text:
    CITY OF SELMA v. DALLAS COUNTY.
    1051711.
    Supreme Court of Alabama.
    March 9, 2007.

      Alex L. Holtsford, Jr., Rick A. Howard, and April W. McKay of Nix Holtsford Gilliland Higgins & Hitson, P.C., Montgomery, for appellant.
    John W. Kelly III and J. Wesley Kelly IV of Kelly & Kelly, Selma; J. Garrison Thompson, Selma; and Winthrop E. Johnson of Webb & Eley, P.C., Montgomery, for appellee.
   WOODALL, Justice.

The City of Selma (“the City”) appeals from a summary judgment in favor of Dallas County (“the County”) in the City’s declaratory-judgment action challenging the right of the County to erect a communications tower at the Dallas County courthouse, which is located within the geographical limits of the City. We affirm.

I. Factual Background

In May 2006, the County began construction of a communications tower on the premises of the Dallas County courthouse. The City commenced this action, seeking to enjoin the construction of the tower on the ground that the location of the tower violated two of the City’s ordinances: Ord. 01-9091, “An Ordinance to Provide for Designation of Historic Properties or Historic Districts” (“the historic ordinance”), and Ord. COS 013-00/01, “A Local Ordinance Regulating the Siting of Wireless Telecommunications Facilities” (“the tower ordinance”). It also alleged that construction of the tower violated Ala. Const.1901, § 220.

The City and the County filed cross-motions for a summary judgment. The trial court granted the County’s motion and denied the City’s motion. It found that the tower ordinance and the historic ordinance were zoning ordinances and held that neither ordinance was enforceable against the County. It also held that construction of the tower did not offend § 220. From that judgment, the City appealed.

We provide the underlying facts, which are undisputed or unchallenged, as well as much of the relevant statutory authority, from the affidavit of Brett H. Howard, director of the Dallas County Department of Homeland Security and Emergency Management:

“1. [Brett H. Howard] ... serve[s] as the Director of the Dallas County Department of Homeland Security and Emergency Management. [He is] also a member of the Board of Commissioners of the Dallas County Telecommunications District, commonly known as the Dallas County E-911 Board, and [has] been designated as the ‘point of contact’ or ‘POC’ between Dallas County, Alabama, and the [Alabama] Department of Homeland Security [‘the state department’]. - • •
“2. The Dallas County Department of Homeland Security and Emergency Management [‘the county department’] was created by the Dallas County Commission pursuant to § 31-9-10 of the [Alabama Emergency Management Act of 1955, Ala.Code 1975, § 31-9-1 et seq.,] as amended, which authorized and directed each political subdivision of this state to establish an organization for emergency management. [The county] department was created to perform emergency management functions within Dallas County, which was given those powers and authorities set forth in § 31-9 — 10(b) ..., including the power to appropriate and expend funds, make contracts, obtain and distribute equipment, materials and supplies for emergency management purposes; to provide for the health and safety of persons and property, including emergency assistance to the victims of any disaster; and to direct and coordinate the development of emergency management plans and programs in accordance with the policies and plans set by the federal and state emergency agencies. The authority of [the county] department is further defined in § 31-9-3(1) of the 1975 Code of Alabama, as amended, and includes:
“ ‘[the] carrying out [of] all emergency functions, other than [functions] for which [military forces or other] federal agencies are primarily responsible, to prevent, minimize, and repair injury and damage resulting from disasters caused by enemy attack, sabotage, or other hostile action, or by fire, flood, earthquake, or other natural cause. These functions include, without limitation, fire-fighting services; police services; communications; radiological, chemical and other special weapons of defense; evacuation of persons from stricken areas; emergency welfare services (civilian war aid); emergency transportation; plant protection; temporary restoration of public utility services; and other functions related to civilian protections, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.’

“(Emphasis added [in Howard’s affidavit].)

“3. [The state department] is a state agency established by the Alabama Homeland Security Act of 2003, appearing in § 31-9A-1, et seq., Code of Alabama 1975, as amended [‘the AHSA’]. It was established in order to ensure that the preparations in the state of Alabama will be adequate to deal with events of the nature of the unprecedented and devastating attack of September 11, 2001, upon the people and the vital infrastructure of the United States and to protect and preserve the life, health, welfare, and property of the people of Alabama. (See § 31-9A-2, Code of Alabama, 1975, as amended.)

The duties of the [director of the state department] include:

“ ‘Coordinating] the efforts to protect the people of Alabama and the state’s critical infrastructure from terrorist attack, including, but not limited to, energy production, transmission and distribution systems, telecommunications, nuclear facilities, public and privately owned information systems, special public and private events, transportation hubs and networks, livestock, water, food supplies, and research institutions. (§ 31-9A-[5(c)(5) ], emphasis added [in Howard’s affidavit]).’
“[The state department] was further established for the purpose of assisting, coordinating, and encouraging homeland security preparedness by state departments and agencies and political subdivisions of the state by authorizing the making of grants to the political subdivisions of this state for the purpose of promoting homeland security. (See § 31-9A-2(b).) As such, the [state department] is the principal state agency which coordinates the receipt and distribution of funds available from any source with regard to Homeland Security related items, issues, and services. (See § 31-9A-4(b).)
“4. The [AHSA] further provides for the coordination of functions and activities with the federal government and with federal legislation and regulations (see § 31-9A-8). [It also] empowers the [state-department] director to prepare a comprehensive plan and program for homeland security ‘to be integrated and coordinated with the plans of the federal government and of other states to the fullest possible extent’; and ‘to cooperate with the United States Department - of Homeland Security in matters pertaining to security and the defense of the state and nation.’ Section 31-9A-10 ... authorizes the [state-department] director to accept offers to the state and to its political subdivisions of equipment, supplies, materials, or funds by way of gift, grant, or loan for the purposes of homeland security.
“5. In fiscal year 2004, the [state department] set aside federal grant funds for the purchase of interoperable communications equipment for Alabama’s counties. This equipment is commonly known as ‘bridging equipment,’ designed to allow all emergency responders within each county to communicate with each other over existing radio frequencies. The greatest obstacle faced by emergency responders in responding to a disaster is the inability to communicate.... For example, ... the city police operate on a different frequency than the county sheriffs department[s] and county volunteer fire departments.... Interoperable communications are part of a multi-phased, multi-year plan by the National Department of Homeland Security.... [The County’s] plan to obtain a tower and bridging equipment is a part of Homeland Security’s plan to ensure county emergency responders can communicate with each other effectively across the state, and it meets the deadlines and goal of the National Homeland Security plan.... The Homeland Security Grant Program exists to help states to obtain resources ‘critical to building and sustaining capabilities to achieve the Interim National preparedness Goal and implement State and Urban Area Homeland Security Strategies.’ ... As a small cog in the larger machine, i.e., Homeland Security’s national goal of greater security, the lack of interoperable communications in Dallas County this year would set not only Dallas County back, but, also, the State of Alabama in its attempt to continue to advance along with the national goal of greater security in each locality.
“6. The interoperable communications plan developed by the [state department] is to provide funding for a communications bridge in every county. The tower and bridging equipment is critical because it will allow all emergency responders, including the Dallas County sheriffs department, the municipal police and fire departments, and the various volunteer fire departments to communicate with one another regardless of the radio frequency utilized by them. In addition, this interoperability would allow for emergency responders who come to Alabama in the event of disaster to communicate, no matter on what frequency their communications systems may operate. The tower and bridging equipment will also provide means to tie communications together statewide and possibly nationwide. The [state department] reserved $112,000 for the acquisition of this bridging equipment and communications tower.
“7. [Howard] subsequently executed in [his] capacity as Dallas County POC a cooperative agreement with the [state department] for the allocation of funds in the amount of $75,000 to be used for the construction of [the] communications tower. It was a requirement of the grant that these funds be allocated for the purchase of a tower by March 1, 2006....
“9. The communications tower was erected adjacent to the Dallas County Courthouse Annex on May 5-6, 2006.... The placement of the communications tower at [that] location enables the [county department] to fulfill the purpose of the grant. This is a suitable location for the following reasons: The [county department] and the Dallas County sheriffs office [are] located in the Dallas County Courthouse Annex building; [the] location will allow voice communication throughout the entire county, benefitting all emergency responders in Dallas County, no matter what agency they work with ...; [and] this location is equipped with a T-l’ communications line, which is necessary to connect the communications bridging equipment with the dispatchers located at the 911 center.”

(Emphasis added except where otherwise noted.)

On appeal, the City contends that the trial court erred in holding that the County was immune from the application of the two ordinances and that it was not subject to § 220. The trial court’s finding that the historic ordinance and the tower ordinance are zoning ordinances is unchallenged. It is further undisputed that the communications tower was constructed in violation of both ordinances without the City’s permission. The County argues that the construction and operation of the tower is a “governmental function” and, therefore, that in constructing and operating the tower it need not comply with the ordinances.

