFF’s outside auditors and several of JFF’s officers and directors, including Harold Ruttenberg, in the Jefferson Circuit Court, alleging fraud, negligence, breach of contract, civil conspiracy, and breach of fiduciary duty. The trustee also alleged that the outside directors breached their fiduciary duties to JFF by failing to timely insist that JFF file for reorganization under Chapter 11 of the Bankruptcy Code, which would have, according to the trustee, prevented additional losses and provided JFF with a chance to survive bankruptcy as a profitable company.

In August 2003, the trustee served the outside directors with requests for production of documents constituting, referring, or relating to communications between the outside directors and the Skadden law firm. On September 3, 2003, the outside directors responded that the documents sought were protected by the attorney-client privilege. The outside directors rely upon an engagement letter sent by the Skadden law firm to the outside directors dated June 17, 1999; that letter provides:

“We are pleased that you as outside directors (the ‘Outside Directors’) of Just For Feet, Inc. (the ‘Company’) have decided to engage [the Skadden law firm] to assist you in your review of various matters relative to the Company.
“... The Company will be responsible for fees, charges and disbursements.
“Our representation of the Outside Directors is premised on the Firm’s adherence to its professional obligation not to disclose any confidential information or to use it for another party’s benefit without the Outside Director’s consent....
“Although each of the Outside Directors understands that he has the right to retain separate counsel, each of them also believes that a joint representation is currently the most appropriate option for them.
“With respect to the Company and its subsidiaries and parties affiliated with the Outside Directors generally, it is our understanding that the [Skadden law firm] is not being asked to provide, and will not be providing, legal advice to, or establishing an attorney-client relationship with, the Company, its subsidiaries, any such affiliated party or any Outside Director in his individual capacity and will not be expected to do so unless the [Skadden law firm] has been asked and has specifically agreed to do so.
“It is our understanding that this Engagement Letter will be discussed and, if satisfactory, approved at a forthcoming meeting of the directors of the Company.”

(Emphasis added.) JFF paid the legal fees charged by the Skadden law firm in connection with the services it performed pursuant to the engagement letter. The outside directors contend that the letter shows that the attorney-client relationship existed between the outside directors and the Skadden law firm, not between JFF and the Skadden law firm.

On or around December 16, 2005, the trustee filed a motion to compel the outside directors to produce the requested documents, arguing that the attorney-client privilege belonged to JFF, not the outside directors, and that a trustee in bankruptcy has the authority to waive the privilege on behalf of the bankrupt company. The trial court granted the trustee’s motion to compel, stating: “[T]he attorney-client privilege regarding documents generated as between the [outside directors] and [the Skadden law firm] belongs to [JFF] and the trustee.” The outside directors filed the instant petition for the writ of mandamus, requesting this Court to direct the trial court to vacate its order granting the trustee’s motion to compel and to enter a protective order providing that the documents the trustee seeks are protected by an attorney-client privilege between the outside directors and the Skadden law firm, which is not waiva-ble by the trustee.

The outside directors contend in their mandamus petition that it is undisputed that JFF’s full board of directors knew of the terms of the above-quoted engagement letter and that the board never objected to the allegedly separate attorney-client relationship between the Skadden law firm and the outside directors. The trustee does not dispute that contention in his answer to the mandamus petition; we therefore take it to be true. See Ex parte Benford, 935 So.2d 421, 426 (Ala.2006) (“In Ex parte Turner, 840 So.2d 132, 134-35 (Ala.2002), we stated that the respondent’s ‘failure to respond to the allegations in [the] petition for a writ of mandamus compels this Court to consider the averments of fact in [the] petition as true.’ ”).

II. Standard of Review

“Mandamus is an extraordinary remedy requiring a showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. Ex parte Finerty, 611 So.2d 1063 (Ala.1993); Ex parte Alfab, Inc., 586 So.2d 889 (Ala.1991).

“Further, this Court has stated:

“ ‘The utilization of a writ of mandamus to compel or prohibit discovery is restricted because of the discretionary nature of a discovery order. The right sought to be enforced by mandamus must be clear and certain with no reasonable basis for controversy about the right to relief. The writ will not issue where the right in question is doubtful.’
“Ex parte Bozeman, 420 So.2d 89, 91 (Ala.1982) (quoting Ex parte Dorsey Trailers, Inc., 397 So.2d 98 at 102 (Ala.1981)); also quoted in Ex parte Finerty, 611 So.2d at 1064.”

Ex parte McDuffie, 624 So.2d 1063, 1064 (Ala.1993).

III. Analysis

A.

The outside directors do not dispute that, if the attorney-client relationship existed exclusively between the Skadden law firm and JFF, rather than between the Skadden law firm and the outside directors, then the attorney-client privilege belonged to JFF, and the trustee would have the authority to waive the privilege. See, generally, Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 358, 105 S.Ct. 1986, 85 L.Ed.2d 372 (1985) (“[T]he trustee of a corporation in bankruptcy has the power to waive the corporation’s attorney-client privilege with respect to prebankruptcy communications.”). Rather, the outside directors argue that JFF and the Skadden law firm never created an attorney-client relationship. They contend that the Skadden law firm’s engagement letter to the outside directors, combined with JFF’s acquiescence in the terms of that letter, shows that the only attorney-client relationship that existed was between the Skadden law firm and the outside directors. The trustee, on the other hand, argues that the outside directors, in seeking counsel from the Skadden law firm, were really acting in their capacities as representatives of JFF and that the attorney-client relationship therefore existed between the Skadden law firm and JFF. Accordingly, the trustee argues that he has the authority to waive the attorney-client privilege on JFF’s behalf.

The trustee argues that “company directors seeking legal counsel regarding company-related matters act on behalf of the corporation and any attorney-client privilege attached to those communications thus belongs to the company.” (Trustee’s answer at 14.) The trustee cites In re Bevill, Bresler, & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir.1986). In Bevill, officers of bankrupt companies sought to prevent the bankruptcy trustee from waiving what the officers argued was their personal attorney-client privilege regarding communications between those officers and corporate counsel. The United States Court of Appeals for the Third Circuit addressed “the relationship between a corporation’s waiver of its privilege and the individual directors’ assertion of a claim of personal attorney-client privilege with respect to counsel consulted on both a personal and corporate basis after the counsel has been retained by the corporation.” 805 F.2d at 124 (emphasis added; footnote omitted). Of course, in the instant case, the outside directors allege that JFF never retained the Skadden law firm as its corporate counsel. Rather, they argue that the Skadden law firm was the outside directors’ personal counsel.

In any event, Bevill, which involved undisputedly corporate counsel, recognized that “an individual officer may have an individual claim of attorney-client privilege with regard to communications [even] with corporate counsel.” 805 F.2d at 125. The court approved of the test the district court had applied in determining whether an individual officer can assert a personal claim of attorney-client privilege with regard to communications with corporate counsel:

“ ‘First, [the officers] must show they approached [counsel] for the purpose of seeking legal advice. Second, they must demonstrate that when they approached [counsel] they made it clear that they were seeking legal advice in their individual rather than in their representative capacities. Third, they must demonstrate that the [counsel] saw fit to communicate with them in their individual capacities, knowing that a possible conflict could arise. Fourth, they must prove that their conversations with [counsel] were confidential. And, fifth, they must show that the substance of their conversations with [counsel] did not concern matters within the company or the general affairs of the company.’ ”

805 F.2d at 123 (emphasis added). As noted, the engagement letter the Skadden law firm sent to the outside directors provided in part: “We are pleased that you as outside directors ... of Just For Feet, Inc. ... have decided to engage [the Skadden law firm] to assist you in your review of various matters relative to [JFF].” (Emphasis added.) The trustee also points to invoices the Skadden law firm sent to JFF for services rendered pursuant to the engagement letter, which describe services that could be considered to have been performed for JFF, not for the outside directors. The trustee argues that the outside directors cannot assert a privilege between themselves and the Skadden law firm because the engagement letter and invoices show that the substance of their communications with the Skadden law firm concerned matters “within the company or the general affairs of the company.” However, we find persuasive the reading of the fifth prong of the test recognized in Bevill given by the United States Court of Appeals for the First Circuit:

“With respect to the final prong [of the Bevill test], the government claims that all of [the corporate officers’] communications were within the orbit of [the corporation’s] general affairs, and therefore could not be individually privileged. In the government’s view, Bevill precludes a finding of individual representation with respect to matters — such as the grand jury investigation into the rebate program — that involve the corporation. We do not read Bevill so grudgingly. As the Tenth Circuit explained:
“ ‘The fifth prong of In Matter of Bevill, properly interpreted, only precludes an officer from asserting an individual attorney client privilege when the communication concerns the corporation’s rights and responsibilities. However, if the communication between a corporate officer and corporate counsel specifically focuses upon the individual officer’s personal rights and liabilities, then the fifth prong of In Matter of Bevill can be satisfied even though the general subject matter of the conversation pertains to matters within the general affairs of the company.’ ”

In re Grand Jury Subpoena, 274 F.3d 563, 572 (1st Cir.2001) (quoting Grand Jury Proceedings v. United States, 156 F.3d 1038, 1041 (10th Cir.1998)). Certainly, if a corporate officer or director can have a personal attorney-client privilege with regard to communications with corporate counsel concerning the general affairs of the company, then directors and officers can have their own personal outside counsel and their communications with counsel regarding their personal rights and liabilities will be privileged, even though those communications pertain to matters relating to the affairs of the company. We hold that the outside directors and the Skadden law firm were free to form their own attorney-client relationship, to which JFF was not a party, regarding the directors’ individual personal rights and liabilities stemming from “various matters relative to the Company.” The invoices, together with the other evidence before us, are not sufficient to justify the conclusion that all of the outside directors’ communications with the Skadden law firm fall outside their attorney-client privilege, notwithstanding the engagement letter. Accordingly, the trial court erred in finding that the attorney-client privilege belonged exclusively to JFF and not to the outside directors.

