author: THOMPSON, Judge.

text:
    Lenise BROWN v. K & V AUTOMOTIVE, INC.
    2050067.
    Court of Civil Appeals of Alabama.
    June 16, 2006.

      Roger M. Monroe and Jamie Alisa Tharp, Montgomery, for appellant.
    Thomas T. Gallion III, Jamie A. Johnston, and Felicia A. Long of Haskell Slaughter .Young & Gallion, LLC, Montgomery, for appellee. •
   THOMPSON, Judge.

Lenise Brown appeals from a summary judgment in favor of K & V Automotive, Inc. (“K <& V”), on her claims alleging fraud, breach of contract, and unlawful trade practices arising from her purchase of a “used” 1996 Ford Escort automobile (“the vehicle”) from K & V.

In September 2003, K & V filed in the Montgomery District Court (“the district court”) a complaint against Brown alleging that Brown had breached a contract made between the parties on January 25, 2002, pursuant to which Brown had purchased the vehicle from K <& V. K & Y attached a copy of the contract to its complaint. In its complaint, K & V alleged that Brown had defaulted on her payments for the purchase of the vehicle and that she owed K & V $8,703.73, plus a reasonable attorney fee and court costs. K & V also sought to recover the vehicle. Brown answered and counterclaimed, alleging fraud, misrepresentation, breach of contract, breach of warranty, and unlawful trade practices.

On December 22, 2003, the district court entered a judgment in favor of K & V in the amount of $8,363.71, plus court costs, and dismissed Brown’s counterclaim without prejudice. Brown timely appealed the district court’s judgment to the Montgomery Circuit Court (“the trial court”).

Brown filed in the trial court a pleading entitled “counterclaim,” in which she asserted the same claims that she had asserted in her counterclaim before the district court. K & V answered, asserting numerous defenses. Thereafter, K & Y filed a motion for a summary judgment. Brown opposed K & V’s summary-judgment motion, and the trial court heard oral arguments on that motion on June 1, 2005.

On June . 8, 2005, the trial court entered a partial summary judgment in favor of K & V as to the claims asserted in Brown’s counterclaim. However, because that order did not adjudicate all of the claims between the parties, it was a nonfinal judgment. Wright v. Wright, 882 So.2d 361, 363 (Ala.Civ.App.2003). On October 4, 2005, the trial court entered an amended order to include a “[jjudgment ... for [K & V] in the amount of $8,363.71 as ordered by the [district [cjourt.” Thus, the trial court’s October 4, 2005, amended order adjudicated all of the claims between the parties and was a final judgment. Wright v. Wright, supra. Brown appealed.

This court reviews a summary judgment de novo. Ex parte Ballew, 771 So.2d 1040 (Ala.2000).

“A summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Bussey v. John Deere Co., 531 So.2d 860 (Ala.1988). When the movant makes a prima facie showing that those two conditions are satisfied, the burden shifts to the non-movant to present “substantial evidence” creating a genuine issue of material fact.’ Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). ‘[S]ub-stantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). In reviewing a summary judgment, this court must review the record in a light most favorable to the nonmoving party and must resolve all reasonable doubts concerning the existence of a genuine issue of material fact against the moving party. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990).”

Bain v. Gray, 835 So.2d 1034, 1037 (Ala. Civ.App.2002). “[E]ven though there may be no genuine issues of material facts between the parties, ‘[a] motion for summary judgment must be denied if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable men might reach different conclusions.’ ” Taylor v. Waters, 477 So.2d 441, 444 (Ala.Civ. App.1985) (quoting Lundy v. Hazen, 90 Idaho 323, 326, 411 P.2d 768, 770 (1966)).

Based on the evidentiary submissions of the parties, the record reveals the 'following relevant facts. As previously stated, on January 25, 2002, the parties entered into a contract pursuant to which Brown purchased the vehicle from K & V. At the time of the sale, Brown signed a number of documents. Copies of those documents are included in the record on appeal.

The record also contains an affidavit by Kip Cruce, a K & V salesman, and an affidavit by Brown. Cruce’s affidavit states, in relevant part:

“2. Ms. Brown purchased a 1996 Ford Escort from K & V Automotive on January 25, 2002. The car in question was a used vehicle. K & V had purchased the vehicle from a salvage auction, rebuilt it and had it certified with the State. The State further, as required by law, placed a sticker on the vehicle that says this is a salvage vehicle. I disclosed to Ms. Brown all of the major repairs done on the vehicle prior to the purchase. Further, the sticker on the vehicle indicated it was previously a salvage vehicle. I never made any representation that the vehicle had never been involved in an accident.
“3. Ms, Brown requested a repair on the car on April 12, 2002 — well after the first week of purchase as indicated in the Counter[claim], The first repair was to replace the brake pads — it was after Ms. Brown put 7,000 miles on the car. Based on my experience, this is normal to replace the brakes after that amount of mileage was placed on the car. At the time of the purchase of the vehicle, Ms. Brown executed the following documents:
[List of documents that Brown signed at the time she purchased the vehicle; the documents were attached to Cruce’s affidavit.]
“4. Contained in those documents were clear ‘as is’ provisions acknowledging that the purchase of the vehicle was in an ‘as is’ condition. The most relevant provisions of the written contracts were as follows:
“[(1)]
“ ‘SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EITHER EXPRESSED OR IMPLIED INCLUDING ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY LIABILITY IN THE CONNECTION WITH THE SALE OF THE VEHICLE.
“‘NOTICE OF VEHICLE SOLD WITHOUT ANY WARRANTY
“‘THIS VEHICLE IS SOLD AS IS, WHERE IS AND WITHOUT ANY WARRANTY. THE PURCHASER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT PRESENTLY EXIST AND/OR MAY OCCUR IN THE VEHICLE UNLESS THE SALESPERSON PROMISES IN WRITING AT THE TIME OF THE SALE TO CORRECT SUCH DEFECTS.’
“[quoted from] WARRANTY DISCLAIMER-SOLD AS IS
“[(¾]
“ T, THE UNDERSIGNED, HEREBY ACKNOWLEDGE THAT THE DEALER HAS DISCLOSED TO ME BEFORE I AGREED TO PURCHASE SAID VEHICLE, THAT IT IS POSSIBLE THAT SAID VEHICLE HAS SUSTAINED PAINT AND BODY WORK. THE EXTENT OF ANY PAINT AND BODY WORK, IF PERFORMED ON THIS VEHICLE IS UNKNOWN AND WAS PERFORMED PRIOR TO BEING PURCHASED BY OR TRADED-IN TO K & V AUTOMOTIVE, INC.
“ T FURTHER ACKNOWLEDGE THAT SAID DAMAGE, IF ANY, HAS BEEN REPAIRED TO MY SATISFACTION, AND THAT NO ORAL REPRESENTATIONS WERE RELIED ON BY ME IN MAKING MY DECISION TO PURCHASE THIS VEHICLE.’
“[quoted from] DISCLOSURE OF POSSIBLE DAMAGE
“[(3)]
“ AS IS — NO WARRANTY
“‘YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.
“ ‘[handwritten:] BO days warranty on Engine, Transmission and Drive Train.’
“[quoted from] BUYER’S GUIDE
“[(4)]
“T HAVE MADE MY OWN INDEPENDENT DECISION TO BUY THIS VEHICLE AND MY DECISION TO BUY WAS NOT INFLUENCED BY ANY REPRESENTATIONS MADE BY THE SALES PERSON AS TO THE MECHANICAL OR BODY CONDITION OF THE VEHICLE.
“ T fully understand that only representations in writing made by K & V Automotive Inc. should be relied on by me in making my decision to buy.
“ ‘My decision to buy is based on my acceptance of the condition of the vehicle and all terms of the purchase.
. “ ‘ABSOLUTELY NO ORAL REPRESENTATION WAS RELIED ON BY ME IN MAKING MY DECISION TO BUY, INCLUDING ORAL STATEMENTS ABOUT MECHANICAL CONDITION OR THE BODY CONDITION OF THE VEHICLE.’
“[quoted from] DECISION TO BUY.”

(Capitalization appears in the original documents quoted in the affidavit.)

In her affidavit, Brown stated, in relevant part:

“I purchased a 1996 Green Ford Escort vehicle on or about January 25, 2002, from K & V Automotive. I dealt mostly with Kip Cruce when purchasing the ear. I specifically asked Mr. Cruce if the car had ever been wrecked and he said ‘no.’ I was to pay $250 per month for a total of twenty-four months for the car. I paid a down payment of $1,300 and K & V Automotive financed the remainder at 22% interest. Shortly after the purchase of the car, the vehicle started to have mechanical problems. I took the vehicle back to K & V for repairs. In October 2002, I had to have the entire engine replaced at a cost of $1,167.88. I also had to have the steering column, power steering belt, airflow sensor and speedometer cable sensor on the transmission replaced in January 2003 at a cost of $429.98.
“Soon after the repairs in January 2003, I took the car to Robert Todd, my mechanic. Mr. Todd told me that the little sticker in the door meant that the vehicle was a salvage. This was the first time I had any knowledge that K & V Automotive had defrauded me into buying a vehicle with a salvage title. At no time did Kip Cruce or anyone from K & V automotive ever tell me that the car had a salvage title.”

The record also contains two documents that were executed at times other than at the time of the sale of the vehicle. The record contains an “Alabama Department of Revenue, Automobile Inspection Unit, Investigation Division” application entitled “Application for Inspection of a Salvage Vehicle and Affirmation Supporting Salvage Certificate”; that application is signed by Bobby Cruce, on behalf of K & V, and dated October 19, 2000. Consistent with Kip Cruce’s affidavit, the application indicates that K & V purchased the vehicle at a salvage sale, rebuilt it, and had it “certified.”