II. Immunity

It was once “well settled that city zoning ordinances [did] not apply to the operation of a governmental function by a governing body, as opposed to a proprietary function.” Lane v. Zoning Bd. of Talladega, 669 So.2d 958, 959 (Ala.Civ.App.1995) (emphasis added). See City of Birmingham v. Scogin, 269 Ala. 679, 690, 115 So.2d 505, 514 (1959) (“The Alabama cases have long held that zoning does not apply to the operation of a governmental function by a municipality.”); Lauderdale County Bd. of Educ. v. Alexander, 269 Ala. 79, 86, 110 So.2d 911, 918 (1959) (“If a city engaged in a governmental function is not subject to its own zoning regulations, certainly a county engaged in a governmental function is not subject to a city’s zoning regulations.”); Water Works Bd. of Birmingham v. Stephens, 262 Ala. 203, 78 So.2d 267 (1955); Alabama Alcoholic Beverage Control Bd. v. City of Birmingham, 253 Ala. 402, 44 So.2d 593 (1950). “ ‘This distinction is of ancient vintage ....’” Cunningham v. City of Attalla, 918 So.2d 119, 125 (Ala.Civ.App.2005) (quoting 2 Kenneth H. Young, Anderson’s American Law of Zoning § 12.03 (4th ed.1996)). The City, however, questions whether the rule “remains viable” in light of Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), City’s brief, at 13, and, if it does, argues that the construction and operation of the communications tower is not a governmental function. The first question, therefore, concerns the continued viability of the governmental/proprietary-function distinction.

A. Continued, Viability of the Governmental!Proprietary-Function Dichotomy

According to the City, Jackson called into question the continued viability of a distinction between governmental functions and proprietary functions. We disagree. To be sure, Jackson “abolished the judicial doctrine of municipal immunity” from tort liability, Neighbors v. City of Birmingham, 384 So.2d 113, 113 (Ala.1980) (discussing Jackson), which traditionally rested on the distinction between governmental and proprietary functions. In so doing, however, Jackson did no more than give effect to the intent of the legislature evident in Ala.Code 1940, Tit. 37, § 502, now codified at Ala.Code 1975, § 11-47-190. That section provides, in pertinent part:

“No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation unless said injury or wrong was done or suffered through the neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his or her duty....”

(Emphasis added.) This Court in Jackson merely acknowledged what was obvious on the face of the statute, that is, that the legislature had abrogated tort immunity for municipalities to the extent the alleged wrongful acts occurred “through the neglect, carelessness or unskillfulness of ... agent[s], officer[s] or employeefe] of the municipality engaged in work therefor and while acting in the line of [their] dut[ies].” The Court “recognize[d] the authority of the legislature to enter the entire field, and further recognize[d] its superior position to provide with proper legislation any limitations or protections it deem[ed] necessary.” Jackson, 294 Ala. at 600, 320 So.2d at 75.

We are directed to no legislation suggesting that the legislature has acted similarly with respect to immunity from zoning regulations. On the contrary, the Alabama Homeland Security Act of 2003, Ala. Code 1975, § 31-9A-1 et seq. (“the AHSA), includes a section titled “Immunity of state from liability.” That section provides: “All functions under this chapter and all other activities relating to homeland security are declared to be governmental functions and protected by the State of Alabama governmental immunity.” § 31-9A-13 (emphasis added). Additionally, § 31-9-16(a), a part of the Alabama Emergency Management Act of 1955, provides: “All functions under this chapter and all other activities relating to emergency management are hereby declared to be governmental functions.” (Emphasis added.)

It might be said that such statements are not conclusive upon this Court for all ;purposes, that “the question is judicial and not legislative in its nature, and that the Legislature cannot by a declaration make a public governmental function out of one which is inherently merely corporate in its nature.” Williams v. City of Birmingham, 219 Ala. 19, 21, 121 So. 14, 16 (1929). At a minimum, however, such statements may be regarded as evidence indicating that the legislature did not intend to abrogate the distinction between governmental and proprietary functions for all purposes.

Courts have also recognized the governmental/propriety-function dichotomy since Jackson. For example, in Pennick v. City of Florala, 529 F.2d 1242 (5th Cir.1976), the United States Court of Appeals for the Fifth Circuit held that the operation of a sanitary landfill by the City of Florala “in a neighborhood zoned for residential use” was within the municipality’s authority, because the operation of the landfill was “not subject to” the municipality’s “own zoning” regulations. 529 F.2d at 1243. In so holding, the court rejected the plaintiffs’ “suggestion]” that the underlying principles may have been abrogated by Jackson. 529 F.2d at 1244. The court stated: “Since the rules on which we rely do not involve the line of authority or reasoning repudiated in Jackson, we believe that they remain good.” 529 F.2d at 1244.

Moreover, in Jefferson County v. City of Birmingham, 256 Ala. 436, 55 So.2d 196 (1951), this Court recognized a difference between tort liability and zoning for purposes of a governmental-function analysis. Also, in Neighbors, supra, decided five years after Jackson, this Court rejected the argument that Jackson “absolutely abolished governmental immunity in Alabama.” 384 So.2d at 113. In other words, the Court rejected the contention that Jackson had abrogated the rule, settled in McCarter v. City of Florence, 216..Ala. 72, 112 So. 335 (1927), that a municipality could not be liable for malicious prosecution. 384 So.2d at 113-14. Neighbors reaffirmed the applicability of § 11-47-190 in the tort context and refused to expand the statute beyond its obvious scope. See also Hilliard v. City of Huntsville, 585 So.2d 889 (Ala.1991) (city was immune from liability for alleged negligent inspection of wiring at an apartment complex).

In Town of Mulga v. Town of Maytown, 502 So.2d 731 (Ala.1987), a case more on point, this Court based its rationale, in part, on the distinction between governmental functions and proprietary functions. In that case, the Town of Maytown “enacted a business license ordinance imposing an excise tax on businesses engaged in the manufacture or distribution of gas within its municipal limits.” 502 So.2d at 732. One of the businesses purportedly subject to the tax was the Town of “Mulga, a municipal corporation, [which was] engaged in the business of selling and distributing gas to customers residing in Maytown .... ” 502 So.2d at 732. May-town sued Mulga, after “Mulga refused to purchase a license” on the ground that it was exempt from the ordinance. The trial court held that Mulga was not exempt, and this Court agreed.

In so doing, this Court stated:

“It appears well established that the state may levy an excise tax on a municipality, provided the intention to tax is clear and no constitutional inhibition exists. Likewise, it also appears that when the power of the state to tax is delegated to a municipality, as in this case, the intention to allow that municipality to levy a tax on another municipality must clearly appear.
“In the present case, Maytown was delegated the authority pursuant to § 11-51-90, Code 1975, to license any ‘business ... not prohibited by the Constitution or laws of the state which may be engaged in or carried on in the city or town.’ Maytown has by clear language imposed an excise tax on ‘businesses’ engaged in the distribution of gas within its municipal limits. While it is true, as Mulga insists, that the ordinance does not specifically refer- to municipalities, we do not consider that omission to be fatal. ‘Where a municipality engages in the business of furnishing electricity, lights, water, or gas to the public, it is not then discharging or exercising governmental functions or powers, but is exercising proprietary or business powers, and as to such business it is governed by the same rules of law which are applicable to ordinary business corporations.’ Town of Hack-leburg v. Northwest Gas. Dist., [277 Ala. 355, 170 So.2d 792 (1964)]; City of Decatur v. Parham, 268 Ala. 585,109 So.2d 692 (1959).
“Therefore, it is clear to us, and we so hold, that in enacting § 11-51-90, supra, the legislature intended for a municipality like Mulga (i.e., one which is engaged in a business within the corporate limits of another municipality) to be subject to taxation as is any other business.”

502 So.2d at 734 (emphasis added). In other words, Mulga was subject to the provisions of the Maytown ordinance because it was engaged in a proprietary, as opposed to a governmental, function.

Since Jackson, the Court of Civil Appeals has, at least three times, directly applied the distinction between governmental functions and proprietary functions in the zoning context in order to hold that a county, in the case of Lane v. Zoning Board of Adjustment of Talladega, supra; a municipality, in the case of Cunningham v. City of Attalla, supra; and a city board of education, in the case of Alves v. Board of Education for Guntersville, 922 So.2d 129 (Ala.Civ.App.2005), were exempt from municipal zoning regulations in the operation of a governmental function. The City cites no contrary authority. It is evident, therefore, that neither the judiciary nor the legislature has heretofore manifested an intent to abrogate the immunity from zoning ordinances that has long been afforded to political subdivisions in the operation of their governmental functions. The City does not, in fact, urge us to do so at this time. Consequently, we hold that Jackson did not abrogate the distinction between governmental functions and proprietary functions for the purpose of applying zoning ordinances. The next question is whether the County’s construction and operation of the communications tower is a governmental function.