The trustee argues that, even if the outside directors had an attorney-client relationship with the Skadden law firm, any attorney-client privilege covering their communications should not apply as against the trustee. The trustee cites Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir.1970), which, according to the trustee, recognized a “fiduciary duty” exception to the attorney-client privilege. The trustee reads Gamer and its progeny to stand for the rule that communications between an attorney and a client are not privileged from those to whom the client owes a fiduciary duty. Because, according to the trustee, a corporate director owes a fiduciary duty to the corporation, that director cannot assert the attorney-client privilege against the corporation, and, in turn, against the corporation’s bankruptcy trustee. However, in Gamer, the corporation, not the directors, held the privilege as to communications between the corporation and its counsel. The court in Gamer held that the corporation could not assert a privilege against stockholders suing the corporation and its officers and directors for alleged violations of securities laws and asserting fraud claims, and against stockholders suing individual defendants on behalf of the corporation in a derivative action. The court’s decision was based on the fact that the corporation, which held the privilege, acted ultimately for the benefit of the shareholders, who sought to pierce that privilege. Here, while the outside directors in their capacity as representatives of JFF act for the ultimate benefit of JFF, we have already determined that the outside directors can have their own counsel with which to discuss their individual personal rights and liabilities. Therefore, we conclude that Gamer is not dispositive.

B.

The outside directors’ objection to the trustee’s request for documents was general and did not provide a description of the substance of the documents that rendered those documents privileged. Rule 26(b)(5), Ala. R. Civ. P., was added to the Alabama Rules of Civil Procedure effective August 1, 2004. That rule provides:

“Claims of Privilege or Protection of Trial-Preparation Materials. When a party withholds information otherwise discoverable under these rules on a claim that it is privileged or subject to protection as trial-preparation materials, the claim shall be made expressly and, upon written request by any other party, shall be supported by a description of the nature of the documents, communications, or things not produced sufficient to enable the demanding party to contest the claim. This supporting description shall be served within twenty-one (21) days of the date a request is served, unless otherwise ordered.”

(Emphasis added.) However, we note that, in September 2003, when the outside directors refused to provide the trustee with the documents he sought, Rule 26(b)(5) had not yet been promulgated. Of course, the amended rule was available for proceedings in this action subsequent to the date of promulgation. As far as appears from the materials before us, the trustee has not availed itself of its right to obtain additional information pursuant to Rule 26(b)(5). Without more specific information as to the subject matter of the documents in question, we are unable to address the extent to which, if any, materials being withheld under the invocation of the attorney-client privilege might be subject to production.

IV. Conclusion

We issue the writ of mandamus and direct the trial court to vacate its order granting the trustee’s motion to compel and further direct the trial court to grant the outside directors’ motion for a protective order. We decline to consider, at this juncture, the extent to which circumstances might exist that would justify modification of the protective order should additional information be made available sufficient to permit the trustee to contest the claim of attorney-client privilege.

PETITION GRANTED; WRIT ISSUED.

NABERS, C.J., and WOODALL, SMITH, and PARKER, JJ., concur.

      . According to the trustee, the invoices indicate that the Skadden law firm provided services to the outside directors "in connection with the company's recent operational difficulties, including the reporting thereof in the company's securities exchange registration statement on Form S-4 and the company's quarterly report on Form 10-Q,” and, according to the trustee, other services "relating to the general affairs of the Company.” (Trustee's answer at 19.)

      . We note that, at the time the outside directors refused to provide (he documents, the language contained in Rule 26(b)(5) did appear in Rule 45(d)(2), Ala. R. Civ. P., which deals with discovery from nonparties.


source: Caselaw Access Project

author: BRYAN, Judge.

license: Public Domain

text:
    Joe W. GLADDEN v. Linda H. GLADDEN.
    2040467.
    Court of Civil Appeals of Alabama.
    Dec. 9, 2005.
    Rehearing Denied May 19, 2006.

      Joe W. Gladden, pro se.
    Submitted on appellant’s brief only.
   BRYAN, Judge.

Joe W. Gladden (“the former husband”), acting pro se, appeals a judgment entered on February 4, 2005, in a postdivorce contempt proceeding. We affirm in part, reverse in part, and remand.

The first pleading contained in the record on appeal is a petition for a rule nisi Linda H. Gladden (“the former wife”) filed with the trial court on February 18, 2004. The allegations in that pleading and the procedural history recited in some of the orders contained in the record on appeal indicate that the former husband initially sued the former wife for a legal separation; that the parties entered into a written Separation and Maintenance Agreement on July 9, 1998; that the trial court entered a judgment legally separating the parties and incorporating their Separation and Maintenance Agreement on July, 20, 1998; and that the Separation and Maintenance Agreement provided that the former wife would receive alimony in the amount of $2,000 per month for 10 years or until she remarried, a one-half interest in the parties’ joint investments (“the investments”), a residence in Florida (“the Florida residence”) and an attorney’s fee. The allegations in the former wife’s February 18, 2004, petition and the procedural history recited in several of the orders contained in the record on appeal further indicate that the trial court entered an order on April 18, 2003, finding the former husband to be in contempt for his failure to pay the former wife alimony and that the April 18, 2003, order sentenced the former husband to a suspended sentence of incarceration in jail for that contempt. Finally, the allegations in the former wife’s February 18, 2004, petition and the procedural history recited in several of the orders contained in the record on appeal indicate that, in November 2003, the trial court entered a judgment granting the parties an absolute divorce and incorporating their Separation and Maintenance Agreement.

The former wife’s February 18, 2004, petition sought an order from the trial court directing the former husband to show cause why he should not be held in contempt for, among other things, his failure to pay his monthly alimony payment, his failure to pay the attorney’s fee awarded to the former wife in the divorce judgment, his failure to effectuate the division of the investments, and his failure to convey the Florida residence to the former wife. The petition also sought an award of an attorney’s fee for the contempt proceeding.

The trial court held a hearing regarding the former wife’s February 18, 2004, petition on March 9, 2004; however, the record on appeal does not contain a transcript of that hearing. On March 16, 2004, the trial court entered a written order regarding the March 9 hearing. In the March 16, 2004, order, the trial court found the former husband to be $9,832.32 in arrears in the payment of alimony, found the former husband to be in contempt for his failure to pay that $9,832.32 in alimony, ordered the former husband to pay the arrearage of $9.832.32 within 30 days, ordered the parties to effectuate the division of the investments, and ordered the former husband to convey the Florida residence to the former wife. The March 16, 2004, order did not sentence the former husband to a term in jail for his contempt. The trial court reserved ruling on the other issues raised by the former wife in her February 18, 2004, petition pending a hearing set for April 28, 2004.

The record on appeal contains a transcript of the April 28 hearing. At that hearing, the trial court found the former husband to be in contempt for his failure to pay the alimony due in April 2004. The former husband attempted to argue that the former wife owed him money, but the trial court advised the former husband that, because he had not raised such a claim by a written motion, it was not before the court. The trial court further advised the former husband that his claim would be heard if he raised it in a written motion. The trial court further advised the former husband that it was sentencing him to incarceration in jail for his contempt but that it would suspend the sentence on the condition that the former husband pay his alimony arrearage. The trial court also advised the former husband that a pick-up order would be issued if the former husband failed to pay his alimony payment by the 10th day of each month. The former wife’s counsel presented a proposed deed to the former husband that would convey his interest in the Florida residence to the former wife if he executed it; however, the former husband refused to execute the deed. The former husband’s counsel orally moved the trial court for leave to withdraw upon the conclusion of the April 28 hearing, and the trial court granted the motion. The trial court stated that it was reserving ruling on the former wife’s claims for attorney’s fees and interest on the alimony arrearages.

On May 6, 2004, the former wife filed another petition for a rule nisi. In that petition, the former wife sought an order from the trial court directing the former husband to show cause why he should not be held in contempt for his refusal to execute a deed conveying his interest in the Florida residence to the former wife. The former wife also sought an order compelling the former husband to execute a deed conveying his interest in the Florida residence to the former wife.

On May 10, 2004, new counsel appeared for the former husband. On May 11, 2004, the trial court entered a written order regarding the April 28 hearing. The May 11 written order reiterated the trial court’s oral rulings at the April 28 hearing. In addition, it set a hearing for June 23, 2004, regarding the former wife’s claims for postjudgment interest on the former husband’s alimony arrearages, her claims for attorney’s fees, and her claim for an order compelling the former husband to execute a deed conveying his interest in the Florida residence to the former wife.