That application states in part:

“Applicant hereby makes application for inspection of the ... vehicle which has been completely restored by applicant in this state (Alabama) to its operating condition which existed prior to the event which caused the attached certificate of title, permit to dismantle, total loss certificate, or similar type certificate to issue.[] ...
“APPLICANT FURTHER STATES THAT THE FOLLOWING WAS DONE TO RESTORE SAID VEHICLE TO ITS OPERATING CONDITION WHICH EXISTED PRIOR TO THE EVENT WHICH CAUSED THE ATTACHED SALVAGE CERTIFICATE OF TITLE, PERMIT TO DISMANTLE, TOTAL LOSS CERTIFICATE OR SIMILAR TYPE CERTIFICATE TO ISSUE: (PAINTING, REPLACED GLASS, ETC.) [The following is handwritten:] Replaced Hood, Left Fender, Left Headlight, Marker Light & Signal Grille Front Bumper Air Bags & Painted All Over.”

The record also contains a copy of the title to the vehicle that was issued by the Alabama Department of Revenue approximately one month after the sale was completed; that title, dated February 21, 2002, states that the vehicle was “REBUILT” and lists Brown as the purchaser and K & V as the lienholder. Although K & V argues that Brown received that title, there is no evidence in the record indicating that Brown received the original title or a copy of that title. See § 32-8-MI, AJa.Code 1975 (providing that “[t]he certificate of title shall be mailed to the first lienholder named in it or, if none, to the owner”).

Brown appeals, raising issues only as to her claims against K & V alleging fraud, breach of contract, and unlawful trade practices. Brown contends that the trial court erred in entering a summary judgment in favor of K & V as to each of those claims. Brown first contends that the trial court erred in entering a summary judgment in favor of K & V as to her fraud claims because, she says, she presented substantial evidence that reasonably supports an inference that K & V defrauded her.

A fraud claim may involve an alleged affirmative misrepresentation of a material fact or an alleged concealment of a material fact for which there is a duty to disclose. Section 6-5-101, Alá.Code 1975, which addresses fraud by misrepresentation, provides that “[mjisrepresentations of a material fact made willfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently and acted on by the opposite party, constitutes legal fraud.” In Baker v. Metropolitan Life Insurance Co., 907 So.2d 419, 420-21 (Ala. 2005), our supreme court stated:

“ ‘[I]n order to recover for fraud, [Brown] must establish (1) that [K & V] made a false representation, (2) that the misrepresentation involved a material fact, (3) that [Brown] relied on the misrepresentation, and (4) that the misrepresentation damaged [Brown].’ Liberty National Life Ins. Co. v. Ingram, 887 So.2d 222 (Ala.2004). In addressing in Ingram the nature of the reliance required to support a fraud claim, we quoted Foremost Insurance Co. v. Parham, 693 So.2d 409, 421 (Ala.1997):
“ ‘[W]e conclude that the “justifiable reliance” standard adopted in Hickox [v. Stover, 551 So.2d 259 (Ala.1989) ], which eliminated the general duty on the part of a person to read the documents received in connection with a particular transaction (consumer or commercial), should be replaced with the “reasonable reliance” standard most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So.2d 757 (Ala.1983). The “reasonable reliance” standard is, in our view, a more practicable standard that will allow the factfinder greater flexibility in determining the issue of reliance based on all of the circumstances surrounding a transaction, including the mental capacity, educational background, relative sophistication, and bargaining power of the parties.’
“Therefore, in order to satisfy the reliance element of [her] fraud claim [Brown] must show not only that [she] relied on [K & V’s] alleged misrepresentation ..., but also that the reliance was reasonable in light of the facts surrounding transaction in question. See also Brushwitz v. Ezell, 757 So.2d 423, 429 (Ala.2000) (‘The elements of fraud are: (1) a misrepresentation of a material fact, (2) made willfully to deceive, recklessly, without knowledge, or mistakenly, (3) that was reasonably relied on by the plaintiff under the circumstances, and (4) that caused damage as a proximate consequence.’ (emphasis added)).”

Section 6-5-102, Ala.Code 1975, which addresses fraud by omission, provides that “[suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.” Recently, in Freightliner, L.L.C. v. Whatley Contract Carriers, L.L.C., 932 So.2d 883, 891 (Ala.2005), our supreme court stated:

“The elements of a suppression claim are ‘(1) a duty on the part of the defendant to disclose facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act; (4) action by the plaintiff to his or her injury.’ Lambert v. Mail Handlers Benefit Plan, 682 So.2d 61, 63 (Ala.1996).”

In Beiersdoerfer v. Hilb, Rogal & Hamilton Co., [Ms. 1012243, Jan. 7, 2005], our supreme court stated:

“'A duty to disclose may arise from the particular circumstances of the case. See Ala.Code 1975, § 6-5-102. Those circumstances include “(1) the relationship of the parties; (2) the relative knowledge of the parties; (3) the value of the particular fact; (4) the plaintiffs opportunity to ascertain the fact; (5) the customs of the trade; and (6) other relevant circumstances.” State Farm Fire & Cas. Co. v. Owen, 729 So.2d 834, 842-43 (Ala.1998).’
“Bethel v. Thorn, 757 So.2d 1154, 1162 (Ala.1999).”

Brown argues that K & V had a duty to disclose that the vehicle was a salvage vehicle in the manner set forth in § 32-8-87(p), Ala.Code 1975, and that K & V concealed that material fact. Brown also argues that K & V, by representing that the vehicle was a used vehicle as opposed to a salvage vehicle, misrepresented a material fact as to the type of automobile she was purchasing. Brown further argues that, as a result of her specific inquiry into the matter, K & V had a duty to disclose that the vehicle had been wrecked. Brown argues that had she known the vehicle was a salvage vehicle, she would not have purchased the vehicle. She argues that she was damaged because a salvage vehicle is worth less than a used vehicle; she asserts that the vehicle is now essentially worthless.

Section 32-8-87 is part of the Alabama Uniform Certificate of Title and Antitheft Act, § 32-8-1 et seq., Ala.Code 1975 (“the Act”). The Act was originally enacted in 1973, see Act No. 765, Ala. Acts 1975, and has been amended from time to time. In Congress Finance Corp. v. Funderburk, 416 So.2d 1059, 1061 (Ala.Civ.App.1982), this court stated:

“The Alabama legislature enacted the Uniform Certificate of Title and Anti-theft Act in 1973. §§ 32-8-1 to -87, Code of Alabama 1975. One purpose of the act is to frustrate the possession and disposition of stolen motor vehicles in the state. State v. Spurlock, 393 So.2d 1052 (Ala.Cr.App.1981). The act also provides a means for interested parties to ascertain essential information concerning title to vehicles. See Nationwide Insurance Co. v. Bank of Forest, Forest, Mississippi, 368 So.2d 1273 (Miss.1979).”

(Emphasis added.)

In 1995, the legislature amended the Act, see Act No. 95-406, Ala. Acts 1995; that amendment, among other things, added subsection (p) to § 32-8-87. Before the 1995 amendment,, the Act did not contain a provision that contains the substance of § 32-8-87(p). Section 32-8-87(p) provides:

“Each person who sells, exchanges, delivers, or otherwise transfers any interest in any vehicle for which a title bearing the designation ‘salvage’ or ‘rebuilt’ has been issued shall disclose in writing the existence of this title to the prospective purchaser, recipient in exchange, recipient by donation, or recipient by other act of transfer. The disclosure, which shall be made at the time of or prior to the completion of the sale, exchange, donation, or other act of transfer, shall contain the following information in no smaller than 10 point type: ‘This vehicle’s title contains the designation “salvage” or “rebuilt”.’ ”

Regarding the rules of statutory construction, this court has stated:

“In construing a statute, this court looks to the plain meaning of the words used by the Legislature. Our supreme court has said:
“ ‘ “Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” ’
“Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (AIa.1998) (quoting IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)).”

W.L.S. v. K.S.S.V., 810 So.2d 777, 779 (Ala. Civ.App.2001); see also Ex parte Prudential Ins. Co. of America, 721 So.2d 1135, 1138 (Ala.1998) (“The word ‘shall’ is clear and unambiguous and is imperative and mandatory.”).

In the present ease, it is undisputed that “at the time of or prior to the completion of the sale,” see § 32-8-87(p), K & V did not disclose to Brown that the vehicle was a salvage vehicle in the manner set forth in § 32-8-87(p). Although at the time of the sale Brown signed documents stating that she did not rely on any oral representations made by K & V in making her decision to purchase the vehicle, those same documents stated that Brown could rely on the written representations made by K & V. We hold that pursuant to § 32-8-87(p), at or before the completion of the sale, K & V had a duty to disclose to Brown in writing “in no smaller than 10 point type [that] ‘This vehicle’s title contains the designation “salvage” or “rebuilt”.’ ” Id.; see also Trailmobile, Inc. v. Cook, 540 So.2d 683 (Ala. 1988) (indicating that the Act established a standard of conduct for persons or corporations who come within its terms and created a duty for such persons or corporations to comply with the Act; such obligation is written into contracts by operation of the Act). The fact that Brown signed a number of documents indicating that she was purchasing the vehicle “as is” did not relieve K & V of its obligation to disclose to her that the vehicle was a salvage vehicle in accordance with § 32-8-87(p). See Danley v. Murphy, 658 So.2d 483 (Ala.Civ.App.1994) (recognizing that, in certain circumstances, a fraud claim is not necessarily precluded by an “as is” purchase contract for the sale of a used automobile that had a salvage title). We note that Danley v. Murphy, supra, was decided before § 32-8-87 was amended to include subsection (p); thus, a seller now has a statutory duty to disclose that a vehicle is a salvage vehicle in the manner set forth in § 32-8-87(p). In the present case, it is undisputed that K & V failed to do so. Further, the record does not contain any evidence indicating that, at the time she purchased the vehicle, Brown was made aware of the sticker that had been placed on the inside of one of the doors of the vehicle indicating that the vehicle was a salvage vehicle. See § 32-8-87(o)(l), Ala.Code 1975. Thus, we find that the evidence could support the conclusion that K & V suppressed a material fact for which it had a duty to disclose pursuant to § 32-8-87(p). See § 6-5-12, supra, and Lambert v. Mail Handlers Benefit Plan, supra (the first two elements of a suppression claim are the concealment or nondisclosure of a material fact that a party is under a duty to disclosure). A fact issue exists as to whether Brown was induced to act based on that omission in deciding to buy the vehicle. See id. (inducement to act based on suppression of a material fact is also an element of a suppression claim). Accordingly, we reverse the judgment of the trial court as to Brown’s suppression claim.