B. Status of the Tower

“The governmental functions of a municipal corporation include the promotion of the public peace, health, safety, and morals, as well as the expenditure of money for public improvements, the expense of which ultimately is borne by the property owners.” 56 Am.Jur.2d Municipal Corporations § 183 (2000) (emphasis added). “A function is a governmental function if it is the means by which the governing entity exercises the sovereign power for the benefit of all citizens.” Lane, 669 So.2d at 959-60. It is “done by authority of law .... [a]nd ... not ... for profit .... It is not of a proprietary nature, but under the police power to promote the health and well-being of the people.” Downey v. Jackson, 259 Ala. 189, 193, 65 So.2d 825, 827 (1953). “The police powers of a city are among its major governmental functions. Broadly speaking, they extend to all appropriate ordinances for the protection of the peace, safety, health, and good morals of the people affected thereby. The general ‘welfare’ is a generic term often employed in this connection.” City of Homewood v. Wofford Oil Co., 232 Ala. 634, 636, 169 So. 288, 290 (1936).

“Proprietary ... functions include essentially commercial transactions involving the purchase or sale of goods and services and other activities for the commercial benefit of a particular government agency. Whereas in its sovereign role, the government carries out unique governmental functions for the benefit of the whole public, in its proprietary capacity the government’s activities are analogous to those of a private concern.”

Federal Deposit Ins. Corp. v. Harrison, 735 F.2d 408, 411 (11th Cir.1984) (emphasis added).

Examples of governmental functions in cases challenging the entity’s operating authority include a “sanitary landfill garbage disposal” expressly authorized by statute, operated by a municipality, Scogin, supra; the operation, expressly authorized by statute, of a baseball diamond by the “Park and Recreation Board of the City of Birmingham,” Downey, supra; the location, construction, and operation by a county board of education of a facility in which to store, repair, and maintain school property, such as school buses and supplies, Alexander, supra; the operation, expressly authorized by statute, of a garbage incinerator by the City of Bessemer, City of Bessemer v. Abbott, 212 Ala. 472, 103 So. 446 (1925); the construction and operation of a jail by the county, Lane, supra; the use by a municipality of a building as a warehouse, Cunningham, supra; and the choice of a location for a new school building by a city board of education, Alves, supra. Cf. State ex rel. Hyland v. Baumhauer, 244 Ala. 1, 8, 12 So.2d 326, 330 (1942) (“A fire department, when organized and functioning, is performing a governmental rather than a proprietary function.”).

On the other hand, “when a city is engaged in the business of supplying for compensation water service to the people, within its lawful power, it is engaged in a proprietary business.” Stephens, 262 Ala. at 209, 78 So.2d at 272 (emphasis added). Similarly, the operation of a sewage-disposal plant is, for zoning purposes, a proprietary function. Jefferson County v. City of Birmingham, supra.

The trial court held, “as a matter of law, that communicating with emergency service providers by governmental bodies is a governmental function and not a proprietary function.” We agree.

Kent County Aeronautics Board v. Department of State Police, 239 Mich.App. 563, 609 N.W.2d 593 (2000), aff'd sub nom. Byrne v. State, 463 Mich. 652, 624 N.W.2d 906 (2001), involved a challenge to the authority of the “Michigan Department of State Police” (“the State Police”) to construct and operate a “475-foot radio communications tower.” 239 Mich.App. at 567, 609 N.W.2d at 597. The tower was to be 1 of 181 such towers in “an integrated radio tower network communications system,” which was intended to “provide radio coverage over the entire state enabling state and local public safety officers, as well as law enforcement agencies and other state departments, to communicate with each other simultaneously.” Id. A state statute expressly authorized the State Police to “ ‘sit[e] the buildings and equipment necessary’ ” for the “ ‘construction, implementation, operation and maintenance of the Michigan public safety communications system.’ ” 239 Mich.App. at 574, 609 N.W.2d at 600. The appellate court, in rejecting various challenges to the authority for the construction, held, among other things, that “the construction of the communications tower by the State Police ... was authorized by statute ... and clearly constituted a governmental function.” 239 Mich.App. at 586, 609 N.W.2d at 605 (emphasis added).

This dispute arose out of federal and state legislation primarily generated by the terrorist attacks that occurred on September 11, 2001. First, Congress passed the Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135, codified, as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L. No. 108-458, 118 Stat. 3638, at 6 U.S.C. § 101 et seq. (“the Act”). The Act created the United States Department of Homeland Security and assigned it the duty of, among other things, “prevent[ing] terrorist attacks within the United States,” 6 U.S.C. § 111(b)(1)(A), and “reducing] the vulnerability of the United States to terrorism.” § 111(b)(1)(B). To that end, the Act charged the Secretary of Homeland Security (“the Secretary”) with the duty to:

“coordinate ... with State and local government personnel ... by—
“(1) coordinating ... to ensure adequate planning, [and] equipment ...; “(2) coordinating and, as appropriate, consolidating, the Federal Government’s communications and systems of communications relating to homeland security with State and local government personnel, agencies, and authorities ...; and “(3) distributing or, as appropriate, coordinating the distribution of, warnings, and information to State and local government personnel, agencies and authorities and to the public.”

6 U.S.C. § 112 (emphasis added).

Congress found that “(A) many first responders working in the same jurisdiction or in different jurisdictions cannot effectively and efficiently communicate with one another”-, and that “(B) their inability to do so threatens the public’s safety and may result in unnecessary loss of lives and property.” 6 U.S.C. § 194(i)(l) (emphasis added). Thus, it was the “sense of Congress that interoperable emergency communications systems and radios should ... be deployed as soon as practicable for use by the first responder community .... ” § 194(i)(2) (emphasis added). The Act defines “interoperable communications” as “the ability of emergency response providers and relevant Federal, State, and local government agencies to communicate with each other ..., through a dedicated public safety network utilizing information technology systems and radio communications systems, and to exchange voice, data, or video with one another on demand, in real time, as necessary.” § 194(g)(1).

The Act further authorized the Secretary to “establish a comprehensive national approach to achieving public safety interoperable communications,” § 194(a)(1)(A) (emphasis added); to “develop ... appropriate minimum capabilities for communications interoperability for Federal, State, and local public safety agencies,” § 194(a)(1)(C); and to “establish coordinated guidance for Federal grant programs for public safety interoperable communications,” § 194(a)(1)(H) (emphasis added). The Act provided for the awarding of “interoperability grants” to states and local governments “for the purposes of enhancing interoperable communications capabilities for emergency response providers.” § 194(e)(1). Subsequently, the Alabama Legislature passed its own version of the Act, namely, the AHSA, “to assist, coordinate, and encourage homeland security preparedness by ... authorizing the making of grants, as funds are appropriated for such purpose, to any political subdivision of the state ....”§ 31-9A-2(b).

It is undisputed that the communications tower at issue in this case is “interoperable emergency communications” equipment of the sort contemplated by Congress and funded by grants made available through the Act and the AHSA. Operation of the tower is not a business for profit. The City concedes that the tower is federally funded, and it does not allege that the cost of constructing and operating the tower will be charged to the City or its inhabitants. The “customers” are emergency first responders, who fulfill traditional police-power functions of promoting “public peace, health, [and] safety.” 56 Am.Jur.2d Municipal Corporations § 183. It is not analogous to a city-operated “water service business,” which is “proprietary in nature.” Stephens, 262 Ala. at 208, 78 So.2d at 272. It redounds to the benefit of not only citizens of Dallas County, but also emergency personnel from other counties or states in any multijurisdietional response to a crisis in Dallas County.

The undisputed purpose of the communications tower is to remedy the specific problem addressed by Congress in 6 U.S.C. § 194, that is, the inability of emergency first responders to communicate with one another in a time of crisis. Thus, the construction and operation of the tower is “done by authority of law .... to promote the health and well-being of the people.” Downey v. Jackson, 259 Ala. at 193, 65 So.2d at 827. It is a vital “cog” in the larger machine — an indispensable link in the national communications network envisioned by Congress and reflected in the Act.

Although more could be said in this regard, we can readily conclude that the construction and operation of the communications tower — impelled by federal and state legislation in response to the urgen-cies of the post-9/11 era — is a governmental function. Accord Kent County Aeronautics Board v. Department of State Police, supra. Consequently, the trial court correctly held that the tower ordinance and the historic ordinance are not enforceable against the County.

III. Alabama Constitution, § 220

Finally, the City contends that the trial court erred in holding that the construction and operation of the tower did not offend § 220 of the Alabama Constitution of 1901, which provides:

“No person, firm, association, or corporation shall be authorized or permitted to use the streets, avenues, alleys, or public places of any city, town, or village for the construction or operation of any public utility or private enterprise without first obtaining the consent of the proper authorities of such city, town, or 'village.”

(Emphasis added.) The City insists that the communications tower is a “public utility” and, therefore, that § 220 prohibits the construction and operation of the tower without the City’s permission.