On May 14, 2004, the former husband, pursuant to Rule 59, Ala. R. Civ. P., moved the trial court to alter, amend, or vacate “the judgments heretofore entered in this case adjudging him to be in contempt of court.”

On May 26, 2004, the former husband moved the trial court to postpone the hearing set for June 23, 2004, and the trial court granted the motion. The trial court reset the hearing for June 24, 2004. The record on appeal does not contain a transcript of the June 24 hearing. However, the record on appeal does contain a settlement agreement the parties executed on June 24 and filed with the court on June 25, 2004. The settlement agreement appears to resolve some, but not all, of the remaining claims asserted by the former wife in her February 18, 2004, petition.

On August 17, 2004, the former husband filed an “amended” Rule 59(e) motion to alter, amend, or vacate “the judgments heretofore entered in this case adjudging him to be in contempt of court.” As the grounds for this “amended” motion, the former husband alleged the identical grounds he had alleged in his original Rule 59(e) motion. Moreover, the relief he sought in the “amended” motion was identical to the relief he had sought in the original Rule 59(e) motion. On August 18, 2004, the trial court denied the former husband’s “amended” Rule 59(e) motion.

On September 15, 2004, the former husband filed a “motion to reconsider” the denial of his “amended” Rule 59(e) motion. As a ground for that “motion to reconsider,” the former husband asserted that he had advised the trial court at the April 28, 2004, hearing that he was claiming that the former wife owed him money. On September 24, 2005, the trial court entered a written order that stated:

“This action is before the Court on the [former husband’s] Motion to Reconsider, and the Court has considered the motion and [the] previous Amended Motion and the Court’s Orders.
“On April 28, 2004, this Court entered an Order holding the [former husband] in contempt on those issues that were before the Court. As stated by the [former husband] and pled in the Motion to Reconsider, those issues as to particular amounts of money claimed by [the former husband] from [the former wife] were not before the Court.
“This Court cannot ‘reconsider’ a matter that was not before the Court at trial and [the former husband] is precluded from raising those issues at this point in the proceedings.
“ACCORDINGLY, IT IS ORDERED, ADJUDGED AND DECREED that [the former husband’s] Motion to Reconsider is and it is hereby denied.”

On November 15, 2004, the trial court issued a pick-up order for the former husband because the former wife’s counsel had informed the trial court that the former husband had not complied with the May 11, 2004, order. However, alleging that he was in compliance with that order, the former husband moved the trial court to set aside the pick-up order and requested a hearing on his motion. In response, the trial court vacated the pick-up order before it was served on the former husband and set the matter for hearing on November 24, 2004. On November 19, 2004, the former wife filed a pleading titled “Response to [the former husband’s] Response to Pick-up Order and Sixth Petition for Rule Nisi and Request for Emergency Hearing.” In this pleading, the former wife alleged that she still had not received the alimony payment due in November 2004, and she moved the trial court to order the former husband to show cause why he should not be held in contempt for his failure to pay the November 2004 alimony payment.

At the November 24, 2004, hearing, the former husband orally moved the trial judge to recuse himself because, the former husband argued, the trial judge could not adjudicate the case fairly as allegedly evidenced by prior rulings the trial judge had rendered that were adverse to the former husband. The trial court denied the former husband’s motion seeking a recusal. The former husband then orally moved the trial court to “dismiss” the May 11, 2004, order finding the former husband to be in contempt. The trial court denied that motion. The former wife’s counsel then represented to the trial court that the former wife, who was not present at the hearing, still had not received the November 2004 alimony payment. The trial court ordered the former wife’s counsel to submit an affidavit by the former wife regarding whether she had received the former husband’s November 2004 alimony payment.

The trial court then received the former husband’s testimony regarding the November 2004 alimony payment. He testified that he had mailed the November 24 alimony payment on November 4, 2004, although he had no knowledge whether the former wife had received the payment. He further testified that, after he learned that a pleading had been filed alleging that the former wife had not received the November 2004 alimony payment, he mailed another check in the amount of $2,000 to the former wife on November 19, 2004. The former husband admitted that he did not have any documentary evidence proving that he had mailed the alimony payment to the former wife on November 4.

The former husband also testified that he has heart disease and rheumatoid arthritis and has had a number of heart procedures. He testified that he is unable to work because of his health problems.

On December 8, 2004, the former wife submitted an affidavit in which she testified that she had not received the November 2004 alimony payment on or before November 10, 2004, and that she still had not received it on November 17, 2004, when her sixth petition for a rule nisi was filed.

On February 4, 2005, the trial court entered the February 2005 judgment from which this appeal arises. That judgment stated, in pertinent part:

“This cause came before this Court on November 24, 2004, on the [former wife’s] Sixth Petition for Rule Nisi and Request for Emergency Hearing. Present in court on said date were the [former wife’s attorney]; [the former husband]; and [the former husband’s attorney].
“The basis of the [former wife’s] Sixth Petition for Rule Nisi and Request for Emergency Hearing was an allegation of non-payment of alimony by the [former husband] due on November 1, 2004, and delinquent after November 10, 2004.
“Upon a review of prior Orders in this case, and as alleged by the [former wife] in her aforementioned petition, the [former husband] has been held in contempt for the non-payment of alimony in three (3) prior Orders — specifically, April 18, 2003; March [16], 2004; and May [11], 2004.
“In the prior Order entered April 18, 2003, the [former husband] was found to be in contempt for non-payment of alimony. The subject alimony payment(s) in that Order were also the subject of an April 3, 2003 Order ordering the [former husband] to pay any and all arrearages no later than April 15, 2003[.] [S]aid April 3, 2003 Order ... was not complied with as set out therein. In the aforementioned April 18, 2003 Order, the [former husband] was sentenced to incarceration in the Fayette County Jail until such time as he purged himself of contempt and/or demonstrated to the Court his inability to pay; that sentence was suspended, affording the [former husband] an opportunity to pay one-half Qk) of the arrears within five (5) days.
“In the prior Order entered March [16], 2004, the [former husband] was found to have an alimony arrearage of $9,832.32, and was held in contempt for the same with no jail sentence.
“Again on May [11], 2004, the [former husband] was found to be in contempt for non-payment of alimony, again sentenced to incarceration in the Fayette County Jail, and that sentence again suspended conditioned on future compliance with all Orders of this Court.
“The [former wife], who is a resident of West Palm Beach, Florida, was not present in Court, but through her attorney filed an Affidavit alleging that the payment due on November 1, 2004 and delinquent after November 10, 2004 was not received by her on November 10th, nor had it been received by November 17th, the date of execution of her Affidavit.
“Prior to the taking of testimony on November 24, 2004, counsel for the [former husband] moved in open Court for the undersigned Judge’s recusal. The [former husband] had previously filed a complaint against the undersigned judge with the Judicial Inquiry Commission[,] alleging similar grounds and facts. The Judicial Inquiry Commission dismissed the Complaint. Synopsis 98-686 of the Judicial Conduct and Ethics Reference Manual, State of Alabama Judicial Inquiry Commission, provides as follows:
“ ‘The mere fact that a party has filed a complaint against a judge with the Judicial Inquiry Commission is not grounds for a judge’s disqualification. To be disqualified^] the judge must be actually influenced by the filing of the complaint, or special circumstances must exist which causes the judge’s impartiality to be reasonably questionable.’
“The undersigned judge has not been influenced by the filing of the complaint and there are no special circumstances existing which cause the undersigned judge’s impartiality to be reasonably questioned. Therefore, said motion was/is denied.
“Counsel for the [former husband] also moved for a ‘dismissal’ of the aforementioned May [11], 2004 contempt order. [The former husband’s] counsel had previously filed a Motion to Set Aside, Alter, Amend or Vacate Judgment, and an Amended Motion to Set Aside, Alter, Amend or Vacate Judgment, both in regard to the May [11], 2004 Order. Both motions were denied by [another judge who previously presided in this case], and the time to appeal said Order had expired on November 24, 2004. Therefore, said oral ‘motion to dismiss’ the May [11], 2004 Order was/is denied.
“Any other pending motions in this case are denied.
“Based upon the evidence presented, the prior contempt findings and suspended jail sentences, and the lack of credibility of the [former husband’s] testimony and insufficient proof to convince this Court that the November 1, 2004 alimony payment was timely made or made at all,
“IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED as follows:
“1. The [former husband] is sentenced to five (5) days in the Fayette County Jail. The [former husband] shall report to the Fayette County Jail no later than 8:00 am. on Monday, February 7, 2005, and shall be released at 8:00 am. on Saturday, February 12, 2005. If the [former husband] fails to report to the Fayette County Jail on said date and time, he shall immediately be picked up by the Fayette County Sheriffs Department.
“2. The [former husband] shall pay the [former wife’s] attorney’s fees associated with this action in the amount of $1,834.00. The [former wife] is hereby awarded a judgment against the [former husband] in the amount of $1,834.00. The [former wife] shall be paid said attorney’s fees in full no later than February 28, 2005.
“3. The [former husband] is ordered to send any and all future payments to the [former wife] either via certified mail or overnight mail, beginning with the March 1, 2005 payment.”