In addition, when K & V sold the vehicle as a used vehicle as opposed to a salvage vehicle, K & V made a representation regarding the condition of the vehicle. In substance, the written representations indicated that the vehicle was a “typical” used vehicle instead of a used vehicle that was also a “salvage” vehicle. Thus, we conclude that there is substantial evidence indicating that K & V made an affirmative misrepresentation of a material fact that could be the basis' of a fraud claim. See Foremost Ins. Co. v. Parham, supra (the first two elements of a misrepresentation claim are a false representation of a material fact). A fact issue exists as to whether Brown could have reasonably relied upon that misrepresentation in deciding to buy the vehicle. See id. (reasonable reliance on a false representation of a material fact is another element of a misrepresentation claim). Accordingly, we reverse the judgment of the trial court as to Brown’s misrepresentation claim.

Next, Brown contends that the trial court erred in entering a summary judgment in favor of K & V as to her breach-of-contract claim. Brown argues, in essence, that a genuine issue of material fact exists as to whether K & V breached the contract by selling her a salvage vehicle when the contract described a vehicle as “used” or “as is.”

In Ex parte Coleman, 861 So.2d 1080, 1085 (Ala.2003), our supreme court stated:

“To establish a breach-of-contract claim, a plaintiff must show ‘“(1) the existence of a valid contract binding the parties in the action, (2) his own performance under the contract, (3) the defendant’s nonperformance, and (4) damages.” ’ State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 303 (quoting Southern Med. Health Sys., Inc. v. Vaughn, 669 So.2d 98, 99 (Ala.1995) (citations omitted)).”

Accord, Shelton v. Clements, 834 So.2d 775, 782 (Ala.Civ.App.2002). We hold that a genuine issue of material fact exists as to whether the purchase contract for the sale of the vehicle that describes the vehicle as “used” or “as is” sufficiently described or encompassed the vehicle that K & V had a duty to disclose was a salvage vehicle in accordance with § 32-8-87(p). Accordingly, we reverse the judgment of the trial court as to Brown’s breach-of-contract claim.

Lastly, Brown contends that the trial court erred in entering a summary judgment in favor of K & V on her claim regarding alleged violations of § 8-19-5, Ala.Code 1975, which addresses unlawful trade practices. The portions of § 8-19-5 to which Brown refers this court are as follows:

“(2) Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services.
“(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have....
“(6) Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, secondhand, or altered to the point of decreasing their value or rendering the goods unfit for the ordinary purpose for which they were purchased, provided that this subdivision shall not apply to new goods which have been reconditioned, reclaimed, or repaired and such fact is disclosed to the purchaser.
“(7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
“(13) Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service.”

Brown makes substantially the same factual allegations and legal arguments regarding her unlawful-trade-practiees claim as she did for her fraud claims and her breach-of-contract claim. In addition, Brown points out that some of the statements made by K & V in its “Application for Inspection of a Salvage Vehicle and Affirmation Supporting Salvage Certificate,” which was executed over a year and a half before the sale of the vehicle, are contradictory to the statements made by K & V in its “DISCLOSURE OF POSSIBLE DAMAGE” document, quoted in Kip Cruce’s affidavit and executed at the time of the sale. In the former document, K & V made written representations regarding the specific paint and body work it had performed on the “salvage” vehicle, and in the latter document K & V made written representations to the effect that it had not performed any paint and body work on the vehicle. We hold that the record contains substantial evidence indicating that K & V made representations to Brown regarding the character and quality of the vehicle that could be the basis of an unlawful-trade-practices claim. In so holding, we note that facts relating to Brown’s fraud claims and breach-of-contract claims are relevant to Brown’s unlawful-trade-practices claim as well. Accordingly, we reverse the judgment of the trial court as to Brown’s unlawful-trade-practices claim.

In conclusion, the summary judgment is reversed as to Brown’s claims alleging fraud, breach of contraqt, and unlawful trade practices. This cause is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The record is silent as to whether "Kip Cruce” and "Bobby Cruce” are the same person.

      . The record does not include any such attachments to the application.

      . On appeal, Brown has failed to make any arguments regarding that portion of the trial court’s judgment affirming the district court’s judgment in favor of K & V in the amount of $8,363.71 on K & V’s breach-of-contract claim. Brown also has failed to make any arguments regarding her breach-of-warranty claim to this court. Therefore, any issues as to those claims have been waived. "When an appellant fails to argue an issue in [her] brief, that issue is waived.” Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982).

        We also note that Brown argues for the first time on appeal in her reply brief that the purchase contract or "waiver" provisions/documents were voidable or void. Because Brown did not make those arguments in her initial brief to this court, we "will simply treat such issues as not before the Court." Kennesaw Life & Acc. Ins. Co. v. Old Nat’l Ins. Co., 291 Ala. 752, 754, 287 So.2d 869, 871 (1973).

       Note from the reporter of decisions: On September 22, 2006, on application for rehearing, the Alabama Supreme Court withdrew its January 7, 2005, opinion and substituted another opinion. The material quoted below appears ‘ in the substituted September 22, 2006, opinion. See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., [Ms. 1012243, September 22, 2006] - So. 2d -, - (Ala. 2006).

      . In Danley v. Murphy, this court held that the sellers in that case had a duty to disclose the extent of the damage to an automobile that had a salvage title when, during the course of negotiations, the sellers indicated to the purchaser’s father, who negotiated the purchase of the automobile on his daughter’s behalf, that the automobile had received some damage to the right fender and grill area but failed to disclose that the automobile had actually sustained significant damage to both the front end and the rear end and had been declared a total loss by the insurance company. 658 So.2d at 486. In so holding, this court stated:
      ''[T]he sellers indicated to [the purchaser’s father] that the automobile had been 'smacked' in the front end. .When the sellers revealed, that the automobile had been wrecked, they were under an obligation to make a full and fair disclosure, without suppressing or concealing any material facts of which they had knowledge. Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (Ala.Civ.App.1975). In this case the sellers made a partial disclosure, which concealed material facts. Therefore, the statements made by the sellers were only a half-truth and, thus, were a misrepresentation of the facts. When the sellers willfully concealed certain material facts, which led Murphy, and ultimately the buyer, 'to- believe that the history of the automobile was different from what it actually was, the sellers were guilty of a fraudulent concealment. Jackson Co., 55 Ala.App. 354, 315 So.2d 591.”
      658 So.2d at 486.

      . Subsection (o) was also added to § 32-8-87 as part of the 1995 amendment to the Act. Section 32-8-87(o)(l) provides:
      "Each salvage vehicle restored or rebuilt in this state which is required to be inspected by the department [of revenue] pursuant to subsection (l) and for which a. certificate of title may be issued pursuant to subsection (n) shall be issued a decal, plate, or other emblem as prescribed by the department [of revenue] to reflect that the vehicle is rebuilt. The decal, plate, or other emblem shall be attached to the vehicle in a place and in a manner prescribed by the department [of revenue].”


source: Caselaw Access Project

license: Public Domain

text:
    T.W. v. MADISON COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2050310.
    Court of Civil Appeals of Alabama.
    June 16, 2006.
    Reta A. McKannan, Huntsville, for appellant.
    Troy King, atty. gen., and Sharon E. Ficquette and Elizabeth Hendrix, asst, at-tys. gen., Department of Human Resources, for appellee.
   THOMPSON, Judge.

T.W. (“the mother”) appeals from the judgment of the Madison Juvenile Court (“the trial court”) dismissing a dependency-petition concerning her daughter, F.H. (“the child”), whose date of birth is January 31, 2002. The effect of that dismissal was to award custody of the child to K.H., who is the child’s father (“the father”).

This action was commenced on-April 26, 2005, at which time the Madison County Department of Human Resources (“DHR”) filed in the trial court a petition alleging that the child was a dependent child within the meaning of § 12-15-1(10), Ala.Code 1975. The record indicates that on the same day DHR filed dependency petitions regarding the child’s two half siblings, both sisters, whose dates of birth are December 26, 2002, and April 8, 2005. The child’s half siblings will be referred to throughout this opinion as her sisters. The custody of the child’s sisters is not at issue in this appeal.