A “public utility” is defined as a “ business organization (as an electric company) performing a public service and subject to special governmental regulation.” Mer-riamr-Webster’s Collegiate Dictionary 1006 (11th ed.1997) (emphasis added). It is also more specifically defined as follows:

“‘A privately owned and operated business whose services are so essential to the general public as to justify the grant of special franchises for the use of public property or of the right of eminent domain, in consideration of which the owners must serve all persons who apply, without discrimination. It is always a virtual monopoly.
“ ‘A business or service which is engaged in regularly supplying the public with some commodity or service which is of public consequence and need, such as electricity, gas, water, transportation, or telephone or telegraph service.... Any agency, instrumentality, business, industry or service which is used or conducted in such manner as to affect the community at large, that is, which is not limited or restricted to any particular class of the community. The test for determining if a concern is a public utility is whether it has held itself out as ready, able and willing to serve the public. The term implies a public use of an article, product, or service, carrying with it the duty of the producer or manufacturer, or one attempting to furnish the service, to serve the public and treat all persons alike, without discrimination.’”

Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm’n, 524 So.2d 357, 360-61 (Ala.1988) (quoting Black’s Law Dictionary 1104 (5th ed.1979)) (emphasis added).

In addition, the legislature has supplied the following definition and examples from Title 37, Chapter 4, involving “Public Utilities Other than Transportation Companies or Motor Vehicle Carriers”:

“(7) Utility. Such term shall mean and include every person, not engaged solely in interstate business, that now or may hereafter own, operate, lease or control:
“a. Any plant, property or facility for the generation, transmission or distribution, sale or furnishing to or for the public of electricity for light, heat or power or other uses, including any conduits, ducts, or other devices, materials, apparatus, or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat, or power, or other uses.
“b. Any plant, property, or facility for the manufacture, storage, distribution, sale or furnishing to or for the public of natural or manufactured gas for light, heat or power or other uses.
“c. Any plant, property or facility for the supply, storage, distribution, or furnishing to or for the public of water for manufacturing, municipal, domestic or other uses.
“d. Any plant, property or facility for the production, transmission, conveyance, delivery or furnishing to or for the public of steam for heat or power, or other uses.
“e. Any public wharf, dock or terminal.
“f. Any boat line propelled by any power and not regulated by the laws of this state heretofore or hereafter enacted as a steamboat or steam packet line.
“The term ‘utility’ shall also mean and include two or more utilities rendering joint service.”

Ala.Code 1975, § 37-4-1(7).

The City does not cite a case from this, or any other, jurisdiction holding that the operation of a tower to provide “interoperable communications” among emergency responders is a public utility. Indeed, it is often stated that “[t]he operation by a municipality of a public utility is a proprietary, not a governmental, function.” Schmidt v. Village of Kimberly, 74 Idaho 48, 60, 256 P.2d 515, 522 (1953) (emphasis added). See Cobb County Rural Elec. Membership Corp. v. Board of Lights & Water Works of Marietta, 211 Ga. 535, 87 S.E.2d 80 (1955); IBP, Inc. v. City of Council Bluffs, 511 N.W.2d 413 (Iowa Ct. App.1993); 2 Eugene McQuillin, The Law of Municipal Corporations § 4:154 (3d ed. rev.vol.2006) (“a municipality, in the operation of a public utility, acts in its private and proprietary capacity rather than in a legislative or governmental capacity”).

Having determined in the preceding part of this opinion that the construction and operation of the communications tower is a governmental function, we would have to strain to hold, in this part, that it is proprietary in nature. It is difficult to avoid the logic that if the operation of a public utility is a proprietary function, then it is not a public utility if it is not a proprietary function. The City cites only two cases in support of its argument that the communications tower is a “public utility,” namely, Mobile County v. City of Sar-aland, 501 So.2d 438 (Ala.1986) (drainage pipe under a city street), and Coastal States Gas Transmission Co., supra (pipeline owned and operated for the sale of “natural gas to select customers under private contracts”). In both cases, however, this Court held that the concern at issue was not a public utility.

The City focuses on the “public” aspect of the definition of a public utility. It states: “Dallas County made it clear that [it is] constructing this radio tower ‘for the public good’ and for the welfare of the county as a whole .... and the County made it clear that it was ready, able and willing to serve the public.” The City’s brief, at 24-25. In response, the County states: “If this Court was to focus on that one element as argued by [the City], no function of civil government would be safe from falling within that definition,” including every operation or facility that our cases have defined as serving a governmental function. The County’s brief, at 60. We agree with the County.

In City of Bessemer v. Personnel Board for Jefferson County, 240 Ala. 411, 199 So. 815 (1941), this Court said: “A proprietary junction or power of a city operated for the public is none the less a public function though for some purposes it may not be strictly a governmental function.” 240 Ala. at 413, 199 So. at 816 (emphasis added). “[T]he distinction between governmental and proprietary functions of a city was worked out by the courts to support liability for negligence, and in order that injustice may not result. But all its functions are public and are dependent upon authority by the state.” 240 Ala. at 413, 199 So. at 816 (emphasis added).

In fact, in operating the communications tower, the County does not purport to “serve the public,” in the sense that it “treat[s] all persons alike, without discrimination.” Black’s Law Dictionary 1104 (5th ed.l979)(quoted in Coastal States, 524 So.2d at 361). The interoperability feature, the tower’s raison d’etre, specifically serves only emergency responders, such as fire, law-enforcement, and rescue personnel. Members of the general public are not charged for the operations of the tower and have no right to demand interoperable service from the tower. Thus, consistent with the logic of Part II.B. of this opinion, and based, moreover, on the facts and authorities presented by the parties in this case, we hold that the communications tower is not a public utility.

IV. Conclusion

In conclusion, the interoperable communications tower constructed at the Dallas County courthouse is neither proprietary in nature, nor is it a public utility. The trial court did not err, therefore, in entering a summary judgment for the County. That judgment is affirmed.

AFFIRMED.

COBB, C.J., and SEE, SMITH, and PARKER, JJ., concur.

      . In none of these cases was the Court of Civil Appeals presented with the argument that the distinction did not survive Jackson.

      . We need not, and do not, decide whether the legislature may conclusively categorize all conduct arising under the AHSA as a governmental function.


source: Caselaw Access Project

author: MOORE, Judge. THOMPSON, Presiding Judge,

license: Public Domain

text:
    Mark S. MORGAN v. Heidi S. MORGAN.
    2050348.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      William J. Moore, Enterprise, for appellant.
    Robert H. Brogden, Ozark, for appellee.
   MOORE, Judge.

Mark S. Morgan (“the father”) appeals from the Dale Circuit Court’s judgment modifying the parties’ judgment of divorce. The father alleges multiple errors by the trial court. We affirm in part, reverse in part, and remand.

The Dale Circuit Court entered a judgment divorcing the father and Heidi S. Morgan (“the mother”) on November 9, 2004. The court incorporated into its judgment an agreement of the parties, which had been entered into on November 8, 2004. The agreement dictated that the parties would have joint legal custody and joint physical custody of the only child born of the marriage. The parties also agreed that the father would pay the mother $500 per month in child support; that the father would assume responsibility for all of the parties’ outstanding joint living expenses at the time of the divorce; that a jointly owned house in North Carolina would be sold and the proceeds applied to the outstanding debts of the parties; that the father would pay $4,000 to the mother as a property settlement to be used as a down payment toward the purchase of a new house; and that no alimony was to be awarded to either party. The agreement made no provision for the future education of the child.

On March 3, 2005, the father filed a petition to modify the divorce judgment, alleging a change in circumstances and requesting that he be awarded sole physical custody of the child. The mother filed an answer and a counterclaim on March 9, 2005, alleging that there had been a material change in circumstances and seeking sole legal custody and sole physical permanent custody of the child and increased child support. The mother also filed a motion for emergency relief on March 9, 2005, asking the court to order that the child be placed in public school and specifying a proposed schedule regarding the child’s visitation with each parent; the father filed a response objecting to the relief sought in the mother’s motion for emergency relief. The court entered a series of pendente lite orders regarding the issues raised by the parties before entering a final judgment on October 26, 2005, in which the court ordered that the parties should continue to have joint legal custody of the child; vested sole physical custody in the mother, subject to visitation by the father; increased the father’s child-support obligation; and required the child to enroll in public school. The father filed two postjudgment motions, which the trial court denied. The father appeals, asserting that the trial court erred (1) by requiring the child to attend public school, (2) by modifying his child-support obligation, (3) by awarding sole physical custody of the child to the mother, and (4) by failing to disclose that the trial judge had formerly been a partner in private practice with the mother’s counsel.

Standard of Review

This court has limited review in custody matters when the evidence was presented ore tenus. Alexander v. Alexander, 625 So.2d 433, 434 (Ala.Civ.App. 1993). In determining matters of child custody, a trial court is afforded great discretion; its judgment is “presumed correct and will not be disturbed on appeal absent an abuse of discretion or where it is shown to be plainly and palpably wrong.” Id. at 434.