(Emphasis added.)

On appeal, the former husband first argues that the trial court erred because, he says, the trial court held that the prior contempt orders entered on April 18, 2003, March 16, 2004, and May 11, 2004, were final orders that could no longer be challenged because the time for appealing them had expired. We first note, however, that the only prior contempt order that the former husband challenged with his “motion to dismiss” was the May 11, 2004, contempt order. The former husband’s “motion to dismiss” did not challenge the April 18, 2003, and March 16, 2004, contempt orders. Therefore, there is no adverse ruling regarding a challenge to those contempt orders for us to review. See Neal v. Neal, 856 So.2d 766, 778 (Ala.2002) (“‘The function of an appeal is to obtain judicial review of the adverse rulings of a lower court; thus, it is a well-settled rule that an appellate court’s review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.’ Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994) (citations omitted.)”).

With respect to the May 11, 2004, contempt order, the former husband’s argument has no merit. In Thomas v. Vanhorn, 876 So.2d 488, 491 (Ala.Civ.App.2003), this court held that an order adjudging a party guilty of contempt is a final, separately appealable judgment. Consequently, the trial court did not err in denying the former husband’s “motion to dismiss” the May 11, 2004, contempt order on the ground that it was untimely. Moreover, even if the former husband’s “motion to dismiss” had been timely, the former husband did not establish that his motion was meritorious. The only evidence the former husband introduced that purported to support his motion was his testimony that he was in poor health and was unable to work. However, the trial court, the sole judge of the witnesses’ credibility at the November 24, 2004, hearing, found that the former husband’s testimony was not credible. In Ex parte R.E.C., 899 So.2d 272, 279 (Ala.2004), the supreme court stated:

“ ‘In ore tenus proceedings, the trial court is the sole judge of the facts and of the credibility of the witnesses, and it should accept only that testimony which it considers worthy of belief.’ Clemons v. Clemons, 627 So.2d 431, 434 (Ala.Civ.App.1993).”

Thus, the trial court could have rejected the only evidence that purported to support the former husband’s motion on the ground that it was not credible, and this court cannot substitute its judgment for that of the trial court in that regard. Id. Consequently, we could not reverse the denial of the former husband’s “motion to dismiss” the May 11, 2004, contempt order even if it had been timely.

The former husband also argues that the trial court erred in finding him in contempt in the orders entered on April 18, 2003; March 16, 2004; and May 11, 2004. However, those contempt orders were final, separately appealable orders. Thomas v. Vanhorn, supra. The former husband did not timely appeal them. Therefore, this court does not have subject-matter jurisdiction to review them.

The former husband also argues that trial court erred in finding him guilty of contempt in the February 2005 judgment because, the former husband says, the trial court found him guilty of criminal contempt in the absence of evidence establishing his guilt beyond a reasonable doubt. The trial court did not expressly state whether it was finding the former husband guilty of criminal contempt or civil contempt. Therefore, we must determine whether the trial court found the former husband guilty of criminal contempt or civil contempt on the basis of the sentence the trial court imposed for the contempt. See Davenport v. Hood, 814 So.2d 268 (Ala.Civ.App.2000). In Davenport, this court stated:

“ ‘Our supreme court discussed civil and criminal contempt in [State v. Thomas ], 550 So.2d 1067, 1072 (Ala.1989), and stated:
“ ‘ “Contempts are characterized as either civil or criminal. Civil contempt seeks to compel or coerce compliance with orders of the court, while a criminal contempt is one in which the purpose of the proceeding is to impose punishment for disobedience of orders of the court.”
“ ‘ “The sanction for civil contempt continues indefinitely until the con-temnor performs as ordered. A critical distinction is that the sanction for criminal contempt is limited in Alabama district and circuit courts to a maximum fine of $100 and imprisonment not to exceed five days.”
“ ‘(Citations omitted.)
“ ‘Our supreme court also stated in [State v. Thomas ], 550 So.2d 1067, 1073:
“ ‘ “The line between civil and criminal contempt can sometimes become blurred.... ”
“ ‘ “Confusion arises in attempts to classify civil and criminal contempts, because the elements often overlap. In appropriate circumstances, however, a party’s actions can support a finding of both civil and criminal contempt.”
“ ‘(Citations omitted.)
“‘The question of whether this is civil contempt or criminal contempt becomes important in this case because a contemnor must be in a position to purge himself from the contempt. Mims v. Mims, 472 So.2d 1063 (Ala.Civ.App.1985). In order to purge himself in a criminal contempt case, the contemnor must pay the fine imposed, serve the authorized time, or do both. Kalupa v. Kalupa, 527 So.2d 1313 (Ala.Civ.App.1988). In order to purge himself in a civil contempt case, the contemnor must comply with the court’s order. Rule 33.4(b), [Ala.]R.Crim.P.’
“Hill v. Hill, 637 So.2d 1368, 1370 (Ala.Civ.App.1994).
“Civil contempt carries no definite term of imprisonment; the party jailed on a contempt charge ‘ “ ‘carries the [key] of his prison in his own pocket’ [and] can end the sentence and discharge himself at any moment by doing what he had previously refused to do.” ’ Johnson v. State, 675 So.2d 512, 513 (Ala.Crim.App.1995) (quoting Lightsey v. Kensington Mortgage & Finance Corp., 294 Ala. 281, 285, 815 So.2d 431, 435 (1975)) (in turn quoting earlier cases, including In re Nevitt, 117 F. 448, 461 (8th Cir.1902)).”

814 So.2d at 272-73.

Accordingly, because the trial court sentenced the former husband to a definite term of five days in jail rather than sentencing him to an indefinite jail term lasting until he paid the November 2004 alimony, we conclude that the trial court found the former husband guilty of criminal contempt. See Davenport. In L.A v. R.H., 929 So.2d 1018, 1019 (Ala.Civ.App.2005), this court stated:

“In order to establish that a party is in criminal contempt of a court order, a contempt petitioner must prove beyond a reasonable doubt that the party against whom they are seeking a finding of contempt was subject to a ‘ “lawful order of reasonable specificity,” ’ that the party violated that order, and that the party’s violation of the order was willful. Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)).”

In the case now before us, the record establishes that, before the trial court found the former husband to be in criminal contempt in the February 2005 judgment, the trial court had entered a lawful order of reasonable specificity ordering the former husband to pay his monthly alimony payment on or before the 10th day of each month. Although the former husband testified that he mailed the November 2004 alimony payment on November 4, 2004, six days before it became delinquent, the trial court found that the former husband’s testimony was not credible. Accordingly, the trial court, as the trier of the facts, could have found beyond a reasonable doubt that the former husband wilfully disobeyed the trial court’s order requiring that he pay his monthly alimony payments on or before the 10th of each month and that the former husband attempted to conceal his criminal contempt by falsely testifying that he had complied with the order.

The former husband also argues that the trial court erred in denying his motion seeking the trial judge’s recusal. “However, recusal is not required by the mere accusation of bias unsupported by substantial evidence.” Henderson v. G & G Corp., 582 So.2d 529, 530 (Ala.1991). Because the former husband’s motion seeking recusal was grounded upon a mere accusation of bias that was unsupported by substantial evidence, the trial court did not err in denying the motion.

Finally, the former husband argues that the trial court erred in awarding the former wife an attorney’s fee in a criminal-contempt proceeding. “[I]n a criminal-contempt action, ‘the award of attorney’s fees is not proper’ and that part of the trial court’s order purporting to award an attorney fee ‘must be considered as mere surplusage and severed from the judgment decree.’ ” Ex parte Collins, 860 So.2d 1259, 1260 (Ala.2003) (quoting State ex rel. Payne v. Empire Life Ins. Co. of America, 351 So.2d 538, 545 (Ala.1977)). Accordingly, we reverse the February 2005 judgment insofar as it awarded the former wife an attorney’s fee, we affirm the February 2005 judgment in all other respects, and we remand the case to the trial court.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

MURDOCK, J., concurs in the result, without writing.

      . The former husband also argues that the trial court erred in orally finding him in contempt at the hearing on April 28, 2004; however, that oral finding of contempt was superseded by the finding of contempt in the written order entered on May 11, 2004.

      2. "Rule 70A, Ala. R. Civ. P., now controls contempt proceedings arising out of civil actions, whether the contempt is civil contempt or criminal contempt.” Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (footnote omitted). Rule 33, Ala. R.Crim. P., no longer governs contempt proceedings arising out of civil actions. See Ex parte J.R.W., 667 So.2d 88, 91 n. 3 (Ala.1995).


author: MURDOCK, Judge.

text:
    Clayton J. NAVE, Jr. v. Angela D. NAVE.
    2040252.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2005.
    Rehearing Denied March 10, 2006.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050852.

      Tiffin M. Taylor, Huntsville, for appellant.
    Norman Bradley, Jr., Huntsville, for ap-pellee.
   MURDOCK, Judge.