In its dependency petition regarding the child, DHR alleged that the mother was unmarried and that the father’s whereabouts were unknown. DHR alleged that on or about April 22, 2005, it received a report from Huntsville Hospital indicating that the child’s oldest sister had been diagnosed with fractures to both of her arms and that X-rays and other medical examinations revealed that the child and her oldest sister had sustained previous injuries. The dependency petition detailed the child’s and her oldest sister’s injuries. DHR alleged that the child had a healed fracture of the right radius and a healed fracture of the right ulna. DHR further alleged that when a social worker questioned the child about her injuries, the child indicated that B.F., who was the mother’s boyfriend at that time, had caused the injuries. DHR alleged that the child demonstrated how she had been injured by making a twisting motion with her hands; DHR believed that the child’s demonstration of how she had been injured was consistent with the child’s healed fractures.

DHR alleged that the mother had been unable or unwilling to offer a plausible explanation for the injuries suffered by two of her three children and that the mother was unable or unwilling to protect her children from further physical abuse. DHR requested, among other things, that the trial court appoint a guardian ad litem to represent the child and that it grant temporary legal custody of the child to DHR.

The record indicates that on April 26, 2005, the same day that the dependency petition was filed, the mother, the father, and B.F. submitted to drug testing. The father’s drug test was negative for all drugs; the mother and B.F. both tested positive for “THC,” which the record indicates is found in marijuana.

Also on April 26, 2005, the trial-court referee conducted a shelter-care hearing, and, on the same day, the referee filed in the trial court a written report containing her findings and recommendations regarding this matter. On May 20, 2005, the trial court entered an order setting the matter for a pretrial conference on June 23, 2005, and adopting the referee’s findings and recommendations as an order of the court; those findings and recommendations read, in part:

“THIS CAUSE [was] hear[d] on April 26, 2005, pursuant to the provisions of Alabama Code Sections 12-15-60 and 12-15-61 for the purpose of determining whether it is necessary for the above-named child to be placed in Shelter Care pending the hearing of the Petition for Temporary Custody heretofore filed with this Court.
“Present for said hearing were Bonnie Dahl with [DHR]; Jerry S. Barclay, Esquire, attorney for [DHR]; [T.W.], the mother of the child; Reta McKannan, Esquire, attorney for the mother; [K.H.], the father of the child; Linda Coats, Esquire, attorney for the father; and Robin Clem, Esquire, an attorney licensed at the Bar of this State and guardian ad litem for the minor child.
“The [trial court] finds that notice of the Shelter-Care hearing stating time, place and purpose of the hearing and the right to counsel has been given to the natural parents. The Referee explained the nature of the proceedings and the burden of proof to those present and the legal rights of the parties.
“No party having objected to this hearing being held by and before the Referee, and based upon clear and convincing evidence presented in open court, the [trial court] finds that [it] has jurisdiction of said child and of the subject matter of these proceedings; that there is not a parent, guardian, custodian, or other suitable person able or willing to provide for the care of said child. The [trial court] finds that the child is a dependent child.
“The [trial court] finds, in accordance with the requirements of Alabama Code Section 12 — 15—65(g), that continuing placement of the child in his or her home is contrary to the best interests of the child; that it is not appropriate or in the best interests of the child to prevent removal from the home; that allowing the child to remain in the home would be contrary to the welfare of the child; and that it is in the best interest of said child for the shelter-care custody of said child to be placed with [DHR], pending the final hearing on the petition filed herein.
“The [trial court] finds, in accordance with the requirements of Alabama Code Section 12-15-65(g), that reasonable efforts have been made to prevent or eliminate the need for removal of said child from the home or that an emergency situation exists which requires the immediate temporary removal of the child from his or her home ■ and that it is reasonable not to make efforts to prevent removal of the child from the home due to the emergency situation; that continuation in the home would be contrary to the welfare of the child; and that removal from the home is in the best interests of the child.
“The [trial court] further finds that reasonable efforts have been made, or [DHR] will make reasonable efforts, to reunite the child and his or her family.
“The following [findings] are made upon a stipulation of the parties ... in open court.
“1. That the child be released to the custody of the father pending further order of this Court.
“2. That the father be enjoined and prohibited from returning physical custody of the child to her mother.
“3. That the mother be allowed visitation with the child as arranged and supervised by [DHR] or its desig-nee.
“4. That; subject matter jurisdiction shall remain in Madison County, Alabama, and the father shall make himself and the child available for further court proceedings.
“5. That the parties accept and cooperate with any reunification and investigative services offered by [DHR].”

Thereafter, the trial court entered an order setting a hearing regarding “temporary legal custody” of all three children for October 20, 2005. The record includes a copy of a DHR report, dated October 20, 2005, regarding all three children; that report indicated that the mother had cooperated with DHR and that the child’s sisters had successfully been returned to the mother’s custody on September 6, 2005. The report stated that Family Options, an independent agency that provided services to-the family,-had worked with the mother and that the mother had demonstrated that she had the ability to provide for the safety and the welfare of her children. The report further stated that the mother had completed parenting counseling; had negative drug screens since random testing began; had obtained employment and independent housing; and had her own transportation. The report also stated that the mother had placed the child’s sisters in day care while she worked and that the mother had the informal support of relatives to help care for the child’s sisters. The report noted that DHR was monitoring the progress of the reunification of the child’s sisters with the mother and that there had been no reports of injuries since the child’s sisters had been reunited with the mother. DHR recommended that the. trial court grant legal and physical custody of the child’s sisters to the mother. As previously stated, the custody of the -child’s sisters is not at issue in this appeal.

Regarding the child, whose custody is at issue in this appeal, DHR’s October 20, 2005, report indicated that since April 2005 the child had been living with the father and the child’s paternal grandmother in Baton Rouge, Louisiana; that the child was doing well with the father and the child’s paternal grandmother; that the child was attending preschool; and that the father was prepared and willing to be the primary custodian of the child. DHR recommended that the trial court grant legal custody of the child to the father.

On October 21, 2005, the mother filed a motion for an evidentiary hearing regarding custody of the child. In her motion, the mother asserted that she was the fit and proper person to have custody of the child, and she requested that the trial court return the child to her custody. As grounds in support of her motion, the mother asserted, among other things, that she had cooperated with DHR, had obtained employment, had acquired suitable housing, had purchased an automobile, and had placed the child’s sisters in day care while she worked. The mother asserted that the child was anxious to be reunited with the mother and her sisters. The mother further asserted that the child had been living with the paternal grandmother, rather than the father, even though the father had indicated to the social worker that he had custody of the child. The mother also asserted that the paternal grandmother had indicated to her that she was willing to send the child back to the mother and that the father had not expressed interest in retaining custody of the child. On November 2, 2005, the trial court set the matter for an evidentiary hearing on December 29, 2005. The mother later filed another motion seeking the return of the child; that motion was scheduled to be heard during the December 29, 2005, hearing as well.

On December 21, 2005, the mother filed another motion regarding the December 29, 2005, hearing. In that motion, the mother asserted, among other things, that the paternal grandmother had asked the mother when the child was going to be returned to the mother and that the father did not have actual custody of the child but rather that the paternal grandmother had been caring for child.

However, on December 22, 2005, before the scheduled December 29, 2005, hearing, DHR filed a motion to dismiss the dependency petition regarding the child. In its motion, DHR asserted that it no longer desired to pursue its dependency petition regarding the child. In so doing, DHR alleged, among other things, that during the time the child had resided with the father and the paternal grandmother .in Louisiana, DHR had monitored the child’s welfare and, as a result, it had no safety concerns regarding the child; that DHR was satisfied that the child’s needs are being met in the home of the father and the paternal grandmother; and that DHR no longer considered the child to be dependent.” On December 23, 2005, the trial court entered a judgment granting DHR’s motion to dismiss.

The mother timely filed a postjudgment motion requesting, in essence, that the trial court vacate its December 23, 2005, judgment of dismissal and set the matter for an evidentiary hearing in order to permit her the opportunity to present evidence indicating that she is the fit and proper person to have custody of the child. That motion was denied. The mother timely appealed.

The dispositive issue on appeal is whether the trial court erred in dismissing the dependency action without affording the mother an opportunity to present evidence as to whether the child should be returned to her. At the outset, we note that parental rights are fundamental; they have long received protection under .the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and the cases summarized therein. In the present case the. trial court’s May 20, 2005, order found the child to be dependent, granted shelter-care custody of the child to DHR, and placed the child in the physical custody of the father pending a final hearing in this matter. We do not read the trial court’s May 20, 2005, order as having made a final disposition of the child under § 12-15-71, Ala.Code 1975. Although DHR filed a motion to dismiss the dependency action after the trial court had set the matter for an evidentiary hearing, the trial court’s dismissal of this action effectuated a transfer of permanent custody of the child to the father without holding an evidentiary hearing to consider the best interests of the child. See D.K.G. v. J.H., 627 So.2d 937 (Ala.Civ.App.1993) (the appropriate standard to be applied in the dispositional phase of a dependency proceeding is the “best-interests-of-the-child standard”). In addition, this court recently noted that the final dispositional order in a dependency action “ ‘coincide^] with the end of the child’s dependency ....’”; such an order, “ ‘results in a custody award wherein the parent or custodian is able and willing to have the care, custody, and control of the child, free from any intervention or supervision by the state under the dependency statutes.’ ” In re B.B., 944 So.2d 960, 962 (Ala.Civ.App.2006) (quoting S.P. v. E.T., [Ms. 2040044, Dec. 30, 2005] — So.2d -, - (Ala.Civ. App.2005)).

Based on the facts of this case, the trial court should have held a full evidentiary dispositional hearing to determine whether the child should have been returned to the mother’s physical custody. Accordingly, the trial court’s judgment dismissing the dependency action is reversed, and the cause is remanded for the trial court to hold an evidentiary hearing so as to afford the mother an opportunity to present evidence regarding whether the child should be returned to her. Because we reverse the trial court’s judgment as to this issue, it is not necessary for us to address the remaining issues raised on appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

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

      . The record on appeal does not include copies of the dependency, petitions pertaining to the child's sisters.