Modification of child custody is a matter that falls within the discretion of the trial court. Hester v. Hester, 460 So.2d 1305, 1306 (Ala.Civ.App.1984). In custody cases in which custody has not previously been determined by the court, the appropriate standard of review is the best interest of the child. Ex parte Couch, 521 So.2d 987, 989 (Ala.1988). This standard extends to cases in which the trial court’s judgment incorporates an agreement to share custody entered into between the parties. See New v. McCullar, 955 So.2d 431, 435 (Ala.Civ.App.2006).

Additionally, matters of child support, including modifications thereof, are within the discretion of the trial court and “will not be disturbed on appeal, absent a showing that the ruling is not supported by the evidence and, thus, is plainly and palpably wrong.” Spears v. Spears, 903 So.2d 135,136 (Ala.Civ.App.2004).

I.

The father initially argues that the trial court exceeded its discretion in ordering that the child attend a public school. Specifically, he claims that the “trial court stepped in the shoes of the parents and decided what- school was proper for the minor child” and thereby superseded “the rights given to the parents by the Constitution of the United States” to choose what school their child would attend. The father does not argue that the trial court erroneously concluded that the child should attend public school; rather, he argues that the trial court had no authority to even consider the issue. In essence, the father argues that the trial court had no subject-matter jurisdiction over the dispute between the parents regarding the education of their child.

The father filed an objection to the trial court’s pendente lite order requiring the child to attend public school, but he did not argue that the trial court lacked jurisdiction over the matter. He also failed to raise the argument in his postjudgment motions. However, challenges to subject-matter jurisdiction may be raised for the first time on appeal, because “a lack of jurisdiction cannot be waived.” Takao v. Zoning Bd. of Adjustment of Birmingham, 656 So.2d 873, 874 (Ala.Civ.App.1995).

The facts pertinent to this issue are as follows. The mother and the father agreed to homeschool the child beginning in August 2004. Their decision was based largely on the fact that the child was diagnosed with attention-deficit/hyperactivity disorder and post-traumatic stress disorder, but it was also based on the mother’s belief that the child’s public-school teacher at the time did not seem concerned about the child’s emotional needs. From August until December 2004, the mother directed the child’s homeschooling, with the father tutoring him only in math. At that time, the mother was engaged in part-time employment that began at 3:00 p.m. Beginning in January 2005, the mother began working full-time, and the father took over the child’s homeschooling. On March 9, 2005, the mother filed a motion requesting that the child be placed in public school because he could no longer be adequately homeschooled due to the working schedules of the parents. On March 30, 2005, the trial court heard ore tenus evidence regarding the motion. The father testified that the child was doing much better in homeschooling than he had done at public school. He stated that he did not consider it to be in the best interest of the child to stop homeschooling and to resume the child’s attendance at public school due to the parents’ work schedules. On the other hand, the mother stated that she believed the child would benefit from enrolling in public school. She testified that the parents’ work schedules did not give them ample opportunity to adequately home-school the child and that the child would advance socially by being around other children. The mother testified that since March 2, 2005, the child had been doing very little homeschooling. The child testified that he was up-to-date on his school work, that he was happy with homeschooling, and that he did not want to go to public school because of troubles he had had in the past in public school. He further testified that he did not mind being alone at times when he would normally be in school and that he still mingled with friends in a nonschool environment. He believed that his father was homeschooling him as well as his mother had. He also stated that he would be willing to go back to public school and that he felt he would do well there.

At the conclusion of the hearing, counsel for both parties asked the court to postpone any decision on the change-of-school issue because only two months remained in the academic year. Accordingly, the court issued a pendente lite order reserving a ruling on the issue until after the final hearing in this matter.

On June 28, 2005, the trial court set the matter for a final hearing to take place on September 6, 2005. The mother moved the trial court to expedite the final hearing because public school was set to commence on August 8, 2005. Instead, on July 6, 2005, the court entered another pendente lite order in which it concluded that it had heard sufficient evidence to make a determination regarding the school issue. The court ordered the child to be enrolled in public school, pending the final hearing and the entry of further orders of the court. When the father objected to this order, the trial court set a hearing on the matter for August 12, 2005. The court subsequently ordered that it would hear the father’s objection to the July 6, 2005, order at the final hearing, which had been postponed to October 5, 2005.

On October 5, 2005, the trial court conducted the final ore tenus hearing in this case. At that hearing, the father testified that the child had enrolled in public school as directed and seemed to be doing well, although several of his friends had been expelled for drug use. Nevertheless, he still wanted to homeschool the child. The mother testified that the child, who had been homeschooled only during his seventh-grade year, had failed the seventh-grade math and language placement tests; she stated that the child had been placed in the eighth-grade class based on his hon- or-roll performance in the sixth grade. Although he thought he had done an excellent job tutoring the child, the father was not aware that the child had failed the seventh-grade math and language placement tests. One of the child’s teachers testified that the child had adjusted to public school, was making good grades, and had friends. The child testified that he preferred to remain in public school. In its final judgment, entered on October 26, 2005, the trial court ordered that the child continue to attend public school.

The Supreme Court of Alabama has previously addressed the power of a trial court to resolve a parental dispute regarding the education of a child in only one case, Kilgrow v. Kilgrow, 268 Ala. 475, 107 So.2d 885 (1959). In Kilgrow, supra, married parents became embroiled in a dispute regarding the education of their child. The father wanted the child to attend a school operated by the church of his religious orientation while the mother preferred that the child be enrolled in public school. After the mother interfered with the father’s attempts to take the child to the religious school, the father petitioned the chancery court for an injunction. The chancery court took jurisdiction of the petition and ordered the mother to refrain from interfering with the schooling of the child at the institution selected by the father.

On appeal, the Supreme Court considered the decisive question to be

“whether a court of equity has inherent jurisdiction (there being no statute involved) to resolve a family dispute between parents as to the school their minor child should attend, when there is no question concerning the custody of the child incident to a separation ... or divorce of the parents, and to enforce its decision against one of the parents by injunction. In other words, should the jurisdiction of a court of equity extend to the settlement of a difference of opinion between parents as to what is best for their minor child when the parents and child are all living together as a family group?”

268 Ala. at 478, 107 So.2d at 888. The Court held that the chancery court had no jurisdiction over the dispute. The Court reasoned that a chancery court obtains jurisdiction over children only in cases in which the custody of a child is in question or in cases in which the custodians have forfeited their authority over the child. 268 Ala. at 479, 107 So.2d at 888. The Court said, “We do not think a court of equity should undertake to settle a dispute between parents as to what is best for their minor child when there is no question concerning the child’s custody.” 268 Ala. at 479, 107 So.2d at 888.

Kilgrow does not answer the question presented in this appeal. Unlike in Kil-grow, the parties in this case were divorced and were sharing joint legal custody and joint physical custody of the child before any dispute regarding the child’s education arose. After the divorce, the father petitioned for a change in this custody arrangement and the mother responded with a counterclaim requesting a change of custody. At the same time, the mother moved the court to order that the child attend public school. The father objected, asserting that he wanted the child to continue homeschooling. Thus, the question whether the child should attend public school as desired by the mother was joined with a dispute as to custody.

In Kilgrow, supra, the Supreme Court recognized that a trial court had the power to assume jurisdiction over a custody dispute, but it did not address the power of a court hearing a custody dispute to entertain a petition regarding the proper education of the child. However, since Kil-grow was decided the Alabama Legislature has clarified that a trial court may exercise jurisdiction over a dispute between divorced parents sharing joint legal custody as to the proper mode of a child’s education.

Section 30-3-151(2), Ala.Code 1975, provides that “joint legal custody” confers upon the custodians equal rights and responsibilities for major decisions regarding the education of the child. Section 30-3-151(2) further provides, however, that “[t]he court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” Section 30-3-153 states that when a trial court implements joint custody based on an agreement of the parties, “the court shall require the parents to submit, as part of their agreement, provisions covering matters relevant to the care and custody of the child, including, but not limited to, ... [t]he care and education of the child.” Ala.Code 1975, § 30-3-153(a)(l). In the event the parties cannot agree, “the court shall set the plan.” Ala.Code 1975, § 30-3 — 153(b).

In Kilgrow, the Supreme Court noted that no statute conferred jurisdiction on a trial court to decide a dispute between married parents as to the proper mode of education for their child. 268 Ala. at 478, 107 So.2d at 888. On the other hand, §§ 30-3-151 and -153 clearly vest the trial court with the authority to settle disputes between joint custodians regarding the education of the child. However, a review of the record shows that the trial court did not invoke either statute when deciding the schooling issue. Although the trial court had the statutory authority under § 30-3-151(2) to designate one parent to have sole power to decide educational issues, the trial court did not do so. Likewise, the trial court did not require the parents to submit a plan as to the education for the child when they submitted their joint-custody agreement, and the court did not “set the plan” before entering the original joint-custody award, as allowed by § 30-3-153. Instead, it appears that the trial court rested its decision on its inherent authority to resolve disputes between parents with joint custody as to the education of the child. We find no error in this regard.