Clayton J. Nave, Jr. (“the father”), appeals from a judgment denying his request for a modification of custody of the parties’ two younger children, holding him in contempt for failing to pay child support and certain college expenses of Angela D. Nave (“the mother”), and denying his request for retroactive child support.

The parties were divorced in November 2000. Pursuant to an agreement of the parties, the divorce judgment provided that the parties would have joint legal and physical custody of the parties’ three children, two sons who were 15 and 10 years of age, respectively, at the time of the trial of this action in October 2004, and a daughter who was 8 years of age at that time. The agreement provided that the children would reside with each parent during alternating months; that the father would pay the mother child support in the amount of $1,200 per month until six months after the anticipated date of the mother’s graduation from a technical college; and that the father would pay the cost of the tuition and books associated with the mother’s course of study at the technical college.

At the time the divorce judgment was entered, the father was employed as a design drafter at an aerospace firm, earning in excess of $100,000 per year. In approximately April 2003, the father was laid off from his employment and was unemployed for approximately one year. By the time of the trial in this matter in October 2004, the father was again employed as a design drafter, earning approximately $54,000 per year.

At the time the divorce judgment was entered, the mother was attending J.F. Drake State Technical College (“J.F. Drake”) and was studying computer information systems technology. In May 2002, the mother completed her course work and received an associate degree in applied technology (a two-year degree). At the time of the trial in this matter in October 2004, the mother was working part-time for a computer firm as a systems engineer, earning approximately $33,000 per year. She was also attending Athens State University and pursuing a bachelor degree.

The parties live in the same community, and the children are able to attend the same school and participate in the same activities regardless of which parent has physical custody during a given month. Since the divorce, the children have resided with the parents in alternating months as provided in the divorce judgment, but the parents have demonstrated an inability to cooperate in raising the children. In general, the father refuses to talk to the mother by telephone, and the father has, on several occasions, refused to accept certified letters from her. The trial court observed, however, that the parties were equally responsible for the absence of effective communication between the parties.

In December 2002, the mother determined that the older son, who was then 13 years old, was too rebellious for her to control, and she abruptly decided to grant the son his wish to live with the father. Accordingly, the mother took the older son to his paternal grandmother’s house and left him with the grandmother until the father could pick him up later that same day. Since that day, the older son has lived exclusively with the father and has had no contact with the mother except in court. The mother has expressed a desire to restore the relationship, but the son has refused all contact with the mother.

In January 2003, the father filed a petition to modify the custody of the children, in which he alleged a material change of circumstances, including use of marijuana and neglect of the children by the mother. The petition requested sole custody of the children and that the mother be ordered to pay child support. In April 2003, the mother filed an answer and counterclaim that requested that she be awarded sole custody of the two younger children; that the older son be allowed to live with the father; that the father be required to pay child support; and that the father be held in contempt for failing to pay child support and for violating certain other provisions of the divorce judgment.

A pendente lite hearing was held on April 17 and 23, 2003, during which the trial court heard ore tenus testimony from the parties, the older son, and others. The trial court entered a pendente lite order, granting the father sole custody of the oldest child, leaving the custody of the two younger children unchanged, providing for telephone contact between the parties and the children, requiring both parties to undergo anger-management counseling, and requiring both parties to submit to periodic drug tests.

The action was tried ore tenus on October 19 and 20, 2004, and the trial court heard testimony from the parties, the parties’ two older children, teachers, school counselors, friends of the parties, and others. On November 5, 2004, the trial court entered a judgment that awarded the father sole legal and physical custody of the older son; continued the joint physical and legal custody of the two younger children, with the children living with each parent during alternating months; ordered the mother to pay prospective child support of $424.26, per month with respect to the older son; found the father in contempt for failing to pay child support and certain college expenses of the mother; sentenced the father to 5 days of incarceration for each of 8 instances of contempt, or a total of 40 days incarceration, and suspended the sentence for 2 years; and entered an award against the father totaling $10,873.68 with respect to the past-due child-support obligation and unpaid college expenses. The father did not file a timely postjudgment motion, but he did file a motion to set a supersedeas bond that was denied as untimely filed. The father appealed.

The father contends that the trial court erred (1) in failing to award him sole custody of the two younger children, (2) in finding him in contempt for failure to pay child support, (3) in finding him in contempt for failure to pay certain of the mother’s college expenses, and (4) in failing to award him retroactive child support with respect to the older son.

The touchstone for custody decisions is the “welfare and best interests of the child.” Willing v. Willing, 655 So.2d 1064, 1065 (Ala.Civ.App.1995). We note the presumption of correctness accorded to a trial court’s judgment:

“When this Court reviews a trial court’s child-custody determination that was based upon evidence presented ore ten-us, 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).”

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

To the extent that the trial court did not make detailed written findings of fact, we must assume that “ ‘the trial court made those findings necessary to support its judgment, unless such findings would be clearly erroneous.’ ” Ex parte Fann, 810 So.2d at 636 (quoting Lemon v. Golf Terrace Owners Ass’n, 611 So.2d 263, 265 (Ala.1992)). Moreover, we note that it is not the role of the appellate courts to reweigh the evidence. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996).

Because the parties had joint custody, this case is governed by Ex parte Couch, 521 So.2d 987 (Ala.1988), which held that the best-interest standard applies to the modification of an existing joint-custody arrangement. However, although the material-promotion standard of Ex parte McLendon, 455 So.2d 863, 866 (Ala.1984), does not apply, the father is required to prove that “a change in circumstances has occurred such that it was in the [children’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 father argues that he should be awarded sole custody of the two younger children because (1) the mother was frequently using marijuana, (2) the mother neglected the children and was not a proper parent, and (3) the joint-custody arrangement is untenable and is not in the best interest of the children.

We have reviewed the record and must conclude that there is substantial evidence to support the trial court’s judgment on this issue. There was conflicting evidence of drug use by both parties. The evidence in the record shows, however, that, between the pendente lite hearing in April 2003 and the trial in October 2004, both parties took several drug tests, all of which were negative. Thus, the trial court could reasonably have found that the mother had stopped using drugs by the time of the trial.

The father also presented evidence of the mother’s shortcomings as a parent, including the mother’s lack of participation in, or indifference to, the children’s school and extracurricular activities, and the mother’s general failure to properly care for the children’s physical needs. The mother presented evidence, including testimony from her friends and coworkers, showing that she was appropriately involved in the children’s lives and activities, that she was a good parent, and that many of the children’s academic problems were equally bad during the months that the children resided with the father. The mother also presented evidence of the father’s anger, including evidence of a public outburst against the mother that was witnessed by the two younger children, the father’s excessive or inappropriate use of corporal punishment, and the father’s refusal to communicate with the mother concerning the children. The trial court could have disbelieved much of the father’s evidence or it could have determined that various factors favoring the father were balanced by other factors favoring the mother.

Although the parties admittedly were not able to cooperate in rearing the children, the trial court found that neither party was “able to satisfy the Court that the best interests of the [two younger children] would be appreciably enhanced by awarding either of the parties the primary physical custody and control of the minor children.” It therefore continued the alternating custody that the parties had originally agreed to and that was incorporated into the divorce judgment. A-though this case illustrates many of the potential problems with alternating custody arrangements, see Headrick v. Headrick, 916 So.2d 610 (Ala.Civ.App.2005), and Poe v. Capps, 599 So.2d 623 (Ala.Civ.App.1992), on the basis of the record before us in this case, we cannot conclude that the trial court abused its discretion in continuing the existing custody arrangement. With respect to the issue of custody, the judgment is supported by substantial evidence in the record, including the evidence discussed above. In addition, there was testimony that the parties’ 10-year-old son enjoyed living with the mother, although he thought that the father’s home was more like a family. Also, the trial court observed that both parents were equally responsible for the communication problems affecting the children. Further, the evidence in the record would support a conclusion that continued alternating custody might be the best, and perhaps only, way to insure a reasonable level of contact between the children and each of the parents.

The father next contends that the trial court erred in finding him in contempt for failing to pay child support between June 2002 and November 2002 and for failing to reimburse the mother for certain college expenses. The standard of review of a judgment of contempt is as follows:

“[Wjhether a party is in contempt of court is a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or unless the judgment of the trial court is unsupported by the evidence so as to be plainly and palpably wrong, this court will affirm.”

Stack v. Stack, 646 So.2d 51, 56 (Ala.Civ.App.1994).

Rule 70A, Ala. R. Civ. P., governs contempt proceedings arising out of civil actions. Rule 70A(a)(2)(C)(ii) defines criminal contempt as “[wjillful disobedience or resistence of any person to a court’s lawful ... order ..., where the dominant purpose of the finding of contempt is to punish the eontemnor.” To establish that a party is in criminal contempt, the contempt petitioner must prove beyond a reasonable doubt that the party to be held in contempt “was subject to a ‘ “lawful order of reasonable specificity,” ’ that the party violated that order, and that the party’s violation of the order was wilful.” L.A. v. R.H., 929 So.2d 1018 (Ala.Civ.App.2005) quoting Ex parte Ferguson, 819 So.2d 626, 629 (Ala.2001) (quoting in turn United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987)).