      . Although the dependency petition alleged that the father's whereabouts were unknown, the father was present at the shelter-care hearing that was held on the same day the dependency petition was filed.

      . We note that the record indicates that after the shelter-care hearing the child’s two sisters were placed in foster care.

      . The record also contains an order of the trial court that was signed by the trial judge on December 22, 2005, but was never filed with the clerk of the - court; that order requested that the guardian ad litem contact the paternal grandmother to inquire as to the mother’s allegation in her December 21, 2005, motion that the paternal grandmother was unwilling to care for the child in her home.

      . We note that the father has not filed a petition for custody in this matter and that this case does not constitute a custody-modification proceeding.


author: MURDOCK, Judge.

text:
    Lesa A. BUSTER v. David A. BUSTER.
    2040191.
    Court of Civil Appeals of Alabama.
    June 23, 2006.

      Christopher G. McCary, Legal Services Alabama, Inc., Anniston, for appellant.
    Jerry Wayne Baker, Jr., Albertville, for appellee.
   MURDOCK, Judge.

Lesa A. Buster, the wife, appeals from a default judgment entered by the Marshall Circuit Court in a divorce proceeding initiated by David A. Buster, the husband.

In April 2004, the husband filed a complaint for a divorce in the Marshall Circuit Court. The husband alleged that he was a resident of Marshall County and that the wife had been a resident of Alabama for more than six months immediately preceding the filing of the complaint; that the parties were married in August 2000; that they had separated in February 2004; that they had a son, who was born in July 1998; and that the parties had a complete incompatibility of temperament and that there had been an irretrievable breakdown of the marriage. The husband also alleged that the wife had physical custody of the parties’ son but that -it would be in the child’s best interest for the husband to have custody of the son. The husband requested that the trial court enter an order divorcing the parties, awarding him custody of the parties’ child, awarding him child support, and dividing the marital property and debts.

Simultaneously with the filing of the complaint, the husband filed a motion requesting pendente lite custody of the child and pendente lite rights to live in the marital residence, which, he alleged, the wife had left. The husband alleged that the wife would not allow him reasonable visitation with his son, that the wife was unemployed, that she was cohabiting with another man, and that she had “abruptly changed the minor child’s school and placed [him] in an immoral environment.” The husband also filed a motion requesting that the trial court appoint a special process server to serve the wife with the complaint, the motion for pendente lite relief, and the motion for a special process server.

The' trial court entered an order appointing a special process server. On ■April 14, 2004, the trial court entered an order setting the husband’s motion for pendente lite custody for a hearing in May 2004. Thereafter, on April 27, 2004, the trial court entered an order on the case-action-summary sheet changing the hearing on the pendente lite motion to July 8, 2004.

The record reflects that the summons and complaint were served on the wife on June 1, 2004. On July 2, 2004, the husband filed an application for a default, with a supporting affidavit, with the clerk of the court. The case-actkm-summary sheet reflects that upon the filing of the application and affidavit the clerk made an entry of default against the wife. The case-action-summary sheet also reflects that on July 2, 2004, the husband filed a Form CS-41 Child Support Obligation Income Affidavit executed by him and a Form CS-42 Child Support Guidelines statement prepared by the husband’s attorney (see Rule 32, Ala. R. Jud. Admin.); that the trial court “took ore tenus testimony from” the husband; and that the trial court entered a judgment of divorce. The record contains no transcript of the testimony that the trial court received, but it does contain the CS-41 and CS-42 forms, along with an unexe-cuted CS-41 form as to the wife’s alleged income.

The July 2004 judgment states that the parties were divorced on the ground of irreconcilable differences, that the husband was awarded custody of the parties’ son, and that the wife must pay $157 per month as child support. The judgment also states that the trial court was “reserving jurisdiction” to decide issues relating to the wife’s visitation with the child and the payment of medical expenses for the child but that, pending the filing of a motion by the wife or the husband as to the wife’s visitation rights, the wife would have supervised visitation with the child. We note that the husband’s CS-41 and CS-42 forms reflect that the husband maintains health insurance for the parties’ son; there is nothing in the record to suggest that additional medical expenses for the child were at issue. We also note that the judgment divided the marital property and debts.

On July 14, 2004, the wife filed a motion to set aside the default judgment, alleging:

“1. The [wife] attempted to find counsel to represent her in this case as soon as she was served with a copy of the Summons and Complaint. There was some delay on her part because she spoke first with a private attorney and then tried to raise funds for her representation but was unsuccessful. She then contacted Legal Services Alabama, but there was a delay in consideration of her case and missed communication between Legal Services and the [wife], which resulted in her not being represented by Legal Services prior to the entry of the Default Judgment of Divorce.
“2. The [wife] had been informed that a Pendente Lite hearing was scheduled for July 8, 2004 in this cause, and therefore, believed that she had until that date to file an answer in the case. She obtained assistance from private counsel in the preparation of a Pro Se Answer and Counterclaim. She attempted to filed that Answer and Counterclaim on either July 6, 2004 or July 7, 2004, but certainly before the hearing on July 8, 2004, but her filing was refused and she was given a copy of the Default Judgment of divorce entered July 2, 2004. She then contacted Legal Services again concerning representation.
“3. The parties have a child. The [husband] has custody of the child after forcefully removing the child from the physical custody of the [wife] following the separation of the parties. The well-being of that child is at issue in this case. The [wife] has a defense to the Divorce. The [wife] is the more fit and proper person to have custody of the minor child of the parties. She needs to be heard.”

The wife requested that the trial court set aside the default judgment, that it allow her to file her answer and a counterclaim, and that it reschedule the pendente lite hearing. The wife’s motion was filed by an attorney from Legal Services Alabama.

The trial court set the wife’s motion for a hearing to be held in September 2004. After the hearing, the trial court failed to enter an order disposing of the wife’s motion before it was denied by operation of law. See Rule 59.1, Ala. R. Civ. P. The wife filed a timely appeal. On appeal, she contends that the trial court abused its discretion by failing to set aside the default judgment.

Rule 55(c), Ala. R. Civ. P., provides:

“(c) Setting Aside Default. In its discretion, the court may set aside an entry of default at any time before judgment. The court may on its- own motion set aside a judgment by default within thirty (30) days after the entry of the judgment. The court may also set aside a judgment by default on the motion of a party filed not later than thirty (30) days after the entry of the judgment.”
“ ‘By its plain language, Rule 55(c) confers broad discretionary authority upon trial judges. This discretion, however, is not boundless. Rule 1(c), Ala. R. Civ. P., states: “These rules shall be construed to secure the just, speedy and inexpensive determination of every action.” Thus, Rule 1 mandates that trial courts construe Rule 55(c) to effectuate an expeditious, efficient, and just resolution of litigation. This requires a trial court to balance two competing policy interests associated with default judgments: 1) the need to promote judicial economy and 2) the need to preserve an individual’s right to defend on the merits. See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Civil, § 2693 (2d ed.1983).’ ”

Ex parte Family Dollar Stores of Alabama, Inc., 906 So.2d 892, 898 (Ala.2005) (quoting Kirtland v. Fort Morgan Auth. Sewer Serv., Inc., 524 So.2d 600, 604 (Ala. 1988)).

In Kirtland v. Fort Morgan Authority Sewer Service, Inc., supra, our Supreme Court established a two-pronged analysis for evaluating motions under Rule 55(c) for relief from default judgments. This two-pronged analysis is designed to balance the two competing policy interests of judicial economy and a litigant’s right to defend on the merits. Kirtland, 524 So.2d at 604.

The first prong of the analysis identified by the Kirtland Court is that the. trial court must presume that cases “should be decided on the merits whenever practicable.” 524 So.2d at 604. The second prong of the analysis entails the consideration of three factors commonly referred to as the Kirtland factors: “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” Kirtland, 524 So.2d at 605.

As this court recently observed in Sumlin v. Sumlin, 931 So.2d 40 (Ala.Civ.App. 2005), the two-pronged analysis of a Rule 55(c) motion begins with the presumption that a case should be decided on the merits whenever practicable

“because ‘the interest in preserving a litigant’s right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy.’ [Kirtland,] 524 So.2d at 604. It is against this presumption and its recognition of the paramount nature of a litigant’s right to defend on the merits that this court should interpret and apply the second step in the Kirtland analysis.”

931 So.2d 44 at (emphasis added). As the Kirtland Court, itself, explained:

“First, when exercising discretionary authority pursuant to Rule 55(c), a trial judge should start with the presumption that cases should be decided on the merits whenever practicable. Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3rd Cir.1984). The Aabama Constitution and our past opinions construing the default judgment rule support the conclusion that the interest in preserving a litigant’s right to a trial on the merits is paramount and, therefore, outweighs the interest of promoting judicial economy. We have repeatedly held that the trial court’s use of its discretionary authority should be resolved in favor of the defaulting party where there is doubt as to the propriety of the default judgment. Johnson v. Moore, 514 So.2d 1343 (Ala. 1987); Elliott v. Stephens, [399 So.2d 240 (Ala.1981) ]; Oliver v. Sawyer, 359 So.2d 368 (Ala.1978); Knight v. Davis, 356 So.2d 156 (Ala.1978). We have affirmatively acknowledged the disfavorable treatment afforded default judgments on the ground that such judgments preclude a trial on the merits. Oliver v. Sawyer, supra, at 369. We have also construed Rule 55(c) as contemplating a liberal exercise of a trial court’s discretion in favor of setting aside default judgments. Ex parte Illinois Central Gulf R.R., 514 So.2d 1283 (Ala.1987). Moreover, Article 1, §§ 6 and 13, Alabama Constitution of 1901, by guaranteeing the due process rights of citizens, and Article 1, § 10, by holding inviolate a person’s right to defend himself in a civil action to which he is a party, elucidates this state’s commitment to protect an individual’s right to attain an adjudication on the merits and to afford litigants an opportunity to defend. We, therefore, emphatically hold that a trial court, in determining whether to grant or to deny a motion to set aside a default judgment, should exercise its broad discretionary powers with liberality and should balance the equities of the case with a strong bias toward allowing the defendant to have his day in court.”