Although no Alabama case has heretofore declared that a circuit court may resolve a schooling dispute among divorced parents sharing joint legal custody of a child, other states have uniformly recognized that a court invested with jurisdiction over custody issues may do so. See Seyler v. Seyler, 201 S.W.3d 57 (Mo.Ct.App.2006) (test for determining when a court should order private or parochial schooling for a child over wishes of one parent is when the schooling will meet the particular educational needs of the child); Donna G.R. v. James B.R., 877 So.2d 1164 (La.Ct.App.2004) (affirming judgment of trial court ordering that children enroll in public school over custodial parent’s wishes because attending public school was in children’s best interest); Buysse v. Buysse, 42 Pa. D. & C. 4th 415 (Pa.Com.Pl.1999), aff'd, 797 A.2d 1020 (Pa.Super.Ct.2002) (affirming trial court’s judgment ordering child to attend a particular school in settling a dispute between married parents); Sotnick v. Sotnick, 650 So.2d 157 (Fla.Dist.Ct.App.1995) (affirming selection of school by trial court to resolve impasse between divorced parents with joint custody); and Anderson v. Anderson, 56 S.W.3d 5, 8 (Tenn.Ct.App.1999) (when parents have joint custody, it is appropriate for trial court to intercede and “break the tie” if parents cannot agree on child’s education).

The import of these cases is that the right to direct the education of a child is a fundamental constitutional right of a parent concomitant with the right to custody of the child. See Pierce v. Society of Sisters of the Holy Names, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (citing Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)). A trial court exercising the power of the state may not usurp the role of the parent and unilaterally compel any particular form of education; however, as the arbiter of custody disputes, the trial court may decide which of the competing plans proffered by the custodial parents is in the best interests of the child, considering the child’s educational needs, and the court may enter a valid, enforceable order in that regard. In short, a court with subject-matter jurisdiction over custody issues has the inherent authority to resolve any educational dispute between divorced custodial parents who have equal constitutional rights concerning the education of their child.

Like the courts in other states, Alabama courts have long recognized that one of the bundle of rights associated with custody is the right to direct and support the education of the child. See Payne v. Graham, 20 Ala.App. 439, 102 So. 729 (1925); Willing v. Willing, 655 So.2d 1064 (Ala.Civ.App.1995). Alabama law further recognizes that parents sharing joint legal custody without modification have equal constitutional rights to the care, custody, and control of the child and that, therefore, as a general rule, a court may apply the best-interests standard in a custody dispute between such parents without implicating the Fourteenth Amendment due-process rights of either parent. See R.S.C. v. C.V.C., 812 So.2d 361, 366-67 (Ala.Civ.App.2001). Consistent with this analysis, it follows that a trial court with jurisdiction over a custody matter has inherent authority to decide a dispute between parents with joint custody as to the education of the child, using the best-interests standard.

Disputes are bound to arise as to the proper course of education for a child. In all cases, the parents should endeavor to resolve those disputes between themselves without state intervention. When they cannot, however, either of them has the right to petition a circuit court to resolve the dispute. A circuit court already vested with the power to decide other custody issues naturally has the jurisdiction to determine which plan best serves the educational needs and other interests of the child.

Accordingly, we find that the circuit court in this case had subject-matter jurisdiction over the mother’s motion requesting that the child be enrolled in public school and that its exercise of that jurisdiction did not violate the father’s constitutional right to control the education of the child. Since the father does not raise any issue as to the manner in which the trial court exercised its jurisdiction, and does not question the sufficiency of the evidence to support the determination of the trial court, we find no error in the trial court’s decision regarding the education issue.

II.

The father next contends that the trial court exceeded its discretion in its determination of child support.

The trial court awarded $1,429 per month in child support to the mother, “determined by the application of the Child Support Guidelines and the [Alabama Rules of Judicial Administration].” The combined monthly adjusted gross income for the parties is $10,730. The Child Support Guidelines, found in the Appendix to Rule 32 of the Alabama Rules of Judicial Administration, provide the monthly basic child-support obligation for combined monthly incomes ranging from $550 to $10,000. Rule 32(C)(1), Ala. R. Jud. Admin., provides that “[t]he court may use its discretion in determining child support in circumstances where combined adjusted gross income is below the lowermost levels or exceeds the uppermost levels of the schedule.” This discretion is not unbridled; the award must relate to the reasonable and necessary needs of the child as well as to the ability of the obligor to pay the amount determined by the trial court. Batain v. Batain, 912 So.2d 283, 284 (Ala.Civ.App.2005).

The father argues that the child-support award ($1,429), combined with the debts incurred by the father as a result of the agreement of the parties in the original divorce judgment, will leave him with an unreasonably small amount of net income on which to live. The agreement incorporated into the original divorce judgment required the father to assume responsibility for all outstanding joint living expenses of the parties. Pursuant to the divorce judgment, the father was obligated to pay certain monthly living expenses; those expenses totaled approximately $4,617.54 per month and were subject to change. Included in that estimate were amounts for cable television, power, telephone service, water, rent, and insurance. The remaining proceeds from the sale of the parties’ jointly owned house in North Carolina were to be applied to the outstanding debts of the parties as well.

Based on the father’s reported monthly adjusted gross income of $9,206, the amount of the debt assigned to him in the divorce judgment that included the parties’ outstanding joint living expenses, and the anticipated alleviation of certain other debt after the sale of the North Carolina house, it does not appear that the father would be unable to pay the amount of child support awarded by the trial court. It also does not appear, however, that the award of child support rationally relates to the reasonable and necessary needs of the child.

The agreement of the parties incorporated into the original divorce judgment dictated that the father would pay $500 in child support to the mother. Although the final judgment of modification awarded sole physical custody to the mother, rather than the joint physical custody originally agreed upon, the trial court instructed the parents to continue with the same custody/visitation schedule they were operating under before the modification. Specifically, in addition to the father’s general visitation rights as the noncustodial parent, the father was awarded visitation with the child from the time the child gets out of school until the time when the father leaves for work on weekdays that the father has his night work schedule; on those days, the father begins work at 10:00 p.m.

Our review of the record shows that neither party introduced any evidence indicating that the financial needs of the child had increased since the time of the entry of the original divorce judgment. The record also fails to disclose that the child’s extracurricular activities had changed since the entry of the original judgment. In Dyas v. Dyas, this court remanded the case to the trial court when the only evidence of expenses related to the children were costs that may have been associated with the minor children’s recreational activities in the future. 683 So.2d 971, 973-74 (Ala.Civ.App.1995). In the present case, there was no evidence presented relating to the expenses associated with the financial needs of the child.

The judgment of the trial court pertaining to child support is therefore reversed, and this cause is hereby remanded. On remand, the trial court should take sufficient evidence to ascertain the reasonable and necessary needs of the child in making an award of child support.

III.

The father next argues that the trial court exceeded its discretion in determining that there had been a material change in circumstances and in awarding the mother sole physical custody of the child.

Before the divorce, the parties were leasing a house in Ozark. The mother purchased a house after the divorce, but the parties agreed that the mother and the child would continue to live in the leased house in Ozark until the mother’s new house received the necessary repairs to make it “livable.” The father slept in a motor home parked outside of the rental house while the mother and the child slept inside. On March 2, 2005, the father asked the mother to vacate the house after he found a number of e-mail messages regarding the mother’s relationship with another man. For at least two days thereafter, the father allowed the mother to visit the child only if the father was present. Thereafter, the child began to visit his mother on weekdays after his father left for work in the afternoon. There was evidence presented indicating that, after the mother vacated the house on March 2, the father slept in the same room as the child for a period of time, the child was left alone in the house while the father was at work late at night, the child searched the Internet for sexually explicit materials in the father’s absence, and the child accompanied the father to work at times.

As discussed earlier, after the original divorce agreement, the parents became unable to agree on the education of the child; the mother desired that the child attend public school, and the father wanted to continue homeschooling the child. At the trial of this matter, the father testified that he did not wish to speak to the mother if it did not “directly involve life and limb,” because, he said, the parties only argue. By the time of the trial, the mother had recently remarried and was expecting another child. At the time of the trial, the child, during his father’s custody periods, stayed with his mother after school until his father arrived home at approximately 10:80 or 11:00 at night.