The dispositive issue with respect to the father’s failure to pay child support is whether the divorce judgment was reasonably specific as to that obligation. According to the father, the divorce judgment provided that his obligation to pay child support terminated in June 2002, which was six months after the anticipated completion date of the mother’s course of study at J.F. Drake. The mother argued at the trial, and the trial court implicitly found, that the father’s child-support obligation was extended by the terms of the divorce judgment until November 2002 because the mother needed an additional academic quarter to complete all of the courses required for graduation.

The father’s obligation to pay child support and college expenses is set forth in paragraphs 3 and 4 of the parties’ agreement that was incorporated into the divorce judgment. Those paragraphs provide as follows:

“3. The [father] shall pay to the [mother], as the amount of differential child support ..., the sum of [$1,200.00] per month, beginning on September 1, 2000, and continuing for each month hereafter until six (6) months after the [mother’s] graduation from her present computer course of study at J.F. Drake State Technical College by the receipt of an associates degree, in accordance with more specific delineation of said educational status and requirement as set out in paragraph 4 below. As of that time, neither party will owe child support to the other party....
“4. The [father] shall pay for or reimburse the [mother] the actual costs of (after written documentation provided by the [mother]) her tuition and required books necessary for her to complete the course of study which has been heretofore referenced.
“The [mother’s] educational plans and/or course of study as has been referenced severally above will be as follows:
“It is understood by the parties that the [mother] is more than half-way toward obtaining an associates degree in computer studies at J.F. Drake State Technical College, with the feasibility of completion in three (3) quarters being undisputed given appropriate effort and attention by the [mother]. Therefore, the triggering time for all purposes in this Separation Agreement (six (6) months after completion of the associates degree program) assumes and requires the [mother] attend three (3) consecutive quarters on a full-time basis, making passing grades, or otherwise meets the requirements for her associates degree, with the [mother] beginning no later than the Winter quarter immediately next following the Fall of the year 2000. Therefore, the triggering event referenced at various places in this Separation Agreement of six (6) months after the [mother’s] graduation shall be deemed to be six (6) months after the completion of the said three (3) consecutive quarters, beginning with the next Winter quarter at said institution. However, should the [mother] need an additional (fourth) quarter to finish a course or two which had been unavailable to her previously, the [father] shall pay for the necessary tuition and books as well as paying for the necessary child care which is incident to any such fourth quarter attendance by the [mother].”

(Emphasis added.)

An agreement, including one merged into a divorce judgment, is ambiguous when it is reasonably susceptible to more than one meaning. Ex parte Littlepage, 796 So.2d 298 (Ala.2001).

“When a trial court adopts a separation agreement, it is merged into the final judgment of divorce. A judgment of divorce is to be interpreted or construed like other written instruments. Whether an agreement is ambiguous is a question of law to be determined by the trial court. If the agreement is susceptible to more than one meaning, then an ambiguity exists. If only one reasonable meaning clearly emerges, then the agreement is unambiguous.”

Wimpee v. Wimpee, 641 So.2d 287, 288 (Ala.Civ.App.1994) (citations omitted).

Neither party has provided us with a clear explanation of the meaning of paragraphs 3 and 4 of the divorce judgment as they relate to the extension of father’s obligation to pay child support if the mother required an additional (fourth) quarter in order to graduate. At the trial, the mother argued that, because she was attending school full-time, the father’s obligation to pay child support was extended until six months after the end of the additional quarter. In contrast, the father argues that the parties’ agreement assumed that the mother could and would complete her required course work in three consecutive quarters; if she needed an additional fourth quarter to graduate, the father argues, his obligation to pay for tuition and books would be extended, but not the “stop date” for child-support payments.

We conclude that the divorce judgment is reasonably susceptible to two meanings and is therefore ambiguous. Consequently, the trial court could not have found beyond a reasonable doubt that the father willfully violated a lawful order of reasonable specificity. See In re Powers, 523 So.2d 1079, 1082 (Ala.Civ.App.1988) (“An error in judgment without clear and convincing evidence of bad faith intent is insufficient for a finding of contempt.”); and In re Carter, 412 So.2d 811, 812 (Ala.Civ.App.1982). See also Epperson v. Epperson, 437 So.2d 571 (Ala.Civ.App.1983) (affirming a finding of contempt where judgment was clear and unambiguous). Therefore, we reverse the judgment to the extent that it finds the father in contempt with respect to child-support payments due after June 2002.

Although we have determined that the provisions of the divorce judgment relating to payment of child support are ambiguous or inconsistent, we need not resolve how the provisions should be construed because the father does not argue that the trial court erred in entering a judgment against him for the balance of the child-support obligation, nor does his brief to this court contain argument and citation to legal authority concerning the reversal of the money judgment for the unpaid child support. We therefore need not consider that issue. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982); Rule 28(a)(10), Ala.R.App. P.; and McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992).

The father also contends that the trial court erred in finding the father in contempt for failing to pay for certain of the mother’s college expenses. According to the father, the unpaid expenses were for courses not required for completion of the mother’s agreed-upon course of study, and he was therefore not obligated to pay those expenses.

The trial court heard the evidence and found that the claimed expenses were required to be paid under the divorce judgment. We cannot conclude that those findings were erroneous. Moreover, we conclude that there was evidence to support a finding beyond a reasonable doubt that the father’s failure to pay the balance of the college expenses was willful.

The father’s final contention is that the trial court abused its discretion in failing to order the mother to pay child support with respect to the older son retroactive to the date of the filing of the father’s petition to modify. The determination to modify child support retroactively is a decision committed to the sound discretion of the trial court. Rogers v. Sims, 671 So.2d 714, 717 (Ala.Civ.App.1995); and Volovecky v. Hoffman, 903 So.2d 844, 850 (Ala.Civ.App.2004). We have reviewed the record and do not find that the trial court abused its discretion in refusing to make the mother’s child-support obligation with respect to the older son retroactive. Among other things, the record does not contain evidence sufficient to compute the mother’s child-support obligation payable in 2003.

We reverse the judgment to the extent that it finds the father in contempt with respect to the failure to pay child support. In all other respects, we affirm the judgment of the trial court. We remand the cause for the entry of a judgment consistent with this opinion.

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

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

CRAWLEY, P.J., and BRYAN, J., concur.

THOMPSON and PITTMAN, JJ., concur in the result, without writing.

      . Although the trial court did not specify whether it found the father to be in civil or criminal contempt, for purposes of this appeal we have treated the contempt finding as a finding of criminal contempt because it appears that the purpose of the finding of contempt was to punish the father, rather than to insure compliance with the court’s order.

      . The father paid the required child support in full until May 2002, and paid a pro rata portion of the payment due in June 2002.

      . In her brief to this court, the mother does not attempt to explain the proper construction of the relevant provisions. Instead, she makes only a conclusory reference to the evidence in the record that, she claims, supports the judgment.

      . The trial court found that the unpaid balance of the mother’s expenses for the fall quarter of 2001 was $1,650, and the unpaid balance for the winter quarter of 2002 was $1,021.68. The father apparently does not dispute the amounts of the expenses or claim that he has made payments that were not properly credited.


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

text:
    Sandy Renee Guy PATE v. Gregory Gilbert GUY.
    2031005.
    Court of Civil Appeals of Alabama.
    Dec. 30, 2005.
    Order Overruling Rehearing March 17, 2006.
    Certiorari Denied May 12, 2006 Alabama Supreme Court 1050881.

      Elizabeth H. Huntley, Clanton, for appellant.
    Amy Hayes Naylor, Clanton, for appel-lee.
   PITTMAN, Judge.

Sandy Renee Guy Pate (“the mother”) appeals from a judgment divorcing her from Gregory Gilbert Guy (“the father”), dividing the marital property, awarding custody of the parties’ children, and setting a child-support obligation.

The parties were married on April 28, 1984. Two daughters were born of the marriage, one in 1990 and one in 1996. On June 12, 2001, the father filed a complaint seeking, among other things, a judgment divorcing him from the mother and equitably dividing the marital property. The father also requested liberal visitation with the parties’ children. The mother filed an answer and counterclaim requesting, among other things, a judgment awarding her custody of the children, child support, and alimony. The mother also filed a request for pendente lite support; a hearing on that issue was conducted before a special master on July 6, 2001. During the hearing on the pendente lite support, each party testified that neither one was employed at that time. Although each party admitted to owning a share of a family-owned business within their separate families, each party stated that both businesses were operating at a loss at the time of that hearing. Additionally, both parties admitted that their financial record keeping had not been particularly accurate during the marriage; the mother alleged that during the marriage the father regularly took cash out of his family business, which the couple had not reported on their federal-income-tax returns.

The evidence also indicated that previously the father had been injured while employed by a construction company and had received a $500,000 settlement for his injuries. The parties had used much of that settlement money to pay for construction of the jointly owned marital residence, which they owned debt-free at the time that the divorce complaint was filed. Based on the parties’ insistence that neither party was gainfully employed, the special master concluded that he could not calculate the appropriate child-support obligation pursuant to Rule 32, Ala. R. Jud. Admin.; therefore, the child-support determination was reserved for the trial judge to make at the final hearing on the issues. Following the hearing on pendente lite support, the parties were instructed to continue to pay their share of the normal marital expenses; in addition, the father was awarded standard visitation with the children every other weekend and every Wednesday after school.