524 So.2d at 604-05 (emphasis added).

The “strong bias” recognized by the Kirtland Court in favor of deciding cases on the merits is particularly strong in domestic-relations cases. As this court stated in DeQuesada v. DeQuesada, 698 So.2d 1096 (Ala.Civ.App.1996):

“ We think that especially in the divorce context, a court should be particularly reluctant to uphold a default judgment (and thereby deprive a litigant of his day in court) because it means that such important issues as child custody, alimony, and division of property will be summarily resolved.’ ”

698 So.2d at 1099 (quoting Evans v. Evans, 441 So.2d 948, 950 (Ala.Civ.App. 1983)). As this court even more recently observed:

“Indeed, we can envision no species of case in which the ‘strong bias’ in favor of reaching the merits, see Kirtland, 524 So.2d at 605, could be any stronger than in a case such as this involving custody of a minor child.”

Sumlin, 931 So.2d at 44. See generally, e.g., Davis v. Davis, 743 So.2d 486, 487 (Ala.Civ.App.1999) (quoting Fesmire v. Fesmire, 738 So.2d 1284, 1287 (Ala.Civ. App.1999), quoting in turn other cases that establish a court’s “ “ ‘duty to guard and protect the interest of its infant wards with scrupulous care’ ” ’ ”).

Based on our review of the record and the parties’ arguments, and in the context of the particularly strong presumption in favor of deciding child-custody cases on their merits, we cannot conclude that a weighing of the three factors to be considered in the second prong of the Kirt-land analysis justified the trial court’s denial of the wife’s motion to set aside the default judgment. There is no suggestion that the husband would have been unfairly prejudiced by setting aside the default judgment; nor is there any evidence indicating that the wife was guilty of the type of culpable conduct that might mitigate in favor of the trial court’s refusal to set aside the default judgment. In fact, in his appellate brief, the husband focuses his argument on the first of the three Kirt-land factors, i.e., whether the wife sufficiently demonstrated the existence of a potentially meritorious defense.

Although the wife failed to file a timely answer, she promptly filed a motion to set aside the default judgment in which she alleged that she had miscommunicated with the attorneys who ultimately represented her and that she had attempted to file an answer within days after the default judgment was entered, but the filing was refused. As to the substance of her position, the wife alleged that the husband had “forcefully remov[ed] the child from the physical custody of the [wife],” that “[t]he well being of [the parties’] child is at issue,” and that “the [wife] is the more fit and proper person to have custody of the minor child.” In this regard, the present case is not unlike that of Loupe v. Loupe, 594 So.2d 155 (Ala.Civ.App.1992), in which this court reversed the entry of a default judgment where the father filed an untimely “answer” along with his motion to set aside a default judgment. As this court held in Loupe, the father “alleged that he is the fit and proper person to be awarded custody of the children. It is foreseeable that the father could produce evidence on these points that could change the outcome of the trial court’s judgment; thus, we find that the first factor of Kirt-land has been met.” 594 So.2d at 156.

Based on the record presented in this case, including the wife’s allegations in her motion to set aside the default judgment, the prompt filing of that , motion and the lack of any prejudice that would result from granting that motion, and the lack of culpability within the meaning of that term prescribed by our Supreme Court in Kirt-land, we conclude that the trial court did not balance the equities relating to the wife’s motion to set aside the default judgment with the requisite strong bias in favor of deciding a custody case such as this on its merits. We therefore reverse the trial court’s judgment and remand the cause for proceedings consistent with this opinion.

REVERSED AND REMANDED.

CRAWLEY, P.J., concurs.

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

BRYAN, J., dissents, without writing.

      . "Conduct committed wilfully or in bad faith constitutes culpable conduct for purposes of determining whether a default judgment should be set aside. ' Negligence by itself is insufficient.” Kirtland, 524 So.2d at 607. There is no indication in the record before us of any conduct committed wilfully or in bad faith by the wife.

      . The husband concedes that "it is likely that [the wife] may satisfy the [culpability] prong of the [Kirtland ] test.” Although the husband contends that the wife failed to meet the second (prejudice) prong of the Kirtland test, he explains his position in this regard as follows:
      "Although the Kirtland test is put forth as a three pronged test, where the party moving to set aside a default judgment presents a 'meritorious defense’ it would appear that courts would tend to find that the non-movant is not unduly prejudiced by a hearing on the merits. Rasmussen v. W.B. Hutton & Co., 68 F.R.D. 231 (N.D.Ga.1975). Therefore, it is [the wife’s] lack of a meritorious defense that warranted a denial of her motion to set aside."

      (Emphasis added.)
      Although we are not bound by the concession of the husband’s brief, we agree with the husband that nothing in the record indicates the existence of any culpability or prejudice that would weigh against the strong presumption in this custody case in fávor of a decision on the merits. As to the issue of prejudice, see also Sumlin, 931 So.2d at 49 (holding under the circumstances presented in that case that a default judgment was not appropriate "where ... the record reflects that the defaulting party moved so promptly for relief”); and DeQuesada, 698 So.2d at 1099 ("The record does not indicate how the husband was informed of the entry of default; however, the record does reveal that he promptly took action by moving to have it set aside and by asserting a meritorious defense in support of his motion.”).


author: CRAWLEY, Presiding Judge. MURDOCK, Judge,

text:
    Kelly Frances PARKER v. Robert Charles PARKER. Robert Charles Parker v. Kelly Frances Parker.
    2040696.
    Court of Civil Appeals of Alabama.
    June 23, 2006.

      Douglas Corretti of Corretti, Newson & Hawkins, Birmingham; and Donna Richardson Shirley, Birmingham, for appellant/cross-appellee Kelly Frances Parker.
    Scott Gilliland and Kim Davidson of Davidson, Gilliland, Kinnell & Phillips, P.C., Birmingham, for appellee/cross-ap-pellant Robert Charles Parker.
   CRAWLEY, Presiding Judge.

Kelly Frances Parker (“the mother”), sued her husband, Robert Charles Parker (“the father”), for a divorce in July 2003, alleging, in part, an incompatibility of temperament and an irretrievable breakdown of the marriage as grounds for the divorce. The trial court entered a final judgment on April 19, 2005, divorcing the parties, awarding custody of the parties’ two children to the father, granting the mother visitation rights, and dividing the marital property; the trial court reserved ruling on the issue of child support due to the mother’s “apparent” lack of income.

The mother timely filed a notice of appeal on April 22, 2005, three days after the entry of the judgment. Thirty days after the entry of the judgment, the father filed a postjudgment motion to alter or amend the judgment. The trial court denied the father’s postjudgment motion 62 days later, on July 20, 2005. The father then cross-appealed, timely filing his own notice of appeal 14 days later, on August 3, 2005.

I. Factual Background

The parties married in January 1991. The parties had two daughters born to them during the marriage; the older daughter was born in 1994, and the younger daughter was born in 1997. At the time of the trial, the father was 34 years old, and the mother was 38 years old.

The parties have been separated since 1998. From the time of the parties’ separation until two months before trial, the mother has had physical custody of the children, without a court order, but with the father’s consent. The father has had custody of the children on the weekends (at least for several years), during spring break, and one month during the summer. The mother has custody of her sister’s child, who was placed with her seven years before the trial in this matter by the Georgia counterpart to the Alabama Department of Human Resources (“DHR”), with the cooperation of DHR.

The mother testified that the father was abusive and that he had struck her on several occasions. On the other hand, the father testified that the mother had struck him many times and that she had done so as often as once or twice a week. The father also testified that when he had struck the mother it was in self-defense.

Testimony at trial by several witnesses indicated that the mother has a history of crude confrontations with neighbors, other parents at the children’s school, and school officials. One neighbor testified that she had been confronted by the mother, whom she had never met before, as she was leaving her house. The neighbor stated that the mother had approached her and, using vulgar language, had accused her of having sexual intercourse with the father. The neighbor testified that, at the time, the mother was with two children whom the neighbor assumed to be the mother’s children.

The principal at the school the parties’ children attended testified that she discussed with the mother several concerns the principal had regarding incidents at the school. The principal testified that one incident concerned the mother’s blocking traffic as she confronted another parent over problems one of-the parties’ children had with that parent’s child in school. Another incident concerned the mother’s allegedly berating another child and that child’s mother over the telephone, and then in person. Following an additional incident in which the mother went to the principal’s office and loudly complained about the mistreatment she felt the parties’ children were receiving from other children in school, the principal wrote a letter to the mother that provided rules for the mother’s conduct at the school campus, the violation of which, the principal warned, could “result in [her] arrest by the Hoover Police Department.” The principal wrote that she was prompted to take these actions by “recent events that have occurred during the past two weeks involving [the mother] on Green Valley Elementary school grounds as well as the fact we have students afraid to come to school because of these incidents.” The principal testified that the mother is the only parent to whom she has ever had to write such a letter.