The father argues that the trial court exceeded its discretion in determining that there had been a material change in circumstances warranting the award of sole physical custody of the child to the mother. In cases in which a parent seeks a modification of a joint-custody arrangement, the parent must prove “ ‘a material change of circumstances of the parties since the prior [judgment] which change of circumstances is such as to affect the welfare and best interest of the child or children involved.’” Watters v. Watters, 918 So.2d 913, 916 (Ala.Civ.App.2005) (quoting Ponder v. Ponder, 50 Ala. App. 27, 30, 276 So.2d 613, 615 (Ala.Civ.App.1973)). In cases in which neither parent has previously been awarded primary physical custody, including cases in which the parties’ agreement to share physical custody was incorporated into the divorce judgment, “ ‘ “the best interests of the child” standard applies.’ ” New v. McCullar, 955 So.2d at 435 (quoting Ex parte Johnson, 673 So.2d 410, 413 (Ala.1994)).

In considering the best interests of the child, the court must consider the individual facts of each case, including the following factors: the sex and age of the child; the child’s emotional, social, moral, material, and educational needs; the home environments offered by the parties; the characteristics of those seeking custody, including age, character, stability, and mental and physical health; the capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child; the interpersonal relationship between the child and each parent; the effect on the child of disrupting or continuing an existing custodial status; the preference of the child; available alternatives; and any other relevant matter the evidence may disclose. Gonzalez v. Gonzalez, 908 So.2d 255, 261-62 (Ala.Civ.App.2004).

In deciding whether to award joint custody, either legal or physical, the court must also consider the following factors:

“(1) The agreement or lack of agreement of the parents on joint custody. “(2) The past and present ability of the parents to cooperate with each other and make decisions jointly.
“(3) The ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent.
“(4) Any history of or potential for child abuse, spouse abuse, or kidnapping.
“(5) The geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody.”

Ala.Code 1975, § 30-3-152(a). In the present case, both parties alleged that there had been a change in circumstances and asked for sole physical custody of the child. The evidence indicates that the parents are no longer able to agree on the child’s education; that, after the divorce, the father limited the child’s contact with the mother for a short period of time; and that the parents no longer live on the same property, as they had done before the father filed his petition to modify. These facts alone show a change of circumstances sufficient to invoke the power of the court to modify custody.

We do not find that the trial court was plainly and palpably wrong in its award of sole physical custody to the mother, particularly in light of the instruction regarding weekday visitation with the father, which demonstrates the trial court’s efforts to minimize any disruptive effects on the child. The ore tenus evidence presented regarding the work schedules, living situations, and behavior of the parties following their divorce supports the trial court’s determination that awarding sole physical custody to the mother is in the best interest of the child.

IV.

Finally, the father contends that it was improper conduct for the trial judge to fail to disclose that he was formerly a partner in a private law practice with counsel for the mother. In support of this contention, the father quotes from the Commentary to Canon 2 of the Alabama Canons of Judicial Ethics, which states, “A judge must avoid all impropriety and appearance of impropriety.”

Canon 3.C.(1), Alabama Canons of Judicial Ethics, states:

“(1) A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
“(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(b) He served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer in the matter, or the judge or such lawyer has been a material witness concerning it.”

The father does not suggest that the trial judge was associated with counsel for the mother during counsel’s representation of the mother. Counsel for the mother states that the partnership between the trial judge and the mother’s attorney was dissolved more than nine years before the trial in the present case. Numerous advisory opinions by the Alabama Judicial Inquiry Commission affirm that a judge is not disqualified from hearing a case if his or her former law partner did not represent the party while the party’s attorney and the judge were law partners. See Alabama Judicial Inquiry Commission Advisory Opinions 78-41, 83-170, 84-207, 86-283, 89-378, and 95-548. While those advisory opinions are not binding on this court, appellate courts will take them into consideration. See Ex parte City of Dothan Personnel Bd., 831 So.2d 1, 6 (Ala.2002).

Based on Canon 3 of the Alabama Canons of Judicial Ethics, the advisory opinions of the Judicial Inquiry Commission based thereon, and the length of time between the present case and the partnership between the trial judge and counsel for the mother, we conclude that the trial judge would not have been disqualified from hearing this case.

In cases in which judges do not deem themselves disqualified from a proceeding by the terms of Canon 3.C., Canon 3.E. of the Alabama Canons of Judicial Ethics states that they “may nonetheless make information concerning interests or relationships available.” (Emphasis added.)

The father does not cite any specific instances throughout the trial that evidence any act of bias or prejudice toward the mother by the judge. The father argues that the association between the judge and the mother’s attorney should have been disclosed so that the parties would have had the opportunity to request that the judge recuse himself from the hearing. We have already stated that the trial judge would not have been disqualified from hearing the present case, and Canon 3.E. of the Alabama Canons of Judicial Ethics leaves the decision as to whether to disclose relationships that would not otherwise disqualify the judge within the discretion of the trial judge.

Based on the foregoing, we conclude that the trial judge did not err in denying the father’s motion for a new trial or in failing to disclose his former relationship with counsel for the mother.

Conclusion

We affirm the trial court’s judgment with regard to its determination that the child remain in public school and its award of sole physical custody to the mother. We reverse the judgment insofar as it awarded $1,429 per month in child support, and we remand the cause for the trial court to take sufficient evidence to ascertain the reasonable and necessary expenses of the child.

We do not find error in the trial court’s failure to grant the father’s motion for a new trial based on the trial judge’s failure to disclose his prior relationship with the mother’s counsel, and that decision is therefore affirmed.

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

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

PITTMAN, BRYAN, and THOMAS, JJ., concur.

THOMPSON, P.J., concurs specially.

THOMPSON, Presiding Judge,

concurring specially.

I concur in the main opinion. I write specially with regard to this court’s affir-mance of the trial court’s ruling that the child should attend a public school. I believe that in many circumstances homeschooling can be an appropriate or advisable alternative to conventional schooling and that it can be more effective for some children. However, given the particular facts of this case, I agree with the main opinion’s conclusion that the trial court had the authority to determine that the child should go to a public school and also that, given the deference this court must afford to the trial court’s ruling based on ore tenus evidence, the father did not demonstrate that the trial court exceeded its discretion in reaching that decision.


author: THOMAS, Judge.

text:
    Roosevelt J. LEWIS, Jr., and Carolyn D. Lewis v. FIRST TUSKEGEE BANK.
    2050708.
    Court of Civil Appeals of Alabama.
    March 16, 2007.

      Adrian D. Johnson of Parnell & Crum, P.A., Montgomery, for appellants.
    Robert C. Ward, Jr., and Bethany L. Bolger of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   THOMAS, Judge.

Roosevelt J. Lewis, Jr., and Carolyn D. Lewis sued First Tuskegee Bank (“First Tuskegee”), alleging fraud, deceit, negligence, and breach of fiduciary duty. The Lewises claimed that First Tuskegee had caused them monetary damages and the loss of their right of redemption on real property they had previously owned. First Tuskegee answered and moved to dismiss the Lewises’ complaint pursuant to Rule 12(b)(6), Ala. R. Civ. P., asserting that the complaint failed to state a claim upon which relief could be granted.

The trial court, after a hearing on the motion, dismissed the complaint. The Lewises appeal, alleging that the trial court erred in determining that the complaint failed to state a claim upon which relief could be granted.

In January 1986, the Lewises, according to their complaint, owned an apartment complex known as Pleasant Valley Apartments in Mobile and Mid South Mortgage held a mortgage on the property. Mid South subsequently assigned the mortgage to Federal Homeowner Mortgage Corporation (“Freddie Mac”).

In August 2001, the Lewises executed a second mortgage on the property to First Tuskegee in the amount of $44,777.40. Based on an appraisal conducted in 2001, the Lewises believed their apartment complex was worth approximately $870,375.

In 2003, the Lewises began discussing with Freddie Mac the possibility of allowing Freddie Mac to foreclose on the Lew-ises’ property. The complaint alleges that an employee of First Tuskegee represented to the Lewises that the expected proceeds from any foreclosure sale would be sufficient to satisfy both the first and second mortgages, held by Freddie Mac and First Tuskegee, respectively.

A foreclosure sale was held in February 2004 at the Mobile County Courthouse, and a third party purchaser, K-Quad, L.L.C., bought the property for $246,033.66. Two months later, in April 2004, First Tuskegee assigned its mortgage on the property to K-Quad. The Lewises allege that no one from either First Tuskegee or K-Quad notified them of the assignment and that they were current on the second mortgage held by First Tuskegee at the time of the assignment.

On May 6, 2004, First Tuskegee recorded a document entitled “Satisfaction of Mortgage,” and on July 21, 2004, the Lew-ises received correspondence from First Tuskegee stating that the second mort-

gage had been paid in full; included with that correspondence was the original note and mortgage, which were stamped “paid” dated April 28, 2004. The Lewises claim that they had several conversations with agents of First Tuskegee during this period but that at no point did any representative of First Tuskegee notify them that the second mortgage had been assigned. Based on the representations of First Tuskegee’s agents and the documents they received from First Tuskegee, the Lewises believed that the second mortgage had been satisfied in full from the proceeds of the foreclosure sale on the property.