The trial court conducted an ore tenus proceeding in June 2002, and on July 3, 2002, it entered an order that granted the parties a divorce but reserved “for future consideration all other issues,” including the award of custody of the parties’ children, the awards of child support and alimony, and “the division of marital property and debt.” In addition, the July 2002 order renewed all existing pendente lite orders until a final judgment could be entered.

The trial court received documentary evidence and testimony from the parties and other witnesses on January 13-14, 2003, April 15, 2003, and May 7, 2004. Among the witnesses testifying on behalf of the father were the children’s paternal grandmother, the father’s sister, and two family friends; among those testifying on behalf of the mother were the eldest daughter of the parties, four employees or former coworkers of the father, two family friends, and the businesses’ accountant.

Because the actual trial consisted of 4 days over a 16-month period, the testimony cannot easily be reduced into a short summary. Stated simply, each party bitterly contested each and every assertion made by the other party. The father’s family and friends testified that the mother was loud, argumentative, vulgar, and irrational. The mother’s witnesses insisted that the father was self-centered, lazy, irresponsible, and violent, with an uncontrollable temper. The father testified that the mother had consistently failed to provide the children for the pendente lite alternating-weekend visitation. On the other hand, the mother complained that the father had not offered to pay for any of the household expenses such as groceries or utilities during the pendency of the divorce action.

The only undisputed testimony was provided on the final day of the proceeding by the parties’ accountant, Linda Pittman. Pittman stated that she had prepared the business-income-tax returns for both family businesses beginning in 2001. She testified that the mother’s family business had paid the mother a salary of $10,000 in 2001 but had not paid her any salary in 2002 or 2003. Pittman noted that her records revealed that that business had earned less than $10,000 in 2002 and only $11,000 in 2003. On the other hand, Pittman noted that the father’s family business had earned in excess of one million dollars during each of those same three years.

Other than the testimony regarding the current assets of the family businesses, very little testimony regarding the parties’ marital assets and debts, child support, visitation, and personal property was undisputed. The father did admit that besides paying the annual homeowner’s insurance and property-tax payment of around $5,000 per year, he had paid nothing toward the household expenses after he filed his divorce complaint in June 2001. The father insisted that although he was not required to support the children pen-dente lite, his income was negligible in that he claimed his weekly salary was around $265 per week from the family business. During cross-examination, the father admitted that he regularly gave between $600 and $700 per month to his girlfriend with whom he was living to pay toward the couple’s monthly bills. Additionally, the father stipulated that he had written checks totaling $52,000 on his family-owned-business account to pay for gambling losses in 2002.

The mother stated that she had gone back to teaching in elementary school after the parties had separated to provide health insurance and a steady income for herself and the children. She estimated that the household bills, including utilities and groceries, fluctuated between $1,500 and $2,000 per month. She testified that the older daughter would not visit the father and paternal grandparents because she was afraid of the men. The mother noted that the paternal grandfather had been accused of molesting two of the young women in the family; she stated that after the paternal grandfather had offered her money in exchange for sexual favors that the father had banned the paternal grandfather from visiting the marital residence. The parties’ older daughter testified that she stopped visiting with her father because during visitations he would leave her with the paternal grandparents all weekend; she also complained that her father yelled at her “a lot” and constantly made derogatory comments about her mother.

On July 15, 2004, the trial court entered a final judgment regarding the issues that had been reserved from the July 2002 order. The trial court awarded primary custody of the parties’ children to the mother. The trial court awarded the father and the paternal grandfather alternating weekend and specific holiday visitation, subject to the supervision of the paternal grandmother or the paternal aunt. The father was ordered to pay $1,223 in monthly child support and to pay one-half of the noncovered medical costs incurred by the children. The mother was ordered to maintain health-insurance coverage for the children. The trial court awarded each party the vehicle in his or her possession.

The judgment awarded the mother the marital residence and approximately two and one-half acres on which that residence was located, all of the parties’ marital interest in her family’s retail-furniture business, and all of her teacher’s pension. The judgment awarded the father all of the parties’ marital interest in his family’s building-supply business and the title to approximately 40 acres, which was the remaining acreage abutting the marital residence and jointly owned by the parties. He was also awarded the full amount of his carpenter’s union retirement account.

The mother’s primary allegation of error is that the trial court erred in failing to award pendente lite, retroactive, or adequate child support. The mother also asserts that the trial court’s marital-property division was inequitable so as to constitute an abuse of discretion. In addition, she contends that the trial court erred in awarding visitation to the paternal grandparents, who, she claims, did not properly intervene in the divorce action, and in failing to award her a reasonable attorney fee.

Alabama’s well-established standard of review is that a divorce judgment based on ore tenus evidence is presumed to be correct. See Scholl v. Parsons, 655 So.2d 1060, 1062 (Ala.Civ.App.1995); and Kratz v. Kratz, 791 So.2d 971, 973 (Ala.Civ.App.2001). Such a judgment will be reversed only where it is unsupported by the evidence so as to be plainly and palpably wrong. Scholl, supra; Kratz, supra. The ore tenus rule is based, in part, on the unique position of the trial court to personally observe the parties and the witnesses and to assess their demeanor and credibility. Ex parte Fann, 810 So.2d 631, 633 (Ala.2001).

The mother first contends that the trial court erred in failing to award child support either pendente lite or retroactive to the filing of the divorce complaint. In Brown v. Brown, 719 So.2d 228 (Ala.Civ.App.1998), this court overruled earlier caselaw and established the following rule. At its discretion, a trial court may award child support retroactive to the filing of the complaint for divorce when the trial court has failed to enter a pendente lite child support order during the pendency of the divorce proceedings during which the noncustodial parent had a duty to support the children but failed to provide that support. See Brown, 719 So.2d at 282. More recently, this court reversed a trial court’s failure to award retroactive child support based upon Brown and the well-established principle that parental support is a fundamental right of all minor children. See Vinson v. Vinson, 880 So.2d 469 (Ala.Civ.App.2003).

In this case, the mother had requested pendente lite relief three days after the father filed his divorce complaint, but the trial court did not enter an order granting that relief. The record contains several motions filed by the mother requesting similar relief throughout the three-year pendency of this divorce action. On the other hand, the record also contains at least three requests for hearing continuances filed by the mother; although one of those requests was made because the father had failed to attend his pretrial deposition, the other two continuances were requested because the mother had changed attorneys immediately before previously scheduled hearing dates.

The father freely admitted that although he had continued to pay the insurance and the property taxes on the marital residence and occasionally had offered spending money to each of the children, he had not regularly contributed to the monthly support of the household after June 2001. In fact, during his testimony the father specifically noted that the trial court had not ordered him to make any monthly child-support payments, and therefore that he had not done so.

After thoroughly reviewing the record in this case, we conclude that the trial court did not abuse its discretion in failing to award pendente lite child support and that the mother contributed to the lengthy delay that occurred before the trial court could conclude the divorce proceedings and enter a judgment. However, based on the totality of the evidence and the precedents established in Brown and Vinson, we cannot agree that the trial court’s failure to award retroactive child support was also proper.

As reiterated in both Brown and Vinson, “ ‘[p]arental support is a fundamental right of all minor children.’ ” State ex rel. Shellhouse v. Bentley, 666 So.2d 517, 518 (Ala.Civ.App.1995) (quoting Ex parte University of South Alabama, 541 So.2d 585, 537 (Ala.1989)). That right of parental support exists regardless of the lack of court instructions. In fact the Alabama Legislature, recognizing the necessity of parental support for minor children, established a cause of action for retroactive child support against a nonsupporting spouse that became law in March 1994. See Ala.Code 1975, § 30-3-110 through § 30-3-115.

In this case, the pendente lite order required the parties to continue to pay their “pro rata” share of the marital expenses. Although the mother had not been employed full-time for over a year when the parties separated, she began teaching again within a year of the separation in order to provide sufficient income and health coverage for herself and the children. She contends, and the father conceded at trial, that the father did not pay any portion of the household expenses, other than homeowners’ insurance, after he filed his complaint seeking a divorce in June 2001. The children had a legally enforceable right to be supported by both parents during the pendency of their parents’ divorce action.

Although the father insists that because he was not ordered to pay any pendente lite child support he should be completely excused from all child-support obligations before the July 2004 judgment was entered, the precedents cited above militate against that assertion. We conclude that the judgment must be reversed in part and remanded for the entry of a revised judgment that includes an appropriate amount of retroactive child support for the benefit of the parties’ children.

The mother asserts that the trial court failed to comply with the requirements of Rule 32, Ala. R. Jud. Admin., in its calculation of present child support. We have reviewed the testimony and documents submitted by the parties regarding their respective incomes and conclude that the trial court properly imputed income to the father in order to set a monthly child-support amount. The fact that the parties’ combined salaries including the income imputed to the father produce a monthly income in excess of $10,000, a figure that represents the top level of the child-support-guidelines schedule, places the child-support computation squarely within the trial court’s discretion. See Rule 32(C), Ala. R. Jud. Admin. (“The court may use its discretion in determining child support in circumstances where combined adjusted gross income is below the lowermost levels or exceeds the uppermost levels of the schedule.”).