Additionally, the parties’ children were often absent from school without an excuse. One of the children, the father testified, was absent from school 14 times during the then current school year, while the other child was absent 22 times.

Although there was testimony at trial indicating that the father was not an ideal parent, there was also ample testimony indicating that the father loved his children and made a concerted effort to provide for their well-being. The father testified that after the parties’ separation, he voluntarily paid child support to the mother in the amount of about $750 to $800 a month. Eventually, the father testified, he had to declare bankruptcy. At the time of the trial, the father was paying $615 per month in child support and living in a small efficiency apartment. Evidently concerned that he would need more living space, the father stated that he had recently located an available two-bedroom apartment into which he and the children could move in the event he obtained custody of the children and no longer had to pay child support to the mother.

The father’s testimony indicates that he provided more than monetary support for the children; he would often take the children on trips to the beach, to Chattanooga, Tennessee, to the Space and Rocket Center in Huntsville, and to Gulf Shores during the time he had with them. The father also cooked, cleaned, and otherwise provided for the children when they were with him. Indeed, the father’s conduct toward the children was such that the mother testified that she has never expressed any objection to the children visiting the father and if she were awarded custody that she would have no problem with the children continuing to visit the father.

Regarding the parties’ employment, the father testified that he had been employed at an automobile dealership for the seven years preceding the trial as an automotive technician. He also testified that he did not graduate from high school and that he has not obtained a GED. He earns an average of $3,200 per month.

The father also testified that he leaves for work at about 7:30 in the morning and returns home by about 6:00 at night. Acknowledging the difficulty in caring for the children while he worked, the father testified that he has looked into some church programs and after-school programs for the children. The father stated on his CS-41 Child Support Obligation/Income Affidavit form that his monthly employment income was $3,567.75, and that he pays $569 per month for the children’s health insurance.

Although the mother stated on her CS-41 form that she was unemployed, she also, on the same form, indicated that her income from employment was $975 per month. Later, at trial, the mother testified that, at the time she completed her CS-41 form, she was, in fact, employed. Her testimony was as follows:

“Q. [attorney for the father] Do you recall signing a CS-41 on your income and your employment information on January the 12th [2005]?
“A. [the mother] Yes, ma’am.
“Q. Do you recall signing an affidavit stating that you were not currently employed?
“A. Yes, ma’am.
“Q. But you were?
“A. At that time, no, I wasn’t. I don’t know the exact date I started babysitting. I was not employed when I came to court.
“Q. [attorney for the father] Well, January 12th was like a Wednesday, so do you recall also on your affidavit you didn’t have any employment wages?
“A. [the mother] Yes, ma’am.
“Q. So January 12th, according to your witness, you were being paid $150 a week to work for her?
“A. No, ma’am, I had not gotten paid.
“Q. No. You were working for her, according to her testimony; is that correct?
“A. Yes, ma’am.
“Q. And she was paying you $150 a week?
“A. Yes, ma’am.
“Q. And the affidavit that you signed with the Court did not reflect any income from babysitting?
“A. Well, actually in all reality Ms. Gonzalez didn’t pay me until the end of the first month when I started babysitting for her because she didn’t have the money.
“Q. No, ma’am, I didn’t ask you that. I said that document does not reflect any money from your job that you testified to that you started at the first of January; is that correct?
“A. Yes, ma’am.
“Q. And not only that, you checked the box on the affidavit saying you were not currently employed as of January 12, 2005?
“A. Yes, ma’am.
“Q. And that’s a — I’m sure you were explained that this was sworn to be true and correct when you signed it?
“A. Yes, ma’am.
“Q. So there have been two occasions at this point that the Court has been told information by you that was not correct?
“A. Can I speak?
“THE COURT: That’s yes or no.
“Q. [attorney for the father] You can answer the question?
“A. Yes.”

The mother also testified that at the time of the trial she was working as a babysitter:

“A. [the mother] I — well, I babysat a little bit [in 1998]. I don’t know if that counts really as a job, but I did babysit for children in the apartment complex.
“Q. [attorney for the mother] Well, aren’t you now babysitting?
“A. Yes, sir.
“Q. [attorney for the mother] And you intend to continue to do that?
“A. [the mother] Yes, sir.
“Q. And are you paid for that?
“A. Yes, sir.
“Q. How much do you receive for that babysitting?
“A. $150 dollars a week.
“Q. And that’s being paid on a regular basis; is that correct?
“A. Yes, sir.”

The above testimony was not in isolation; later, the mother testified as follows:

“Q. [attorney for the mother] Do you have a judgment as to how much you’ve worked this year, 2005, for three months and five days?
“A. [the mother] For about two and a half months.
“Q. How many was that?
“A. Two and a half months.
“Q. And what have you done?
“A. Babysat.”

Additionally, the mother’s father testified that, although the mother has worked at various jobs over the years, she has never been self-supporting to the point he did not contribute to her income.

On April 19, 2005, the trial court entered its judgment, in which it awarded custody of the children to the father and visitation to the mother. The trial court’s judgment also stated:

“The issue of child support is reserved due to the [mother’s] apparent lack of income.
“That reference is hereby made in this Judgment to a separate order entitled, Order of Continuing Income Withholding for Support, pursuant to Code of Alabama, 1975 Title 30-3-60 et seq. which is specifically incorporated herein as apart of this Court’s order and decree in this cause, and this order shall not be served.”

The “Order of Continuing Income Withholding for Support,” referenced by, and incorporated into, the judgment is a form in which, next to a blank space where the trial judge could write the name of the mother’s employer, the trial judge wrote: unemployed.

The mother appealed, asserting that the trial court erred in awarding custody of the children to the father. After his post-judgment was denied by the trial court, the father cross-appealed, asserting error as to the issue of child support.

II. Discussion

A. Jurisdictional Issues

“It is well settled law that ‘jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.’ Pace v. Utilities Bd. of Foley, 752 So.2d 510, 511 (Ala.Civ.App.1999) (quoting Singleton v. Graham, 716 So.2d 224, 225 (AIa.Civ.App. 1998)). We also note that an untimely filed notice of appeal results in a lack of appellate jurisdiction, which cannot be waived. Luker v. Carrell, [Ms. 2040318, March 31, 2006] — So.2d -, - (Ala. Civ.App.2006). Additionally, “[t]he question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case.” Hubbard v. Hubbard, 935 So.2d 1191, 1192 (Ala.Civ.App.2006).

This case presents several interesting jurisdictional questions. The first is whether the father’s postjudgment motion, filed after the mother filed her notice of appeal, held the mother’s appeal in abeyance until the trial court ruled on the postjudgment motion. We have frequently addressed the opposite situation, in which the filing of a postjudgment motion predates the filing of a notice of appeal. In this case, if the filing of the father’s post-judgment motion did not hold the appeal in abeyance, then one consequence would be that his notice of appeal would have been untimely, coming several months after the mother filed her notice of appeal instead of within the required 14 days. The comments to Rule 4(a)(5), Ala. R.App. P., note that the rule alters the procedure established by several cases which, among other things, held that a timely filed notice of appeal is subject to “ouster” by the filing of an opponent’s postjudgment motion. However, we note that such language does not mean that the effect of Rule 4(a)(5) in a situation like this is to vest jurisdiction in an appellate court. Rather, instead of “ousting” the appeal, the rule specifically states that the appeal “shall be held in abeyance until all post-judgment motions ... are ruled upon.” In other words, the appeal is temporarily suspended pending the resolution of the postjudgment motion by the trial, court. Thus, the mother did not need to refile a notice of appeal after the father’s postjudgment motion was denied, and the father’s notice of appeal, filed 14 days after the resolution of his post-judgment motion, was timely filed, as were the briefs the parties submitted.

The second jurisdictional question we must resolve is whether the trial court’s judgment is a nonfinal judgment. The trial court’s judgment stated, “[t]he issue of child support is reserved due to the [mother’s] apparent lack of income.”

We held in Tomlinson v. Tomlinson, 816 So.2d 57 (Ala.Civ.App.2001), that the trial court’s judgment was nonfinal when the trial court reserved ruling on the issue- of child support, when purportedly entering its “final” judgment, to allow the parties to submit the necessary child-support forms required by Rule 32(E), Ala. R. Jud. Admin. In Reid v. Reid, 844 So.2d 1212 (Ala.Civ.App.2002), we held that the trial court’s judgment was nonfinal when the trial court reserved ruling on the issue of child support pending the mother’s taking an examination to obtain a nursing license, after which the trial court would determine how much income to impute to the mother for the purpose of calculating her child-support obligation.

In this case, however, the trial judge has “reserved” ruling on the issue of child support because of the mother’s apparent lack of income. Thus, this case is distinguishable from the above-cited cases because the trial court did not reserve the ruling on the issue of child support pending the occurrence of some specific event, like the submission of child-support forms in Tomlinson, supra, or obtaining the results of a nursing-license examination in Reid, supra. In this case, the purported “reservation” of the issue of child support does not change the fact that the trial court’s judgment does not award child support; therefore, it is as final as any child-support judgment can be.

B. Substantive Issues

1.

The mother argues in her briefs to this court that the trial court erred in awarding custody of the children to the father. In doing so, the mother draws this court’s attention to certain facts, in-eluding the fact that the mother was granted custody of her sister’s daughter by the Georgia counterpart to DHR, working in conjunction with DHR, and the fact that the mother had physical custody of the children from the time the parties separated in 1998, until two months before the trial.