In April 2005, after the one year right of redemption had lapsed for the property, the Lewises were served with a complaint from K-Quad seeking the principal balance of the second mortgage. K-Quad and the Lewises subsequently entered into a consent judgment awarding K-Quad $51,682.00 for the principal balance remaining on the mortgage plus interest and attorneys fees.

In support of its motion to dismiss, First Tuskegee argued that the consent judgment entered into by the Lewises is uncontroverted proof of the debt at issue; i.e., that the Lewises previously agreed to a judgment stating that the Lewises owed the sum owed under the mortgage in question.

Standard of Review

When a complaint is dismissed pursuant to Rule 12(b)(6), the following standards apply:

“ ‘ “On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader’s favor, it appears that the pleader could prove any set of circumstances that would entitle [him or her] to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he or she] may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.” ’ ”

Culver v. Lang, 935 So.2d 475, 477 (Ala.Civ.App.2006) (quoting Marks v. Tenbrunsel, 910 So.2d 1255, 1258 (Ala.2005), quoting in turn Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993))(internal citations omitted). “ ‘ “Stated another way, if under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed.’”” Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d 580, 581 (Ala.1994) (quoting Grant v. Butler, 590 So.2d 254, 255 (Ala.1991), quoting in turn Greene County Bd. of Educ. v. Bailey, 586 So.2d 893 (Ala.1991)).

I.

First Tuskegee argues that, because the -Lewises entered into a consent judgment regarding the same subject matter as the complaint filed against First Tuskegee — i.e., the second mortgage on the property in question — the Lewises’ complaint alleging that First Tuskegee is responsible for the debt arising from the second mortgage is a position inconsistent with a position taken in a prior judicial proceeding. Judicial estoppel is the legal doctrine that precludes a party from asserting a position inconsistent with one taken in a prior proceeding. Singley v. Bentley, 782 So.2d 799, 802 (Ala.Civ.App.2000). Judicial estoppel “looks to the relationship between the litigant and the judicial system” and is “applied to uphold the integrity of the judicial system.” Id.

In 2003, our Supreme Court followed the United States Supreme Court’s decision in New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), regarding the applicability of the doctrine of judicial estoppel. See Ex parte First Alabama Bank, 883 So.2d 1236, 1246 (Ala.2003)(overruling Porter v. Jolly, 564 So.2d 434 (Ala.1990), and cases consistent with Porter regarding the requirements to show judicial estoppel). In Ex parte First Alabama Bank, the Alabama Supreme Court held that for judicial estoppel to apply:

“(1) ‘a party’s later position must be “clearly inconsistent” with its earlier position’; (2) the party must have been successful in the prior proceeding so that ‘judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or second court was misled” and (3) the party seeking to assert an inconsistent position must ‘derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.’ ”

Id. at 1244 (citations omitted). For the following reasons, this court finds that the requirements for judicial estoppel have not been met in this case.

First, the Lewises’ current position is not clearly inconsistent with their prior position, even though a consent judgment was entered into by the Lewises in the prior case. First Tuskegee argues that the Lewises admitted in the first case that they owed the debt on the second mortgage and that they now claim they do not, in fact, owe the debt in question. Rather, it is evident from the complaint that the Lewises are alleging that First Tuskegee is responsible to them for damages arising out of the debt they owed to K-Quad, the owner of the second mortgage, as a result of First Tuskegee’s fraud, deceit, negligence, and breach of fiduciary duty. This position is not clearly inconsistent with the position taken by the Lewises in K-Quad’s action against them. There is no logical inconsistency where “A” agrees that it owes a debt to “B” but claims that “C” is responsible to “A” for the debt that “A” owes to “B.” See, e.g., Rule 14, Ala. R. Civ. P., Committee Comments (on 1973 Adoption) (“[T]hird-party practice, or, as it is usually called, ‘Impleader,’ is the procedure by which a defendant in an action may bring in a new party to the action, who is or may be liable to him for all or part of the plaintiffs claim against him.”).

Second, the Lewises were not successful in defending their position against K-Quad, the current owner of the second mortgage, in the earlier action. Instead, they consented to pay K-Quad the amount owed on the second mortgage, plus interest and attorney’s fees.

Furthermore, regardless of whether the Lewises’ were “successful” in the previous proceeding, the difference between the Lewises’ position in the previous proceeding and their position in the current proceeding does not create the perception that either the previous court or the trial court in this case was misled. There is nothing contained in the consent judgment or in the record indicating that the Lewises believed they were ultimately responsible for the debt in question; the consent judgment indicates only that they consented to paying K-Quad the debt owed under the instrument. Therefore it is not a “misleading” position for the Lewises to now claim that they are not ultimately responsible for the debt in question and that First Tuskegee owes them damages. The Lewises allege that if First Tuskegee had properly informed them of the situation regarding the second mortgage, they would have exercised their right of redemption.

Third, this court finds no evidence of an unfair advantage gained by the Lew-ises in light of their current allegations versus their previous consent to pay the second mortgage holder, K-Quad. Neither can this court find an unfair detriment imposed upon First Tuskegee by the allegations in the Lewises’ complaint. First Tuskegee assigned the second mortgage to K-Quad, was paid for the debt owed under the instrument, and was done with the matter. The Lewises allegations against First Tuskegee are either true or untrue. A finder of fact should make those determinations.

II.

Having determined that the requirements for judicial estoppel have not been met in this case, this court also holds that the Lewises have made allegations in their complaint, which, if proven to be true, state a valid claim upon which relief could be granted.

The first allegation in the Lew-ises’ complaint is that First Tuskegee committed fraud against the Lewises. The elements of fraud are “ ‘(1) a false representation (2) of a material existing fact (3) reasonably relied upon by the plaintiff (4) who suffered damage as a proximate consequence of the misrepresentation.’ ” Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875 So.2d 1143, 1160 (Ala.2003)(quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)). The Lewises allege that First Tuskegee falsely represented to them that the second mortgage was paid in full and that an agent of First Tuskegee had represented to them that the foreclosure sale would bring enough proceeds to satisfy both the first and second mortgages. Even if these representations were mistakes, as First Tuskegee contends, a fraud action for misrepresentation can still exist even when the representation was a mistake. See Mid-State Homes, Inc. v. Startley, 366 So.2d 734, 735 (Ala.Civ.App.1979)(holding that even though a misrepresentation was made by mistake and without any intent to deceive, it may constitute legal fraud if it is regarding a material fact and is acted upon with belief in its truth by one to whom it is made; § 6-5-101, Ala.Code 1975).

The Lewises further allege that the status of the second mortgage was a material fact; they claim that they relied on the representations of First Tuskegee that they had no existing obligation on the second mortgage. Finally, the complaint alleges that because of misrepresentation or suppression, the Lewises incurred monetary damages, as well as emotional distress, mental anguish, and a damaged credit rating.

Because the Lewises have alleged all the elements of a valid fraud claim, this court holds that the complaint alleges facts that, if proven to be true, are sufficient to warrant relief. Again, this court does not consider whether the Lewises will ultimately prevail, or whether they will be factually or legally entitled to recover all of the damages sought, but only whether they may “possibly prevail.” See Culver v. Lang, 935 So.2d at 477; Boswell v. Liberty Nat’l Life Ins. Co., 643 So.2d at 581.

The trial court erred in granting First Tuskegee’s motion to dismiss for failure to state a claim upon which relief could be granted. The judgment of the Montgomery County Circuit Court is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

THOMPSON, P.J., and MOORE, J., concur.

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

      . According to Rule 12(b), Ala. R. Civ. P., if matters outside the pleadings are presented to and considered by the trial court, a motion to dismiss on Rule 12(b)(6) grounds is converted into a summary-judgment motion and dealt with in accordance with Rule 56, Ala. R. Civ. P.
      “If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...."
      Rule 12(b), Ala. R. Civ. P. However, as this court held in Banks, Finley, White & Co. v. Wright, 864 So.2d 324 (Ala.Civ.App.2001), “[djocuments attached to a motion to dismiss are considered a part of the pleadings if those documents were specifically referred to in the plaintiff's complaint and are central to the claim being brought.” Id. at 327 (citing Wilson v. First Union Nat’l Bank of Georgia, 716 So.2d 722, 727 (Ala.Civ.App.1998)).
      In this case, the Lewises referred to the consent judgment in paragraph 10 of their complaint and First Tuskegee attached a copy of the consent judgment to its answer, thus making the consent judgment a "part of the pleadings.” The consent judgment is also “central to the claim being brought.” The Lewises alleged that they were injured by First Tuskegee's failure to disclose that the second mortgage was not satisfied from the proceeds of the foreclosure sale and that First Tuskegee had assigned the second mortgage to K-Quad. The consent judgment with K-Quad reflects the damages that the Lewises alleged they suffered as a consequence of First Tuskegee’s misconduct. In addition, First Tuskegee's primary defense was based on the consent judgment. Therefore, the motion to dismiss remains a Rule 12(b)(6) motion and is not properly considered a motion for a summary judgment pursuant to Rule 56.