This court has often noted that “ ‘child support is a matter that rests soundly within the trial court’s discretion and that such judgments will not be reversed absent a showing that the trial court abused its discretion.’ ” Roberts v. Roberts, 802 So.2d 230, 237 (Ala.Civ.App.2001) (quoting Boykin v. Boykin, 628 So.2d 949, 952 (Ala.Civ.App.1993)); see also O’Neal v. O’Neal, 678 So.2d 161 (Ala.Civ.App.1996). In addition, in cases such as this one, where the parents’ combined monthly income exceeds the support schedule, the trial court is accorded wide discretion to determine the appropriate amount of child support. See, e.g., Boykin v. Boykin, 628 So.2d at 952; see also Roberts and O’Neal, supra. While we might have made a different child-support award in this case, this court “may not substitute its judgment for that of the trial court.” Somers v. McCoy, 777 So.2d 141, 142 (Ala.Civ.App.2000). Based upon a careful review of the evidence presented in this case, we cannot say that the trial court abused its discretion when it ordered the father to pay $1223 in monthly child support.

The mother also contends that the trial court erred in its division of the parties’ marital property and assets; her primary allegation is that the father dissipated over $500,000 of marital assets during the three-year pendency of this divorce action. The evidence presented to the trial court indicated that the parties had lived a very extravagant lifestyle during their marriage, regularly taking expensive vacations and gambling trips, investing in real estate and their family’s businesses, and often paying their own living expenses with cash that regularly “appeared,” although neither party was employed full-time when the parties separated.

Additionally, a trial court’s division of property and its award of alimony are interrelated issues, and the entire judgment must be considered in determining whether the trial court has abused its discretion as to either issue. See O’Neal v. O’Neal, 678 So.2d at 164. A property division does not have to be exactly equal for it to be equitable (and therefore proper) based on the particular facts of each case; a determination of what is equitable rests within the sound discretion of the trial court. See Golden v. Golden, 681 So.2d 605, 608 (Ala.Civ.App.1996). When dividing marital property and determining the need for alimony, a trial court should consider several factors, including the length of the marriage; the age and health of the parties; the future prospects of the parties; the source, type, and value of the property; the standard of living to which the parties have become accustomed during the marriage; and the fault of the parties contributing to the breakup of the marriage. Golden, 681 So.2d at 608; see also Ex parte Elliott, 782 So.2d 308 (Ala.2000).

During the marriage, the father had purchased a building-supply enterprise with his parents; that business was producing at least one million dollars annually at the time of trial. In addition, the father and mother had purchased land and a building on which the mother’s mother and sister had located a retail furniture store; the parties had sold that property to the mother’s family a few months before the parties had separated; however, that business was not generating any income for the mother at the time of trial. The mother insisted that during the marriage the parties had removed whatever cash they needed from the building-supply cash register; the father denied that allegation. The mother also noted that six months before the parties had separated, the father had removed approximately $20,000 from the children’s college-savings accounts to buy stock for the building-supply company; she contended that he never replaced those funds. In addition, the mother testified that the parties had purchased a certificate of deposit in which to accumulate savings for future expenses; she offered into evidence the bank statements for that account, which indicated that during the year immediately preceding the parties’ separation, the value of that account had dropped from $89,696 to approximately $400. The mother testified that she had not known that the father had withdrawn any money from that account until she tried to withdraw $5,000 in the fall of 2001 to pay bills and discovered that those funds were gone.

In rebuttal, the father contended that the parties only withdrew cash in the amount of his weekly salary from the building-supply company cash register. He also claimed that the mother had taken $38,000 in cash from his office safe within a week of the parties’ separation, although no report of that theft was ever filed with the police. The father stated that he did not report the theft because that cash was his accumulated gambling profits.

Although the mother insists that the property division is inequitable, we have previously noted that this court is authorized to disturb the trial court’s decision only if it is unsupported by the evidence and, therefore, “is unjust and palpably wrong.” See Scholl, supra; Kratz, supra; see also Ex parte Durbin, 818 So.2d 404, 409 (Ala.2001). “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). Furthermore, an appellate court may not substitute its judgment for that of the trial court; Alabama law does not allow this court to reweigh the evidence. See Ex parte Foley, 864 So.2d 1094, 1098 (Ala.2003). In light of these principles, we cannot conclude that the trial court abused its discretion in this case.

The mother also contends that the trial court erred in granting visitation to the paternal grandparents and in failing to award her a reasonable attorney fee. The record reveals that in October 2003 the paternal grandparents filed a petition to intervene pursuant to § 30 — 3—4.1 et seq., Ala.Code 1975; although the trial court never formally granted that petition, the father and the paternal grandfather were awarded alternating weekend visitation, subject to strict supervision by the paternal grandmother or the paternal aunt. The mother complains that the trial court’s failure to grant that petition to intervene bars the award of grandparent visitation; however, we note that the paternal grandparents did not receive any visitation separate from that awarded to the father. The visitation provision of the judgment merely permits the paternal grandfather to visit with the grandchildren during the alternating weekend visits granted to the father; moreover, the paternal grandfather can only visit the grandchildren under the supervision of the paternal grandmother or paternal aunt. Ultimately, however, we do not have before us the question whether this award of visitation should be sustained on the merits. Although the mother states in a conclusory manner that the award was improper, she cites no legal authority in her brief to support that assertion, and we will not make legal arguments on behalf of the mother. See Rule 28, Ala. R.App. P.; and Ex parte Showers, 812 So.2d 277, 281 (Ala.2001). In view of our reading of the visitation provision contained in the judgment, we conclude that the visitation order in this case is proper.

Alabama law is well settled that an award of attorney fees in a divorce action is a matter within the sound discretion of the trial court. When making a determination whether to award an attorney fee, the trial court should consider the conduct of the parties, the financial circumstances of the parties, and the outcome of the litigation. See McClelland v. McClelland, 841 So.2d 1264, 1272 (Ala.Civ.App.2002). The father had been seriously injured and was working part-time in his family’s building-supply business; the mother was teaching full-time and working part-time at her family’s retail furniture business. The divorce proceedings comprised three years of contentious depositions, motions, and hearings. Neither party followed the pendente lite orders and both contributed to the protracted nature of the proceedings. Based on the McClel-land factors, we conclude that the trial court could properly have determined that each party should pay his or her own attorney fees and that its failure to award the mother an attorney fee was not an abuse of discretion warranting reversal.

Accordingly, we reverse the trial court’s judgment insofar as it failed to award retroactive child support, but we affirm that judgment in all other respects.

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

CRAWLEY, P.J., and THOMPSON and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, without writing.

On Application for Rehearing

PITTMAN, Judge.

APPLICATION FOR REHEARING OVERRULED.

CRAWLEY, P.J., and THOMPSON and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result, with writing.

MURDOCK, Judge,

concurring in overruling the application for rehearing.

I concur in overruling the wife’s application for rehearing in this case. I write separately to note that I see nothing in the facts of this ease that would justify, constitutionally, an award of grandparental visitation. As I recently stated in Dodd v. Burleson, 932 So.2d 912 (Ala.Civ.App.2005):

“My views as to [the due-process, constitutional issue raised in cases involving grandparental visitation] continue to be as expressed in R.S.C. v. J.B.C., 812 So.2d 361 (Ala.Civ.App.2001), L.B.S. v. L.M.S., 826 So.2d 178 (Ala.Civ.App.2002) (Murdock, J., concurring in the judgment of reversal only), and subsequent cases. See also, e.g., McQuinn v. McQuinn, 866 So.2d 570, 578 (Ala.Civ.App.2003) (Murdock, J., dissenting).”

932 So.2d at 922 (Murdock, J., concurring in the result only). See also Richburg v. Richburg, 895 So.2d 311 (Ala.Civ.App.2004); and Beck v. Beck, 865 So.2d 446 (Ala.Civ.App.2003) (Murdock, J., concurring in the result). The fact that the grandparents in this case have been awarded the right to visit with the children only during time periods when the father is also authorized to visit does not change the fact that the grandparents have been given their own, separate, legal right by a court order to visit with the children during those periods. Nor is the constitution-based objection to the award of grandpa-rental visitation in cases such as this assuaged by a requirement that such visitation be supervised by a third party.

On appeal, however, the wife makes no substantive argument, at least none supported by citation to any authority, challenging the constitutionality of the visitation awarded to the grandparents. Her only contention is that the award of grand-parental visitation was inappropriate on the ground that the grandparents failed to file, and the trial court failed to grant, a formal motion to intervene. This argument, however, was not raised in the trial court and should not be considered as a basis for reversing the trial court’s judgment at this juncture. See Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992). It is on this basis, alone, that I concurred in the result reached by the main opinion on original submission insofar as the issue of grandparental visitation is concerned, and that I concur in overruling the application for rehearing insofar as that issue is concerned.

      . No transcript of that proceeding, if any exists, was included in the record on appeal.

      . In October 2003, the grandparents had filed a petition in the trial court seeking visitation pursuant to § 30-3-4.1, Ala.Code 1975.