“ ‘In an action between parents seeking an initial award of custody, the parties stand on equal footing and no presumption inures to either parent. The trial court’s overriding consideration is the children’s best interests and welfare. The factors that enter into the court’s custody determination include the child’s age and sex and each parent’s ability to provide for the child’s educational, material, moral, and social needs. Likewise, it is proper for the court to consider the “characteristics of those seeking custody, including age, character, stability, mental and physical health ... [and] the interpersonal relationship between each child and each parent.” ’
“Graham v. Graham, 640 So.2d 963, 964 (Ala.Civ.App.1994)(quoting Ex parte Devine, 398 So.2d 686, 696-97 (Ala.1981)) (internal citations omitted). In addition, our review of custody1 determinations based on ore tenus evidence is quite limited; the trial court’s custody judgment is presumed correct and should be reversed only if the judgment is plainly and palpably wrong. Bates v. Bates, 678 So.2d 1160, 1161-62 (Ala.Civ.App.1996). ‘ “The ore tenus rule is grounded upon the principle that when the trial court hears oral testimony-it has an opportunity to evaluate the demeanor and credibility of witnesses.” ’ Ex parte Anonymous, 803 So.2d 542, 546 (Ala.2001)(quoting Hall v. Mazzone, 486 So.2d 408, 410 (Ala.1986)).”

Smith v. Smith, 887 So.2d 257, 262 (Ala. Civ.App.2003). Applying the above factors to this case, we cannot say that the trial court was plainly and palpably wrong in awarding custody of the children to the father. There is evidence in this case that supports the trial court’s conclusion that the children’s best interests would be served by placing them with the father.

For example, there is evidence indicating that the mother was less mature than the father and, therefore, that factors such as the parties’ “character, stability, [and] mental ... health” weighed in favor of awarding custody to the father. The testimony of the mother’s neighbor was that the mother — in the presence of children— angrily accused the neighbor of having sex with the father. The children’s principal testified that the mother repeatedly caused disruptions on the school grounds to the point that a letter had to be written to the mother providing rules for her conduct on the school grounds. Thus, the trial court could have concluded that the mother frequently reacted to problems in her own or the children’s lives in an unseemly manner and that it would not be in the best interests of the children to be in her custody. The fact that the , mother was awarded custody of her sister’s child does not mean that, between herself and the father in this case, the children’s best interests would be served by being placed in her custody.

The father, although not wealthy, appears capable of providing for the children emotionally and economically. He takes the children on vacations regularly, and he cooks and cleans for them when they stay with him. Despite some testimony indicating that the father frequently had angry outbursts toward the mother, there is no indication that he exhibits such outbursts to the children. In fact, the mother even testified that she has never objected to the father’s visiting with the children. Additionally, the father has held a steady job as an automotive technician for seven years preceding the trial. He paid voluntary child support for several years, he pays for the children’s medical insurance, and he has made arrangements to get a larger apartment to house the children. Thus, applying the ore t'enus standard of review, we cannot say that the trial court in this case was plainly and palpably wrong in awarding of custody to the father.

2.

. In his cross-appeal, the father argues that the trial court’s judgment in regard to child support was not final; and alternatively, in the event we determine the judgment was final, he argues that the trial court erred in not following the child-support guidelines established by Rule 32, Ala. R. Jud. Admin. As we previously determined, the trial court’s judgment “reserving” a ruling on the issue of child support was in fact a final judgment.

The father’s second argument is that the trial court’s failure to award child support due to the mother’s “apparent lack of income” was an abuse of the trial court’s discretion. More specifically, the father argues that the trial court did not explain why it chose to deviate from the child-support guidelines, and thus it did not comply with the mandate of Rule 32, Ala. R. Jud. Admin.

We agree with the father. The trial court’s judgment did not award the father any child support from the mother because of her “apparent lack of income.”

Rule 32(A)(ii), Ala. R. Jud. Admin., requires a trial court to justify why application of the child-support guidelines would be unjust or .inequitable. “ ‘A trial court’s failure to follow the guidelines or to make written a finding that application of the guidelines would be unjust, is reversible error.’ ” Robinson v. Robinson, 795 So.2d 729, 734 (Ala.Civ.App.2001)(quoting State ex rel. Waites v. Isbell, 718 So.2d 85, 86 (Ala.Civ.App.1998)). Were we to construe the “apparent lack of income” phrase to mean that the mother is unemployed and thus cannot pay child support, then perhaps we could affirm the trial court’s judgment as to the issue of child support as being in compliance with Rule 32(A)(ii).

However, the “apparent lack of income” language does not indicate whether the trial court made such a factual finding. Either the mother had income or she did not. The mother’s CS-41 form filed with the trial court two months before the trial indicates that the mother’s income was $975 per month. Additionally, the mother never stated in her testimony that she has no income. Indeed, the mother stated at trial that she was currently employed as a babysitter earning $150 per week on a regular basis, and that she had been employed as a babysitter for two and a half months during the three months preceding the trial.

Furthermore, the mother admitted she completed her CS-41 form inaccurately when she marked that she was unemployed. On the same form she also noted that she was earning $975 per month in employment income.

One could construe the trial court’s judgment to mean that the lack of an award of child support was because the trial court found that the mother lacked adequate income. However, such a generous interpretation reads more into the judgment than is there, and we decline to construe the judgment in such a way. Certainly, the trial court did not make any “written finding on the record indicating that the application of the guidelines would be unjust or inappropriate,” as required by Rule 32(A), Ala. R. Jud. Admin., and which would have been sufficient to rebut the presumption that the child-support guidelines should be followed.

Importantly, Rule 32(A)(ii), Ala. R. Jud. Admin., provides the only potential basis under which the trial court’s judgment in this case could comply with the requirement to justify a deviation from the child-support guidelines. It provides that a written finding indicating that the application of the guidelines would be unjust or inappropriate is sufficient to rebut the presumption that the guidelines provide the correct amount to be awarded, if that finding is based upon

“[a] determination by the court, based upon evidence presented in court and stating the reasons therefore, that application of the guidelines would be manifestly unjust or inequitable.”

Rule 32(A)(ii), Ala. R. Jud. Admin. At trial, the mother testified that she earned about $600 per month from babysitting; she also declared on her CS-41 form that she earned $975 per month from her employment. Even the mother, in her reply brief to this court, concedes that “[djuring the trial [the mother] testified she made $150.00 per week babysitting for her neighbor.” Additionally, there is evidence indicating that the mother’s parents contribute to her income. Rule 32(B)(2)(a), Ala. R. Jud. Admin., defines “gross income” to include income from any source, including among other things, gifts. In accordance with this rule, the trial court in this case must take into account all sources of income to the mother when computing her support obligations, and it has no discretion in this matter. Massey v. Massey, 706 So.2d 1272, 1274 (Ala.Civ.App.1997)(citing Rule 32, Ala. R. Jud. Admin., and Rogers v. Sims, 671 So.2d 714, 716 (Ala.Civ.App.1995)).

As our supreme court observed in Ex parte Moore, 805 So.2d 715, 719 (Ala.2001):

“The figure calculated by using Form CS-42 is accorded a rebuttable presumption that it is the correct amount of child support to be awarded.... Rule 32(A), Ala. R. Jud. Admin.; Rolen v. Pickering, 628 So.2d 850 (Ala.Civ.App. 1993).... In addition, a trial court can make a child-support award that deviates from the recommended figure as calculated according to the Guidelines, but to support such a deviation the court must make written findings of fact based upon evidence presented to it. Rule 32(A)(1); State Dep’t of Human Res. v. J.B., 628 So.2d 889 (Ala.Civ.App.1993).”

If the mother’s income changed in the two months between when she submitted her CS-41 form and the trial, then she should have resubmitted a new form, and the trial judge should have completed a new CS-42 form. The only CS-42 form in the record was completed by the trial judge at the time the parties submitted their CS-41 forms, and it indicates that the father is the one paying child support.

As in Robinson, we are unable to determine how the trial court made its calculations, or lack of calculations in this case, concerning the mother’s child-support obligations; therefore, we are compelled to reverse the trial court’s judgment as to this issue and to remand this case. 795 So.2d at 733. In short, the trial court’s judgment denying any child support to the father because of the mother’s “apparent lack of income” does not comply with Rule 32, Ala. R. Jud. Admin.

III. Conclusion

We affirm the trial court’s judgment as to the award of custody to the father. However, because the trial court did not make a clear factual finding that complies with Rule 32, Ala. R. Jud. Admin., in regard to child support, we reverse the trial court’s judgment as to that issue and remand the case so that the trial court may determine whether such a finding is warranted, and, if so, justify in writing the reason why application of the child-support guidelines would be “unjust or inappropriate.”

The father’s request for an attorney fee on appeal is denied.

APPEAL — AFFIRMED.

CROSS-APPEAL — REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, PITTMAN, and BRYAN, JJ., concur.

MURDOCK, J., concurs in the result in part and dissents in part, with writing.

MURDOCK, Judge,

concurring in the result in part and dissenting in part.

I concur in the result reached by the main opinion except with respect to that opinion’s reversal of the trial court’s judgment insofar as it declined to award child support in this case. In my opinion, the trial court’s judgment was sufficient to satisfy the requirements of Rule 32(A)(ii), Ala. R. Jud. Admin., and I therefore respectfully dissent as to the reversal of the judgment in that regard.

      . The mother also argues in her reply brief that the father's initial brief was untimely filed. However, because the father’s brief was filed 21 days after the supplemental clerk's record was certified as complete, the father's brief was timely.

      . Rule 32(B)(2)(b) specifically excludes from "gross income” "child support received for other children or benefits received from means-tested public assistance programs, in-eluding, but not limited to, Aid to Families with Dependent Children, Supplemental Security Income, food stamps, and general assistance.”